{"id":43977,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/underwriting-agreement-visx-inc-dillon-read-amp-co-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"underwriting-agreement-visx-inc-dillon-read-amp-co-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/securities\/underwriting-agreement-visx-inc-dillon-read-amp-co-inc.html","title":{"rendered":"Underwriting Agreement – VISX Inc., Dillon Read & Co. Inc. and PaineWebber Inc."},"content":{"rendered":"VISX, INCORPORATED\n \n COMMON STOCK\n \n ($.01 PAR VALUE)\n \n UNDERWRITING AGREEMENT\n \n , 1995\n\n 2\n \n UNDERWRITING AGREEMENT\n \n , 1995\n \nDillon, Read & Co. Inc.\n535 Madison Avenue\nNew York, New York 10022\n \nPaineWebber Incorporated\n1285 Avenue of the Americas\nNew York, New York 10009\n \n as Managing Underwriters\n \nDear Sirs:\n \n VISX Incorporated, a Delaware corporation (the \"Company\"), proposes to\nissue and sell to the underwriters named in Schedule A (the \"Underwriters\")\n2,500,000 shares (the \"Firm Shares\") of Common Stock, par value $.01 per share\n(the \"Common Stock\"), of the Company. In addition, solely for the purpose of\ncovering overallotments, the Company proposes to issue and sell, at the\nUnderwriters' option, up to 375,000 additional shares of the Common Stock (the\n\"Additional Shares\"). The Additional Shares and the Firm Shares are collectively\nreferred to as the \"Shares\". The Shares are described in the Prospectus which is\nreferred to below.\n \n The Company has filed, in accordance with the provisions of the Securities\nAct of 1933, as amended, and the rules and regulations thereunder (collectively,\nthe \"Act\"), with the Securities and Exchange Commission (the \"Commission\") a\nregistration statement on Form S-3, including a prospectus, relating to the\nShares, which incorporates by reference certain documents that the Company has\nfiled in accordance with the provisions of the Securities Exchange Act of 1934,\nas amended, and the rules and regulations thereunder (collectively, the\n\"Exchange Act\"). The Company has furnished to you, for use by the Underwriters\nand by dealers, copies of one or more preliminary prospectuses and all documents\nincorporated by reference therein (collectively, the \"Preliminary Prospectus\")\nrelating to the Shares. Except where the context otherwise requires, the\nregistration statement as in effect at the time of execution of this Agreement\nor, if the registration statement is not yet effective, as amended when it\nbecomes effective, including all documents filed as a part thereof or\nincorporated by reference therein, and including any information contained in a\nprospectus subsequently filed with the Commission pursuant to Rule 424(b) under\nthe Act and deemed to be part of the registration statement at the time of\neffectiveness pursuant to Rule 430A under the Act, is herein called the\n\"Registration Statement\", and the prospectus, including all documents\nincorporated therein by reference, in the form filed by the Company with the\nCommission pursuant to Rule 424(b) under the Act or, if no such filing is\nrequired, in the form of final prospectus included in the Registration Statement\nat the time it became effective, is herein called the \"Prospectus\".\n \n The Company and the Underwriters agree as follows:\n \n 1. Sale and Purchase. On the basis of the representations and warranties\nand the other terms and conditions herein set forth, the Company agrees to sell\nto the respective Underwriters and each of the Underwriters, severally and not\njointly, agrees to purchase from the Company, the number of Firm Shares set\nforth opposite the name of such Underwriter on Schedule A, at a purchase price\nof $ per Share. You may release the Firm Shares for public sale\npromptly after this Agreement becomes effective. You may from time to time\nincrease or decrease the public offering price after the initial public offering\nto such extent as you may determine.\n \n In addition, on the basis of the representations and warranties and the\nother terms and conditions herein set forth, the Company hereby grants to the\nseveral Underwriters an option to purchase, and the Underwriters shall have the\nright to purchase, severally and not jointly, from the Company all or a portion\nof the Additional\n\n 3\n \nShares as may be necessary to cover overallotments made in connection with the\noffering of the Firm Shares, at the same purchase price per share to be paid by\nthe several Underwriters to the Company for the Firm Shares. This option may be\nexercised at any time or from time to time on or before the thirtieth day\nfollowing the date hereof, by written notice to the Company. Such notice shall\nset forth the aggregate number of Additional Shares as to which the option is\nbeing exercised, and the date and time when the Additional Shares are to be\ndelivered (such date and time being herein referred to as an \"additional time of\npurchase\"); provided, however, that no additional time of purchase shall occur\nearlier than the time of purchase (as defined below) nor earlier than the second\nbusiness day* after the date on which the option shall have been exercised nor\nlater than the eighth business day after the date on which the option shall have\nbeen exercised. The number of Additional Shares to be sold to each Underwriter\nat an additional time of purchase shall be the number which bears the same\nproportion to the aggregate number of Additional Shares being purchased at such\nadditional time of purchase as the number of Firm Shares set forth opposite the\nname of such Underwriter on Schedule A bears to the total number of Firm Shares\n(subject, in each case, to such adjustment as you may determine to eliminate\nfractional shares).\n \n 2. Payment and Delivery. Payment of the purchase price for the Firm Shares\nshall be made to the Company by certified or official bank check, in New York\nClearing House funds, at the office of Dillon, Read & Co. Inc. in New York City,\nagainst delivery of the certificates for the Firm Shares to you for the\nrespective accounts of the Underwriters. Such payment and delivery shall be made\nat 9:30 A.M., New York City time, on , 1995 (unless another time\nshall be agreed to by you and the Company or unless postponed in accordance with\nthe provisions of Section 8). The time at which such payment and delivery are\nactually made is called the \"time of purchase\". Certificates for the Firm Shares\nshall be delivered to you in definitive form in such names and in such\ndenominations as you shall specify on the second business day preceding the time\nof purchase. For the purpose of expediting the checking of the certificates for\nthe Firm Shares by you, the Company agrees to make such certificates available\nto you for such purpose at least one full business day preceding the time of\npurchase.\n \n Payment of the purchase price for the Additional Shares shall be made to\nthe Company at the additional time of purchase in the same manner and at the\nsame office as the payment for the Firm Shares. Certificates for the Additional\nShares shall be delivered to you in definitive form in such names and in such\ndenominations as you shall specify on the second business day preceding the\nadditional time of purchase. For the purpose of expediting the checking of the\ncertificates for the Additional Shares by you, the Company agrees to make such\ncertificates available to you for such purpose at least one full business day\npreceding the additional time of purchase.\n \n 3. Representations and Warranties of the Company. The Company represents\nand warrants to each of the Underwriters that:\n \n (a) Each Preliminary Prospectus filed as part of the Registration\n Statement as originally filed or as part of any amendment thereto, or filed\n pursuant to Rule 424 under the Act, complied when so filed in all material\n respects with the Act; when the Registration Statement becomes or became\n effective and at all times subsequent thereto up to the time of purchase\n and the additional time of purchase, the Registration Statement and the\n Prospectus, and any supplements or amendments thereto, complied and will\n comply in all material respects with the provisions of the Act; and the\n Registration Statement at all such times did not and will not contain an\n untrue statement of a material fact or omit to state a material fact\n required to be stated therein or necessary to make the statements therein\n not misleading, and the Prospectus at all such times did not and will not\n contain an untrue statement of a material fact or omit to state a material\n fact required to be stated therein or necessary to make the statements\n therein, in light of the circumstances under which they were made, not\n misleading; provided, however, that the Company makes no representation or\n warranty with respect to any statement contained in the Registration\n Statement or the Prospectus in reliance upon and in conformity with\n information concerning the Underwriters and furnished in writing by or on\n behalf of any Underwriter through you to the Company expressly for use in\n \n- ---------------\n \n* As used herein, \"business day\" shall mean a day on which the New York Stock\n Exchange is open for trading.