Initial Public Offering (IPO): Pre-Effective Amendment to Registration Statement (General Form) — Form S-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-1/A Amendment No. 1 to Form S-1 97 524K
2: EX-1.1 Form of Underwriting Agreement 30 92K
3: EX-4.2 Form of Common Stock Certificate 2 16K
4: EX-5.1 Opinion and Consent of Rogers and Hardin 2 10K
5: EX-10.11 Modification Agreement Among the Registrant 5 22K
6: EX-10.12 Medite Corp. 1995 Non-Employee Stock Option Plan 11 43K
7: EX-10.15 Amend. Dated 3/10/95 to the Finance Contract 2 9K
8: EX-10.16 Modification Agreement Dated March 1, 1995 2 10K
9: EX-23.2 Consent of Arthur Andersen LLP 1 6K
10: EX-23.3 Consent of Resource Information Systems, Inc. 1 7K
11: EX-23.4 Consent of Jaakko Poyry Consulting (Uk) Ltd. 1 6K
[DRAFT--3/15/95]
Exhibit 1.1
Shares
MEDITE CORPORATION
COMMON STOCK
($.01 par value)
UNDERWRITING AGREEMENT
_______ __, 1995
[DRAFT--3/15/95]
April , 1995 1/
Morgan Stanley & Co.
Incorporated
Salomon Brothers Inc
Smith Barney Inc.
c/o Morgan Stanley & Co.
Incorporated
1251 Avenue of the Americas
New York, NY 10020
Morgan Stanley & Co. International
Limited
Salomon Brothers International
Limited
Smith Barney Inc.
c/o Morgan Stanley & Co. International
Limited
25 Cabot Square
Canary Wharf
London E14 4QA
England
Dear Sirs:
Medite Corporation, a Delaware corporation (the "Company"),
proposes to issue and sell to the several Underwriters (as defined below)
6,750,000 shares of its common stock, par value [$.01] per share (the "Firm
Securities").
It is understood that, subject to the conditions hereinafter
stated, 5,400,000 Firm Securities (the "U.S. Firm Securities") will be sold by
the Company to the several U.S. Underwriters named in Schedule I hereto (the
"U.S. Underwriters") in connection with the offering and sale of such U.S. Firm
Securities in the United States and Canada to United States and Canadian
Persons (as such terms are defined in the Agreement Between U.S. and
International Underwriters of even date herewith), and 1,350,000 Firm
Securities (the "International Securities") will be sold by
____________________
1/ Insert date of Underwriting Agreement.
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the Company to the several International Underwriters named in Schedule II
hereto (the "International Underwriters") in connection with the offering and
sale of such International Shares outside the United States and Canada to
persons other than United States and Canadian Persons. Morgan Stanley & Co.
Incorporated, Salomon Brothers Inc and Smith Barney Inc. shall act as
representatives (the "U.S. Representatives") of the several U.S. Underwriters,
and Morgan Stanley & Co. International Limited, Salomon Brothers International
Limited and Smith Barney Inc. shall act as representatives (the "International
Representatives") of the several International Underwriters. The U.S.
Underwriters and the International Underwriters are hereinafter collectively
referred to as the Underwriters.
The Company also proposes to issue and sell to the several
U.S. Underwriters not more than an additional 1,012,500 shares of its Common
Stock, par value $[.01] per share (the "Additional Securities"), if and to the
extent that the U.S. Representatives shall have determined to exercise on
behalf of the U.S. Underwriters, the right to purchase such Additional
Securities granted to the U.S. Underwriters in Article II hereof. The Firm
Securities and the Additional Securities are hereinafter collectively referred
to as the Securities.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement relating to the
Securities. The registration statement contains two prospectuses to be used in
connection with the offering and sale of the Securities: The U.S. prospectus,
to be used in connection with the offering and sale of Securities in the United
States and Canada to United States and Canadian Persons, and the international
prospectus, to be used in connection with the offering and sale of Securities
outside the United States and Canada to persons other than United States and
Canadian Persons. The international prospectus is identical to the U.S.
prospectus except for the outside front cover page. The registration
statement, as amended at the time it becomes effective, including the
information (if any) deemed to be part of the registration statement at the
time of effectiveness pursuant to Rule 430A under the Securities Act of 1933
(the "Securities Act"), is hereinafter referred to as the Registration
Statement; the U.S. prospectus and the international prospectus in the forms
first used to confirm sales of Securities are hereinafter referred to as the
Prospectus.
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ARTICLE I
The Company represents and warrants to and agrees with each of
the Underwriters that:
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or
threatened by the Commission.
