Pre-Effective Amendment to Registration of Securities — Form S-2
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-2/A Amendment No. 2 to Form S-2 84 524K
2: EX-1.1 Form of Purchase Agreement 31 137K
3: EX-5.1 Opinion of Davis Graham & Stubbs LLP 1 8K
4: EX-21 List of Significant Subsidiaries 1 4K
5: EX-23.1 Consent of Arthur Andersen LLP 1 5K
EXHIBIT 1.1
________ SHARES1
FISHER IMAGING CORPORATION
COMMON STOCK
PURCHASE AGREEMENT
___________, 1996
PIPER JAFFRAY INC.
NEEDHAM & COMPANY, INC.
As Representatives of the several
Underwriters named in Schedule II hereto
c/o Piper Jaffray Inc.
Piper Jaffray Tower
222 South Ninth Street
Minneapolis, Minnesota 55402
Gentlemen:
Fisher Imaging Corporation, a Delaware corporation (the "Company")
proposes to sell ______ shares of its authorized but unissued Common Stock $.01
par value (the "Common Stock") and the stockholders of the Company named in
Schedule I hereto (herein called the "Selling Securityholders") propose to sell
an aggregate of ______ shares of Common Stock to the several Underwriters named
in Schedule II hereto (the "Underwriters") (collectively the "Firm Shares").
The Company and the Selling Securityholders also propose to grant to the
several Underwriters an option to purchase up to ______ additional shares of
Common Stock on the terms and for the purposes set forth in Section 3 hereof
(the "Option Shares"). The Firm Shares and any Option Shares purchased
pursuant to this Purchase Agreement are herein collectively called the
"Securities."
The Company and the Selling Securityholders hereby severally confirm
its agreement with respect to the sale of the Securities to the several
Underwriters, for whom you are acting as Representatives (the
"Representatives").
1. Registration Statement.
(a) A registration statement on Form S-2 (File No.
33-______) with respect to the Securities, including a preliminary form of
prospectus, has been prepared by the Company in conformity with the
requirements of the Securities Act of 1933, as amended (the "Act"), and the
rules and regulations ("Rules and Regulations") of the Securities and Exchange
Commission (the "Commission") thereunder and has been filed with the
Commission; one or more amendments to such registration statement have
__________________________________
1 Plus an option to purchase up to _______ additional
shares to cover over-allotments.
also been so prepared and have been, or will be, so filed. Copies of such
registration statement and amendments and each related preliminary prospectus
have been delivered to you.
(b) The term Registration Statement as used in this
agreement shall mean such registration statement, including all documents
incorporated by reference therein, all exhibits and financial statements, all
information omitted therefrom in reliance upon Rule 430A and contained in the
Prospectus referred to below, in the form in which it became effective, and any
registration statement filed pursuant to Rule 462(b) of the rules and
regulations of the Commission with respect to the Securities (herein called a
Rule 462(b) registration statement), and, in the event of any amendment thereto
after the effective date of such registration statement shall also mean (from
and after the effectiveness of such amendment) such registration statement as
so amended (including any Rule 462(b) registration statement). The term
"Prospectus" as used in this Agreement shall mean the prospectus, including the
documents incorporated by reference therein, relating to the Securities first
filed with the Commission pursuant to Rule 424(b) and Rule 430A (or if no such
filing is required, as included in the Registration Statement) and, in the
event of any supplement or amendment to such prospectus after the effective
date, shall also mean (from and after the filing with the Commission of such
supplement or the effectiveness of such amendment) such prospectus as so
supplemented or amended. The term "Preliminary Prospectus" as used in this
Agreement shall mean each preliminary prospectus, including the documents
incorporated by reference therein, included in such registration statement
prior to the time it becomes effective.
2. Representations and Warranties of the Company and the Selling
Securityholders.
2.1 The Company represents and warrants to, and agrees with, the
several Underwriters as follows:
(a) No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission (nor, to the knowledge
of the Company, have any proceedings been instituted or threatened for that
purpose) and each Preliminary Prospectus, at the time of filing thereof, did
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 were made, not misleading
which was not corrected in the final prospectus filed pursuant to Rule 424(b);
except that the foregoing shall not apply to statements in or omissions from
any Preliminary Prospectus in reliance upon, and in conformity with, written
information furnished to the Company by you, or by any Underwriter through you,
specifically for use in the preparation thereof.
(b) As of the time the Registration Statement (or any
post-effective amendment thereto) is or was declared effective by the
Commission, upon the filing or first delivery to the Underwriters of the
Prospectus (or any supplement to the Prospectus) and at the First Closing Date
and Second Closing Date (as hereinafter defined), (A) the Registration
Statement and Prospectus (in each case, as so amended and/or supplemented) will
conform or conformed in all material respects to the requirements of the Act
and the Rules and Regulations, (B) the Registration Statement (as so amended)
will not or did not include 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 (C) the Prospectus (as so supplemented)
will not or did not include an untrue statement of a material fact or omit to
state
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a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they are or were
made, not misleading; except that the foregoing shall not apply to statements
in or omissions from any such document in reliance upon, and in conformity
with, written information furnished to the Company by you, or by any
Underwriter through you, specifically for use in the preparation thereof. If
the Registration Statement has been declared effective by the Commission, no
stop order suspending the effectiveness of the Registration Statement has been
issued, and no proceeding for that purpose has been initiated or, to the
Company's knowledge, threatened by the Commission.
(c) The financial statements of the Company, together
with the notes thereto, set forth in the Registration Statement and
Prospectuses comply in all material respects with the requirements of the Act
and fairly present the financial condition of the Company as of the dates
indicated and the results of operations and changes in cash flows for the
periods therein specified in conformity with generally accepted accounting
principles consistently applied throughout the periods involved (except as
otherwise stated therein); and the supporting schedules included in the
Registration Statement present fairly the information required to be stated
therein. No other financial statements or schedules are required to be
included in the Registration Statement or Prospectus. Arthur Andersen LLP, who
has expressed its opinion with respect to the financial statements and
schedules filed as a part of the Registration Statement and included in the
Registration Statement and Prospectus, are independent public accountants as
required by the Act and the Rules and Regulations.
(d) Each of the Company, Fisher Imaging Midwest, Inc.
("FIM"), Fisher Imaging Australia Ptg. Limited ("FIA"), Bloom Associates Ltd.
("Bloom") and Fisher Imaging Europe A/S ("FIE") (FIM, FIA, Bloom and FIE are
hereinafter referred to as the "Subsidiaries") been duly organized and is
validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation. Each of the Company and its Subsidiaries has
full corporate power and authority to own its properties and conduct its
business as currently being carried on and as described in the Registration
Statement and Prospectus, and is duly qualified to do business as a foreign
corporation in good standing in each jurisdiction in which it owns or leases
real property or in which the conduct of its business makes such qualification
necessary and in which the failure to so qualify would have a material adverse
effect upon its business, condition (financial and otherwise) or properties,
taken as a whole.
(e) Except as contemplated in the Prospectus, subsequent
to the respective dates as of which information is given in the Registration
Statement and the Prospectus, neither the Company nor any of its Subsidiaries
has incurred any material liabilities or obligations, direct or contingent, or
entered into any material transactions, or declared or paid any dividends or
made any distribution of any kind with respect to its capital stock; and there
has not been any change in the capital stock (other than a change in the number
of outstanding shares of Common Stock due to the issuance of shares upon the
exercise of outstanding options or warrants), or any material change in the
short-term or long-term debt, or any issuance of options, warrants, convertible
securities or other rights to purchase the capital stock, of the Company or any
of its Subsidiaries, or any material adverse change, or any development
involving a prospective material adverse change, in the general affairs,
condition (financial or otherwise), business, key personnel, property, net
worth or results of operations of the Company and its Subsidiaries, taken
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as a whole or, to the Company's knowledge, in the prospects of the Company and
its Subsidiaries, taken as a whole.
(f) Except as set forth in the Prospectus, there is not
pending or, to the knowledge of the Company, threatened or contemplated, any
action, suit or proceeding to which the Company or any of its Subsidiaries is a
party before or by any court or governmental agency, authority or body, or any
arbitrator, which would result in any material adverse change in the condition
(financial or otherwise), business, prospects, net worth or results of
operations of the Company and its Subsidiaries, taken as a whole.