\n \n 2\n\n 4\n \n the Registration Statement or the Prospectus and set forth in the section\n of the Registration Statement and the Prospectus entitled \"Underwriting\";\n the documents incorporated by reference in the Prospectus, at the time they\n were filed with the Commission, complied in all material respects with the\n requirements of the Exchange Act, and do not contain an untrue statement of\n a material fact or omit to state a material fact required to be stated\n therein or necessary to make the statements therein, in light of the\n circumstances under which they were made, not misleading.\n \n (b) As of the date of this Agreement, the Company has an authorized\n capitalization as set forth under the column entitled \"June 30, 1995\n Actual\" in the section of the Registration Statement and the Prospectus\n entitled \"Capitalization\" and, as of the time of purchase, the\n capitalization of the Company will be as set forth under the column\n entitled \"June 30, 1995 As Adjusted\" in the section of the Registration\n Statement and the Prospectus entitled \"Capitalization\"; all of the issued\n and outstanding shares of capital stock of the Company have been duly\n authorized and validly issued and are fully paid and nonassessable; the\n Company has been duly organized and is validly existing as a corporation in\n good standing under the laws of the State of Delaware with full power and\n authority to (i) own its properties and conduct its business as described\n in the Registration Statement and the Prospectus and (ii) execute and\n deliver this Agreement and to issue, sell and deliver the Shares as herein\n contemplated.\n \n (c) The Company does not own any interest in any corporation, joint\n venture or partnership except VISX Partner, Inc., a Delaware corporation\n (the \"Subsidiary\"). VISX Partner, Inc. does not own any interest in any\n corporation, joint venture or partnership, except that it is a general\n partner of Pillar Point Partners, a Delaware general partnership (the\n \"Partnership\"). All of the issued and outstanding shares of capital stock\n of the Subsidiary are owned directly by the Company; all of such shares\n have been duly authorized and validly issued and are fully paid and\n nonassessable and, except as described in the Prospectus, are owned free\n and clear of any pledge, lien, encumbrance, security interest or other\n claim; there are no outstanding rights, subscriptions, warrants, calls,\n preemptive rights, options or other agreements of any kind with respect to\n the capital stock of the Subsidiary.\n \n (d) The Subsidiary owns the general partnership interests (the\n \"Partnership Interests\") of the Partnership contemplated by the General\n Partnership Agreement dated as of June 3, 1992 between the Subsidiary and\n Summit Partner, Inc.; the Partnership Interests are owned free and clear of\n any pledge, lien, encumbrance, security interest or other claim; there are\n no outstanding rights, subscriptions, warrants, calls, preemptive rights,\n options or other agreements of any kind with respect to the partnership\n interests of the Partnership.\n \n (e) The Subsidiary has been duly incorporated and is validly existing\n as a corporation in good standing under the laws of its jurisdiction of\n incorporation, with full corporate power and authority to own its\n properties and to conduct its businesses.\n \n (f) The Partnership has been duly organized and is validly existing as\n a general partnership under the laws of Delaware, with full power and\n authority to own its properties and to conduct its business.\n \n (g) Each of the Company and the Subsidiary is duly qualified or\n licensed by and is in good standing in each jurisdiction in which it owns\n or leases property or conducts its business and in each other jurisdiction\n in which the failure, individually or in the aggregate, to be so qualified\n or licensed could have a material adverse effect on the properties, assets,\n operations, business, business prospects or condition (financial or other)\n of the Company and the Subsidiary taken as a whole; each of the Company and\n the Subsidiary is in compliance in all material respects with the laws,\n orders, rules, regulations and directives issued or administered by each\n such jurisdiction; the Partnership is in compliance in all material\n respects with the laws, orders, rules, regulations and directives issued or\n administered by each jurisdiction in which it owns or leases property or\n conducts its business.\n \n (h) Neither the Company nor the Subsidiary is in breach of, or in\n default under (nor has any event occurred which with notice, lapse of time\n or both would constitute a breach of, or default under), its charter or\n bylaws, or in the performance or observance of any obligation, agreement,\n covenant or condition contained in any license, indenture, lease, mortgage,\n deed of trust, bank loan or credit\n \n 3\n\n 5\n \n agreement, material supply agreement or other agreement or instrument to\n which the Company or the Subsidiary is a party or by which either of them\n may be bound or affected. The execution, delivery and performance of this\n Agreement, the issuance of the Shares and the consummation of the\n transactions contemplated hereby will not conflict with, or result in any\n breach of or constitute a default under (nor constitute any event which\n with notice, lapse of time or both would constitute a breach of, or default\n under), the charter or bylaws of the Company or the Subsidiary or under any\n provision of any license, indenture, lease, mortgage, deed of trust, bank\n loan or credit agreement, material supply agreement or other agreement or\n instrument to which the Company or the Subsidiary is a party or by which\n either of them or their properties may be bound or affected, or under any\n federal, state, local or foreign law, regulation or rule or any decree,\n judgment or order applicable to the Company or the Subsidiary.\n \n (i) The Partnership is not in breach of, or in default under (nor has\n any event occurred which with notice, lapse of time or both would\n constitute a breach of, or default under), in the performance or observance\n of any obligation, agreement, covenant or condition contained in any\n license, indenture, lease, mortgage, deed of trust, bank loan or credit\n agreement, material supply agreement or other agreement or instrument to\n which the Partnership is a party or by which it may be bound or affected.\n \n (j) The Firm Shares and the Additional Shares, when issued and\n delivered to and paid for by the Underwriters as contemplated hereby, will\n be duly authorized and validly issued and fully paid and nonassessable,\n free and clear of any pledge, lien, encumbrance, security interest,\n preemptive right or other claim.\n \n (k) This Agreement has been duly authorized, executed and delivered by\n the Company.\n \n (l) The capital stock of the Company, including the Shares, conforms\n in all material respects to the description thereof contained in the\n Registration Statement and the Prospectus; and the certificates for the\n Shares are in due and proper form and the holders of the Shares after\n making payment therefor will not be subject to personal liability under the\n General Corporation Law of Delaware by reason of being such holders.\n \n (m) No approval, authorization, consent or order of or filing with any\n federal, state, local or foreign governmental or regulatory commission,\n board, body, authority or agency is required in connection with the\n issuance and sale of the Shares as contemplated hereby, other than\n registration of the Shares under the Act, clearance of the offering of the\n Shares with the National Association of Securities Dealers, Inc. (the\n \"NASD\") and any necessary qualification under the securities or blue sky\n laws of the various jurisdictions in which the Shares are being offered by\n the Underwriters.