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EXHIBIT 1.1
METRICOM, INC.
METRICOM FINANCE, INC.
UNDERWRITING AGREEMENT
February 1, 2000
TO: XXXXXX BROTHERS INC.
XXXXXXX XXXXX BARNEY INC.
CHASE SECURITIES INC.
XXXXXXXXX & XXXXX LLC
X.X. XXXXXX SECURITIES INC.
MERRILL, LYNCH, XXXXXX, XXXXXX & XXXXX INCORPORATED
As Representatives of the Several Underwriters
C/X XXXXXX BROTHERS INC.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Metricom, Inc., a Delaware corporation (the "Company"), and Metricom
Finance, Inc., a Delaware corporation ("Finance Sub" and, together with the
Company, the "Issuers"), propose to issue and sell from time to time, either
together or separately, certain of their (i) senior debt securities (the "Senior
Notes"), (ii) subordinated debt securities (the "Subordinated Notes," and
together with the Senior Notes, the "Debt Securities"), (iii) shares of the
Company's common stock, par value $.001 per share (the "Common Stock"), and/or
(iv) warrants to purchase shares of Common Stock (the "Warrants") in one or more
offerings on terms determined at the time of sale and set forth in a term
agreement in the form of Exhibit A hereto (the "Terms Agreement"). The Debt
Securities may be convertible into shares of Common Stock as set forth in the
applicable Terms Agreement relating thereto.
The Senior Notes are to be issued under a Senior Indenture, dated as of
December 29, 1999, to be supplemented by one or more supplemental indentures
dated subsequent to the date hereof, and may be amended and further supplemented
(the "Senior Supplemental Indenture" and, together with the Senior Indenture,
the "Senior Indenture"), between the Issuers and Bank One Trust Company, N.A.,
as trustee (the "Senior Trustee"). The Subordinated Notes are to be issued under
a Subordinated Indenture dated as of December 29, 1999, to be supplemented by
one or more supplemental indentures dated subsequent to the date hereof, and may
be amended or further supplemented (the "Supplemental Subordinated Indenture"
and, together with the Subordinated Indenture, the "Subordinated Indenture"),
between the Issuers and Bank One Trust Company, N.A., as trustee (the
"Subordinated Trustee," and together with the Senior Trustee, the "Trustees").
The Senior Indenture and the Subordinated Indenture are collectively referred to
herein as the "Indentures." The Senior Notes and the Subordinated Notes may have
varying designations, maturities, rates and times of payment of interest, if
any, selling prices, redemption terms, if any, exchange terms, if any,
conversion terms (in the case of Subordinated Notes) and other
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specific terms as set forth in the applicable Terms Agreement relating thereto.
The Senior Notes and the Subordinated Notes may be issued alone or together with
Warrants as units with such terms as set forth in the applicable Terms Agreement
relating thereto.
The Warrants are to be issued under a Warrant Agreement, to be dated
subsequent to the date hereof (the "Warrant Agreement"), between the Company and
the warrant agent named therein (the "Warrant Agent"). The Warrants may be
issued with respect to varying numbers of shares of Common Stock and with
varying exercise prices, antidilution provisions and other specific terms as set
forth in the applicable Terms Agreement relating thereto. Warrants may be issued
alone or together with the Debt Securities as units with such terms as set forth
in the applicable Terms Agreement relating thereto.
The Debt Securities, Warrants and Common Stock, to be issued and sold
as specified in the applicable Terms Agreement, shall collectively be referred
to herein as the "Offered Securities." As used herein, unless the context
otherwise requires, the term "Underwriters" shall mean the firm or firms
specified as Underwriter or Underwriters in the applicable Terms Agreement
relating to the Offered Securities and the term "you" shall mean the Underwriter
or Underwriters, if no underwriting syndicate is purchasing the Offered
Securities, or the representative or representatives of the Underwriters, if an
underwriting syndicate is purchasing the Offered Securities, as specified in the
applicable Terms Agreement.
Whenever the Issuers or the Company, as applicable, determine to make
an offering of Offered Securities, the Issuers or the Company, as applicable,
will enter into a Terms Agreement providing for the sale of the applicable
Offered Securities to, and the purchase and offering thereof by, the
Underwriters. The Terms Agreement relating to the Offered Securities shall
specify the type of Offered Securities to be issued, the names of the
Underwriters participating in such offering (subject to substitution as provided
in Section 8 hereof), the principal amount or number of Offered Securities that
each such Underwriter severally agrees to purchase, the price at which the
Offered Securities are to be purchased by the Underwriters from the Issuers or
the Company, as applicable, the public offering price, the time and place of
delivery and payment and other specific terms. In addition, each Terms Agreement
shall specify whether the Issuers or the Company, as applicable, have agreed to
grant to the Underwriters an option to purchase additional Offered Securities to
cover over-allotments, if any, and the amount of Offered Securities subject to
such option (the "Option Securities"). As used herein, the term "Offered
Securities" shall include the Option Securities, if any. The Terms Agreement may
take the form of an exchange of any standard form of written telecommunication
between you and the Issuers or the Company, as applicable. Each offering of
Offered Securities will be governed by this Agreement, as supplemented by the
applicable Terms Agreement, and this Agreement and such Terms Agreement shall
inure to the benefit of and be binding upon the Issuers or the Company, as
applicable, and each Underwriter participating in the offering of such Offered
Securities, except as set forth in Section 12 hereof.
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The Issuers have prepared and filed with the Securities and
Exchange Commission (the "Commission") registration statements on Form S-3 (File
Nos. 333-91359, 000-00000-00 and 333-95669), each including a prospectus,
collectively relating to the Offered Securities and the offering thereof from
time to time in accordance with Rule 415 under the Securities Act of 1933, as
amended (the "Securities Act"). Such registration statements have been declared
effective by the Commission. As provided in Section 4(a), a final prospectus
supplement for each applicable prospectus reflecting the terms of the Offered
Securities covered thereby, the terms of the offering thereof and the other
matters set forth therein will be prepared and filed pursuant to Rule 424 under
the Securities Act. Each final prospectus supplement or prospectus supplements,
in the form first filed after the date of the applicable Terms Agreement
pursuant to Rule 424, is herein referred to as a "Prospectus Supplement." Such
registration statements, as amended at the date of the applicable Terms
Agreement, including the exhibits thereto and the documents incorporated by
reference therein, are herein called the "Registration Statements," each being
called a "Registration Statement," which also means such registration statements
as amended at the Effective Time (as defined below). The prospectuses included
in and relating to all offerings of securities under the Registration
Statements, as supplemented by any Prospectus Supplement, are herein called the
"Prospectuses", except that, if such prospectuses are amended or supplemented on
or prior to the date on which any Prospectus Supplement is first filed pursuant
to Rule 424, the term "Prospectus" shall refer to the prospectus as so amended
or supplemented and as supplemented by any Prospectus Supplement, in either case
including any documents filed by the Issuers with the Commission pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), that are
incorporated by reference therein. As used herein, "Effective Time" means the
date and the time as of which the Registration Statements, or the most recent
post-effective amendment thereto, if any, was declared effective by the
Commission; "Effective Date" means the date of the Effective Time; "Preliminary
Prospectus Supplement" means each prospectus supplement included in such
registration statement, or amendments thereof, after the Registration Statement
became effective under the Securities Act but containing a "Subject to
Completion" legend comparable to that contained in paragraph 10 of Item 501
under Regulation S-K of the Rules and Regulations.
1. Representations, Warranties and Agreements of the Issuers. The
Issuers represent, warrant and agree that:
(a) The Issuers meet the requirements for use of Form S-3 under the
Securities Act and the rules and regulations of the Commission
thereunder (the "Rules and Regulations"). The Registration Statement
(File Nos. 333-91359 and 333-91359-01) was declared effective by the
Commission on December 30, 1999 and the Registration Statement (File
No. 333-95669) was declared effective on February 1, 2000.