(g) There are no contracts or documents of the Company or
any of its Subsidiaries that are required to be filed as exhibits to the
Registration Statement by the Act or by the Rules and Regulations that have not
been so filed.
(h) This Agreement has been duly authorized, executed and
delivered by the Company, and constitutes a valid, legal and binding obligation
of the Company, enforceable in accordance with its terms, except as rights to
indemnity hereunder may be limited by federal or state securities laws and
except as such enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting the rights of creditors generally and
subject to general principles of equity. The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated herein will not result in a breach or violation of any of the
terms and provisions of, or constitute a default under, any statute, agreement
or instrument to which the Company is a party or by which it is bound or to
which any of its property is subject, the Company's charter or by- laws, or any
order, rule, regulation or decree of any court or governmental agency or body
having jurisdiction over the Company or any of its properties; no consent,
approval, authorization or order of, or filing with, any court or governmental
agency or body is required for the execution, delivery and performance of this
Agreement or for the commission of the actions contemplated hereby, including
the issuance or sale of the Securities by the Company, except such as may be
required under the Act or state securities or blue sky laws; and the Company
has full power and authority to enter into this Agreement and to authorize,
issue and sell the Securities as contemplated by this Agreement.
(i) All of the issued and outstanding shares of capital
stock of the Company, including the outstanding shares of Common Stock, are
duly authorized and validly issued, fully paid and nonassessable, have been
issued in compliance with all federal and state securities laws (other than
such noncompliance as would not have a material adverse effect on the condition
(financial or otherwise) of the Company), were not issued in violation of or
subject to any preemptive rights or other rights to subscribe for or purchase
securities; the Securities which may be sold hereunder by the Company have been
duly authorized and, when issued, delivered and paid for in accordance with the
terms hereof, will have been validly issued and will be fully paid and
nonassessable; and the capital stock of the Company, including the Common
Stock, conforms to the description thereof in the Registration Statement and
Prospectus. Except as otherwise stated in the Registration Statement and
Prospectus, there are no preemptive rights or other rights to subscribe for or
to purchase, or any restriction upon the voting or transfer of, any shares of
Common Stock pursuant to the Company's charter, by-laws or any agreement or
other instrument to which the Company is a party or by which the Company is
bound. Neither the
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filing of the Registration Statement nor the offering or sale of the Securities
as contemplated by this Agreement gives rise to any rights, other than those
which have been validly waived, for or relating to the registration of any
shares of Common Stock or other securities of the Company. All of the issued
and outstanding shares of capital stock of each of the Company's Subsidiaries
have been duly and validly authorized and issued and are fully paid and
nonassessable, and, except as otherwise described in the Registration Statement
and Prospectus and except for any directors' qualifying shares, the Company
owns of record and beneficially, free and clear of any security interests,
claims, liens, proxies, equities or other encumbrances, all of the issued and
outstanding shares of such stock. Except as described in the Registration
Statement and the Prospectus, there are no options, warrants, agreements,
contracts or other rights in existence to purchase or acquire from the Company
or any subsidiary of the Company any shares of the capital stock of the Company
or any subsidiary of the Company. The Company has an authorized and
outstanding capitalization as set forth in the Registration Statement and the
Prospectus.
(j) The Company and each of its Subsidiaries holds, and
is operating in compliance in all material respects with, all franchises,
grants, authorizations; licenses, permits, easements, consents, certificates
and orders of any governmental or self-regulatory body required for the conduct
of its business and all such franchises, grants, authorizations, licenses,
permits, easements, consents, certifications and orders are valid and in full
force and effect, which failure to obtain or noncompliance would have a
material adverse effect on the condition (financial or otherwise) of the
Company and its Subsidiaries taken as a whole; the Company and each of its
Subsidiaries is in compliance in all material respects with all applicable
federal, state, local and foreign laws, regulations, orders and decrees, which
failure to comply would have a material adverse effect on the condition
(financial or otherwise) of the Company and its subsidiaries taken as a whole;
and the Company has all import and export licenses necessary for the conduct of
its business and is not in violation of any such laws.
(k) The Company and its Subsidiaries have good and
marketable title to all property described in the Registration Statement and
Prospectus as being owned by them, in each case free and clear of all liens,
claims, security interests or other encumbrances except such as are described
in the Registration Statement and the Prospectus or except as do not materially
affect the value of such property or are not material in amount and do not
interfere in any material respect with the use of the property or the conduct
of the business of the Company; the property held under lease by the Company
and its Subsidiaries is held by them under valid, subsisting and enforceable
leases with only such exceptions with respect to any particular lease as do not
interfere in any material respect with the conduct of the business of the
Company or its Subsidiaries; the Company and each of its Subsidiaries owns or
possesses all patents, patent applications, trademarks, service marks, trade
names, trademark registrations, service mark registrations, copyrights,
licenses, inventions, trade secrets and rights necessary for the conduct of the
business of the Company and its Subsidiaries as currently carried on and as
described in the Registration Statement and Prospectus; except as stated in the
Registration Statement and Prospectus, no name which the Company or any of its
Subsidiaries uses and no other aspect of the business of the Company or any of
its Subsidiaries will involve or give rise to any infringement of, or license
or similar fees for, any patents, patent applications, trademarks, service
marks, trade names, trademark registrations, service mark registrations,
copyrights, licenses, inventions, trade secrets or other similar rights of
others material to the business or prospects of the Company and neither the
Company nor any of its Subsidiaries has received any notice alleging any such
infringement or fee.
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(l) Neither the Company nor any of its Subsidiaries are
in violation of its respective charter or by-laws or in breach of or otherwise
in default in the performance of any material obligation, agreement or
condition contained in any bond, debenture, note, indenture, loan agreement or
any other material contract, lease or other instrument to which it is subject
or by which any of them may be bound, or to which any of the material property
or assets of the Company or any of its Subsidiaries is subject.
(m) The Company and its Subsidiaries have filed all
federal, state, local and foreign income and franchise tax returns required to
be filed and are not in default in the payment of any taxes which were payable
pursuant to said returns or any assessments with respect thereto, other than
any which the Company or any of its Subsidiaries is contesting in good faith.
(n) The Company has not distributed and will not
distribute any prospectus or other offering material in connection with the
offering and sale of the Securities other than any Preliminary Prospectus or
the Prospectus or other materials permitted by the Act to be distributed by the
Company.
(o) The Common Stock of the Company is registered
pursuant to Section 12(g) of the Securities Exchange Act of 1934 and is quoted
on the Nasdaq National Market; the Company has taken no action designed to, or
likely to have the effect of, terminating the registration of the Common Stock
under the Exchange Act or removing the Common Stock from quotation on the
Nasdaq National Market, nor has the Company received notification that the
Commission or the National Association of Securities Dealers, Inc. is
contemplating terminating such registration or qualification..
(p) Other than the Subsidiaries of the Company, the
Company owns no capital stock or other equity or ownership or proprietary
interest in any corporation, partnership, association, trust or other entity.
(q) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (i) actions are
executed in accordance with management's general or specific authorization;
(ii) transactions are recorded as necessary to preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(r) Other than as contemplated by this Agreement, the
Company has not incurred any liability for any finder's or broker's fee or
agent's commission in connection with the execution and delivery of this
Agreement or the execution of the actions contemplated hereby.
(s) Neither the Company nor any of its affiliates is
presently doing business with the government of Cuba or with any person or
entity located in Cuba.
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2.2 Each Selling Securityholder hereby severally represents and
warrants as follows:
(a) Each Selling Securityholder has, and immediately
prior to the Closing Date and any later date on which Option Shares are to be
purchased), each Selling Securityholder will have good and valid title to the
shares of Securities to be sold by each Selling Securityholder hereunder on
such date, free and clear of all liens, encumbrances, equities or claims; and
upon delivery of such shares and payment therefor pursuant hereto, good and
valid title to such shares, free and clear of all liens, encumbrances, equities
or claims, will pass to the several Underwriters.
(b) Each Selling Securityholder has placed in custody
under a custody agreement (the "Custody Agreement," and, together with all
other similar agreements executed by the other Selling Securityholders, the
"Custody Agreements") with ___________________ (the "Custodian"), for delivery
under this Agreement, certificates in negotiable form (with signature
guaranteed by a commercial bank or trust company having an office or
correspondent in the United States or a member firm of the New York or American
Stock Exchanges) representing the shares of Stock to be sold by each Selling
Securityholder hereunder.