\n \n (n) No person has the right, contractual or otherwise, to cause the\n Company to issue to it, or (except for such rights as have been satisfied\n or waived) register pursuant to the Act, any securities of the Company in\n consequence of the issue and sale of the Shares to the Underwriters\n hereunder, nor does any person have preemptive rights, rights of first\n refusal or other rights to purchase any of the Shares.\n \n (o) Arthur Andersen LLP, whose reports on the consolidated financial\n statements of the Company and the Subsidiary are included or incorporated\n by reference in the Registration Statement and the Prospectus, are\n independent public accountants with respect to the Company as required by\n the Act and the applicable published rules and regulations thereunder.\n \n (p) Each of the Company, the Subsidiary and the Partnership has all\n necessary licenses, authorizations, consents and approvals and has made all\n necessary filings required under any federal, state, local or foreign law,\n regulation or rule, and has obtained all necessary authorizations,\n consents, licenses and approvals from other persons, in order to conduct\n its business; neither the Company, the Subsidiary nor the Partnership is in\n violation of, or in default under, any such license, authorization, consent\n or approval or any federal, state, local or foreign law, regulation or rule\n or any decree, order or judgment applicable to the Company, the Subsidiary\n or the Partnership the result of which could have a material adverse effect\n on the properties, assets, operations, business, business prospects or\n condition (financial or other) of the Company and the Subsidiary taken as a\n whole.\n \n 4\n\n 6\n \n (q) All legal or governmental proceedings, contracts or documents of a\n character required to be described in the Registration Statement or the\n Prospectus or to be filed as an exhibit to the Registration Statement have\n been so described or filed as required.\n \n (r) Except as set forth in the Registration Statement and the\n Prospectus, there is no action, suit or proceeding pending or threatened\n against the Company, the Subsidiary or the Partnership or any of their\n properties, at law or in equity, or before or by any federal, state, local\n or foreign governmental or regulatory commission, board, body, authority or\n agency that could result in a judgment, decree or order having a material\n adverse effect on the properties, assets, operations, business, business\n prospects or condition (financial or other) of the Company and the\n Subsidiary taken as a whole.\n \n (s) The audited and unaudited financial statements included in the\n Registration Statement and the Prospectus present fairly the consolidated\n financial condition of the Company and the Subsidiary as of the dates\n indicated and the consolidated results of operations and cash flows of the\n Company and the Subsidiary for the periods specified; such financial\n statements have been prepared in conformity with generally accepted\n accounting principles applied on a consistent basis during the periods\n involved.\n \n (t) Subsequent to the respective dates as of which information is\n given in the Registration Statement and the Prospectus, and except as may\n be otherwise stated in the Registration Statement or the Prospectus, there\n has not been: (A) any material adverse change in the properties, assets,\n operations, business, business prospects or condition (financial or other),\n present or prospective, of the Company and the Subsidiary taken as a whole;\n (B) any transaction, that is material to the Company and the Subsidiary\n taken as a whole, contemplated or entered into by the Company, the\n Subsidiary or the Partnership; or (C) any obligation, contingent or\n otherwise, directly or indirectly incurred by the Company, the Subsidiary\n or the Partnership that is material to the Company and the Subsidiary taken\n as a whole.\n \n (u) The Company has obtained the agreement of the stockholders listed\n on Schedule B not to sell, contract to sell, grant any option to sell,\n transfer or otherwise dispose of, directly or indirectly, any shares of\n Common Stock, or securities convertible into or exchangeable for Common\n Stock or warrants or other rights to purchase Common Stock for a period of\n 90 days from the date of the Prospectus.\n \n (v) The business, operations and facilities of the Company and the\n Subsidiary have been and are being conducted in compliance in all material\n respects with all applicable laws, ordinances, rules, regulations,\n licenses, permits, approvals, plans, authorizations or requirements\n relating to occupational safety and health, or pollution, or protection of\n health or the environment, or reclamation (including without limitation\n those relating to emissions, discharges, releases or threatened releases of\n pollutants, contaminants or hazardous or toxic substances, materials or\n wastes into ambient air, surface water, groundwater or land, or relating to\n the manufacture, processing, distribution, use, treatment, storage,\n disposal, transport or handling of chemical substances, pollutants,\n contaminants or hazardous or toxic substances, materials or wastes, whether\n solid, gaseous or liquid in nature) or otherwise relating to remediating\n real property in which the Company or the Subsidiary has any interest,\n whether owned or leased, of any governmental department, commission, board,\n bureau, agency or instrumentality of the United States, any state or\n political subdivision thereof or any foreign jurisdiction and all\n applicable judicial or administrative agency or regulatory decrees, awards,\n judgments and orders relating thereto; and neither the Company nor the\n Subsidiary has received any notice from a governmental instrumentality or\n any third party alleging any violation thereof or liability thereunder\n (including without limitation liability for costs of investigating or\n remediating sites containing hazardous substances or damages to natural\n resources).\n \n (w) Neither the Company nor the Subsidiary, nor any employee of the\n Company or the Subsidiary, has made any payment of funds of the Company or\n the Subsidiary prohibited by law, and no funds of the Company or the\n Subsidiary have been set aside to be used for any payment prohibited by\n law.\n \n (x) The Company, the Subsidiary and the Partnership have filed all\n federal or state income or franchise tax returns required to be filed and\n have paid all taxes shown thereon as due, and there is no material tax\n deficiency which has been or might be asserted against the Company, the\n Subsidiary or the Partnership; all material tax liabilities are adequately\n provided for on the books of the Company, the Subsidiary and the\n Partnership.\n \n 5\n\n 7\n \n (y) The Company has not incurred any liability for any finder's fees\n or similar payments in connection with the transactions herein\n contemplated.\n \n (z) The Company, the Subsidiary and the Partnership have good title to\n all properties and assets owned or leased by them, in each case free and\n clear of all liens, security interests, pledges, charges, encumbrances,\n mortgages and defects (except such as are described or referred to in the\n Prospectus and the financial statements and the notes thereto contained\n therein or such as do not interfere with the use made and proposed to be\n made of such property by the Company, the Subsidiary and the Partnership).\n \n (aa) Neither the Company nor the Subsidiary is an \"investment company\"\n within the meaning of the Investment Company Act of 1940, as amended, or is\n subject to regulation under such Act.