(b) (i) Each part of the Registration Statement, when such
part became effective, did not contain, and each such part, as amended
or supplemented, if applicable, will not contain any untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, (ii) the Registration Statement and the Prospectus comply,
and, as amended or supplemented, if applicable, will comply in all
material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder and (iii) the Prospectus does
not contain and, as amended or supplemented, if applicable, will not
contain any 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 under which they were made, not misleading,
except that the representations and warranties set forth in this
paragraph 1(b) do not apply to statements or omissions in the
Registration Statement or the Prospectus based upon information
relating to any Underwriter furnished to the Company in writing by
such Underwriter through you expressly for use therein.
(c) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described
in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a
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material adverse effect on the Company and its subsidiaries, taken as
a whole.
(d) Each subsidiary of the Company has been duly
incorporated, is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property and to conduct its
business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries, taken as
a whole. All of the issued and outstanding shares of capital stock of
each subsidiary of the Company have been duly authorized and validly
issued and are fully paid and non-assessable, and are owned by the
Company, directly or indirectly, free and clear of any security
interest, mortgage, pledge, claim, lien, encumbrance or adverse
interest of any nature.
(e) The authorized capital stock of the Company conforms in
all material respects as to legal matters to the description thereof
contained in the Prospectus.
(f) Except as set forth in the Registration Statement, no
options, warrants or other rights to purchase from the Company,
agreements or other obligations of the Company to issue or other
rights to convert any obligations into, or exchange any securities for
shares of capital stock of or ownership interests in the Company are
outstanding.
(g) The shares of Common Stock outstanding prior to the
issuance of the Securities have been duly authorized and are validly
issued, fully paid and non-assessable, and were not issued in
violation of any preemptive rights to subscribe for or purchase
securities.
(h) The Securities have been duly authorized and, when issued
and delivered in accordance with the terms of this Agreement, will be
validly issued, fully paid and non-assessable, and the issuance of
such Securities
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will not be subject to any preemptive or similar rights.
(i) This Agreement has been duly authorized, executed and
delivered by the Company.
(j) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement
and the issuance of the Securities will not contravene any provision
of applicable law or the certificate of incorporation or by-laws of
the Company or any agreement or other instrument binding upon the
Company or any of its subsidiaries that is material to the Company and
its subsidiaries, taken as a whole, or any judgment, order or decree
of any governmental body, agency or court having jurisdiction over the
Company or any subsidiary, and no consent, approval, authorization or
order of, or qualification with, any governmental body or agency is
required for the performance by the Company of its obligations under
this Agreement or the Securities, except such as may be required by
the securities or Blue Sky laws of the various states in connection
with the offer and sale of the Securities. The Company has the full
power and authority to authorize, issue and sell the Securities as
contemplated by this Agreement free of any preemptive rights.
(k) There has not occurred any material adverse change, or
any development involving a prospective material adverse change, in
the condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from
that set forth in the Prospectus.
(l) Neither the filing of the Registration Statement or any
amendment thereto nor the offer or sale of the Securities to the
Underwriters as contemplated by this Agreement gives rise to any
rights, other than those that have been satisfied or duly and validly
waived, for or relating to the registration under the Securities Act
of any shares of capital stock of the Company (including shares
issuable upon the exercise of outstanding options, warrants or other
rights to purchase, or other obligations or securities convertible
into or exchangeable for, shares of such capital stock) or any other
securities of the Company.
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(m) There are no legal or governmental proceedings pending
or, to the Company's knowledge, threatened to which the Company or any
of its subsidiaries is a party or to which any of the properties of
the Company or any of its subsidiaries is subject that are required to
be described in the Registration Statement or the Prospectus and are
not so described or any statutes, regulations, contracts or other
documents that are required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not described or filed as required.
(n) Each of the Company and its subsidiaries has all
necessary consents, authorizations, approvals, orders, certificates
and permits of and from, and has made all declarations and filings
with, all federal, state, foreign, local and other governmental
authorities, all self-regulatory organizations and all courts and
other tribunals, to own, lease, license and use its properties and
assets and to conduct its business in the manner described in the
Prospectus, except to the extent that the failure to obtain or file
would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(o) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus,
(i) the Company and its subsidiaries have not incurred any material
liability or obligation, direct or contingent, nor entered into any
material transaction, (ii) the Company has not purchased any of its
outstanding capital stock, nor declared, paid or otherwise made any
dividend or distribution of any kind on its capital stock, and (iii)
there has not been any material change in the capital stock,
short-term debt or long-term debt of the Company and its consolidated
subsidiaries, except in each case as described in or contemplated by
the Prospectus.