(b) Each Registration Statement and any amendments thereto conformed
when it became effective, and each Prospectus Supplement and any
further amendments or supplements to the Registration Statements or any
Prospectus Supplement will when they were or are filed with the
Commission, as the case may be, conform in all respects to the
requirements of the
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Securities Act and the Rules and Regulations and did not, as of the
applicable effective date (as to the Registration Statement and any
amendment thereto) and as of the applicable filing date (as to each
Prospectus Supplement and any supplement thereto) contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein (in
the case of any Prospectus Supplement, in light of the circumstances
under which they were made) not misleading; provided, however, that no
representation or warranty is made as to information contained in or
omitted from a Registration Statement or any Prospectus Supplement in
reliance upon and in conformity with written information furnished to
the Issuers through any Underwriter specifically for inclusion therein.
(c) Each Registration Statement and any amendment thereto conformed,
and each Prospectus Supplement and any further amendments or
supplements to the Registration Statements or any Prospectus Supplement
will, when they were or are filed with the Commission, as the case may
be, conform in all respects to the requirements of the Trust Indenture
Act of 1939, as amended (the "TIA") and the rules and regulations
thereunder. At each Delivery Date, the applicable Indenture, if any,
will comply in all material respects with the requirements of the TIA
and the rules and regulations thereunder.
(d) The documents incorporated by reference or deemed to be
incorporated in any Prospectus or Prospectus Supplement pursuant to
Item 12 of Registration Statements on Form S-3 under the Securities
Act, at the time they were filed with the Commission, complied or will
comply in all material respects with the requirements of the Exchange
Act, and the rules and regulations of the Commission thereunder (the
"Exchange Act Regulations") and, when read together and with the other
information in the Prospectus, as of the Effective Date of the
Registration Statement and any amendment thereto, did not and will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(e) The Issuers have been duly incorporated and are validly existing
as corporations in good standing under the laws of their respective
jurisdictions of incorporation, are duly qualified to do business and
are in good standing as foreign corporations in each jurisdiction in
which their respective ownership or lease of property or the conduct of
their respective businesses requires such qualification, except where
the failure to be so qualified would not have a material adverse effect
on the business, financial condition or results of operations of the
Issuers, and have all power and authority necessary to own or hold
their respective properties and to conduct the businesses in which they
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are engaged; and none of the subsidiaries of the Company is a
"significant subsidiary," as such term is defined in Rule 405 of the
Rules and Regulations.
(f) At each Delivery Date (as defined in Section 3), the Issuers or
the Company, as applicable, will have an authorized capitalization as
set forth in, or included in, the applicable Prospectus Supplement, and
all of the outstanding shares of capital stock of the Issuers or the
Company, as applicable, have been duly and validly authorized and
issued, are fully paid and non-assessable and conform in all material
respects to the description thereof contained in the Registration
Statement and Prospectus; and all of the outstanding shares of capital
stock of each subsidiary of the Issuers or the Company, as applicable,
have been duly and validly authorized and issued and are fully paid and
non-assessable and are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or claims.
(g) If the Offered Securities include Common Stock, such shares of
Common Stock to be issued and sold by the Issuers or the Company, as
applicable, to the Underwriters have been duly and validly authorized
and, when issued and delivered against payment therefor as provided
herein and in the applicable Terms Agreement, will be duly and validly
issued, fully paid and non-assessable and the terms of such Common
Stock conform in all material respects to the description thereof
contained in each Prospectus Supplement or contained in or incorporated
by reference in the Prospectus.
(h) This Agreement has been duly authorized, executed and delivered
by the Issuers or the Company, as applicable, and upon execution and
delivery of each Terms Agreement by the Issuers or the Company, as
applicable, such Terms Agreement shall have been duly authorized,
executed and delivered by the Issuers or the Company, as applicable.
(i) The execution, delivery and performance of this Agreement and
each Terms Agreement by the Issuers or the Company, as applicable, and
the consummation of the transactions contemplated hereby and thereby
will not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Issuers or the Company, as applicable, or any
of its subsidiaries is a party or by which the Issuers or the Company,
as applicable, or any of their subsidiaries is bound or to which any of
the property or assets of the Issuers or the Company, as applicable, or
any of their subsidiaries is subject, except where such a breach,
violation or default would not have a material adverse effect on the
business, financial condition or results of operations of the Issuers,
nor will such actions result in any violation of the provisions of the
charter or by-laws of the Issuers or the Company, as applicable, or any
of their subsidiaries, nor will such actions result in a violation of
any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Issuers
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or Company, as applicable, or any of their subsidiaries or any of their
properties or assets, except where such a violation would not have a
material adverse effect on the business, financial condition or results
of operations of the Issuers; and except for the registration of the
Offered Securities under the Securities Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under the Exchange Act and applicable state or foreign
securities laws in connection with the purchase and distribution of the
Offered Securities by the Underwriters, no consent, approval,
authorization or order of, or filing or registration with, any such
court or governmental agency or body is required for the execution,
delivery and performance of this Agreement or the applicable Terms
Agreement by the Issuers or the Company, as applicable, and the
consummation of the transactions contemplated hereby and thereby.
(j) Except for the Company's Amended and Restated Registration
Rights Agreement, dated November 15, 1999, there are no contracts,
agreements or understandings between the Issuers or the Company, as
applicable, and any person granting such person the right (other than
rights which have been waived or satisfied) to require the Issuers or
the Company, as applicable, to file a registration statement under the
Securities Act with respect to any securities of the Issuers or the
Company, as applicable owned or to be owned by such person or to
require the Issuers or the Company, as applicable, to include such
securities in the securities registered pursuant to the Registration
Statement or in any securities being registered pursuant to any other
registration statement filed by the Issuers or the Company, as
applicable, under the Securities Act.
(k) Except as described in each Prospectus Supplement, the Issuers
or the Company, as applicable, have not and will not have as of any
Delivery Date sold or issued any shares of Common Stock or Debt
Securities during the six-month period preceding the date of such
Prospectus Supplement, including any sales pursuant to Rule 144A under,
or Regulations D or S of, the Securities Act, other than shares issued
pursuant to employee benefit plans, qualified stock options plans or
other employee compensation plans or pursuant to outstanding options,
rights or warrants.
(l) None of the Issuers or the Company, as applicable, or any of
their subsidiaries has sustained, since the date of the latest
financial statements included or incorporated by reference in each
Prospectus or subsequent Prospectus Supplement, any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in each Prospectus Supplement; and,
since such date, there has not been any change in the capital stock or
long-term debt of the Issuers or the Company, as applicable, or any of
their subsidiaries or any material adverse change, or any development
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involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, stockholders' equity
or results of operations of the Issuers or the Company, as applicable,
and their subsidiaries, otherwise than as set forth or contemplated in
the Prospectus or each Prospectus Supplement.
(m) The historical and pro forma financial statements (including the
related notes and supporting schedules) filed as part of the
Registration Statement or included in, or incorporated by reference in,
each Prospectus or subsequent Prospectus Supplement present fairly the
financial condition and results of operations of the entities purported
to be shown thereby, at the dates and for the periods indicated, and
have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods
involved. The pro forma financial statements have been prepared on a
basis consistent with such historical statements of the Issuers or the
Company, as applicable, except for the pro forma adjustments specified
therein, and give effect to assumptions made on a reasonable basis and
in good faith and present fairly the historical and proposed
transactions contemplated by each Prospectus Supplement, each
applicable Terms Agreement and this Agreement. The other financial and
statistical information and data included in each Prospectus or
subsequent Prospectus Supplement, historical and pro forma, have been
derived from the financial records of the Issuers or the Company (or
its predecessors), as applicable, and, in all material respects, have
been prepared on a basis consistent with such books and records of the
Issuers or the Company, as applicable, (or its predecessor).