\n \n 4. Certain Covenants of the Company. The Company hereby agrees:\n \n (a) to furnish such information as may be required and otherwise to\n cooperate in qualifying the Shares for offering and sale under the\n securities or blue sky laws of such states as you may designate and to\n maintain such qualifications in effect as long as required for the\n distribution of the Shares, provided that the Company shall not be required\n to qualify as a foreign corporation or to consent to the service of process\n under the laws of any such state (except service of process with respect to\n the offering and sale of the Shares); promptly to advise you of the receipt\n by the Company of any notification with respect to the suspension of the\n qualification of the Shares for sale in any jurisdiction or the initiation\n or threatening of any proceeding for such purpose; and to use its best\n efforts to obtain the withdrawal of any order of suspension at the earliest\n practicable moment;\n \n (b) to make available to you in New York City, as soon as practicable\n after the Registration Statement becomes effective, and thereafter from\n time to time to furnish to the Underwriters, as many copies of the\n Prospectus (or of the Prospectus as amended or supplemented if the Company\n shall have made any amendment or supplement thereto after the effective\n date of the Registration Statement) as the Underwriters may request for the\n purposes contemplated by the Act;\n \n (c) to advise you promptly and if requested by you to confirm such\n advice in writing, (i) when the Registration Statement has become effective\n and when any post-effective amendment thereto becomes effective and (ii)\n when the Prospectus is filed with the Commission pursuant to Rule 424(b)\n under the Act, if required under the Act (which the Company agrees to file\n in a timely manner under such Rule);\n \n (d) to advise you promptly, confirming such advice in writing, of any\n request by the Commission for amendments or supplements to the Registration\n Statement or the Prospectus or for additional information with respect\n thereto, or of notice of institution of proceedings for or the entry of a\n stop order suspending the effectiveness of the Registration Statement and,\n if the Commission should enter a stop order suspending the effectiveness of\n the Registration Statement, to use its best efforts to obtain the lifting\n or removal of such order as soon as possible; to advise you promptly of any\n proposal to amend or supplement the Registration Statement or the\n Prospectus, including by filing any document that would be incorporated\n therein by reference, and to file no such amendment or supplement to which\n you shall object in writing;\n \n (e) to furnish to you and, upon request to each of the other\n Underwriters, for a period of five years from the date of this Agreement\n (i) copies of all reports or other communications that the Company shall\n send to its stockholders or from time to time shall publish or publicly\n disseminate and (ii) copies of all annual, quarterly and current reports\n filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other\n similar form as may be designated by the Commission, and any other document\n filed by the Company pursuant to Section 12, 13, 14 or 15(d) of the\n Exchange Act;\n \n (f) to advise the Underwriters promptly of the happening of any event\n known to the Company within the time during which a prospectus relating to\n the Shares is required to be delivered under the Act that, in the\n reasonable judgment of the Company, would require the making of any change\n in the Prospectus then being used, or in the information incorporated\n therein by reference, so that the Prospectus, as then supplemented, would\n not include an untrue statement of a material fact or omit to\n \n 6\n\n 8\n \n state a material fact necessary to make the statements therein, in the\n light of the circumstances under which they are made, not misleading and,\n during such time, promptly to prepare and furnish, at the Company's\n expense, to the Underwriters such amendments or supplements to such\n Prospectus as may be necessary to reflect any such change in such\n quantities as requested by the Underwriters, and to furnish to you a copy\n of such proposed amendment or supplement before filing any such amendment\n or supplement with the Commission;\n \n (g) to make generally available to its security holders, and to\n deliver to you, an earnings statement of the Company (which need not be\n audited and which will satisfy the provisions of Section 11(a) of the Act\n including, at the option of the Company, Rule 158) covering a period of 12\n months beginning after the effective date of the Registration Statement but\n ending not later than 15 months after the date of the Registration\n Statement, as soon as is reasonably practicable after the termination of\n such 12-month period;\n \n (h) to furnish to you three signed copies of the Registration\n Statement, as initially filed with the Commission, and of all amendments\n thereto (including all exhibits thereto and documents incorporated by\n reference therein) and sufficient conformed copies of the foregoing (other\n than exhibits) for distribution of a copy to each of the other\n Underwriters;\n \n (i) to furnish to you as early as practicable prior to the time of\n purchase and the additional time of purchase, as the case may be, but not\n later than two business days prior thereto, a copy of the latest available\n unaudited interim consolidated financial statements, if any, of the Company\n and the Subsidiary that have been read by the Company's independent\n certified public accountants as stated in their letter to be furnished\n pursuant to Section 6(b);\n \n (j) to apply the net proceeds from the sale of the Shares in the\n manner set forth under the caption \"Use of Proceeds\" in the Registration\n Statement and the Prospectus;\n \n (k) to use its best efforts to cause the Shares to be included in the\n Nasdaq National Market;\n \n (l) whether or not the transactions contemplated in this Agreement are\n consummated or this Agreement otherwise becomes effective or is terminated,\n to pay all expenses, fees and taxes (other than (x) any transfer taxes and\n (y) fees and disbursements of your counsel except as set forth under\n Section 5 and clauses (iii) and (iv) below) in connection with (i) the\n preparation and filing of the Registration Statement, each Preliminary\n Prospectus, the Prospectus and any amendment or supplement thereto, and the\n printing and furnishing of copies of each thereof to you and to dealers\n (including costs of mailing and shipment), (ii) the issuance, sale and\n delivery of the Shares, (iii) the word processing or printing of this\n Agreement and any dealer agreements, and the reproduction or printing and\n furnishing of copies of each thereof to you and to dealers (including costs\n of mailing and shipment), (iv) the qualification of the Shares for offering\n and sale under state laws as aforesaid (including legal fees and filing\n fees and other disbursements of your counsel) and the printing and\n furnishing of copies of any blue sky surveys to you and to dealers, (v) any\n listing of the Shares on any securities exchange or qualification of the\n Shares for inclusion in the Nasdaq National Market and any registration\n thereof under the Exchange Act, (vi) any filing for review of the public\n offering of the Shares by the NASD and (viii) the performance of the\n Company's other obligations hereunder;\n \n (m) not to sell, contract to sell, grant any option to sell, transfer\n or otherwise dispose of, directly or indirectly, any shares of Common Stock\n or securities convertible into or exchangeable for Common Stock or warrants\n or other rights to purchase Common Stock or permit the registration under\n the Act of any shares of Common Stock, except for the registration of the\n Shares and the sales to you pursuant to this Agreement for a period\n commencing on the date hereof and continuing for days after the date of\n the Prospectus, without the prior written consent of Dillon, Read & Co.\n Inc., except for the issuance of shares of Common Stock (i) upon exercise\n of options granted prior to the date hereof under the Company's stock\n option plans to the extent such options become exercisable in accordance\n with their terms; and (ii) pursuant to the Company's Employee Stock\n Purchase Plan described in Note 5 to the Company's consolidated financial\n statements included in the Registration Statement; and\n \n 7\n\n 9\n \n (n) to refrain from investing the proceeds from the sale of the Shares\n in a manner to cause the Company or the Subsidiary to become an \"investment\n company\" within the meaning of the Investment Company Act of 1940, as\n amended.\n \n 5. Reimbursement of Underwriters' Expenses. If the Shares are not\ndelivered for any reason other than as provided in the second paragraph of\nSection 7, the Company will reimburse the Underwriters for all of their\nout-of-pocket expenses, including the fees and disbursements of their counsel.