(p) Each preliminary prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the Securities Act,
complied when so filed in all material respects with the Securities
Act and the rules and regulations of the Commission thereunder.
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(q) The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in
the Investment Company Act of 1940, as amended.
(r) The Company and its subsidiaries (i) are in compliance
with any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (ii) have received all permits,
licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii)
are in compliance with all terms and conditions of any such permit,
license or approval, except where such noncompliance with
Environmental Laws, failure to receive required permits, licenses or
other approvals or failure to comply with the terms and conditions of
such permits, licenses or approvals would not, singly or in the
aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(s) In the ordinary course of its business, the Company
conducts a periodic review of the effect of Environmental Laws on the
business, operations and properties of the Company and its
subsidiaries, in the course of which it identifies and evaluates
associated costs and liabilities (including any capital or operating
expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or approval,
any related constraints on operating activities and any potential
liabilities to third parties). On the basis of such review, the
Company has reasonably concluded that such associated costs and
liabilities would not, singly or in the aggregate, have a material
adverse effect on the Company and its subsidiaries, taken as a whole,
except as set forth in the Registration Statement.
(t) The Company has complied with all provisions of Section
517.075, Florida Statutes (Chapter 92-198, Laws of Florida).
(u) The Company and its subsidiaries have good and
indefeasible title in fee simple to all real property owned by them
and good and indefeasible title
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to all personal property owned by them which is material to the
business of the Company and its subsidiaries, in each case free and
clear of all liens, encumbrances and defects except such as are
described in the Prospectus or such as are not material to the Company
and its subsidiaries taken as a whole and do not interfere with the
use made and proposed to be made of such property by the Company and
its subsidiaries; and any real property and buildings held under lease
by the Company and its subsidiaries are held by them under valid,
subsisting and enforceable leases with such exceptions as are not
material to the Company and its subsidiaries taken as a whole and do
not interfere with the use made and proposed to be made of such
property and buildings by the Company and its subsidiaries, in each
case except as described in or contemplated by the Prospectus.
(v) The Company and its subsidiaries own or possess, or can
acquire on reasonable terms, all material patents, patent rights,
licenses, inventions, copyrights, know-how (including trade secrets
and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures), trademarks, service marks and
trade names currently employed by them in connection with the business
now operated by them, and neither the Company nor any of its
subsidiaries has received any notice of infringement of or conflict
with asserted rights of others with respect to any of the foregoing
which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would result in any material adverse
change in the condition, financial or otherwise, or in the earnings,
business or operations of the Company and its subsidiaries, taken as a
whole.
(w) The Company and its subsidiaries possess all
certificates, authorizations and permits issued by the appropriate
federal, state or foreign regulatory authorities necessary to conduct
their respective businesses, and neither the Company nor any such
subsidiary has received any notice of proceedings relating to the
revocation or modification of any such certificate, authorization or
permit that, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a material
adverse change in the condition, financial or
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otherwise, or in the earnings, business or operations of the Company
and its subsidiaries, taken as a whole, except as described in or
contemplated by the Prospectus.
ARTICLE II
The Company hereby agrees to sell to the several Underwriters,
and each Underwriter, upon the basis of the representations and warranties
herein contained, but subject to the conditions hereinafter stated, agrees,
severally and not jointly, to purchase from the Company at $[ ] a
share--the purchase price--the respective numbers of Firm Securities set forth
in Schedule I hereto opposite their names.
On the basis of the representations and warranties contained
in this Agreement, and subject to its terms and conditions, the Company agrees
to sell to the U.S. Underwriters up to all the Additional Securities, and the
U.S. Underwriters shall have a one-time right to purchase, severally and not
jointly, up to 1,012,500 Additional Securities at the purchase price.
Additional Securities may be purchased as provided in Article IV hereof solely
for the purpose of covering over-allotments made in connection with the
offering of the Firm Securities. If any Additional Securities are to be
purchased, each U.S. Underwriter agrees, severally and not jointly, to purchase
the number of Additional Securities (subject to such adjustments to eliminate
fractional shares as Morgan Stanley & Co. Incorporated shall determine) that
bears the same proportion to the total number of Additional Securities to be
purchased as the number of U.S. Firm Securities set forth in Schedule I
opposite the name of such U.S. Underwriter bears to the total number of U.S.
Firm Securities. The Additional Securities to be purchased by the U.S.
Underwriters hereunder and the U.S. Firm Securities are hereinafter
collectively referred to as the U.S. Securities.