(c) Each Selling Securityholder has duly and irrevocably
executed and delivered a power of attorney (the "Power of Attorney," and,
together with all other similar agreements executed by the other Selling
Securityholders, the "Powers of Attorney") appointing Morgan W. Nields and
James A. Newcomb as attorneys-in-fact, with full power of substitution, and
with full authority (exercisable by any one or more of them) to execute and
deliver this Agreement and to take such other action as may be necessary or
desirable to carry out the provisions hereof on behalf of such Selling
Securityholder.
(d) Each Selling Securityholder has full right, power and
authority to enter into this Agreement, the Power of Attorney and the Custody
Agreement; the execution, delivery and performance of this Agreement, the Power
of Attorney and the Custody Agreement by each Selling Securityholder and the
consummation by each Selling Securityholder of the transactions contemplated
hereby and thereby will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which such Selling Securityholder is a party or by which such
Selling Securityholder is bound or to which any of the property or assets of
such Selling Securityholder is subject, nor will such actions result in any
violation of the provisions of the charter and bylaws, articles of partnership
or deed of trust, as applicable, of such Selling Securityholder or any statute
or any order, rule or regulation of any court or governmental agency or body
having jurisdiction over such Selling Securityholder or the property or assets
of such Selling Securityholder; and, except for the registration of the Stock
under the Securities Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under the Exchange Act and
applicable state securities laws in connection with the purchase and
distribution of the Stock by the Underwriters, no consent, approval,
authorization or order of, or filing or registration with, any such court or
governmental agency or body is required for the execution, delivery and
performance of this Agreement, the Power of Attorney or the Custody Agreement
by such Selling Securityholder and the consummation by such Selling
Securityholder of the transactions contemplated hereby and thereby.
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(e) To the extent that any statements or omissions made
in the Registration Statement, any Preliminary Prospectus, the Prospectus or
any amendment or supplement thereto are made in reliance upon and in conformity
with written information furnished to the Company by such Selling
Securityholder specifically for use therein, such Preliminary Prospectus and
the Registration Statement did, and the Prospectus and any amendments or
supplements to the Registration Statement or the Prospectus will, when they
become effective or are filed with the Commission, as the case may be, not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading.
(f) Each Selling Securityholder has not taken and will
not take, directly or indirectly, any action which is designed to or which has
constituted or which might reasonably be expected to cause or result in the
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the shares of the Stock and each Selling
Securityholder hereby represents and warrants that its motivation for selling
Securities hereunder is not in any way related to materially adverse
information about the Company that is not disclosed in the Prospectus or is
otherwise not publicly available.
3. Purchase, Sale and Delivery of Securities.
(a) On the basis of the representations, warranties and
agreements herein contained, but subject to the terms and conditions herein set
forth, the Company agrees to issue and sell the Firm Shares to the several
Underwriters, and each Underwriter agrees, severally and not jointly, to
purchase from the Company the number of Firm Shares set forth opposite the name
of such Underwriter in Schedule II hereto. The purchase price for each Firm
Share shall be $_____ per share. The obligation of each Underwriter to the
Company shall be to purchase from the Company that number of Firm Shares (to be
adjusted by the Representatives to avoid fractional shares) which represents
the same proportion of the number of Firm Shares to be sold by the Company
pursuant to this Agreement as the number of Firm Shares set forth opposite the
name of such Underwriter in Schedule II hereto represents to the total number
of Firm Shares to be purchased by all Underwriters pursuant to this Agreement.
In making this Agreement, each Underwriter is contracting severally and not
jointly; except as provided in paragraph (c) of this Section 3 and in Section 8
hereof, the agreement of each Underwriter is to purchase only the respective
number of Firm Shares specified in Schedule II.
(b) The Firm Shares will be delivered by the Company to
you for the accounts of the several Underwriters against payment of the
purchase price therefor by certified or official bank check or other next day
funds payable to the order of the Company at the offices of Piper Jaffray Inc.,
Piper Jaffray Tower, 222 South Ninth Street, Minneapolis, Minnesota, or such
other location as may be mutually acceptable, at 9:00 am., Minneapolis time, on
the third (3rd) full business day following the date hereof, or at such other
time as you and the Company determine so long as such date is not later than
seven full business days after such third business day, such time and date of
delivery being herein referred to as the "First Closing Date." The Firm Shares,
in definitive form and in such denominations and registered in such names as
you may request upon at least two business days' prior notice to the Company,
will be made available for checking and packaging at the offices of Piper
Jaffray Inc., Piper
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Jaffray Tower, 222 South Ninth Street, Minneapolis, Minnesota, or such other
location as may be mutually acceptable, at least one business day prior to the
First Closing Date.
(c) On the basis of the representations, warranties and
agreements herein contained, but subject to the terms and conditions herein set
forth, the Company, with respect to the Option Shares, hereby grants to the
several Underwriters an option to purchase all or any portion of the Option
Shares at the same purchase price as the Firm Shares, for use solely in
covering any over-allotments made by the Underwriters in the sale and
distribution of the Firm Shares. The option granted hereunder may be exercised
at any time (but not more than once) within 30 days after the effective date of
this Agreement upon notice (confirmed in writing) by the Representatives to the
Company setting forth the aggregate number of Option Shares as to which the
several Underwriters are exercising the option, the names and denominations in
which the certificates for the Option Shares are to be registered and the date
and time, as determined by you, when the Option Shares are to be delivered,
such date and time being herein referred to as the"Second Closing Date",
provided, however, that the Second Closing Date shall not be earlier than the
First Closing Date, nor earlier than the second business day after the date on
which the option shall have been exercised. The number of Option Shares to be
purchased by each Underwriter shall be the same percentage of the total number
of Option Shares to be purchased by the several Underwriters as the number of
Firm Shares to be purchased by such Underwriter is of the total number of Firm
Shares to be purchased by the several Underwriters, as adjusted by the
Representatives in such manner as the Representatives deem advisable to avoid
fractional shares. No Option Shares shall be sold and delivered unless the
Firm Shares previously have been, or simultaneously are, sold and delivered.
(d) The Option Shares will be delivered by the Company to
you for the accounts of the several Underwriters against payment of the
purchase price therefor by certified or official bank check or other next day
funds payable to the order of the Company at the offices of Piper Jaffray Inc.,
Piper Jaffray Tower, 222 South Ninth Street, Minneapolis, Minnesota, or such
other location as may be mutually acceptable at 9:00 am., Minneapolis time, on
the Second Closing Date. The Option Shares, in definitive form and in such
denominations and registered in such names as you have set forth in your notice
of option exercise, will be made available for checking and packaging at the
office of Piper Jaffray Inc., Piper Jaffray Tower, 222 South Ninth Street,
Minneapolis, Minnesota, or such other location as may be mutually acceptable,
at least one business day prior to the Second Closing Date.
(e) It is understood that you, individually and not as
Representatives of the several Underwriters, may (but shall not be obligated
to) make payment to the Company, on behalf of any Underwriter for the
Securities to be purchased by such Underwriter. Any such payment by you shall
not relieve any such Underwriter of any of its obligations hereunder. Nothing
herein contained shall constitute any of the Underwriters an unincorporated
association or partner with the Company.
4. Covenants.
The Company and each Selling Securityholder covenants and agrees with
the several Underwriters as follows:
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(a) If the Registration Statement has not already been
declared effective by the Commission, the Company will use its best efforts to
cause the Registration Statement and any post-effective amendments thereto to
become effective as promptly as possible; the Company will notify you promptly
of the time when the Registration Statement or any post-effective amendment to
the Registration Statement has become effective or any supplement to the
Prospectus has been filed and of any request by the Commission for any
amendment or supplement to the Registration Statement or Prospectus or
additional information; if the Company has elected to rely on Rule 430A of the
Rules and Regulations, the Company will file a Prospectus containing the
information omitted therefrom pursuant to such Rule 430A with the Commission
within the time period required by, and otherwise in accordance with the
provisions of, Rules 424(b) and 430A of the Rules and Regulations; the Company
will prepare and file with the Commission, promptly upon your request, any
amendments or supplements to the Registration Statement or Prospectus that, in
your reasonable opinion, may be necessary or advisable in connection with the
distribution of the Securities by the Underwriters; and the Company will not
file any amendment or supplement to the Registration Statement or Prospectus to
which you shall reasonably object by notice to the Company after having been
furnished a copy a reasonable time prior to the filing.