(n) Xxxxxx Xxxxxxxx LLP, who have certified certain financial
statements of the Company, whose report is incorporated by reference in
the Registration Statement and who have delivered the initial letter
referred to in Section 6(f) hereof, are independent public accountants
as required by the Securities Act and the Rules and Regulations.
(o) The Issuers or the Company, as applicable, and each of their
subsidiaries have good and marketable title in fee simple to all real
property and good and marketable title to all personal property owned
by them, in each case free and clear of all liens, encumbrances and
defects except such as do not materially affect the value of such
property and do not materially interfere with the use made and proposed
to be made of such property by the Issuers or the Company, as
applicable, and their subsidiaries; and all real property and buildings
held under lease by the Issuers or the Company, as applicable, and
their subsidiaries are held by them under valid, subsisting and
enforceable leases, with such exceptions as are not material and do not
interfere with the use made and proposed to be made of such property
and buildings by the Issuers or the Company, as applicable, and their
subsidiaries.
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(p) The Issuers or the Company, as applicable and each of their
subsidiaries carry, or are covered by, insurance in such amounts and
covering such risks as is adequate for the conduct of their respective
businesses and the value of their respective properties and, to the
best knowledge of the Issuers or the Company, as applicable, as is
customary for companies engaged in similar businesses in similar
industries.
(q) The Issuers or the Company, as applicable, and each of their
subsidiaries own or possess adequate rights to use all material
patents, patent applications, trademarks, service marks, trade names,
trademark registrations, service xxxx registrations, copyrights and
licenses necessary for the conduct of their respective businesses and
have no reason to believe that the conduct of their respective
businesses will conflict with, and have not received any notice of any
claim of conflict with, any such rights of others, except where the
failure to do own or possess such rights or where such conflict would
not reasonably be expected to have a material adverse effect on the
Company.
(r) There are no legal or governmental proceedings pending to which
the Issuers or the Company, as applicable, or any of their subsidiaries
is a party or of which any property or assets of the Issuers or the
Company, as applicable, or any of their subsidiaries is the subject
which, if determined adversely to the Issuers or the Company, as
applicable, or any of their subsidiaries, might have a material adverse
effect on the consolidated financial position, stockholders' equity,
results of operations, business or prospects of the Company, and its
subsidiaries; and to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities
or threatened by others.
(s) There are no contracts or other documents which are required by
the Rules and Regulations to be described in each Prospectus Supplement
or filed as exhibits to the Registration Statement by the Securities
Act or by the Rules and Regulations which have not been described in
such Prospectus Supplement or filed as exhibits to the Registration
Statement.
(t) No relationship, direct or indirect, exists between or among the
Issuers or the Company. as applicable, on the one hand, and the
directors, officers, stockholders, customers or suppliers of the
Issuers or the Company. as applicable, on the other hand, which is
required by the Rules and Regulations to be described in each
Prospectus Supplement which is not so described.
(u) No labor disturbance by the employees of the Issuers or the
Company, as applicable, exists or, to the knowledge of the Issuers or
the Company, as applicable, is imminent which would reasonably be
expected to have a material adverse effect on the consolidated
financial position, stockholders' equity, results of operations,
business or prospects of the Company and its subsidiaries.
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(v) The Issuers or the Company, as applicable, have filed all
federal, state and local income and franchise tax returns required to
be filed through the date hereof and has paid all taxes due thereon,
and no tax deficiency has been determined adversely to the Issuers or
the Company, as applicable, or any of their subsidiaries which has had
(nor do the Issuers or the Company, as applicable, have any knowledge
of any tax deficiency which, if determined adversely to the Issuers or
the Company, as applicable, or any of their subsidiaries, would
reasonably be expected to have a material adverse effect on the
consolidated financial position, stockholders' equity, results of
operations, business or prospects of the Company and its subsidiaries.
(w) Since the date as of which information is given in each
Prospectus Supplement through the date hereof, and except as may
otherwise be disclosed in each Prospectus Supplement, the Issuers or
the Company, as applicable, have not (i) issued or granted any
securities other than options or rights granted in the ordinary course
of business under any existing option plans or stock purchase plans or
stock issued upon the exercise or conversion of outstanding options,
rights or warrants, (ii) incurred any liability or obligation, direct
or contingent, other than liabilities and obligations which were
incurred in the ordinary course of business, (iii) entered into any
transaction not in the ordinary course of business or (iv) declared or
paid any dividend on its capital stock, other than dividends paid on
the Company's Series A1 and A2 Preferred Stock.
(x) The Issuers or the Company, as applicable, (i) make and keep
accurate books and records and (ii) maintain internal accounting
controls which provide reasonable assurance that (A) transactions are
executed in accordance with management's authorization, (B)
transactions are recorded as necessary to permit preparation of its
financial statements and to maintain accountability for its assets, (C)
access to its assets is permitted only in accordance with management's
authorization and (D) the reported accountability for its assets is
compared with existing assets at reasonable intervals.
(y) None of the Issuers or the Company, as applicable, (i) is in
violation of its charter or by-laws, (ii) is in default, and no event
has occurred which, with notice or lapse of time or both, would
constitute such a default, in the due performance or observance of any
term, covenant or condition contained in any material indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which it is a party or by which it is bound or to which
any of its properties or assets is subject, except where such a default
would not have a material adverse effect on the business, financial
condition or results of operations of the Issuers, or (iii) is in
violation of any law, ordinance, governmental rule, regulation or court
decree to which it or its property or assets may be subject or has
failed to obtain any material license, permit, certificate, franchise
or other governmental authorization or permit
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necessary to the ownership of its property or to the conduct of its
business, except where such a violation would not have a material
adverse effect on the business, financial condition or results of
operations of the Issuers.
(z) None of the Issuers or the Company, as applicable, nor to the
best knowledge of the Issuers or the Company, as applicable, any of
their subsidiaries, nor any director, officer, agent, employee or other
person associated with or acting on behalf of the Issuers or the
Company, as applicable, has used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expense relating to
political activity, made any direct or indirect unlawful payment to any
foreign or domestic government official or employee from corporate
funds; violated or is in violation of any provision of the Foreign
Corrupt Practices Act of 1977, or made any bribe, rebate, payoff,
influence payment, kickback or other unlawful payment.
(aa) None of the Issuers or the Company, as applicable, nor any of
their subsidiaries, or will be after the offering and use of proceeds
therefrom, an "investment company" within the meaning of such term
under the Investment Company Act of 1940 and the rules and regulations
of the Commission thereunder.
(bb) If the Offered Securities include Debt Securities, such Debt
Securities shall, on the date of the Terms Agreement relating to such
Offered Securities, be duly authorized for issuance and sale pursuant
to this Agreement and, when such Debt Securities are duly executed,
authenticated and delivered pursuant to the provisions of this
Agreement and the applicable Indenture against payment of the
consideration therefor in accordance with this Agreement and the
applicable Terms Agreement, such Debt Securities will be valid and
legally binding obligations of the Issuers or the Company, as
applicable, enforceable in accordance with their terms, except as
enforceability thereof may be limited by bankruptcy, insolvency or
other laws relating to or affecting enforcement of creditors' rights or
by general equity principles and will be entitled to the benefits of
the applicable Indenture; and the Indentures conform in all material
respects to all statements relating thereto contained in each
Prospectus Supplement; and, if the Offered Securities include
Subordinated Notes that are convertible into shares of Common Stock
("Convertible Debt Securities"), then such Debt Securities shall be
convertible into shares of Common Stock in accordance with their terms
and the terms of a Convertible Debt Securities Prospectus Supplement (a
"Convertible Prospectus Supplement").