The Company hereby agrees that, without the prior written
consent of Morgan Stanley & Co. Incorporated on behalf of the Underwriters, it
will not, during the period ending 180 days after the date of the Prospectus,
(1) offer, pledge, sell, contract to sell, sell any contract to purchase,
purchase any option to sell, grant any option, right or warrant to purchase, or
otherwise transfer or dispose of, directly or indirectly, any shares of its
Common
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Stock or any securities convertible into or exercisable or exchangeable for its
Common Stock, or (2) enter into any swap or similar agreement that transfers,
in whole or in part, the economic risk of ownership of its Common Stock,
whether any such transaction described in clause (1) or (2) above is to be
settled by delivery of Common Stock or other such securities, in cash or
otherwise. The foregoing sentence shall not apply to (A) the Securities to be
sold hereunder or (B) the grant by the Company on the Closing Date or within 6
months thereafter (as hereinafter defined) or within six months thereafter of
options to purchase 475,000 shares of its common stock as described in the
Registration Statement.
ARTICLE III
The Company is advised by you that the Underwriters propose to
make a public offering of their respective portions of the Securities as soon
after the Registration Statement and this Agreement have become effective as in
your judgment is advisable. The Company is further advised by you that the
Securities are to be offered to the public initially at U.S. $___ per share
(the public offering price) and to certain dealers selected by you at a price
that represents a concession not in excess of U.S. $___ per share under the
public offering price, and that any Underwriter may allow, and such dealers may
reallow, a concession, not in excess of U.S. $___ per share, to any Underwriter
or to certain other dealers.
Each U.S. Underwriter hereby makes to and with the Company the
representations and agreements of such U.S. Underwriter contained in the fifth
paragraph of Article III of the Agreement Between U.S. and International
Underwriters of even date herewith. Each International Underwriter hereby
makes to and with the Company the representations and agreements of such
International Underwriter contained in the seventh, eighth, ninth and tenth
paragraphs of Article III of such Agreement.
The Underwriters hereby agree to reserve up to approximately [
] shares of Common Stock and to sell such shares at the public offering price
to certain directors, officers and employees of the Company and to the
Company's employee stock ownership plan; provided, however, that the
Underwriters will only be obligated to reserve and sell such shares to the
extent that they have been notified by such
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persons of their desire to purchase such shares prior to the date of
effectiveness of the Registration Statement.
ARTICLE IV
Payment for the Firm Securities shall be made against delivery
of the Firm Securities at a closing to be held at the office of Morgan Stanley
& Co. Incorporated, 1251 Avenue of the Americas, New York, New York, at 10:00
a.m., local time, on April , 1995, 2/ or at such other time on the same or
such other date, not later than April , 1995, 3/ as shall be designated in
writing by you. The time and date of such payment are hereinafter referred to
as the "Closing Date". Payment for the Firm Securities shall be made by
certified or official bank check or checks payable to the order of the Company
in New York Clearing House funds.
Payment for any Additional Securities shall be made against
delivery of the Additional Securities at a closing to be held at the office of
Morgan Stanley & Co. Incorporated, 1251 Avenue of the Americas, New York, New
York, at 10:00 a.m., local time, on such date (which may be the same as the
Closing Date but shall in no event be earlier than the Closing Date nor later
than ten business days after the giving of the notice hereinafter referred to)
as shall be designated in a written notice from Morgan Stanley & Co.
Incorporated to the Company of its determination, on behalf of the U.S.
Underwriters, to purchase a number, specified in said notice, of Additional
Securities, or on such other date, in any event not later than April , 1995,
as shall be designated in writing by Morgan Stanley & Co. Incorporated. The
time and date of such payment are hereinafter referred to as the Option Closing
Date. Payment for the Additional Securities shall be made by certified or
official bank check or checks payable to the order of the Company in New York
Clearing House funds. The notice of the determination to exercise the option
to purchase Additional Securities and of the
____________________
2/ Insert date five business days after date of
Underwriting Agreement.
3/ Insert date 10 business days after date of Underwriting
Agreement.
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Option Closing Date may be given at any time within 30 days after the date of
this Agreement.
Certificates for the Firm Securities and Additional Securities
shall be in definitive form and registered in such names and in such
denominations as you shall request in writing not less than two full business
days prior to the Closing Date or the Option Closing Date, as the case may be.
The certificates evidencing the Firm Securities and Additional Securities shall
be delivered to you on the Closing Date or the Option Closing Date, as the case
may be, for the respective accounts of the several Underwriters, with any
transfer taxes payable in connection with the transfer of the Securities to the
Underwriters duly paid by the Company, against payment of the purchase price
therefor.
ARTICLE V
The obligations of the Company and the several obligations of
the Underwriters hereunder are subject to the condition that the Registration
Statement shall have become effective not later than the date hereof.