(b) The Company will advise you, promptly after it shall
receive notice or obtain knowledge thereof, of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration Statement,
of the suspension of the qualification of the Securities for offering or sale
in any jurisdiction, or of the initiation or threatening of any proceeding for
any such purpose; and the Company will promptly use its best efforts to prevent
the issuance of any stop order or to obtain its withdrawal if such a stop order
should be issued.
(c) Within the time during which a prospectus relating to
the Securities is required to be delivered under the Act, the Company will
comply as far as it is able with all requirements imposed upon it by the Act,
as now and hereafter amended, and by the Rules and Regulations, as from time to
time in force, so as necessary to permit the continuance of sales of or
dealings in the Securities as contemplated by the provisions hereof and the
Prospectus. If during such period any event as a result of which the
Prospectus would include an untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the light of
the circumstances then existing, not misleading, or if during such period it is
necessary to amend the Registration Statement or supplement the Prospectus to
comply with the Act, the Company will promptly notify you and will amend the
Registration Statement or supplement the Prospectus (at the expense of the
Company) so as to correct such statement or omission or effect such compliance.
(d) The Company will use its best efforts to qualify the
Securities for sale under the securities laws of such jurisdictions as you
reasonably designate and to continue such qualifications in effect so long as
required for the distribution of the Securities, except that the Company shall
not be required in connection therewith to qualify as a foreign corporation or
to execute a general consent to service of process in any state.
(e) The Company will furnish to the Underwriters copies
of the Registration Statement (three of which will be signed and will include
all exhibits filed therewith), each Preliminary Prospectus,
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the Prospectus, and all amendments and supplements to such documents, in each
case as soon as available and in such quantities as you may from time to time
reasonably request.
(f) During a period of five years commencing with the
date hereof, the Company will furnish to the Representatives, and to each
Underwriter who may so request in writing, copies of all periodic and special
reports furnished to the stockholders of the Company and all information,
documents and reports filed with the Commission, the National Association of
Securities Dealers, Inc., the Nasdaq National Market or any other securities
exchange.
(g) The Company will make generally available to its
security holders as soon as practicable, but in any event not later than 15
months after the end of the Company's current fiscal quarter, an earnings
statement (which need not be audited) covering a 12-month period beginning
after the effective date of the Registration Statement that shall satisfy the
provisions of Section 11(a) of the Act and Rule 158 of the Rules and
Regulations.
(h) The Company, whether or not the transactions
contemplated hereunder are consummated or this Agreement is prevented from
becoming effective under the provisions of Section 9(a) hereof or is
terminated, will pay or cause to be paid (A) all expenses (including transfer
taxes allocated to the respective transferees) incurred in connection with the
delivery to the Underwriters of the Securities, (B) all expenses and fees
(including, without limitation, fees and expenses of the Company's accountants
and counsel but, except as otherwise provided below, not including fees of the
Underwriters' counsel) in connection with the preparation, printing, filing,
delivery, and shipping of the Registration Statement (including the financial
statements therein and all amendments, schedules, and exhibits thereto), the
Securities, each Preliminary Prospectus, the Prospectus, and any amendment
thereof or supplement thereto, and the printing, delivery, and shipping of this
Agreement and other underwriting documents, including Blue Sky Memoranda, (C)
all filing fees and fees and disbursements of the Underwriters' counsel
incurred in connection with the qualification of the Securities for offering
and sale by the Underwriters or by dealers under the securities or blue sky
laws of the states and other jurisdictions which you shall designate in
accordance with Section 4(d) hereof, (D) the fees and expenses of any transfer
agent or registrar, (E) the filing fees incident to any required review by the
National Association of Securities Dealers, Inc. of the terms of the sale of
the Securities, (F) listing fees, if any, and (G) all other costs and expenses
incident to the performance of its obligations hereunder that are not otherwise
specifically provided for herein. If the sale of the Securities provided for
herein is not consummated by reason of action by the Company pursuant to
Section 9(a) hereof which prevents this Agreement from becoming effective, or
by reason of any failure, refusal or inability on the part of the Company to
perform any agreement on its part to be performed, or because any other
condition of the Underwriter's obligations hereunder required to be fulfilled
by the Company is not fulfilled, the Company will reimburse the several
Underwriters for all out-of-pocket disbursements (including fees and
disbursements of counsel) incurred by the Underwriters in connection with their
investigation, preparing to market and marketing the Securities or in
contemplation of performing their obligations hereunder. The Company shall not
in any event be liable to any of the Underwriters for loss of anticipated
profits from the transactions covered by this Agreement.
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(i) The Company will apply the net proceeds from the sale
of the Securities to be sold by it hereunder for the purposes set forth in the
Prospectus and will file such reports with the Commission with respect to the
sale of the Securities and the application of the proceeds therefrom as may be
required in accordance with Rule 463 of the Rules and Regulations.
(j) For a period of ___ days after the commencement of
the public offering of the Securities by the Underwriters, the Company will
not, without your prior written consent, offer for sale, sell, contract to
sell, grant any option for the sale of or otherwise issue or dispose of any
Common Stock or any securities convertible into or exchangeable for, or any
options or rights to purchase or acquire, Common Stock, except to the
Underwriters pursuant to this Agreement and except for options or rights to
acquire Common Stock issued pursuant to the stock option or stock purchase
plans described in the Prospectus or Common Stock issued pursuant to the
exercise of such options or rights..
(k) The Company either has caused to be delivered to you
or will cause to be delivered to you prior to the effective date of the
Registration Statement a letter from each Selling Securityholder, the Company's
directors and officers stating that such person and entity agrees that it, he
and she will not, without your prior written consent, offer for sale, sell,
contract to sell or otherwise dispose of any shares of Common Stock or rights
to purchase Common Stock for a period ___ days after commencement of the public
offering of the Securities by the Underwriters.
(l) The Company has not taken and will not take, directly
or indirectly, any action designed to or which might reasonably be expected to
cause or result in, or which has constituted, the stabilization or manipulation
of the price of any security of the Company to facilitate the sale or resale
of the Securities.
(m) The Company will not incur any liability for any
finder's or broker's fee or agent's commission in connection with the execution
and delivery of this Agreement or the consummation of the transactions
contemplated hereby.
(n) The Company will inform the Florida Department of
Banking and Finance at any time prior to the consummation of the distribution
of the Securities by the Underwriters if it commences engaging in business with
the government of Cuba or with any person or affiliate located in Cuba. Such
information will be provided within 90 days after the commencement thereof or
after a change occurs with respect to previously reported information.
5. Conditions of Underwriters' Obligations.
(a) The obligations of the several Underwriters hereunder
are subject to the accuracy, as of the date hereof and at each of the First
Closing Date and the Second Closing Date (as if made at such Closing Date), of
and compliance with all representations, warranties and agreements of the
Company contained herein, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
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(i) The Registration Statement shall have become
effective not later than 5:00 pm., Minneapolis time, on the date of
this Agreement, or such later time and date as you, as Representatives
of the several Underwriters, shall approve and all filings required by
Rule 424 and Rule 430A of the Rules and Regulations shall have been
timely made; no stop order suspending the effectiveness of the
Registration Statement or any amendment thereof shall have been
issued; no proceedings for the issuance of such an order shall have
been initiated or threatened; and any request of the Commission for
additional information (to be included in the Registration Statement
or the Prospectus or otherwise) shall have been complied with to your
satisfaction.
(ii) No Underwriter shall have advised the Company
that the Registration Statement or the Prospectus, or any amendment
thereof or supplement thereto, contain an untrue statement of fact
which, in your opinion, is material, or omits to state a fact which,
in your opinion, is material and is required to be stated therein or
necessary to make the statements therein not misleading.