(cc) If the Offered Securities include Debt Securities, the
applicable Indenture and any supplement thereto has been duly
authorized by the Issuers or the Company, as applicable, and, when duly
executed and delivered by the Issuers or the Company, as applicable,
and the Trustee, will constitute a valid
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and binding obligation of the Issuers or the Company, as applicable,
enforceable against the Issuers or the Company, as applicable, in
accordance with its terms, except as enforceability thereof may be
limited by bankruptcy, insolvency or other laws relating to or
affecting enforcement of creditors' rights or by general equity
principles; and the summary descriptions of the applicable Indenture
set forth in each Prospectus Supplement relating to such Debt
Securities conforms in all material respects to the provisions
contained in the applicable Indenture.
(dd) If the Offered Securities include Warrants, the applicable
Warrant Agreement and any supplement thereto has been duly authorized
by the Company and, when duly executed and delivered by the Company and
the Warrant Agent, will constitute a valid and binding obligation of
the Company enforceable against the Company in accordance with its
terms, except as enforceability thereof may be limited by bankruptcy,
insolvency or other laws relating to or affecting enforcement of
creditors' rights or by general equity principles; and the summary
descriptions of the applicable Warrant Agreement set forth in each
Prospectus Supplement relating to such Warrants conforms in all
material respects to the provisions contained in the applicable Warrant
Agreement.
(ee) Except for such matters as would not have a material adverse
effect on the Company: (i) no written notice, request for information,
order, complaint or penalty has been received by the Company relating
to any Environmental Law, and there are no judicial, administrative or
other actions, suits or proceedings pending, nor to the knowledge of
the Company, threatened against the Company which allege a violation of
any Environmental Law; (ii) (a) the company and each of its
subsidiaries have all environmental permits necessary for their
operations to comply with all applicable Environmental Laws in all
material respects and are in substantial compliance with the terms of
such permits and (b) there are no legal proceedings pending, nor to the
knowledge of the Company, threatened to revoke such environmental
permits; and (iii) there has been no written environmental audit
conducted within the past five years by the Company or any of its
subsidiaries of any property currently owned or leased by the Company
or any of its subsidiaries that has indicated that any violation of any
Environmental Laws in any material respect.
"ENVIRONMENTAL LAW" means any material federal, state or local
(including common law), statute, code, ordinance, rule or regulation,
relating to the environment, natural resources, or the effect of the
environment on public or employee health and safety and includes, but
is not limited to, the Comprehensive Environmental Response,
Compensation and Liability Act ("CERCLA"), 42 U.S.C. Section 9601 et
seq., the Hazardous Materials Transportation Act, 49 U.S.C. Section
1801 et seq., the Resource Conservation and Recovery Act ("RCRA"), 42
U.S.C. Section 6901 et seq., the Clean Water Act, 33
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U.S.C. Section 1251 et seq., the Clean Air Act, 33 U.S.C. Section 2601
et seq., the Toxic Substances Control Act, 15 U.S.C. Section 2601 et
seq., the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
Section 136 et seq., the Oil Pollution Act of 1990, 33 U.S.C. Section
2701 et seq., as such laws have been amended or supplemented on or
prior to the effective date of the Registration Statement, and the
regulations promulgated pursuant thereto on or prior to the
Registration Statement, and all analogous state or local statutes.
2. Purchase of the Offered Securities by the Underwriters. The several
commitments of the Underwriters to purchase Offered Securities pursuant to any
Terms Agreement shall be deemed to have been made on the basis of the
representations and warranties herein contained and shall be subject to the
terms and conditions set forth herein.
In addition, on the basis of the representations and warranties herein
and subject to the terms and contained herein set forth, the Issuers or the
Company, as applicable may grant, if so provided in the Terms Agreement
applicable to any Offered Securities, an option to the Underwriters named in
such Terms Agreement, severally and not jointly, to purchase up to the amount of
Option Securities set forth therein at the same price per security as is
applicable to the Offered Securities. Such option, if granted, may be exercised
in whole or in part from time to time for the purpose of covering
over-allotments as provided in Section 4 hereof. Option Securities shall be
purchased severally for the account of the Underwriters in proportion to the
number of shares of Offered Securities set opposite the name of such
Underwriters in the Terms Agreement applicable to the Offered Securities. The
respective purchase obligations of each Underwriter with respect to any Option
Securities that are Common Stock shall be adjusted by the Underwriters so that
no Underwriter shall be obligated to purchase such Common Stock other than in
100 share amounts.
Neither the Issuers nor the Company, as applicable, shall be obligated
to deliver any of the Offered Securities to be delivered on any Delivery Date
(as hereinafter defined), as the case may be, except upon payment for all the
Offered Securities to be purchased on such Delivery Date as provided herein.
3. Delivery of and Payment for the Securities. (a) Delivery of and
payment for the Offered Securities shall be made at the office of Weil, Gotshal
& Xxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 A.M., New
York City time, on the third full business day (unless postponed in accordance
with the provisions of this Agreement) following the date of the Terms Agreement
or at such other date or place as shall be agreed upon by you and the Issuers or
the Company, as applicable, in the applicable Terms Agreement. This date and
time are sometimes referred to as the "First Delivery Date." On the Delivery
Date, the Issuers or the Company, as applicable, shall deliver or cause to be
delivered certificates representing the Offered Securities to the Underwriters
for the account of each Underwriter named in the Terms Agreement applicable to
the Offered Securities against payment to or upon the order of the Issuers or
the Company, as applicable, of the purchase price by wire transfer in
immediately available funds. Time shall be of the essence, and delivery at the
time and place specified pursuant to the applicable Terms
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Agreement is a further condition of the obligation of each Underwriter
thereunder. Upon delivery, the Offered Securities shall be registered in such
names and in such denominations as the Underwriters shall request in writing not
less than two full business days prior to the First Delivery Date.
(b) Any option granted in Section 2 will expire 30 days after the date
of the applicable Terms Agreement and may be exercised in whole or in part from
time to time by written notice being given to the Issuers, or the Company, as
applicable, by the Underwriters. Such notice shall set forth the aggregate
number of Option Securities as to which the option is being exercised, the names
in which the Option Securities are to be registered, the denominations in which
the Option Securities are to be issued and the date and time, as determined by
the Underwriters, when the Option Securities are to be delivered; provided,
however, that this date and time shall not be earlier than the First Delivery
Date nor earlier than the second business day after the date on which the option
shall have been exercised nor later than the fifth business day after the date
on which the option shall have been exercised. The date and time the Option
Securities are delivered are sometimes referred to as a "Second Delivery Date"
and the First Delivery Date and any Second Delivery Date are sometimes each
referred to as a "Delivery Date."
(c) If applicable, delivery of and payment for the Option Securities
shall be made at the place specified in the first sentence of Section 3(a) (or
at such other place as shall be determined by agreement between the Underwriters
and the Issuers or the Company, as applicable) at 10:00 A.M., New York City
time, on such Second Delivery Date. On such Second Delivery Date, the Issuers or
the Company, as applicable, shall deliver or cause to be delivered the
certificates representing the Option Securities to the Underwriters for the
account of each Underwriter against payment to or upon the order of the Issuers
or the Company, as applicable, of the purchase price by wire transfer in
immediately available funds. Time shall be of the essence, and delivery at the
time and place specified pursuant to the applicable Terms Agreement shall be a
further condition of the obligation of each Underwriter thereunder. Upon
delivery, the Option Securities shall be registered in such names and in such
denominations as the Underwriters shall request in the aforesaid written notice.