The several obligations of the Underwriters hereunder are
subject to the following further conditions:
(a) Subsequent to the execution and delivery of this
Agreement and prior to the Closing Date,
(i) there shall not have occurred any downgrading, nor
shall any notice have been given of any intended or potential
downgrading or of any review for a possible change that does
not indicate the direction of the possible change, in the
rating accorded any of the Company's securities by any
"nationally recognized statistical rating organization", as
such term is defined for purposes of Rule 436(g)(2) under
the Securities Act; and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or
operations, of the Company and its subsidiaries, taken as a
whole, from that set forth in the Registration Statement,
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that, in your judgment, is material and adverse and that makes
it, in your judgment, impracticable to market the Securities
on the terms and in the manner contemplated in the Prospectus.
(b) You shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer
of the Company, to the effect set forth in clause (a)(i) above and to
the effect that the representations and warranties of the Company
contained in this Agreement are true and correct as of the Closing
Date and that the Company has complied with all of the agreements and
satisfied all of the conditions on its part to be performed or
satisfied on or before the Closing Date.
The officer signing and delivering such certificate may rely
upon the best of his knowledge as to proceedings threatened.
(c) You shall have received on the Closing Date an opinion of
Rogers & Hardin, counsel for the Company, dated the Closing Date, to
the effect that
(i) the Company has been duly incorporated, is
validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property and to
conduct its business as described in the Prospectus and is
duly qualified to transact business and is in good standing in
each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be
in good standing would not have a material adverse effect on
the Company and its subsidiaries taken as a whole;
(ii) each subsidiary of the Company has been duly
incorporated, is validly existing as a corporation, and as to
U.S. subsidiaries is validly existing as a corporation in good
standing, under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own
its property and to conduct its business as described in the
Prospectus and is duly qualified to transact business and is
in good
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standing in each jurisdiction in which the conduct of business
or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material
adverse effect on the Company and its subsidiaries, taken as a
whole; and all of the issued and outstanding shares of capital
stock of each such subsidiary of the Company have been duly
authorized and validly issued and are fully paid and
non-assessable and, to such counsel's knowledge after due
inquiry, are owned by the Company, directly or indirectly,
free and clear of any security interest, mortgage, pledge,
claim, lien, encumbrance or adverse interest of any nature;
(iii) the authorized capital stock of the Company
conforms in all material respects as to legal matters to the
description thereof contained in the Prospectus;
(iv) the shares of Common Stock outstanding prior to
the issuance of the Securities have been duly authorized and
are validly issued, fully paid and non-assessable;
(v) the Securities have been duly authorized and,
when issued and delivered in accordance with the terms of this
Agreement, will be validly issued, fully paid and
non-assessable, and the issuance of such Securities will not
be subject to any preemptive or similar rights;
(vi) this Agreement has been duly authorized,
executed and delivered by the Company;
(vii) the execution and delivery by the Company of,
and the performance by the Company of its obligations under,
this Agreement and the issuance of the Securities will not
contravene any provision of applicable law or the certificate
of incorporation or by-laws of the Company or, to the best of
such counsel's knowledge, any agreement or other instrument
binding upon the Company or any of its subsidiaries that is
material to the Company and its subsidiaries, taken as a
whole, or, to the best of such counsel's knowledge, any
15
judgment, order or decree of any governmental body, agency or
court having jurisdiction over the Company or any subsidiary,
and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is
required for the performance by the Company of its obligations
under this Agreement, except such as may be required by the
securities or Blue Sky laws of the various states in
connection with the offer and sale of the Securities;
(viii) the statements (1) in the Prospectus under the
captions "Management--Stock Option-Stock Appreciation Rights
Plan", "Management--Non-Employee Director Stock Option Plan",
"Management--Pension Plan", "Shares Eligible for Future Sale",
"Description of Capital Stock", "Certain United States Federal
Tax Consequences to Non-U.S. Holders" and "Underwriters" and
(2) in the Registration Statement under Items 14 and 15, in
each case insofar as such statements constitute summaries of
the legal matters, documents or proceedings referred to
therein, fairly present the information called for with
respect to such legal matters, documents or proceedings and
fairly summarize the matters referred to therein;
(ix) after due inquiry of appropriate Company
officers, such counsel does not know of any legal or
governmental proceedings pending or threatened to which the
Company or any of its subsidiaries is a party or to which any
of the properties of the Company or any of its subsidiaries is
subject that are required to be described in the Registration
Statement or the Prospectus and are not so described or of any
statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration
Statement that are not described or filed as required;
(x) the Company is not an "investment company" or an
entity "controlled" by an "investment company," as such terms
are defined in the Investment Company Act of 1940, as amended;
16
(xi) such counsel (1) is of the opinion that the
Registration Statement and Prospectus (except for financial
statements and schedules included therein as to which such
counsel need not express any opinion) comply as to form in all
material respects with the Securities Act and the rules and
regulations of the Commission thereunder, (2) has no reason to
believe that (except for financial statements and schedules
included therein and other financial data therein as to which
such counsel need not express any belief) the Registration
Statement and the Prospectus included therein at the time the
Registration Statement became effective contained any untrue
statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading and (3) has no reason to
believe that (except for financial statements and schedules
included therein and other financial data therein as to which
such counsel need not express any belief) the Prospectus as of
the Closing Date 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; and
(xii) to such counsel's knowledge after due inquiry of
appropriate Company officers, no beneficial or legal owner of
any security of the Company has any right, not effectively
satisfied or waived, to require inclusion of shares of Common
Stock or any other security of the Company in the Registration
Statement or to require the Company to file a registration
statement under this Securities Act as a result of the filing
of the Registration Statement.