(iii) Except as contemplated in the Prospectus,
subsequent to the respective dates as of which information is given in
the Registration Statement and the Prospectus, neither the Company nor
any of its Subsidiaries shall have incurred any material liabilities
or obligations, direct or contingent, or entered into any material
transactions, or declared or paid any dividends or made any
distribution of any kind with respect to its capital stock; and there
shall not have been any change in the capital stock (other than a
change in the number of outstanding shares of Common Stock due to the
issuance of shares upon the exercise of outstanding options or
warrants), or any material change in the short-term or long-term debt
of the Company, or any issuance of options, warrants, convertible
securities or other rights to purchase the capital stock of the
Company or any of its Subsidiaries, or any material adverse change or
any development involving a prospective material adverse change
(whether or not arising in the ordinary course of business), in the
general affairs, condition (financial or otherwise), business, key
personnel, property, prospects, net worth or results of operations of
the Company and its Subsidiaries, taken as a whole, that, in your
judgment, makes it impractical or inadvisable to offer or deliver the
Securities on the terms and in the manner contemplated in the
Prospectus.
(b) On each Closing Date, there shall have been furnished
to you, as Representatives of the several Underwriters, the opinion of Davis,
Graham & Stubbs LLP, counsel for the Company, dated such Closing Date and
addressed to you, to the effect that:
(i) Each of the Company and each of its
Subsidiaries has been duly organized and is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation. Each of the Company and each of its Subsidiaries has
full corporate power and authority to own its properties and conduct
its business as currently being carried on and as described in the
Registration Statement and Prospectus, and is duly qualified to do
business as a foreign corporation and is in good standing in each
jurisdiction in which it owns or leases real property or in which the
conduct of its business makes such qualification necessary and in
which the failure to so qualify would have a material adverse effect
upon the business, condition (financial or otherwise) or properties of
the Company and its subsidiaries, taken as a whole.
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(ii) The capital stock of the Company conforms as
to legal matters to the description thereof contained in the
Prospectus under the caption "Description of Capital Stock." All of
the issued and outstanding shares of the capital stock of the Company
have been duly authorized and validly issued and are fully paid and
nonassessable. The Securities to be issued and sold by the Company
hereunder have been duly authorized and, when issued, delivered and
paid for in accordance with the terms of this Agreement, will have
been validly issued and will be fully paid and nonassessable, and the
holders thereof. Except as otherwise stated in the Registration
Statement and Prospectus, there are no preemptive rights or other
rights to subscribe for or to purchase, or any restriction upon the
voting or transfer of, any shares of Common Stock pursuant to the
Company's charter, by-laws or any agreement or other instrument known
to such counsel to which the Company is a party or by which the
Company is bound. To the best of such counsel's knowledge, neither
the filing of the Registration Statement nor the offering or sale of
the Securities as contemplated by this Agreement gives rise to any
rights for or relating to the registration of any shares of Common
Stock or other securities of the Company, other than those rights
which have heretofore been validly waived.
(iii) All of the issued and outstanding shares of
capital stock of each of the Subsidiaries has been duly and validly
authorized and issued and are fully paid and nonassessable, and, to
the best of such counsel's knowledge, except as otherwise described in
the Registration Statement and Prospectus and except for directors'
shares, the Company owns of record and beneficially, free and clear of
any security interests, claims, liens, proxies, equities or other
encumbrances, all of the issued and outstanding shares of such stock.
To the best of such counsel's knowledge, except as described in the
Registration Statement and Prospectus, there are no options, warrants,
agreements, contracts or other rights in existence to purchase or
acquire from the Company or any of its Subsidiaries any shares of the
capital stock of the Company or any Subsidiary.
(iv) The Registration Statement has become
effective under the Act and, to the best of such counsel's knowledge,
no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose has been
instituted or, to the knowledge of such counsel, threatened by the
Commission.
(v) Other than descriptions of statutes, legal
and governmental proceedings in the Registration Statement in reliance
upon the opinion of the experts identified in (d), (e) and (f) hereof,
the descriptions in the Registration Statement and Prospectus of
statutes, legal and governmental proceedings, contracts and other
documents are accurate and fairly present the information required to
be shown; and such counsel does not know of any statutes or legal or
governmental proceedings required to be described in the Prospectus
that are not described as required, or of any contracts or documents
of a character required to be described in the Registration Statement
or Prospectus or included as exhibits to the Registration Statement
that are not described or included as required.
(vi) The Company has full corporate power and
authority to enter into this Agreement, and this Agreement has been
duly authorized, executed and delivered by the
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Company and constitutes a valid, legal and binding obligation of the
Company enforceable in accordance with its terms (except as rights to
indemnity hereunder may be limited by federal or state securities laws
and except as such enforceability may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting the rights of
creditors generally and subject to general principles of equity); the
execution, delivery and performance of this Agreement and the
consummation of the transactions herein contemplated will not result
in a breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, rule or regulation, any
agreement or instrument to which the Company is a party or by which it
is bound or to which any of its property is subject that has been
filed with the Commission pursuant to Item 601 of Regulation S-K under
the Securities Act (the "Reviewed Agreements"), the Company's charter
or by-laws, or any order or decree known to such counsel of any court
or governmental agency or body having jurisdiction over the Company or
any of its respective properties; and no consent, approval,
authorization or order of, or filing with, any court or governmental
agency or body is required for the execution, delivery and performance
of this Agreement or for the consummation of the transactions
contemplated hereby, including the issuance or sale of the Securities
by the Company, except such as may be required under the Act or state
securities laws.
(vii) To the best of such counsel's knowledge,
neither the Company nor any of its subsidiaries is in violation of its
respective charter or by-laws. To the best of such counsel's
knowledge, neither the Company nor any of its subsidiaries is in
breach of or otherwise in default in the performance of any material
obligation, agreement or condition contained in any Reviewed Agreement
to which it is subject or by which any of them may be bound, or to
which any of the material property or assets of the Company or any of
its subsidiaries is subject.
(viii) Each Selling Securityholder has full right,
power and authority to enter into this Agreement, the Power of
Attorney and the Custody Agreement the execution, delivery and
performance of this Agreement, the Power of Attorney and the Custody
Agreement by each Selling Securityholder and the consummation by each
Selling Securityholder of the transactions contemplated hereby and
thereby will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument known to such counsel to which any Selling
Securityholder is a party or by which any Selling Securityholder is
bound or to which any of the property or assets of any Selling
Securityholder is subject, nor will such actions result in any
violation of the provisions of the charter or by-laws, the articles of
partnership or the deed of trust of any such Selling Securityholder or
any statute or any order, rule or regulation known to such counsel of
any court or governmental agency or body having jurisdiction over any
Selling Securityholder or the property or assets of any Selling
Securityholder; and, except for the registration of the Securities
under the Securities Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under the Exchange
Act and applicable state securities laws in connection with the
purchase and distribution of the Securities by the Underwriters, no
consent, approval, authorization or order of' or filing or
registration with, any such court or governmental agency or body is
required for the execution, delivery and performance of this
Agreement, the Power of Attorney or the Custody Agreement by any
Selling
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Securityholder and the consummation by any Selling Securityholder of
the transactions contemplated hereby and thereby:
(ix) Such counsel shall also state that the
Registration Statement and the Prospectus, and any amendment thereof
or supplement thereto, comply as to form in all material respects with
the requirements of the Act and the Rules and Regulations; and on the
basis of conferences with officers of the Company, examination of
documents referred to in the Registration Statement and Prospectus and
such other procedures as such counsel deemed appropriate, nothing has
come to the attention of such counsel that causes such counsel to
believe that the Registration Statement or any amendment thereof, at
the time the Registration Statement became effective and as of such
Closing Date, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Prospectus (as of its date and as of such Closing Date), as amended or
supplemented, includes any untrue statement of material or omits to
state a material fact 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 as to
the financial statements or other financial data included in any of
the documents mentioned in this clause.
(c) In rendering such opinion such counsel may state that
it is not licensed to practice law in Minnesota and expresses no opinion as to
the enforceability of the choice of law provision or the enforceability of any
of the terms of the Agreement under Minnesota law; that Minnesota law may
differ in important respects from California law and that such counsel has
assumed for the purpose of the opinion that Minnesota law is identical to
Delaware and Colorado law. In addition, such counsel may rely as to matters of
fact, to the extent such counsel deems reasonable upon certificates of officers
of the Company and its Subsidiaries provided that the extent of such reliance
is specified in such opinion. Such counsel need express no opinion with
respect to any matter covered in 5(d), (e) and (f) below.
(d) On each Closing Date, there shall have been furnished
to you, as Representatives of the several Underwriters, the opinion of
_____________________, patent counsel for the Company, dated such Closing Date
and addressed to you, to the effect that:
(i) The Company is listed in the records of the
Patent and Trademark Office as the holder of record of each of the
patents listed on Schedule III hereof (the "Patents") and each of the
patent applications listed on Schedule III hereof (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. To such counsel's knowledge, none of the Applications
has been rejected.