4. Further Agreements of the Issuers. The Issuers or the Company, as
applicable, agree:
(a) To prepare a Prospectus Supplement in a form approved by the
Underwriters and, not later than the Commission's close of business on
the second business day following the execution and delivery of each
Terms Agreement or, if applicable, such earlier time as may be required
by Rule 430A(a)(3) under the Securities Act, to file a Prospectus
Supplement pursuant to Rule 424(b) under the Securities Act; to make no
further amendment to the Registration Statement (including any
post-effective amendment) or any amendment or supplement to the
Prospectus except as permitted herein and by the applicable Terms
Agreement; to advise the Underwriters , promptly after receiving notice
thereof, of the time when any supplement to each Prospectus
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Supplement has been filed and to furnish such Underwriters with copies
thereof; to advise such Underwriters, promptly after receiving notice
thereof, of the issuance by the Commission of any stop order or of any
order preventing or suspending the use of any Preliminary Prospectus
Supplement or any Prospectus Supplement, of the suspension of the
qualification of the Offered Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending
or supplementing of the Registration Statement or any Prospectus
Supplement or for additional information; and, in the event of the
issuance of any stop order or of any order preventing or suspending the
use of any Preliminary Prospectus Supplement or any Prospectus
Supplement or suspending any such qualification, to use promptly its
best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Underwriters and to counsel
for the Underwriters a signed copy of the Registration Statement as
originally filed with the Commission, and each amendment thereto filed
with the Commission, including all consents and exhibits filed
therewith;
(c) To deliver promptly to the Underwriters such number of the
following documents as the Underwriters shall reasonably request: (i)
conformed copies of the Registration Statement as originally filed with
the Commission and each amendment thereto (in each case excluding
exhibits other than this Agreement and the computation of per share
earnings) and (ii) each Preliminary Prospectus Supplement, each
Prospectus Supplement and any supplemented Prospectus Supplement and,
if the delivery of a Prospectus Supplement is required at any time
after the Effective Time in connection with the offering or sale of the
Offered Securities or any other securities relating thereto and if at
such time any events shall have occurred as a result of which any
Prospectus Supplement as then supplemented would include an untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, when such Prospectus
Supplement is delivered, not misleading, or, if for any other reason it
shall be necessary to supplement any Prospectus Supplement in order to
comply with the Securities Act, to notify the Underwriters and, upon
their request, to prepare and furnish without charge to each
Underwriter and to any dealer in securities as many copies as the
Underwriters may from time to time reasonably request of a supplemented
Prospectus Supplement which will correct such statement or omission or
effect such compliance.
(d) To file promptly with the Commission any amendment to the
Registration Statement or any supplement to each Prospectus Supplement
that may, in the reasonable judgment of the Issuers or the Company, as
applicable, or the Underwriters, be required by the Securities Act or
requested by the Commission;
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(e) Prior to filing with the Commission any amendment to the
Registration Statement or supplement to each Prospectus Supplement or
any Prospectus Supplement pursuant to Rule 424 of the Rules and
Regulations, to furnish a copy thereof to the Underwriters and counsel
for the Underwriters and obtain the consent of the Underwriters to the
filing;
(f) As soon as practicable (it being understood that the Issuers or
the Company, as applicable, shall have until at least 410 or, if the
fourth quarter following the fiscal quarter that includes the
applicable effective date is the last fiscal quarter of the fiscal
year, 455 days after the end of the current fiscal quarter), to make
generally available to the Company's security holders, as applicable,
and to deliver to the Underwriters, an earnings statement of the
Issuers or the Company, as applicable, and their subsidiaries (which
need not be audited) complying with Section 11(a) of the Securities Act
and the Rules and Regulations (including, at the option of the Issuers
or the Company, as applicable, Rule 158);
(g) For a period of five years following the Effective Date, to
furnish to the Underwriters copies of all materials furnished by the
Issuers or the Company, as applicable, to its securityholders and all
public reports and all reports and financial statements furnished by
the Company to the Nasdaq Stock Market or the principal national
securities exchange upon which the Common Stock may be listed pursuant
to requirements of or agreements with Nasdaq or such exchange or to the
Commission pursuant to the Exchange Act or any rule or regulation of
the Commission thereunder;
(h) Promptly from time to time to take such action as the
Underwriters may reasonably request to qualify the Offered Securities
for offering and sale under the securities laws of such jurisdictions
as the Underwriters may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution of the Offered Securities; provided that in connection
therewith the Issuers or the Company, as applicable, shall not be
required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction;
(i) For a period specified in the applicable Terms Agreement under
the caption "Lock-up Provisions," commencing on the date of such Terms
Agreement, not to, directly or indirectly, (1) offer for sale, sell,
contract to sell, pledge, hedge or otherwise dispose, directly or
indirectly, of any shares of Common
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Stock, Debt Securities or securities convertible into or exchangeable
for Common Stock (other than the Offered Securities and shares issued
pursuant to employee benefit plans, qualified stock option plans or
other employee, director or consultant compensation plans existing on
the date hereof or pursuant to currently outstanding options, warrants
or rights), or sell or grant options, rights or warrants with respect
to any shares of Common Stock, Debt Securities or securities
convertible into or exchangeable for Common Stock (other than the grant
of options or rights pursuant to option plans or stock purchase plans
existing on the date hereof), or (2) enter into any swap or other
derivatives transaction that transfers to another, in whole or in part,
any of the economic benefits or risks of ownership of such shares of
Common Stock or Debt Securities, whether any such transaction described
in clause (1) or (2) above is to be settled by delivery of Common
Stock, Debt Securities or other securities, in cash or otherwise, or
(3) publicly disclose an intention to make any such offer, sale,
pledge, hedge, swap or other transaction, in each case without the
prior written consent of the Underwriters named in the applicable Terms
Agreement; and to cause each officer and director of the Issuers or the
Company, as applicable, to furnish to the Underwriters, prior to the
First Delivery Date, a letter or letters, in form and substance
satisfactory to counsel for the Underwriters, pursuant to which each
such person shall agree not to, directly or indirectly, (1) offer for
sale, sell, pledge or otherwise dispose of (or enter into any
transaction or device which is designed to, or could be expected to,
result in the disposition by any person at any time in the future of)
any shares of Common Stock (including, without limitation, shares of
Common Stock that may be deemed to be beneficially owned by such party
in accordance with the Rules and Regulations and shares of Common Stock
that may be issued upon exercise of any option or warrant) or
securities convertible into or exchangeable for Common Stock (other
than any shares of Common Stock contemplated by a Terms Agreement)
owned by such party on the date the letter is completed and the date of
the applicable Terms Agreement, or (2) enter into any swap or other
derivatives transaction that transfers to another, in whole or in part,
any of the economic benefits or risks of ownership of such shares of
Common Stock, whether any such transaction described in clause (1) or
(2) above is to be settled by delivery of Common Stock or other
securities, in cash or otherwise, in each case for a period specified
in the applicable Terms Agreement, commencing on the date of such Terms
Agreement, without the prior written consent of the Underwriters named
in the applicable Terms Agreement;
(j) If and to the extent specified in the applicable Terms
Agreement, to apply for the inclusion of the Offered Securities in the
National Market System of the Nasdaq Stock Market and to use its best
efforts to complete that listing, subject only to official notice of
issuance and evidence of satisfactory distribution, prior to the First
Delivery Date;
(k) To take such steps as shall be necessary to ensure that none of
the Issuers or the Company, as applicable, or any of their subsidiaries
shall become an "investment company" within the meaning of such term
under the Investment Company Act of 1940 and the rules and regulations
of the Commission thereunder.