(d) You shall have received on the Closing Date an opinion of
Cravath, Swaine & Moore, special counsel for the Underwriters, dated
the Closing Date, covering the matters referred to in subparagraphs
(v), (vi), (viii) (but only as to the statements in the Prospectus
under "Description of Securities" and "Underwriters"), (x) and (xi) of
paragraph (c) above.
17
With respect to subparagraph (xi) of paragraph (c) above,
Rogers & Hardin and Cravath, Swaine & Moore may state that their opinion and
belief are based upon their participation in the preparation of the
Registration Statement and Prospectus and any amendments or supplements thereto
and review and discussion of the contents thereof, but are without independent
check or verification except as specified.
The opinion of Rogers & Hardin described in paragraph (c)
above shall be rendered to you at the request of the Company and shall so state
therein.
(e) You shall have received, on each of the date hereof and
the Closing Date, a letter dated the date hereof or the Closing Date,
as the case may be, in form and substance satisfactory to you, from
Arthur Andersen & Co., independent public accountants for the Company,
containing statements and information of the type ordinarily included
in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in
the Registration Statement and the Prospectus.
(f) The Common Stock of the Company shall have been approved
for quotation on the National Market System of the NASDAQ.
(g) The "lock-up" agreements between you and certain
stockholders, officers and directors of the Company relating to sales
of shares of common stock of the Company or any securities convertible
into or exercisable or exchangeable for such common stock, delivered
to you on or before the date hereof, shall be in full force and effect
on the Closing Date.
(h) The Company will apply the net proceeds from the sale of
the Securities to be sold by it substantially in accordance with the
description set forth in the Prospectus.
The several obligations of the U.S. Underwriters to purchase
Additional Securities hereunder is subject to the delivery to the U.S.
Representatives on the Option Closing Date of such documents as they may
reasonably request with respect to the good standing of the Company, the due
authorization and issuance of the Additional
18
Securities and other matters related to the issuance of the Additional
Securities.
ARTICLE VI
In further consideration of the agreements of the Underwriters
herein contained, the Company covenants as follows:
(a) To furnish to you, without charge, three signed copies of
the Registration Statement (including exhibits thereto) and for
delivery to each other Underwriter a conformed copy of the
Registration Statement (without exhibits thereto) and, during the
period mentioned in paragraph (c) below, as many copies of the
Prospectus and any supplements and amendments thereto or to the
Registration Statement as you may reasonably request.
(b) Before amending or supplementing the Registration
Statement or the Prospectus, to furnish to you a copy of each such
proposed amendment or supplement and not to file any such proposed
amendment or supplement to which you reasonably object.
(c) If, during such period after the first date of the public
offering of the Securities as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall
occur or condition exist as a result of which it is necessary to amend
or supplement the Prospectus in order to make the statements therein,
in the light of the circumstances when the Prospectus is delivered to
a purchaser, not misleading, or if, in the opinion of counsel for the
Underwriters, it is necessary to amend or supplement the Prospectus to
comply with law, forthwith to prepare, file with the Commission and
furnish, at its own expense, to the Underwriters and to the dealers
(whose names and addresses you will furnish to the Company) to which
Securities may have been sold by you on behalf of the Underwriters and
to any other dealers upon request, either amendments or supplements to
the Prospectus so that the statements in the Prospectus as so amended
or supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that the
19
Prospectus, as amended or supplemented, will comply with law.
(d) To endeavor to qualify the Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as you
shall reasonably request and to pay all expenses (including fees and
disbursements of counsel) in connection with such qualification and in
connection with (i) the determination of the eligibility of the
Securities for investment under the laws of such jurisdictions as you
may designate and (ii) any review of the offering of the Securities by
the National Association of Securities Dealers, Inc.