(ii) To such counsel's knowledge, the Company is
listed in the records of the appropriate foreign office as the sole
holder of record of each of the foreign applications listed on
Schedule IV. Such counsel knows of no claims of third parties to any
of such foreign applications. To such counsel's knowledge, none of
the foreign applications has been rejected.
-16-
(iii) The statements under the Prospectus captions
"Risk Factors-- Patents and Proprietary Rights" and "Business--Patents
and Proprietary Rights" (collectively, the "Intellectual Property
Portion") in the Registration Statement and the Prospectus and any
amendment or supplement thereto, insofar as such statements constitute
a summary of the Company's Patents and Applications are in all
material respects accurate summaries and fairly summarize in all
material respects the legal matters, documents and proceedings
relating to such Patents and Applications described therein; to the
best knowledge of such counsel, the Company owns _____ issued U.S.
patents and ____ pending U.S. applications.
(iv) Such counsel is not aware of any facts that
would lead such counsel to conclude that any of the Patents are
invalid or that any patent issued in respect of an Application would
be invalid.
(v) Except as disclosed in the Intellectual
Property Portion, such counsel is not aware that any valid patent is
infringed by the activities of the Company described in the Prospectus
or by the manufacture, use or sale of any product, device, instrument,
drug or other material made and used according to the Applications or
the Patents.
(vi) Such counsel is not aware of any material
defects of form in the preparation or filing of the Applications on
behalf of the Company. The Applications are being diligently pursued
by the Company.
(vii) Such counsel knows of no pending or
threatened action, suit, proceeding or claim by others that the
Company is infringing or otherwise violating any patents or trade
secrets.
(viii) Such counsel is not aware of any pending or
threatened actions, suits, proceedings or claim by others challenging
the validity or scope of the Applications or the Patents.
(ix) Such counsel is not aware of any infringement
on the part of any third party of the Patents, Applications, trade
secrets, know-how or other proprietary rights of the Company.
(x) Although such counsel does not and cannot
guarantee the accuracy of completeness of the statements contained in
the Intellectual Property Portion of the Registration Statement or
such portion of the Prospectus, as amended or supplemented, nothing
has come to the attention of such counsel which causes such counsel to
believe that the information contained in the Intellectual Property
Portion of the Registration Statement or any amendment thereof
contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or
that the information contained in the Intellectual Property Portion of
the Prospectus or any supplement thereto contained or contains any
untrue statement of a material fact or omitted or
-17-
omits to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(e) On each Closing Date, you shall have received, as
Representatives of the several Underwriters, the opinion (addressed to the
Underwriters) of ____________________, special regulatory counsel to the
Company, dated such Closing Date and in form and substance satisfactory to
counsel for the Underwriters, with conformed copies thereof for each of the
Underwriters to the effect that:
(i) The statements under the captions "Risk
Factors--Government Regulations; No Assurance of Regulatory Approval,"
Risk Factors--Healthcare Reform; Uncertainty of Patient
Reimbursement," "Business--Reimbursement" and "Business--Government
Regulations" (collectively, the "Regulatory Portion") in the
Registration Statement and the Prospectus and any amendment or
supplement thereto, to the extent that they reflect matters of law,
summaries of law or regulations, or regulatory status, are correct in
all material respects, subject to the qualifications set forth
therein.
(ii) Nothing has come to the attention of such
counsel that would lead such counsel to believe that the Regulatory
Portion of the Registration Statement, at the time it became
effective, contained any untrue statement of a material fact or
omitted to state any 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 or that, on
the closing date of the public offering, the information contained in
the Regulatory Portion of the Prospectus or any amendment or
supplement to the Regulatory Portion of the Prospectus contained any
untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading.
(f) In rendering such opinion such counsel may rely as to
matters of law other than Colorado and Delaware law and federal law, upon the
opinion or opinions of local counsel provided that the extent of such reliance
is specified in such opinion and that such counsel shall state that such
opinion or opinions of local counsel are satisfactory to them and that they
believe they and you are justified in relying thereon.
(g) On each Closing Date, there shall have been furnished
to you, as Representatives of the several Underwriters, such opinion or
opinions from Wilson Sonsini Goodrich & Rosati, counsel for the several
Underwriters, dated such Closing Date and addressed to you, with respect to the
formation of the Company, the validity of the Securities, the Registration
Statement, the Prospectus and other related matters as you reasonably may
request, and such counsel shall have received such papers and information as
they request to enable them to pass upon such matters.
(h) On each Closing Date you, as Representatives of the
several Underwriters, shall have received a letter of Arthur Andersen LLP,
dated such Closing Date and addressed to you, confirming (i) that they are
independent public accountants within the meaning of the Act and are in
compliance with the applicable requirements relating to the qualifications of
accountants under Rule 2-01 of Regulation S-X of the Commission, and stating,
as of the date of such letter (or, with respect to
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matters involving changes or developments since the respective dates as of
which specified financial information is given in the Prospectus, as of a date
not more than five days prior to the date of such letter), the conclusions and
findings of said firm with respect to the financial information and other
matters covered by its letter delivered to you concurrently with the execution
of this Agreement, and the effect of the letter to be delivered on such Closing
Date shall be to confirm the conclusions and findings set forth in such prior
letter.
(i) On each Closing Date, there shall have been furnished
to you, as Representatives of the Underwriters, a certificate, dated such
Closing Date and addressed to you, signed by the chief executive officer and by
the chief financial officer of the Company, to the effect that:
(i) The representations and warranties of the
Company made in this Agreement are true and correct, in all material
respects, as if made at and as of such Closing Date, and the Company
has complied with all the agreements and satisfied all the conditions
on its part to be performed or satisfied at or prior to such Closing
Date;
(ii) No stop order or other order suspending the
effectiveness of the Registration Statement or any amendment thereof
or the or the qualification of the Securities for offering or sale has
been issued, and no proceeding for that purpose has been instituted
or, to the best of their knowledge, is contemplated by the Commission
or any state or regulatory body; and
(iii) The signers of said certificate have
carefully examined the Registration Statement and the Prospectus, and
any amendments thereof or supplements thereto, and (A) the
Registration Statement, or any amendment thereof, does not contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, and the Prospectus, as amended or
supplemented, does not include any untrue statement of material fact
or omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, (B) since the effective date of the Registration Statement
there has occurred no event required to be set forth in an amended or
supplemented prospectus which has not been so set forth, (C)
subsequent to the respective dates as of which information is given in
the Registration Statement and the Prospectus, neither the Company nor
any of its Subsidiaries has incurred any material liabilities or
obligations, direct or contingent, or entered into any material
transactions, not in the ordinary course of business, or declared or
paid any dividends or made any distribution of any kind with respect
to its capital stock, and except as disclosed in the Prospectus, there
has not been any change in the capital stock (other than a change in
the number of outstanding shares of Common Stock due to the issuance
of shares upon the exercise of outstanding options or warrants), or
any material change in the short-term or long-term debt, or any
issuance of options, warrants, convertible securities or other rights
to purchase the capital stock, of the Company, or any of its
Subsidiaries, or any material adverse change or any development
involving a prospective adverse change (whether or not arising in the
ordinary course of business), in the general condition (financial or
otherwise), business, key personnel, property, prospects, net worth or
results of operations of the Company and its Subsidiaries, taken as a
whole, and (D) except as stated in the Registration Statement and the
Prospectus, there is not pending, or, to the
-19-
knowledge of the Company, threatened or contemplated, any action, suit
or proceeding to which the Company or any of its Subsidiaries is a
party before or any court or governmental agency, authority or body,
or any arbitrator, which might result in any material adverse change
in the condition (financial or otherwise), business, prospects or
results of operations of the Company and its Subsidiaries, taken as a
whole.
(j) The Company shall have furnished to you and counsel
for the Underwriters such additional documents, certificates and evidence as
you or they may have reasonably requested.
(k) All such opinions, certificates, letters and other
documents will be in compliance with the provisions hereof only if they are
satisfactory in form and substance to you and counsel for the Underwriters.
The Company will furnish you with such conformed copies of such opinions,
certificates, letters and other documents as you shall reasonably request.
6. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless
each Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise (including in settlement of any litigation, if such settlement is
effected with the written consent of the Company, which consent shall not be
unreasonably withheld), insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, including the information deemed to be a part of the
Registration Statement at the time of effectiveness pursuant to Rule 430A, if
applicable, any Preliminary Prospectus, the Prospectus, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse
each Underwriter for any legal or other expenses reasonably incurred by it in
connection with investigating or defending against such loss, claim, damage,
liability or action; provided, however, that the Company shall not be liable in
any such case to the extent that any such loss, claim, damage, liability or
action arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in the Registration Statement,
any Preliminary Prospectus, the Prospectus, or any such amendment or
supplement, in reliance upon and in conformity with written information
furnished to the Company by you, or by any Underwriter through you,
specifically for use in the preparation thereof.
In addition to its obligations under this Section 6(a), the
Company agrees that, as an interim measure during the pendency of any claim,
action, investigation, inquiry or other proceeding arising out of or based upon
any statement or omission, or any alleged statement or omission, described in
this Section 6(a), the Company will reimburse each Underwriter on a monthly
basis for all reasonable legal fees or other expenses incurred in connection
with investigating or defending any such claim, action, investigation, inquiry
or other proceeding, notwithstanding the absence of a judicial determination as
to the propriety and enforceability of the Company's obligation to reimburse
the Underwriters for such expenses and the possibility that such payments might
later be held to have been improper by a court of competent jurisdiction. To
the extent that any such interim reimbursement payment is so held to have
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been improper, the Underwriter that received such payment shall promptly return
it to the party or parties that made such payment, together with interest,
compounded daily, determined on the basis of the prime rate (or other
commercial lending rate for borrowers of the highest credit standing) announced
from time to time by Bank of America (the "Prime Rate"). Any such interim
reimbursement payments which are not made to an Underwriter within 30 days of a
request for reimbursement shall bear interest at the Prime Rate from the date
of such request. This indemnity agreement shall be in addition to any
liabilities which the Company may otherwise have.
(b) The Selling Securityholders agree to indemnify and
hold harmless each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise (including in settlement of any litigation, if such
settlement is effected with the written consent of the Company, which consent
shall not be unreasonably withheld), insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement, including the information deemed to be a part of
the Registration Statement at the time of effectiveness pursuant to Rule 430A,
if applicable, any Preliminary Prospectus, the Prospectus, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse
each Underwriter for any legal or other expenses reasonably incurred by it in
connection with investigating or defending against such loss, claim, damage,
liability or action; provided, however, that the Selling Securityholders shall
not be liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in the
Registration Statement, any Preliminary Prospectus, the Prospectus, or any such
amendment or supplement, in reliance upon and in conformity with written
information furnished to the Company by you, or by any Underwriter through you,
specifically for use in the preparation thereof.
(c) Each Underwriter will indemnify and hold harmless the
Company against any losses, claims, damages or liabilities to which the Company
may become subject, under the Act or otherwise (including in settlement of any
litigation, if such settlement is effected with the written consent of such
Underwriter which consent shall not be unreasonably withheld), insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, any Preliminary
Prospectus, the Prospectus, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or alleged
omission was made in the Registration Statement, any Preliminary Prospectus,
the Prospectus, or any such amendment or supplement, in reliance upon and in
conformity with written information furnished to the Company by you, or by such
Underwriter through you, specifically for use in the preparation thereof, and
will reimburse the Company for any legal or other expenses reasonably incurred
by the Company in connection with investigating or defending against any such
loss, claim, damage, liability or action.
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In addition to its obligations under this Section 6(b), each
Underwriter agrees, severally and not jointly, that, as an interim measure
during the pendency of any claim, action, investigation, inquiry or other
proceeding described in this Section 6(b), it will reimburse the Company on a
monthly basis for all reasonable legal fees or other expenses incurred in
connection with investigating or defending any such claim, action,
investigation, inquiry or other proceeding, notwithstanding the absence of a
judicial determination as to the propriety and enforceability of the
Underwriter's obligation to reimburse the Company for such expenses and the
possibility that such payments might later be held to have been improper by a
court of competent jurisdiction. To the extent that any such interim
reimbursement payment is so held to have been improper, the Company shall
promptly return it to the party or parties that made such payment, together
with interest, compounded daily, determined on the basis of the prime rate (or
other commercial lending rate for borrowers of the highest credit standing)
announced from time to time by Bank of America (the "Prime Rate"). Any such
interim reimbursement payments which are not made to the Company within 30 days
of a request for reimbursement shall bear interest at the Prime Rate from the
date of such request. This indemnity agreement shall be in addition to any
liabilities which the Underwriters may otherwise have.
(d) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party under such subsection, notify the indemnified party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve the indemnifying party from any liability
that it may have to any indemnified party. In case any such action shall be
brought against any indemnified party, and it shall notify the indemnifying
party of the commencement thereof, the indemnifying party shall be entitled to
participate in, and, to the extent that it shall wish, jointly with any other
indemnified party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party, and matter notice from the
indemnifying party to such indemnified party of the indemnifying party's
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indeed party under such subsection for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation; provided,
however, that if, in the sole judgment of the Representatives, it is advisable
for the Underwriters to be represented as a group by separate counsel, the
Representatives shall have the right to employ a single counsel to represent
the Representatives and all Underwriters who may be subject to liability
arising from any claim in respect of which indemnity may be sought by the
Underwriters under subsection (a) of this Section 6, in which event the
reasonable fees and expenses of such separate counsel shall be borne by the
indemnifying party or parties and reimbursed to the Underwriters as incurred
(in accordance with the provisions of the second paragraph in subsection (a)
above). An indemnifying party shall not be obligated under any settlement
agreement relating to any action under this Section 6 to which it has not
agreed in writing.
(e) If the indemnification provided for in this Section 6
is unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above, (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Company and the Selling Securityholders on the one hand and the
Underwriters on the other from the offering of the Securities or (ii) if the
allocation provided by
-22-
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
Securityholders on the one hand and the Underwriters on the other in connection
with the statements or omissions that resulted in such losses, claims, damages
or liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company and the Selling Securityholders on
the one hand and the Underwriters on the other shall be deemed to be in the
same proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company and the Selling Securityholders bear to the
total underwriting discounts and commissions received by the Underwriters, in
each case as set forth in the table on the cover page of the Prospectus. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Company and the Selling Securityholders or the Underwriters and the
parties' relevant intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if contributions
pursuant to this subsection (d) were to be determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purpose) or by
any other method of allocation which does not take account of the equitable
considerations referred to in the first sentence of this subsection (d). The
amount paid by an indemnified party as a result of the losses, claims, damages
or liabilities referred to in the first sentence of this subsection (d) shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending against any
action or claim which is the subject of this subsection (d). Notwithstanding
the provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Securities underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages that such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. Notwithstanding the provisions of
this subsection (d), no Selling Securityholder shall be required to contribute
an amount exceeding the product of the purchase price per share as determined
in accordance this Agreement and the number of shares of Stock sold by such
Selling Stockholder. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations and not joint.
(f) The obligations of the Company under this Section 6
shall be in addition to any liability which the Company may otherwise have and
shall extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations of
the Underwriters under this Section 6 shall be in addition to any liability
that the respective Underwriters may otherwise have and shall extend, upon the
same terms and conditions, to each director of the Company (including any
person who, with his consent, is named in the Registration Statement is about
to become a director of the Company), to each officer of the Company who has
signed the Registration Statement and to each person, if any, who controls the
Company within the meaning of the Act.
-23-
7. Representations and Agreements to Survive Delivery. All
representations, warranties, and agreements of the Company herein or in
certificates delivered pursuant hereto, and the agreements of the several
Underwriters and the Company contained in Section 6 hereof, shall remain
operative and in full force and effect regardless of any investigation made by
or on behalf of any Underwriter or any controlling person thereof, or the
Company or any of its officers, directors, or controlling persons and shall
survive delivery of, and payment for, the Securities to and by the Underwriters
hereunder.