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5. Expenses. The Issuers or the Company, as applicable, agree to pay
all expenses incident to the performance of its obligations under this Agreement
and any applicable Terms Agreement, including (a) the costs incident to the
authorization, issuance, sale and delivery of the Offered Securities and any
taxes payable in that connection; (b) the costs incident to the preparation,
printing and filing under the Securities Act of the Registration Statement and
any amendments and exhibits thereto; (c) the costs of distributing the
Registration Statement as originally filed and each amendment thereto and any
post-effective amendments thereof (including, in each case, exhibits), any
Preliminary Prospectus Supplement, each Prospectus Supplement and any supplement
to any Prospectus Supplement, all as provided in this Agreement; (d) the costs
of producing and distributing this Agreement and any other related documents in
connection with the offering, purchase, sale and delivery of the stock; (e) any
applicable listing or other fees; (f) the fees and expenses of qualifying the
Offered Securities under the securities laws of the several jurisdictions as
provided in Section 4 (h) and of preparing, printing and distributing a Blue Sky
Memorandum (including related reasonable fees and expenses of counsel to the
Underwriters); (g) one-half of the air transportation expenses related to the
roadshow, with the Company and the Underwriters otherwise responsible for any
other costs or expenses associated with the roadshow; and (h) all other costs
and expenses incident to the performance of the obligations of the Issuers or
the Company, as applicable, under this Agreement; provided that, except as
provided in this Section 5 and in Section 10 the Underwriters shall pay their
own costs and expenses, including the costs and expenses of their counsel, any
transfer taxes on the Offered Securities which they may sell and the expenses of
advertising any offering of the Offered Securities made by the Underwriters.
6. Conditions of Underwriters' Obligations. The respective obligations
of the Underwriters hereunder are subject to the accuracy, when made and on the
applicable Delivery Date, of the representations and warranties of the Issuers
or the Company, as applicable, contained herein, to the performance by the
Issuers or the Company, as applicable, of their obligations hereunder, and to
each of the following additional terms and conditions:
(a) The Prospectus Supplement shall have been timely filed with the
Commission in accordance with Section 4(a); no stop order suspending
the effectiveness of the Registration Statement or any part thereof
shall have been issued and no proceeding for that purpose shall have
been initiated or threatened by the Commission; and any request of the
Commission for inclusion of additional information in the Registration
Statement or any Prospectus Supplement or otherwise shall have been
complied with.
(b) No Underwriter shall have discovered and disclosed to the
Company on or prior to such Delivery Date that the Registration
Statement or any Prospectus Supplement or any amendment or supplement
thereto contains an untrue statement of a fact which shall not have
been corrected on or prior to such Delivery Date in an amendment or
supplement thereto, and which, in the reasonable opinion of Weil,
Gotshal & Xxxxxx LLP, counsel for the Underwriters, is material or
omits to state a fact which, in the opinion of such
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counsel, is material and is required to be stated therein or is
necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to
the authorization, form and validity of this Agreement, the applicable
Terms Agreement, the Offered Securities, the Registration Statement and
each Prospectus Supplement, and all other legal matters relating to
this Agreement and the applicable Terms Agreement and the transactions
contemplated hereby and thereby shall be reasonably satisfactory in all
material respects to counsel for the Underwriters, and the Issuers or
the Company, as applicable, shall have furnished to such counsel all
documents and information that they may reasonably request to enable
them to pass upon such matters.
(d) Xxxxxx Godward LLP shall have furnished to the Underwriters
their written opinion, as counsel to the Issuers or the Company, as
applicable, addressed to the Underwriters and dated such Delivery Date,
in form and substance reasonably satisfactory to the Underwriters, to
the effect that:
(i) The Issuers or the Company, as applicable, and each of their
subsidiaries have been duly incorporated and are validly existing as
corporations in good standing under the laws of their respective
jurisdictions of incorporation, are duly qualified to do business
and are in good standing as foreign corporations in each
jurisdiction in which their respective ownership or lease of
property or the conduct of their respective businesses requires such
qualification and have all power and authority necessary to own or
hold their respective properties and conduct the businesses in which
they are engaged;
(ii) The Issuers or the Company, as applicable, have an
authorized capitalization as set forth in the Prospectus and
Prospectus Supplement, and all of the issued shares of capital stock
of the Issuers or the Company, as applicable, (including the Offered
Securities being delivered on such Delivery Date) have been duly and
validly authorized and issued, are fully paid and non-assessable and
conform to the description thereof contained in the Prospectus and
Prospectus Supplement; and all of the issued shares of capital stock
of each subsidiary of the Issuers or the Company, as applicable,
have been duly and validly authorized and issued and are fully paid,
non-assessable and are owned directly or indirectly by the Issuers
or the Company, as applicable, free and clear of all liens,
encumbrances, equities or claims;
(iii) There are no preemptive or other rights to subscribe for
or to purchase, nor any restriction upon the voting or transfer of,
any of the Offered Securities pursuant to the Issuers' or the
Company's, as applicable, charter or by-laws or any agreement or
other instrument known to such counsel;
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(iv) To the best of such counsel's knowledge, there are no legal
or governmental proceedings pending to which the Issuers or the
Company, as applicable, or any of their subsidiaries is a party or
of which any property or assets of the Issuers or the Company, as
applicable, or any of its subsidiaries is the subject which, if
determined adversely to the Issuers or the Company, as applicable,
or any of its subsidiaries, might have a material adverse effect on
the consolidated financial position, stockholders' equity, results
of operations, business or prospects of the Company and its
subsidiaries; and, to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(v) The Registration Statement was declared effective under the
Securities Act as of the date and time specified in such opinion,
each Prospectus Supplement was filed with the Commission pursuant to
the subparagraph of Rule 424(b) of the Rules and Regulations
specified in such opinion on the date specified therein and no stop
order suspending the effectiveness of the Registration Statement has
been issued and, to the knowledge of such counsel, no proceeding for
that purpose is pending or threatened by the Commission;
(vi) The Registration Statement and each Prospectus Supplement
and any further amendments or supplements thereto made by the
Issuers or the Company, as applicable, prior to such Delivery Date
(other than the financial statements and related schedules therein,
as to which such counsel need express no opinion) comply as to form
in all material respects with the requirements of the Securities Act
and the Rules and Regulations;
(vii) To the best of such counsel's knowledge, there are no
contracts or other documents which are required to be described in
any Prospectus Supplement or filed as exhibits to the Registration
Statement by the Securities Act or by the Rules and Regulations
which have not been described or filed as exhibits to the
Registration Statement;
(viii) This Agreement and the applicable Terms Agreement have
been duly authorized, executed and delivered by the Issuers or the
Company, as applicable;
(ix) The issue and sale of the Offered Securities being
delivered on such Delivery Date by the Issuers or the Company, as
applicable, and the compliance by the Issuers or the Company, as
applicable, with all of the provisions of this Agreement and the
consummation of the transactions contemplated hereby will not
conflict with or result in a breach or violation of any of the terms
or
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provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which the Issuers or the
Company, as applicable, or any of their subsidiaries is a party or
by which the Issuers or the Company, as applicable, or any of their
subsidiaries is bound or to which any of the property or assets of
the Issuers or the Company, as applicable, or any of their
subsidiaries is subject, nor will such actions result in any
violation of the provisions of the charter or by-laws of the Issuers
or the Company, as applicable, or any of their subsidiaries or any
statute or any order, rule or regulation known to such counsel of
any court or governmental agency or body having jurisdiction over
the Issuers or the Company, as applicable, or any of its
subsidiaries or any of their properties or assets; and, except for
the registration of the Offered Securities under the Securities Act
and such consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act and
applicable state or foreign securities laws in connection with the
purchase and distribution of the Offered Securities by the
Underwriters, no consent, approval, authorization or order of, or
filing or registration with, any such court or governmental agency
or body is required for the execution, delivery and performance of
this Agreement by the Issuers or the Company, as applicable, and the
consummation of the transactions contemplated hereby;
(x) To the best of such counsel's knowledge, there are no
contracts, agreements or understandings between the Issuers or the
Company, as applicable, and any person granting such person the
right (other than rights which have been waived or satisfied) to
require the Issuers or the Company, as applicable, to file a
registration statement under the Securities Act with respect to any
securities of the Issuers or the Company, as applicable, owned or to
be owned by such person or to require the Issuer or the Company, as
applicable, to include such securities in the securities registered
pursuant to the Registration Statement or in any securities being
registered pursuant to any other registration statement filed by the
Issuer or the Company, applicable, under the Securities Act;
(xi) If the Offered Securities include Debt Securities, the
applicable Indenture and any supplement thereto has been duly and
validly authorized, executed and delivered by the Issuers or the
Company, as applicable, and constitutes the valid and binding
agreement of the Issuers or the Company, as applicable, enforceable
in accordance with its terms, except as enforcement thereof may be
limited by bankruptcy, insolvency or other laws relating to or
affecting enforcement of creditors' rights or by general equity
principles;
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(xii) If the Offered Securities include Debt Securities, such
Debt Securities are in the form contemplated by the applicable
Indenture, and have been duly and validly authorized by all
necessary corporate action and, when executed and authenticated as
specified in the applicable Indenture and delivered against payment
pursuant to this Agreement, as supplemented by the applicable Terms
Agreement, will be valid and binding obligations of the Issuers or
the Company, as applicable, enforceable in accordance with their
terms, except as enforcement thereof may be limited by bankruptcy,
insolvency or other laws relating to or affecting enforcement of
creditors' rights or by general equity principles, and except
further as enforcement thereof may be limited by requirements that a
claim (or a foreign currency judgment in respect of such claim) be
converted into United States dollars at a rate of exchange
prevailing on a date determined pursuant to applicable law, and will
be entitled to the benefits of the applicable Indenture;
(xiii) The Offered Securities and, if applicable, the Indenture
and the Common Stock, conform in all material respects to the
descriptions thereof in the Prospectus and the applicable Prospectus
Supplement;
(xiv) If the Offered Securities include Debt Securities, the
applicable Indenture is qualified under the 1939 Act; and
(xv) If the Offered Securities include Convertible Debt
Securities or Convertible Preferred Stock, the shares of Common
Stock issuable upon conversion of such Convertible Debt Securities
have been duly authorized and reserved for issuance upon such
conversion by all necessary corporate action and such shares, when
issued upon such conversion will be duly and validly issued and will
be fully paid and non-assessable, and the issuance of such shares
upon such conversion will not be subject to preemptive rights.