(e) To make generally available to the Company's security
holders and to you as soon as practicable an earning statement
covering the twelve-month period ending , 19964/ that satisfies the
provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder.
(f) Whether or not any sale of Securities is consummated, to
pay all expenses incident to the performance of its obligations under
this Agreement, including (i) the preparation and filing of the
Registration Statement and the Prospectus and all amendments and
supplements thereto, (ii) the preparation, issuance and delivery of
the Securities, (iii) the fees and disbursements of the Company's
counsel and accountants, (iv) the qualification of the Securities
under securities or Blue Sky laws in accordance with the provisions of
paragraph (d) of this Article VI, including filing fees and the fees
and disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of any Blue Sky or
Legal Investment Memoranda, (v) the printing and delivery to the
Underwriters, in quantities as hereinabove stated, copies of the
Registration Statement and all amendments thereto and of the
Prospectus and any amendments or supplements thereto, (vi) the fees
and expenses, if any, incurred with respect to any filing with the
National Association of Securities Dealers, Inc., and (vii) all
document production charges and expenses of
____________________
4/ Insert date one year after the end of the Company's
fiscal quarter in which the closing will occur.
20
counsel to the Underwriters (but not including their fees for
professional services) in connection with the preparation of this
Agreement.
ARTICLE VII
The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls such Underwriter within the
meaning of either Section 15 of the Securities Act or Section 20 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), from and
against any and all losses, claims, damages and liabilities (including any
legal or other expenses reasonably incurred by any Underwriter or any such
controlling person in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement or any amendment
thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter through you expressly
for use therein; provided, however, that the foregoing indemnity agreement with
respect to any preliminary prospectus shall not enure to the benefit of any
Underwriter from whom the person asserting any such losses, claims, damages or
liabilities purchased Shares, or any person controlling such Underwriter, if a
copy of the Prospectus (as then amended or supplemented if the Company shall
have furnished any amendments or supplements thereto) was not sent or given by
or on behalf of such Underwriter to such person, if required by law so to have
been delivered, at or prior to the written confirmation of the sale of the
Shares to such person, and if the Prospectus (as so amended or supplemented)
would have cured the defect giving rise to such losses, claims, damages or
liabilities.
Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who sign
the Registration Statement and each person, if any, who controls the Company
within the
21
meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act to the same extent as the foregoing indemnity from the Company to
such Underwriter, but only with reference to information relating to such
Underwriter furnished to the Company in writing by such Underwriter through you
expressly for use in the Registration Statement, any preliminary prospectus,
the Prospectus or any amendments or supplements thereto.
In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either of the two preceding paragraphs,
such person (the "indemnified party") shall promptly notify the person against
whom such indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding
and shall pay the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be
at the expense of such indemnified party unless (i) the indemnifying party and
the indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by Morgan Stanley
& Co. Incorporated, in the case of parties indemnified pursuant to the second
preceding paragraph, and by the Company, in the case of parties indemnified
pursuant to the first preceding paragraph. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
22
from and against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the
second and third sentences of this paragraph, the indemnifying party agrees
that it shall be liable for any settlement of any proceeding effected without
its written consent if (i) such settlement is entered into more than 30 days
after receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity
could have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such proceeding.
To the extent the indemnification provided for in the first or
second paragraph of this Article VII is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other hand from the offering of the Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and of the Underwriters on the other hand in connection with the statement
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 on the one hand and the Underwriters on the other hand
in connection with the offering of the Securities shall be deemed to be in the
same respective proportions as the net proceeds from the offering of the
Securities (before deducting expenses) received by
23
the Company and the total underwriting discounts and commissions received by
the Underwriters, in each case as set forth in the table on the cover of the
Prospectus, bear to the aggregate public offering price of the Securities. The
relative fault of the Company on the one hand and of the Underwriters on the
other hand shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Company or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Underwriters' respective obligations to contribute pursuant to
this Article VII are several in proportion to the respective numbers of
Securities they have purchased hereunder, and not joint.
The Company and the Underwriters agree that it would not be
just or equitable if contribution pursuant to this Article VII were determined
by pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation that does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages and liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Article VII, 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. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The remedies provided for in this
Article VII are not exclusive and shall not limit any rights or remedies which
may otherwise be available to any indemnified party at law or in equity.
The indemnity and contribution provisions contained in this
Article VII and the representations and
24
warranties of the Company contained in this Agreement shall remain operative
and in full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by or on behalf of any Underwriter or
any person controlling any Underwriter or by or on behalf of the Company, its
officers or directors or any person controlling the Company and (iii)
acceptance of and payment for any of the Securities.