8. Substitution of Underwriters.
(a) If any Underwriter or Underwriters shall fail to take
up and pay for the amount of Firm Shares agreed by such Underwriter or
Underwriters to be purchased hereunder, upon tender of such Firm Shares in
accordance with the terms hereof, and the amount of Firm Shares not purchased
does not aggregate more than 10% of the total amount of Firm Shares set forth
in Schedule I hereto, the remaining Underwriters shall be obligated to take up
and pay for (in proportion to their respective underwriting obligations
hereunder as set forth in Schedule I hereto except as may otherwise be
determined by you) the Firm Shares that the withdrawing or defaulting
Underwriters agreed but failed to purchase.
(b) If any Underwriter or Underwriters shall fail to take
up and pay for the amount of Firm Shares agreed by such Underwriter or
Underwriters to be purchased hereunder, upon tender of such Firm Shares in
accordance with the terms hereof, and the amount of Firm Shares not purchased
aggregates more than 10% of the total amount of Firm Shares set forth in
Schedule I hereto, and arrangements satisfactory to you for the purchase of
such Firm Shares by other persons are not made within 36 hours thereafter, this
Agreement shall terminate. In the event of any such termination, the Company
shall not be under any liability to any Underwriter (except to the extent
provided in Section 4(h) and Section 6 hereof nor shall any Underwriter (other
than an Underwriter who shall have failed, otherwise than for some reason
permitted under this Agreement, to purchase the amount of Firm Shares agreed by
such Underwriter to be purchased hereunder) be under any liability to the
Company (except to the extent provided in Section 6 hereof).
(c) If Firm Shares to which a default relates are to be
purchased by the non-defaulting Underwriters or by any other party or parties,
the Representatives or the Company shall have the right to postpone the First
Closing Date for not more than seven business days in order that the necessary
changes in the Registration Statement, Prospectus and any other documents, as
well as any other arrangements, may be effected. As used herein, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section 8.
9. Effective Date of this Agreement and Termination.
(a) This Agreement shall become effective at 10:00 am.,
Minneapolis time, on the first full business day following the effective date
of the Registration Statement, or at such earlier time after the effective time
of the Registration Statement as you in your discretion shall first release the
Securities for sale to the public; provided, that if the Registration Statement
is effective at the time this Agreement is executed, this Agreement shall be
effective at such time as you in your discretion shall first release the
-24-
Securities for sale to the public. For the purpose of this Section, the
Securities shall be deemed to have been released for sale to the public upon
release by you of the publication of a newspaper advertisement relating thereto
or upon release by you of telexes offering the Securities for sale to
securities dealers, whichever shall first occur. By giving notice as herein
specified before the time this Agreement becomes effective, you, as
Representatives of the several Underwriters, or the Company may prevent this
Agreement from becoming effective without liability of any party to any other
party, except that the provisions of Section 4(h) and Section 6 hereof shall at
all times be effective.
(b) You, as Representatives of the several Underwriters,
shall have the right to terminate this Agreement by giving notice as herein
specified at any time at or prior to the First Closing Date, and the option
referred to in Section 3(c), if exercised, may be canceled at any time prior to
the Second Closing Date, if (i) the Company shall have failed, refused or been
unable, at or prior to such Closing Date, to perform any agreement on its part
to be performed hereunder, (ii) any other condition of the Underwriters'
obligations hereunder is fulfilled, (iii) trading on the Nasdaq National Market
shall have been wholly suspended, (iv) minimum or maximum prices for trading
shall have been fixed, or maximum ranges for prices for securities shall have
been required, on the Nasdaq National Market, by order of the Commission or any
other governmental authority having jurisdiction, (v) a banking moratorium
shall have been declared by Federal, New York, Delaware or California
authorities, or (vi) there has occurred any material adverse change in the
financial markets in the United States or an outbreak of major hostilities (or
an escalation thereof) in which the United States is involved, a declaration of
war by Congress, any other substantial national or international calamity or
any other event or occurrence of a similar character shall have occurred since
the execution of this Agreement that, in your judgment, makes it impractical or
inadvisable to proceed with the completion of the sale of and payment for the
Securities. Any such termination shall be without liability of any party to
any other party except that the provisions of Section 4(h) and Section 6 hereof
shall at all times be effective.
(c) If you elect to prevent this Agreement from becoming
effective or to terminate this Agreement as provided in this Section, the
Company and the Selling Securityholders shall be notified promptly by you by
telephone or telegram, confirmed by letter. If the Company elects to prevent
this Agreement from becoming effective, you shall be notified by the Company by
telephone or telegram, confirmed by letter.
10. Information Furnished by Underwriters. The statements set
forth in the last paragraph of the cover page and in the table and in the first
and fifth paragraphs under the table under the caption "Underwriting" in any
Preliminary Prospectus and in the Prospectus constitute the written information
furnished by or on behalf of the Underwriters referred to in Section 2 and
Section 6 hereof.
11. Notices. Except as otherwise provided herein, all
communications hereunder shall be in writing or by telegraph and, if to the
Underwriters, shall be mailed, telegraphed or delivered to the Representatives
c/o Piper Jaffray Inc., Piper Jaffray Tower, 222 South Ninth Street,
Minneapolis, Minnesota 55402, except that notices given to an Underwriter
pursuant to Section 6 hereof shall be sent to such Underwriter at the address
stated in the Underwriters' Questionnaire furnished by such Underwriter in
connection with this offering; if to the Company or a Selling Securityholder,
shall be mailed, telegraphed or delivered to it at 12300 North Grant Street,
Denver, Colorado 80241 Attention:
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President. All notices given by telegram shall be promptly confirmed by
letter. Any party to this Agreement may change such address for notices by
sending to the parties to this Agreement written notice of a new address for
such purpose.
12. Persons Entitled to Benefit of Agreement. This Agreement
shall inure to the benefit of and be binding upon the parties hereto and their
respective successors and assigns and the controlling persons, officers and
directors referred to in Section 6. Nothing in this Agreement is intended or
shall be construed to give to any other person, firm or corporation any legal
or equitable remedy or claim under or in respect of this Agreement or any
provision herein contained. The term "successors and assigns" as herein used
shall not include any purchaser, as such purchaser, of any of the Securities
from any of the several Underwriters.
13. Governing law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Minnesota.
-26-
Please sign and return to the Company the enclosed duplicates of this
letter whereupon this letter will become a binding agreement between the
Company and the several Underwriters in accordance with its terms.
Very truly yours,
FISHER IMAGING CORPORATION
By:
---------------------------------
Morgan W. Nields,
Chief Executive Officer
Confirmed as of the date first
above mentioned, on behalf of
themselves and the other several
Underwriters named in Schedule II
hereto.
PIPER JAFFRAY INC.
By: _________________________________
Thomas P. Schettler
Managing Director
SELLING SECURITYHOLDERS
_____________________________________
_____________________________________
By: _________________________________
__________, Attorney-in-Fact
SCHEDULE I
[Enlarge/Download Table]
Number of Firm
Selling Securityholder Shares(1)
---------------------- --------------
________
________
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
========
__________________________
(1) The Underwriters may purchase up to an additional ________ Option
Shares, to the extent the option described in Section 3 of the
Agreement is exercised, in the proportions and in the manner described
in the Agreement.
SCHEDULE II
[Enlarge/Download Table]
Number of Firm
Underwriter Shares(1)
----------- --------------
Piper Jaffray Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . __________
Needham & Company, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . __________
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
==========
__________________________
(1) The Underwriters may purchase up to an additional ________ Option
Shares, to the extent the option described in Section 3 of the
Agreement is exercised, in the proportions and in the manner described
in the Agreement.
SCHEDULE III
[Download Table]
United States Patents:
---------------------
Patent Number . . . . . . . . . . . . . . . . . . . . . . . . . .
Patent Number . . . . . . . . . . . . . . . . . . . . . . . . . .
Patent Number . . . . . . . . . . . . . . . . . . . . . . . . . .
Patent Number . . . . . . . . . . . . . . . . . . . . . . . . . .
Patent Number . . . . . . . . . . . . . . . . . . . . . . . . . .
Patent Number . . . . . . . . . . . . . . . . . . . . . . . . . .
United States Patent Applications:
---------------------------------
Serial Number . . . . . . . . . . . . . . . . . . . . . . . . . .
SCHEDULE IV
Foreign Patents:
Foreign Patent Applications:
Dates Referenced Herein and Documents Incorporated by Reference
| Referenced-On Page |
|---|
| This ‘S-2/A’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| Filed on: | | 6/27/96 | | | | | | | None on these Dates |
| List all Filings |
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