In rendering such opinion, such counsel may state that their opinion
is limited to matters governed by the Federal laws of the United States
of America and the General Corporation Law of the State of Delaware.
Such counsel shall also have furnished to the Underwriters a written
statement, addressed to the Underwriters and dated such Delivery Date,
in form and substance satisfactory to the Underwriters, to the effect
that (x) such counsel has acted as counsel to the Issuers or the
Company, as applicable, in connection with previous financing
transactions and has acted as counsel to the Company in connection with
the preparation of the Registration Statement, and (y) based on the
foregoing, no facts have come to the attention of such counsel which
lead them to believe that the Registration Statement, as of the
Effective Date, contained any untrue statement of a material fact or
omitted to state a material
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fact required to be stated therein or necessary in order to make the
statements therein not misleading, or that any Prospectus Supplement
contains any untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which
they were made, not misleading. The foregoing opinion and statement may
be qualified by a statement to the effect that such counsel does not
assume any responsibility for the accuracy, completeness or fairness of
the statements contained in the Registration Statement or any
Prospectus Supplement except for the statements made in each Prospectus
Supplement under the identified in Section 8(d)(viii) and (ix).
(e) The Underwriters shall have received from Xxxx Xxxxxxx & Xxxxxx
LLP, counsel for the Underwriters, such opinion or opinions, dated such
Delivery Date, with respect to the issuance and sale of the Offered
Securities, the Registration Statement, each Prospectus Supplement and
other related matters as the Underwriters may reasonably require, and
the Company shall have furnished to such counsel such documents as they
reasonably request for the purpose of enabling them to pass upon such
matters.
(f) At the time of execution of this Agreement, the Underwriters
shall have received from Xxxxxx Xxxxxxxx LLP a letter, in form and
substance reasonably satisfactory to the Underwriters, addressed to the
Underwriters and dated the date hereof (i) confirming that they are
independent public accountants within the meaning of the Securities Act
and are in compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X of the
Commission, (ii) stating, as of the date hereof (or, with respect to
matters involving changes or developments since the respective dates as
of which specified financial information is given in each Prospectus
Supplement, as of a date not more than five days prior to the date
hereof), the conclusions and findings of such firm with respect to the
financial information and other matters ordinarily covered by
accountants' "comfort letters" to underwriters in connection with
registered public offerings.
(g) With respect to the letter of Xxxxxx Xxxxxxxx LLP referred to in
the preceding paragraph and delivered to the Underwriters concurrently
with the execution of this Agreement (the "initial letter"), the
Issuers or the Company, as applicable, shall have furnished to the
Underwriters a letter (the "bring-down letter") of such accountants,
addressed to the Underwriters and dated such Delivery Date (i)
confirming that they are independent public accountants within the
meaning of the Securities Act and are in compliance with the applicable
requirements relating to the qualification of accountants under Rule
2-01 of Regulation S-X of the Commission, (ii) stating, as of the date
of the bring-down letter (or, with respect to matters involving changes
or developments since the respective dates as of which specified
financial information is given in each Prospectus Supplement, as of a
date not more
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than five days prior to the date of the bring-down letter), the
conclusions and findings of such firm with respect to the financial
information and other matters covered by the initial letter and (iii)
confirming in all material respects the conclusions and findings set
forth in the initial letter.
(h) The Issuers or the Company, as applicable, shall have furnished
to the Underwriters a certificate, dated such Delivery Date, of its
Chairman of the Board, its President or a Vice President and its chief
financial officer stating that:
(i) The representations, warranties and agreements of the
Company in Section 1 are true and correct as of such Delivery Date;
the Issuers or the Company, as applicable, have complied in all
material respects with all their agreements contained herein; and
the conditions set forth in Subsections (a) and (i) of this Section
7 have been fulfilled; and
(ii) They have carefully examined the Registration Statement and
each Prospectus Supplement and, in their opinion (A) as of the
Effective Date, the Registration Statement and, as of the Delivery
Date, the Prospectus Supplement did not include any untrue statement
of a material fact and did not omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, and (B) since the Effective Date, no event
has occurred which should have been set forth in a supplement or
amendment to the Registration Statement or any Prospectus
Supplement.
(i) (i) None of the Issuers or the Company, as applicable, or any of
their subsidiaries shall have sustained since the date of the latest
financial statements included or incorporated by reference in each
Prospectus Supplement any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in each
Prospectus Supplement or (ii) since such date there shall not have been
any change in the capital stock or long-term debt of the Issuers or the
Issuers or the Company, as applicable, or any of their subsidiaries or
any change, or any development involving a prospective change, in or
affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Issuers or the
Company, as applicable, and their subsidiaries, otherwise than as set
forth or contemplated in each Prospectus Supplement, the effect of
which, in any such case described in clause (i) or (ii), is, in the
reasonable judgment of the Underwriters, so material and adverse as to
make it impracticable or inadvisable to proceed with the public
offering or the delivery of the Offered
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Securities being delivered on such Delivery Date on the terms and in
the manner contemplated in any Prospectus Supplement.
(j) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange or the American Stock Exchange
or in the over-the-counter market, or trading in any securities of the
Issuers or the Company, as applicable, on any exchange or in the
over-the-counter market, shall have been suspended or minimum prices
shall have been established on any such exchange or such market by the
Commission, by such exchange or by any other regulatory body or
governmental authority having jurisdiction, (ii) a banking moratorium
shall have been declared by Federal or state authorities, (iii) the
United States shall have become engaged in hostilities, there shall
have been an escalation in hostilities involving the United States or
there shall have been a declaration of a national emergency or war by
the United States or (iv) there shall have occurred such a material
adverse change in general economic, political or financial conditions
(or the effect of international conditions on the financial markets in
the United States shall be such) as to make it, in the judgment of the
Underwriters impracticable or inadvisable to proceed with the public
offering or delivery of the Offered Securities being delivered on such
Delivery Date on the terms and in the manner contemplated in any
Prospectus Supplement.