\n \n 6. Conditions of Underwriters' Obligations. The several obligations of the\nUnderwriters hereunder are subject to the accuracy of the representations and\nwarranties on the part of the Company on the date hereof and at the time of\npurchase (and the several obligations of the Underwriters at the additional time\nof purchase are subject to the accuracy of the representations and warranties on\nthe part of the Company on the date hereof and at the time of purchase and at\nthe additional time of purchase, as the case may be), the performance by the\nCompany of its obligations hereunder and to the following conditions:\n \n (a) The Company shall furnish to you at the time of purchase and at\n the additional time of purchase, as the case may be, an opinion of Wilson,\n Sonsini, Goodrich & Rosati, counsel for the Company, addressed to the\n Underwriters, and dated the time of purchase or the additional time of\n purchase, as the case may be, with reproduced copies for each of the other\n Underwriters and in form satisfactory to Gibson, Dunn & Crutcher, counsel\n for the Underwriters, stating that:\n \n (i) the Company has been duly incorporated and is validly existing\n as a corporation in good standing under the laws of the State of\n Delaware, with full corporate power and authority (A) to own its\n properties and conduct its business as described in the Registration\n Statement and the Prospectus and (B) to execute and deliver this\n Agreement and to issue, sell and deliver the Shares as herein\n contemplated;\n \n (ii) to the best of such counsel's knowledge, the Company does not\n own any interest in any corporation, joint venture or partnership except\n the Subsidiary and the Partnership; the Subsidiary has been duly\n incorporated and is validly existing as a corporation in good standing\n under the laws of the state in which such Subsidiary is incorporated,\n with full corporate power and authority to own its properties and to\n conduct its business as described in the Registration Statement and the\n Prospectus;\n \n (iii) The Subsidiary owns the Partnership Interests; the\n Partnership Interests are owned free and clear of any pledge, lien,\n encumbrance, security interest or other claim; there are no outstanding\n rights, subscriptions, warrants, calls, preemptive rights, options or\n other agreements of any kind with respect to the partnership interests\n of the Partnership.\n \n (iv) each of the Company and the Subsidiary is duly qualified or\n licensed to do business by and is in good standing as a foreign\n corporation in each jurisdiction in which it conducts business or owns\n property and in which the failure, individually or in the aggregate, to\n be so licensed or qualified could have a material adverse effect on the\n properties, assets, operations, business, business prospects or\n condition (financial or other) of the Company and the Subsidiary taken\n as a whole;\n \n (v) the Partnership has been duly organized and is validly existing\n as a general partnership in good standing under the laws of Delaware,\n with full power and authority to own its properties and to conduct its\n business.\n \n (vi) all of the issued and outstanding shares of capital stock of\n the Subsidiary have been duly authorized and validly issued and are\n fully paid and nonassessable and, except as set forth in the Prospectus,\n are owned, directly or indirectly, by the Company free and clear of any\n pledge, lien, encumbrance, security interest, preemptive right or other\n claim, and there are no rights, warrants, options or other agreements to\n acquire or instruments convertible into or exchangeable for any shares\n of capital stock or other equity interest of the Subsidiary, except as\n set forth in the Prospectus;\n \n (vii) this Agreement has been duly authorized, executed and\n delivered by the Company;\n \n 8\n\n 10\n \n (viii) (a) the Shares, when issued and delivered to and paid for by\n the Underwriters, will be duly authorized, validly issued, fully paid\n and nonassessable, and will be free of any pledge, lien, encumbrance,\n claim or preemptive right; and (b) the certificates for the Shares are\n in due and proper form and the holders of the Shares will not be subject\n to personal liability by reason of being such holders;\n \n (ix) (a) the Company has an authorized capitalization as set forth\n under the heading \"Capitalization\" in the Registration Statement and the\n Prospectus, and (b) the outstanding shares of capital stock of the\n Company have been duly authorized and validly issued and are fully paid,\n nonassessable and free of statutory and contractual preemptive rights;\n \n (x) the capital stock of the Company, including the Shares,\n conforms in all material respects to the description thereof contained\n in the Registration Statement and the Prospectus;\n \n (xi) the Registration Statement and the Prospectus (except as to\n the financial statements and schedules contained or incorporated by\n reference therein as to which such counsel need express no opinion)\n comply as to form in all material respects with the requirements of the\n Act;\n \n (xi) the Registration Statement has become effective under the Act\n and, to the best of such counsel's knowledge, no stop order proceedings\n with respect thereto are pending or threatened under the Act;\n \n (xiii) no approval, authorization, consent or order of or filing\n with any federal, state, local or foreign governmental or regulatory\n commission, board, body, authority or agency is required in connection\n with the issuance or sale of the Shares as contemplated hereby other\n than registration of the Shares under the Act (except such counsel need\n express no opinion as to any necessary qualification under the state\n securities or blue sky laws of the various jurisdictions in which the\n Shares are being offered by the Underwriters);\n \n (xiv) the execution, delivery and performance of this Agreement by\n the Company and the consummation by the Company of the transactions\n contemplated hereby do not and will not conflict with, or result in any\n breach of, or constitute a default under (nor constitute any event which\n with notice, lapse of time or both would constitute a breach of or\n default under), the charter or bylaws of the Company or the Subsidiary,\n or any provision of any license, indenture, lease, mortgage, deed of\n trust, bank loan or credit agreement or other agreement or instrument to\n which the Company or the Subsidiary is a party or by which the Company\n or the Subsidiary or their properties are bound or affected, or under\n any federal, state, local or foreign law, regulation or rule or any\n decree, judgment or order applicable to the Company or the Subsidiary;\n \n (xv) to the best of such counsel's knowledge, neither the Company,\n the Subsidiary nor the Partnership is in breach of or in default under\n (nor has any event occurred which with notice, lapse of time or both\n would constitute a breach of or default under) any license, indenture,\n lease, mortgage, deed of trust, bank loan or credit agreement or any\n other agreement or instrument to which the Company, the Subsidiary or\n the Partnership is a party or by which the Company, the Subsidiary or\n the Partnership or their properties are bound or affected or under any\n law, regulation or rule or any decree, judgment or order applicable to\n the Company, the Subsidiary or the Partnership, except for such matters\n as could not, individually or in the aggregate, have a material adverse\n effect on the properties, assets, operations, business, business\n prospects or condition (financial or other) of the Company and the\n Subsidiary taken as a whole;\n \n (xvi) all contracts or documents of a character required to be\n described in the Registration Statement or the Prospectus or to be filed\n as an exhibit to the Registration Statement have been so described or\n filed;\n \n (xvii) except as described in the Registration Statement and the\n Prospectus, there are no actions, suits or proceedings of which such\n counsel has knowledge pending or threatened against the Company, the\n Subsidiary or the Partnership, or any of their respective properties, at\n law or in equity,\n \n 9\n\n 11\n \n or before or by any federal, state, local or foreign governmental or\n regulatory commission, board, body, authority or agency that\n individually or in the aggregate could result in a judgment, decree or\n order having a material adverse effect on the properties, assets,\n operations, business, business prospects or condition (financial or\n other) of the Company and the Subsidiary taken as a whole;\n \n (xviii) the documents incorporated by reference in the Registration\n Statement and Prospectus, when they were filed (or, if an amendment with\n respect to any such document was filed, when such amendment was filed),\n complied as to form in all material respects with the Exchange Act\n (except as to the financial statements and schedules and other financial\n and statistical data contained or incorporated by reference therein, as\n to which such counsel need express no opinion);\n \n (xix) to the best of such counsel's knowledge, each