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Title: |
Underwriting Agreement |
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Entities: |
CIBC World Markets Corp.; Curon Medical, Inc.; UBS Warburg LLC; Dewey Ballantine LLP; Hogan & Hartson; Wilson Sonsini Goodrich & Rosati |
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Date: |
2000 |
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Size: |
Preview shows 10KB of 110KB total |
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Price: |
$67 |
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ID: |
#939585 |
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Curon Medical, Inc.
5,750,000 Shares
Common Stock
($.001 Par Value)
UNDERWRITING AGREEMENT
________ __, 2000
<PAGE>
UNDERWRITING AGREEMENT
________ __, 2000
UBS Warburg LLC
CIBC World Markets Corp.
SG Cowen Securities Corporation
As representatives of the several Underwriters
named in Schedule A hereto
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c/o UBS Warburg LLC
299 Park Avenue
New York, New York 10171-0026
Ladies and Gentlemen:
Curon Medical, Inc., a Delaware corporation (the "Company"), proposes
-------
to issue and sell to the Underwriters named in Schedule A annexed hereto (the
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"Underwriters") an aggregate of 5,750,000 shares (the "Firm Shares") of Common
------------ -----------
Stock, $.001 par value per share, of the Company (the "Common Stock"). In
------------
addition, solely for the purpose of covering over-allotments, the Company
proposes to grant to the Underwriters the option to purchase from the Company up
to an additional 862,500 shares of Common Stock (the "Additional Shares"). The
-----------------
Firm Shares and the Additional Shares are hereinafter collectively sometimes
referred to as the "Shares". The Shares are described in the Prospectus which
is referred to below.
The Company hereby acknowledges that in connection with the proposed
offering of the Shares, it has requested UBS Warburg LLC ("UBSW") to administer
----
a directed share program (the "Directed Share Program") under which up to
----------------------
287,500 Firm Shares, or 5% of the Firm Shares, to be purchased by you (the
"Reserved Shares") shall be reserved for sale by you at the initial public
---------------
offering price to the Company's officers, directors, employees, and consultants
and others having a relationship with the Company (the "Directed Share
--------------
Participants") as part of the distribution of the Shares by the Underwriters,
------------
subject to the terms of this Agreement, the applicable rules, regulations and
interpretations of the National Association of Securities Dealers, Inc. ("NASD")
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and all other applicable laws, rules and regulations. The number of Shares
available for sale to the general public will be reduced to the extent that
Directed Share Participants purchase Reserved Shares. You may offer any Reserved
Shares not purchased by Directed Share Participants to the general public on the
same basis as the other Shares being issued and sold hereunder. The Company has
supplied UBSW with the names, addresses and telephone numbers of the individuals
or other entities which the Company has designated to be participants in the
Directed Share Program. It is understood that any number of those designated to
participate in the Directed Share Program may decline to do so.
1
<PAGE>
The Company has filed, in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations thereunder
(collectively, the "Act"), with the Securities and Exchange Commission (the
---
"Commission") a registration statement on Form S-1 (File No. 333-37866)
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including a prospectus, relating to the Shares. The Company has furnished to
you, for use by the Underwriters and by dealers, copies of one or more
preliminary prospectuses (each thereof being herein called a "Preliminary
-----------
Prospectus") relating to the Shares. Except where the context otherwise
----------
requires, the registration statement, as amended when it becomes effective,
including all documents filed as a part thereof, and including any information
contained in a prospectus subsequently filed with the Commission pursuant to
Rule 424(b) under the Act and deemed to be part of the registration statement at
the time of effectiveness pursuant to Rule 430(A) under the Act, and also
including any registration statement filed pursuant to Rule 462(b) under the Act
with respect to the offering contemplated by the Registration Statement, is
herein called the "Registration Statement", and the prospectus, in the form
-----------------------
filed by the Company with the Commission pursuant to Rule 424(b) under the Act
on or before the second business day after the date hereof (or such earlier time
as may be required under the Act) or, if no such filing is required, the form of
final prospectus included in the Registration Statement at the time the
Registration Statement became effective, is herein called the "Prospectus".
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The Company and the Underwriters agree as follows:
1. Sale and Purchase. Upon the basis of the representations and
-----------------
warranties and subject to the terms and conditions herein set forth, the Company
agrees to sell to the respective Underwriters and each of the Underwriters,
severally and not jointly, agrees to purchase from the Company the aggregate
number of Firm Shares set forth opposite the name of such Underwriter in
Schedule A attached hereto, in each case at a purchase price of $____ per Share.
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The Company is advised by you that the Underwriters intend (i) to make a public
offering of their respective portions of the Firm Shares as soon after the
effective date of the Registration Statement as in your judgment is advisable
and (ii) initially to offer the Firm Shares upon the terms set forth in the
Prospectus. You may from time to time increase or decrease the public offering
price after the initial public offering to such extent as you may determine.
In addition, upon the basis of the representations and warranties and
subject to the terms and conditions herein set forth, the Company hereby grants
to the several Underwriters the option to purchase, and, the Underwriters shall
have the right to purchase, severally and not jointly, from the Company, ratably
in accordance with the number of Firm Shares to be purchased by each of them,
all or a portion of the Additional Shares as may be necessary to cover over-
allotments made in connection with the offering of the Firm Shares, at the same
purchase price per share to be paid by the Underwriters to the Company for the
Firm Shares. This option may be exercised by you on behalf of the several
Underwriters at any time and from time to time on or before the thirtieth day
following the date hereof, by written notice to the Company. Such notice shall
set forth the aggregate number of Additional Shares as to which the option is
being exercised and the date and time when the Additional Shares are to be
delivered (such date and time being herein referred to as the "additional time
---------------
of purchase"); provided, however, that the additional time of purchase shall not
----------- -------- -------
be earlier than the time of purchase (as
2
<PAGE>
defined below) nor earlier than the second business day after the date on which
the option shall have been exercised nor later than the tenth business day after
the date on which the option shall have been exercised. The number of Additional
Shares to be sold to each Underwriter shall be the number which bears the same
proportion to the aggregate number of Additional Shares being purchased as the
number of Firm Shares set forth opposite the name of such Underwriter on
Schedule A hereto bears to the total number of Firm Shares (subject, in each
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case, to such adjustment as you may determine to eliminate fractional shares).
2. Payment and Delivery. Payment of the purchase price for the Firm
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Shares shall be made to the Company by Federal Funds wire transfer against
delivery of the certificates for the Firm Shares to you through the facilities
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