ARTICLE VIII
This Agreement shall be subject to termination by notice given
by you to the Company, if (a) after the execution and delivery of this
Agreement and prior to the Closing Date (i) trading generally shall have been
suspended or materially limited on or by, as the case may be, any of the New
York Stock Exchange, the American Stock Exchange, the National Association of
Securities Dealers, Inc., the Chicago Board of Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade, (ii) trading of any
securities of the Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in your judgment, is material and adverse and (b) in the case of any of
the events specified in clauses (a)(i) through (iv), such event singly or
together with any other such event makes it, in your judgment, impracticable to
market the Securities on the terms and in the manner contemplated in the
Prospectus.
ARTICLE IX
This Agreement shall become effective upon the later of (x)
execution and delivery hereof by the parties hereto and (y) release of
notification of the effectiveness of the Registration Statement by the
Commission.
If, on the Closing Date, or the Option Closing Date, as the
case may be, any one or more of the Underwriters shall fail or refuse to
purchase Securities that it or they have agreed to purchase hereunder on such
date, and the aggregate number of Securities which such defaulting Underwriter
or Underwriters agreed but failed or
25
refused to purchase is not more than one-tenth of the aggregate number of the
Securities to be purchased on such date, the other Underwriters shall be
obligated severally in the proportion that the number of Securities set forth
opposite their respective names in Schedule I or II bears to the aggregate
number of Securities set forth opposite the names of all such nondefaulting
Underwriters, or in such other proportions as you may specify, to purchase the
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase on such date; provided, however, that in no event shall
the number of Securities that any Underwriter has agreed to purchase pursuant
to Article II be increased pursuant to this Article IX by an amount in excess
of one-ninth of such number of Securities without the written consent of such
Underwriter. If, on the Closing Date, or the Option Closing Date, as the case
may be, any Underwriter or Underwriters shall fail or refuse to purchase
Securities and the aggregate number of Securities with respect to which such
default occurs is more than one-tenth of the aggregate number of Securities to
be purchased on such date, and arrangements satisfactory to you and the Company
for the purchase of such Securities are not made within 36 hours after such
default, this Agreement shall terminate without liability on the part of any
nondefaulting Underwriter or the Company. In any such case either you or the
Company shall have the right to postpone the Closing Date, or the Option
Closing Date, as the case may be, but in no event for longer than seven days,
in order that the required changes, if any, in the Registration Statement and
in the Prospectus or in any other documents or arrangements may be effected.
Any action taken under this paragraph shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
If this Agreement shall be terminated by the Underwriters, or
any of them, because of any failure or refusal on the part of the Company to
comply with the terms or to fulfill any of the conditions of this Agreement, or
if for any reason the Company shall be unable to perform its obligations under
this Agreement, the Company will reimburse the Underwriters or such
Underwriters as have so terminated this Agreement with respect to themselves,
severally, for all out-of-pocket expenses (including the fees and disbursements
of their counsel) reasonably incurred by such Underwriters in connection with
this Agreement or the offering contemplated hereunder.
26
This Agreement may be signed in two or more counterparts, each
of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
Very truly yours,
MEDITE CORPORATION
By __________________
Name:
Title:
27
Accepted, , 1995 5/
New York, New York
MORGAN STANLEY & CO.
INCORPORATED
SALOMON BROTHERS INC
SMITH BARNEY INC.
Acting severally on behalf
of themselves and the
several U.S. Underwriters
named in Schedule I herein.
By MORGAN STANLEY & CO.
INCORPORATED
By _________________________
MORGAN STANLEY & CO. INTERNATIONAL
LIMITED
SALOMON BROTHERS INTERNATIONAL
LIMITED
SMITH BARNEY INC.
Acting severally on behalf
of themselves and the
several International Underwriters
named in Schedule II herein.
By MORGAN STANLEY & CO. INTERNATIONAL
LIMITED
By _________________________
____________________
5/ Insert date of Underwriting Agreement.
SCHEDULE I
U.S. Underwriters
Number of U.S. Firm
Securities to be
Underwriter Purchased
----------- -------------------
Morgan Stanley & Co. Incorporated
Salomon Brothers Inc
Smith Barney Inc.
-------------
Total U.S. Firm Securities . . . . . . . . .
=============
SCHEDULE II
International Underwriters
Number of International
Securities to be
Underwriter Purchased
----------- -----------------------
Morgan Stanley & Co. International Limited
Salomon Brothers International Limited
Smith Barney Inc.
-------------
Total International Securities . . . . . . . . . .
=============
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