person who has\n the right, contractual or otherwise, to request the Company to register\n pursuant to the Act securities of the Company upon the issue and sale of\n the Shares to the Underwriters hereunder or who has preemptive rights,\n rights of first refusal or other rights to purchase any of the Shares,\n except to the extent included in the Registration Statement, either\n waived such rights or was excluded from including any such shares in\n this offering, or from any preemptive rights, rights of first refusal or\n other purchase rights, in accordance with the terms thereof;\n \n (xx) the statements in the Registration Statement and the\n Prospectus under the captions [\"Risk Factors -- Lack of FDA Approval;\n Government Regulation,\"] \"Risk Factors -- Dependence on Third-Party\n Sales and Marketing,\" [\"Risk Factors -- Reliance on Patents and\n Proprietary Technology; Risk of Infringement and Litigation,\"] \"Risk\n Factors -- Risks Relating to Pillar Point Partners,\" \"Risk\n Factors -- Potential Claims for Personal Injury,\" \"Business -- Pillar\n Point and Other Licensing Agreements,\" \"Business -- Marketing, Sales and\n Distribution,\" [\"Business -- Government Regulation,\"]\n [\"Business -- Patents and Proprietary Rights,\"] \"Business -- Insurance\n and Indemnification,\" \"Business -- Facilities\" and \"Business -- Legal\n Proceedings,\" insofar as they are descriptions of laws, regulations and\n rules, of legal and governmental proceedings or of contracts,\n agreements, leases and other legal documents, or refer to statements of\n law or legal conclusions, have been reviewed by such counsel and are\n accurate in all material respects [order and section names to be\n conformed to revised draft];\n \n (xxi) neither the Company nor the Subsidiary is an \"investment\n company\" or a person \"controlled\" by an \"investment company\" within the\n meaning of the Investment Company Act of 1940, as amended;\n \n (xxii) the sales of securities by the Company described in Item 15\n of the Registration Statement were exempt from the registration\n requirements of the Act; and\n \n (xxiii) nothing has come to the attention of such counsel that\n causes them to believe that the Registration Statement or any amendment\n thereto at the time such Registration Statement or amendment became\n effective contained an untrue statement of a material fact or omitted to\n state a material fact required to be stated therein or necessary to make\n the statements therein not misleading, or that the Prospectus or any\n supplement thereto at the date of such Prospectus or such supplement,\n and at all times up to and including the time of purchase contained an\n untrue statement of a material fact or omitted to state a material fact\n required to be stated therein or necessary to make the statements\n therein, in light of the circumstances under which they were made, not\n misleading (it being understood that such counsel need express no\n opinion with respect to the financial statements and schedules included\n in the Registration Statement or Prospectus).\n \n (b) You shall have received from Arthur Andersen LLP letters dated,\n respectively, the date of this Agreement and the time of purchase and\n additional time of purchase, as the case may be, and addressed to the\n Underwriters (with reproduced copies for each of the Underwriters) in form\n and substance satisfactory to the Managing Underwriters.\n \n (c) You shall have received at the time of purchase and at the\n additional time of purchase, as the case may be, opinions from Gibson, Dunn\n & Crutcher in form and substance satisfactory to you.\n \n 10\n\n 12\n \n (d) No amendment or supplement to the Registration Statement or the\n Prospectus, including documents deemed to be incorporated by reference\n therein, shall be filed prior to the time the Registration Statement\n becomes effective to which you shall have objected in writing.\n \n (e) The Registration Statement shall become effective at or before\n 5:00 P.M., New York City time, on the date of this Agreement and, if Rule\n 430A under the Act is used, the Prospectus shall have been filed with the\n Commission pursuant to Rule 424(b) under the Act at or before 5:00 P.M.,\n New York City time, on the second full business day after the date of this\n Agreement; provided, however, that the Company and you and any group of\n Underwriters, including you, who have agreed hereunder to purchase in the\n aggregate at least 50% of the Firm Shares from time to time may agree in\n writing or by telephone, confirmed in writing, on a later date.\n \n (f) Prior to the time of purchase or the additional time of purchase,\n as the case may be: (i) no stop order with respect to the effectiveness of\n the Registration Statement shall have been issued under the Act or\n proceedings initiated under Section 8(d) or 8(e) of the Act; (ii) the\n Registration Statement and all amendments thereto, or modifications\n thereof, if any, shall not contain an untrue statement of a material fact\n or omit to state a material fact required to be stated therein or necessary\n to make the statements therein not misleading; and (iii) the Prospectus and\n all amendments or supplements thereto, or modifications thereof, if any,\n shall not contain an untrue statement of a material fact or omit to state a\n material fact required to be stated therein or necessary to make the\n statements therein, in light of the circumstances under which they were\n made, not misleading.\n \n (g) Between the time of execution of this Agreement and the time of\n purchase or the additional time of purchase, as the case may be, there has\n not been: (i) any material and adverse change, present or prospective, in\n the properties, assets, operations, business, business prospects or\n condition (financial or other) of the Company and the Subsidiary taken as a\n whole, other than as described in the Registration Statement and the\n Prospectus; (ii) any transaction that is material to the Company and the\n Subsidiary taken as a whole contemplated or entered into by the Company or\n the Subsidiary, other than as described in the Registration Statement and\n the Prospectus; or (iii) any obligation, contingent or otherwise, directly\n or indirectly, incurred by the Company or the Subsidiary that is material\n to the Company and the Subsidiary taken as a whole, other than as described\n in the Registration Statement and the Prospectus.\n \n (h) The Company, at the time of purchase or additional time of\n purchase, as the case may be, will deliver to you a certificate of two of\n its executive officers to the effect that the representations and\n warranties of the Company as set forth in this Agreement are true and\n correct as of each such date and the conditions set forth in Section 6(f)\n and Section 6(g) have been met.\n \n (i) You shall have received a signed letter, dated the date of this\n Agreement, from each of the stockholders listed in Schedule B to the effect\n that such persons shall not sell, contract to sell, grant any option to\n sell, transfer or otherwise dispose of, directly or indirectly, any shares\n of Common Stock or securities convertible into or exchangeable for Common\n Stock or warrants or other rights to purchase Common Stock for a period of\n 90 days from the date of the Prospectus without the prior written consent\n of Dillon, Read & Co. Inc.\n \n (j) The Company shall have furnished to you such other documents and\n certificates as to the accuracy and completeness of any statement in the\n Registration Statement or the Prospectus as of the time of purchase and the\n additional time of purchase, as the case may be, as you reasonably may\n request.\n \n (k) The Company shall have performed such of its obligations under\n this Agreement as are to be performed by the terms hereof at or before the\n time of purchase and at or before the additional time of purchase, as the\n case may be.\n \n (l) The Shares shall have been approved for quotation through the\n Nasdaq National Market.\n \n 7. Effective Date of Agreement; Termination. This Agreement shall become\neffective (i) if Rule 430A under the Act is not used, when you shall have\nreceived notification of the effectiveness of the Registration\n \n 11\n\n 13\n \nStatement, or (ii) if Rule 430A under the Act is used, when the parties hereto\nhave executed and delivered this Agreement.\n \n The obligations of the several Underwriters hereunder shall be subject to\ntermination in the absolute discretion of you or any group of Underwriters\n(which may include you) which has agreed to purchase in the aggregate at least\n50% of the Firm Shares if, at any time prior to the time of purchase or, with\nrespect to the purchase of any Additional Shares, the additional time of\npurchase, as the case may be, trading in securities on the New York Stock\nExchange shall have been suspended or minimum prices shall have been established\non the New York Stock Exchange, or if a banking moratorium shall have been\ndeclared either by the United States or New York State authorities, or if the\nUnited States shall have declared war in accordance with its constitutional\nprocesses or there shall have occurred any material outbreak or escalation of\nhostilities or other national or international calamity or crisis of such\nmagnitude in its effect on, or any material adverse change in, any financial\nmarket which, in each case, in your judgment, or in the judgment of such group\nof Underwriters, makes it impracticable to market the Shares.\n \n If you or any group of Underwriters elect to terminate this Agreement as\nprovided in this Section 7, the Company and each other Underwriter shall be\nnotified promptly by letter or telegram.\n \n If the sale to the Underwriters of the Shares, as contemplated by this\nAgreement, is not carried out by the Underwriters for any reason permitted under\nthis Agreement or if such sale is not carried out because the Company shall be\nunable to comply with any of the terms of this Agreement, the Company shall not\nbe under any obligation or liability under this Agreement (except to the extent\nprovided in Sections 4(l), 5 and 9), and the Underwriters shall be under no\nobligation or liability to the Company under this Agreement (except to the\nextent provided in Section 9).\n \n 8. Increase in Underwriters' Commitments. If any Underwriter shall default\nin its obligation to take up and pay for the Firm Shares to be purchased by it\nhereunder and if the number of Firm Shares which all Underwriters so defaulting\nshall have agreed but failed to take up and pay for does not exceed 10% of the\ntotal number of Firm Shares, the non-defaulting Underwriters shall take up and\npay for (in addition to the aggregate principal amount of Firm Shares they are\nobligated to purchase pursuant to Section 1) the number of Firm Shares agreed to\nbe purchased by all such defaulting Underwriters as hereinafter provided. Such\nShares shall be taken up and paid for by such non-defaulting Underwriter or\nUnderwriters in such amount or amounts as you may designate with the consent of\neach Underwriter so designated or, in the event no such designation is made,\nsuch Shares shall be taken up and paid for by all non-defaulting Underwriters\npro rata in proportion to the aggregate number of Firm Shares set opposite the\nnames of such non-defaulting Underwriters in Schedule A.\n \n Without relieving any defaulting Underwriter from its obligations\nhereunder, the Company agrees with the non-defaulting Underwriters that they\nwill not sell any Firm Shares hereunder unless all of the Firm Shares are\npurchased by the Underwriters (or by substituted Underwriters selected by you\nwith the approval of the Company or selected by the Company with your approval).\n \n If a new Underwriter or Underwriters are substituted by the Underwriters or\nby the Company for a defaulting Underwriter or Underwriters in accordance with\nthe foregoing provision, the Company or you shall have the right to postpone the\ntime of purchase for a period not exceeding five business days in order that any\nnecessary change in the Registration Statement and the Prospectus and other\ndocuments may be effected.\n \n The term Underwriter as used in this Agreement shall refer to and include\nany Underwriter substituted under this Section 8 with like effect as if such\nsubstituted Underwriter had originally been named in Schedule A.\n \n 9. Indemnity by the Company and the Underwriters.\n \n (a) The Company agrees to indemnify, defend and hold harmless each\nUnderwriter, each person that controls any Underwriter within the meaning of\nSection 15 of the Act or Section 20 of the Exchange Act, and each Underwriter's\nagents, employees, officers and directors and the agents, employees, officers\nand directors of any such controlling person (collectively, the \"Underwriter\nindemnified parties\") from and against any and\n \n 12\n\n 14\n \nall losses, claims, damages, judgments, liabilities and expenses (including the\nfees and expenses of counsel and other expenses in connection with\ninvestigating, defending or settling any such action or claim) which, jointly or\nseverally, any Underwriter indemnified party may incur as they are incurred (and\nregardless of whether such Underwriter indemnified party is a party to the\nlitigation, if any) arising out of or based upon any untrue statement or alleged\nuntrue statement of a material fact contained in the registration statement\nrelating to the Shares or the Prospectus or any Preliminary Prospectus, or\narising out of or based upon any omission or alleged omission to state therein a\nmaterial fact required to be stated therein or necessary to make the statements\ntherein not misleading, except insofar as such losses, claims, damages,\njudgments, liabilities or expenses arise out of, or are based upon, any such\nuntrue statement or omission or alleged untrue statement or omission based upon\nand in conformity with information with respect to any Underwriter furnished in\nwriting by any Underwriter through you to the Company expressly for use therein\nwith reference to such Underwriter. This indemnity agreement will be in addition\nto any liability the Company otherwise may have.\n \n (b) If any action or proceeding (including any governmental or regulatory\ninvestigation or proceeding) shall be brought or asserted against any\nUnderwriter indemnified party, with respect to which indemnity may be sought\nagainst the Company pursuant to this Section 8, such Underwriter indemnified\nparty shall promptly notify the Company in writing, and the Company shall assume\nthe defense thereof, including the employment of counsel reasonably satisfactory\nto the Underwriter indemnified party and payment of all fees and expenses;\nprovided that the omission so to notify the Company shall not relieve it from\nany liability that it may have to any Underwriter indemnified party. An\nUnderwriter indemnified party shall have the right to employ separate counsel in\nany such action or proceeding and to assume the defense thereof, but the fees\nand expenses of such counsel shall be at the expense of such Underwriter\nindemnified party unless (i) the employment of such counsel has been authorized\nin writing by the Company, (ii) the Company has failed promptly to assume the\ndefense and employ counsel satisfactory to the Underwriter indemnified party or\n(iii) the named parties to any such action or proceeding (including any\nimpleaded parties) include both the Underwriter indemnified party and the\nCompany and such Underwriter indemnified party shall have reasonably concluded\nthat there may be one or more legal defenses available to it that are different\nfrom or additional to those available to the Company (in which case the Company\nshall not have the right to assume the defense of such action on behalf of such\nUnderwriter indemnified party), in any of which events such fees and expenses\nshall be borne by the Company and reimbursed as they are incurred. It is\nunderstood, however, that the Company shall not, in connection with any one such\naction or separate but substantially similar or related actions in the same\njurisdiction arising out of the same general allegations or circumstances, be\nliable for the fees and expenses of more than one separate firm of attorneys (in\naddition to any local counsel) at any time for all such Underwriter indemnified\nparties, which firm shall be designated in writing by Dillon, Read & Co. Inc.,\nand that all such fees and expenses shall be reimbursed as they are incurred.\nThe Company shall not be liable for any settlement of any such action effected\nwithout the written consent of the Company (which consent shall not be\nunreasonably withheld or delayed), but if settled with the written consent of\nthe Company, or if there is a final judgment with respect thereto, the Company\nagrees to indemnify and hold harmless each Underwriter indemnified party from\nand against any loss or liability by reason of such settlement or judgment.\n \n (c) Each Underwriter severally agrees to indemnify and hold harmless the\nCompany, its directors, its officers who sign the Registration Statement, and\nany person that controls the Company within the meaning of Section 15 of the Act\nor Section 20 of the Exchange Act (collectively, the \"Company indemnified\nparties\") to the same extent as the foregoing indemnity from the Company to the\nUnderwriter indemnified parties, but only with respect to information concerning\nsuch Underwriter furnished in writing by or on behalf of such Underwriter\nthrough you to the Company expressly for use with respect to such Underwriter in\nthe Registration Statement, any Preliminary Prospectus or the Prospectus. In\ncase any action shall be brought against any Company indemnified party based on\nthe Registration Statement, any Preliminary Prospectus or the Prospectus and in\nrespect of which indemnity may be sought against any Underwriter pursuant to\nthis Section 8(c), such Underwriter shall have the rights and duties given to\nthe Company by Section 8(b) (except that if the Company shall have assumed the\ndefense thereof such Underwriter shall not be required to do so, but may employ\nseparate counsel therein and participate in the defense thereof, provided that\nthe fees and expenses of such separate counsel shall be at the expense of such\nUnderwriter), and the Company\n \n 13\n\n 15\n \nindemnified parties shall have the rights and duties given to the Underwriter\nindemnified parties by Section 8(b).\n \n (d) If the indemnification provided for in this Section 8 is unavailable to\nor insufficient to hold harmless any Underwriter indemnified party or any\nCompany indemnified party, then the party required to indemnify such indemnified\nparty under this Section 8, in lieu of indemnifying such indemnified party,\nshall contribute to the amount paid or payable by such indemnified party as a\nresult of such losses, claims, damages, judgments, liabilities and expenses (i)\nin such proportion as is appropriate to reflect the relative benefits received\nby the Company on the one hand and the Underwriters on the other hand from the\noffering of the Shares, or (ii) if the allocation provided by clause (i) above\nis not permitted by applicable law, in such proportion as is appropriate to\nreflect not only the relative benefits referred to in clause (i) above but also\nthe relative fault of the Company on the one hand and the Underwriters on the\nother hand in connection with the statements or omissions which resulted in such\nlosses, claims, damages, liabilities or expenses, as well as any other relevant\nequitable considerations. The relative benefits received by the Company on the\none hand and the Underwriters on the other hand shall be deemed to be in the\nsame proportion as the total proceeds from the offering (net of underwriting\ndiscounts and commissions but before deducting expenses) received by the Company\nbear to the total underwriting discounts and commissions received by the\nUnderwriters, in each case as set forth in the table on the cover page of the\nProspectus. The relative fault of the Company on the one hand and the\nUnderwriters on the other hand shall be determined by reference to, among other\nthings, whether the untrue statement or alleged untrue statement of a material\nfact or the omission or alleged omission to state a material fact relates to\ninformation supplied by the Company or by the Underwriters, and the parties'\nrelative intent, knowledge, access to information and opportunity to correct or\nprevent such statement or omission. The amount paid or payable by a party as a\nresult of the losses, claims, damages, judgments, liabilities and expenses\nreferred to above shall be deemed to include any legal or other fees or expenses\nreasonably incurred by such party in connection with investigating or defending\nany claim or action.\n \n The Company and the Underwriters agree that it would not be just and\nequitable if contribution pursuant to this Section 8(d) were determined by pro\nrata allocation or by any other method of allocation (even if the Underwriters\nwere treated as one entity for such purpose) that does not take account of the\nequitable considerations referred to in this Section 8(d). Notwithstanding the\nprovisions of this Section 8(d), no Underwriter indemnified party shall be\nrequired to contribute any amount in excess of the amount by which the total\nprice at which the Shares underwritten by such Underwriter indemnified party and\ndistributed to the public were offered to the public exceeds the amount of any\ndamages which such Underwriter indemnified party otherwise has been required to\npay by reason of such untrue statement or alleged untrue statement or omission\nor alleged omission. No person guilty of fraudulent misrepresentation (within\nthe meaning of Section 11(f) of the Act) shall be entitled to contribution from\nany person who was not guilty of such fraudulent misrepresentation. The\nUnderwriters' obligations to contribute pursuant to this Section 8 are several\nin proportion to their respective underwriting commitments and are not joint.\n \n The statements under the caption \"Underwriting\" in the Prospectus (to the\nextent such statements relate to an Underwriter) constitute the only information\nfurnished to the Company in writing by such Underwriter expressly for use in the\nRegistration Statement, any Preliminary Prospectus or the Prospectus.\n \n (e) The indemnity and contribution agreements contained in this Section 8\nand the representations, warranties and covenants of the Company contained in\nthis Agreement shall remain in full force and effect, regardless of any\ninvestigation made by or on behalf of any Underwriter indemnified party or by or\non behalf of any Company indemnified party, and shall survive any termination of\nthis Agreement or the issuance and delivery of the Shares. Subject to the\nprovisions of Section 8(b) and Section 8(c), the Company and each Underwriter\nagree promptly to notify the other of the commencement of any litigation or\nproceeding against it in connection with the issuance and sale of the Shares or\nin connection with the Registration Statement or the Prospectus.\n \n 10. Notices. Except as otherwise herein provided, all statements,\nrequests, notices and agreements shall be in writing or by telegram and, if to\nthe Underwriters, shall be sufficient in all respects if delivered or sent to\nDillon, Read & Co. Inc., 535 Madison Avenue, New York, New York 10022,\nAttention: Syndicate\n \n 14\n\n 16\n \nDepartment, and if to the Company, shall be sufficient in all respects if\ndelivered or sent to the Company at the offices of the Company at 3400 Central\nExpressway, Santa Clara, California 95051, Attention: Chief Financial Officer.\n \n 11. Construction. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN\nACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES\nOF CONFLICTS OF LAW. THE SECTION HEADINGS IN THIS AGREEMENT HAVE BEEN INSERTED\nAS A MATTER OF CONVENIENCE OF REFERENCE AND ARE NOT A PART OF THIS AGREEMENT.\n \n 12. Parties at Interest. The Agreement herein set forth has been and is\nmade solely for the benefit of the Underwriters, the Company, the Underwriter\nindemnified parties and the Company indemnified parties, and their respective\nsuccessors, assigns, executors and administrators. No other person, partnership,\nassociation or corporation (including a purchaser, as such purchaser, from any\nof the Underwriters) shall acquire or have any right under or by virtue of this\nAgreement.\n \n 13. Counterparts. This Agreement may be signed by the parties in\ncounterparts which together shall constitute one and the same agreement among\nthe parties.\n \n If the foregoing correctly sets forth the understanding among the Company\nand the Underwriters, please so indicate in the space provided below for such\npurpose, whereupon this letter and your acceptance shall constitute a binding\nagreement among the Company and the Underwriters, severally.\n \n Very truly yours,\n \n VISX, INCORPORATED\n \n By:\n \n ------------------------------------\n Name:\n Title:\n \nAccepted and agreed to as of\nthe date first above written,\non behalf of themselves,\nPaineWebber Incorporated\nand the other several\nUnderwriters named in\nSchedule A\n \nDILLON, READ & CO. INC., as\nManaging Underwriter\n \nBy:\n \n --------------------------------------------------------\n Name:\n Title:\n \n 15\n\n 17\n \n SCHEDULE A\n \n\n<\/pre>\n
\n\n NUMBER OF
\n UNDERWRITER FIRM SHARES
\n– ——————————————————————————— ———–<\/p>\n
\n
\nDillon, Read & Co. Inc…………………………………………………..
\nPaineWebber Incorporated…………………………………………………
\n ———
\nTotal…………………………………………………………………. 2,500,000
\n =========<\/p>\n<\/c><\/s><\/caption>\n<\/table>\n
18<\/p>\n
SCHEDULE B<\/p>\n
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