(k) The Nasdaq Stock Market or such other exchange as may be
specified in the applicable Terms Agreement shall have approved the
Offered Securities for inclusion in the National Market System, subject
only to official notice of issuance and evidence of satisfactory
distribution.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
7. Indemnification and Contribution.
(a) The Issuers or the Company, as applicable, shall indemnify and
hold harmless each Underwriter, its officers and employees and each
person, if any, who controls any Underwriter within the meaning of the
Securities Act, from and against any loss, claim, damage or liability,
joint or several, or any action in respect thereof (including, but not
limited to, any loss, claim, damage, liability or action relating to
purchases and sales of Offered Securities), to which that Underwriter,
officer, employee or controlling person may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement of a material fact contained in
the Prospectus, any
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25
Preliminary Prospectus Supplement, the Registration Statement or any
Prospectus Supplement or in any amendment or supplement thereto (ii)
the omission or alleged omission to state in the Prospectus, any
Preliminary Prospectus Supplement, the Registration Statement or any
Prospectus Supplement, or in any amendment or supplement thereto, or in
any Blue Sky Application any material fact required to be stated
therein or necessary to make the statements therein not misleading or
(iii) any act or failure to act or any alleged act or failure to act by
any Underwriter in connection with, or relating in any manner to, the
Offered Securities or the offering contemplated hereby, and which is
included as part of or referred to in any loss, claim, damage,
liability or action arising out of or based upon matters covered by
clause (i) or (ii) above (provided that neither the Issuers nor the
Company, as applicable, shall be liable under this clause (iii) to the
extent that it is determined in a final judgment by a court of
competent jurisdiction that such loss, claim, damage, liability or
action resulted directly from any such acts or failures to act
undertaken or omitted to be taken by such Underwriter through its gross
negligence or willful misconduct), and shall reimburse each Underwriter
and each such officer, employee or controlling person promptly upon
demand for any legal or other expenses reasonably incurred by that
Underwriter, officer, employee or controlling person in connection with
investigating or defending or preparing to defend against any such
loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that (A) neither the Issuers nor the Company, as
applicable, shall be liable in any such case to the extent that any
such loss, claim, damage, liability or action arises out of, or is
based upon, any untrue statement or alleged untrue statement or
omission or alleged omission made in the Prospectus, any Preliminary
Prospectus Supplement, the Registration Statement or any Prospectus
Supplement, or in any such amendment or supplement, in reliance upon
and in conformity with written information concerning such Underwriter
furnished to the Issuers or the Company, as applicable, through the
Underwriters by or on behalf of any Underwriter specifically for
inclusion therein which information will consist solely of the
information specified in the Terms Agreement or in writing between the
Issuers or the Company, as applicable, and the Underwriters, and (B)
the indemnification provided for in this Section 7(a) with respect to
any preliminary prospectus (or the Prospectus) shall not inure to the
benefit of any Underwriter from whom the person asserting any such
loss, claim, damage, liability or action purchased the Offered
Securities which are the subject thereof (or to the benefit of any
person controlling such Underwriter) if at or prior to the written
confirmation of the sale of such Offered Securities a copy of the
Prospectus (or the Prospectus as amended or supplemented) was not sent
or delivered to such person and the untrue statement or omission of a
material fact contained in such preliminary prospectus (or the
Prospectus) was corrected in the Prospectus (or the Prospectus as
amended or supplemented) and delivery of such Prospectus (or Prospectus
as amended or supplemented) would have eliminated any such loss, claim,
damage, liability or action unless the failure is the result of
non-compliance by the Issuers or the Company, as applicable, with
Section 4(c) hereof. The foregoing indemnity agreement is in addition
to any liability which the Issuers or the Company, as applicable, may
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otherwise have to any Underwriter or to any officer, employee or
controlling person of that Underwriter.
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Issuers or the Company, as applicable, their
respective officers and employees, each of their respective directors
and each person, if any, who controls the Issuers or Company, as
applicable, within the meaning of the Securities Act, from and against
any loss, claim, damage or liability, joint or several, or any action
in respect thereof, to which the Issuers or the Company, as applicable,
or any such director, officer or controlling person may become subject,
under the Securities Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, (i) any
untrue statement or alleged untrue statement of a material fact
contained (A) in the Prospectus, any Preliminary Prospectus Supplement,
the Registration Statement or any Prospectus Supplement or in any
amendment or supplement thereto, or (B) in any Blue Sky Application or
(ii) the omission or alleged omission to state in the Prospectus, any
Preliminary Prospectus Supplement, the Registration Statement or any
Prospectus Supplement, or in any amendment or supplement thereto, or in
any Blue Sky Application any material fact required to be stated
therein or necessary to make the statements therein not misleading, but
in each case only to the extent that the untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information concerning such
Underwriter furnished to the Issuers or the Company, as applicable,
through the Underwriters by or on behalf of that Underwriter
specifically for inclusion therein, and shall reimburse the Issuers or
the Company, as applicable, and any such director, officer or
controlling person for any legal or other expenses reasonably incurred
by the Issuers or the Company, as applicable, or any such director,
officer or controlling person promptly upon demand in connection with
investigating or defending or preparing to defend against any such
loss, claim, damage, liability or action as such expenses are incurred.
The foregoing indemnity agreement is in addition to any liability which
any Underwriter may otherwise have to the Issuers or the Company, as
applicable, or any such director, officer, employee or controlling
person.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under this Section 7, notify the
indemnifying party in writing of the claim or the commencement of that
action; provided, however, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have under
this Section 7 except to the extent it has been materially prejudiced
by such failure and, provided further, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may
have to an indemnified party otherwise than under this Section 7. If
any such claim or action shall be brought against an indemnified party,
and it shall notify the
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indemnifying party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly with any
other similarly notified indemnifying party, to assume the defense
thereof with counsel reasonably satisfactory to the indemnified party.
After notice from the indemnifying party to the indemnified party of
its election to assume the defense of such claim or action, the
indemnifying party shall not be liable to the indemnified party under
this Section 7 for any legal or other expenses subsequently incurred by
the indemnified party in connection with the defense thereof other than
reasonable costs of investigation; provided, however, that the
Underwriters shall have the right to employ counsel to represent
jointly the Underwriters and their respective officers, employees and
controlling persons who may be subject to liability arising out of any
claim in respect of which indemnity may be sought by the Underwriters
against the Issuers or the Company, as applicable, under this Section 7
if, in the reasonable judgment of the Underwriters, it is advisable for
the Underwriters and those officers, employees and controlling persons
to be jointly represented by separate counsel, and in that event the
fees and expenses of such separate counsel shall be paid by the Issuers
or the Company, as applicable. No indemnifying party shall (i) without
the prior written consent of the indemnified parties (which consent
shall not be unreasonably withheld), settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification
or contribution may be sought hereunder (whether or not the indemnified
parties are actual or potential parties to such claim or action) unless
such settlement, compromise or consent includes an unconditional
release of each indemnified party from all liability arising out of
such claim, action, suit or proceeding, or (ii) be liable for any
settlement of any such action effected without its written consent
(which consent shall not be unreasonably withheld), but if settled with
the consent of the indemnifying party or if there be a final judgment
of the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any
loss or liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 7 shall for
any reason be unavailable to or insufficient to hold harmless an
indemnified party under Section 7(a) or 7(b) in respect of any loss,
claim, damage or liability, or any action in respect thereof, referred
to therein, then each indemnifying party shall, in lieu of indemnifying
such indemnified party, contribute to the amount paid or payable by
such indemnified party as a result of such loss, claim, damage or
liability, or action in respect thereof, (i) in such proportion as
shall be appropriate to reflect the relative benefits received by the
Issuers or the Company, as applicable, on the one hand and the
Underwriters on the other from the offering of the Offered 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 Issuers or the Company, as applicable,
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28
on the one hand and the Underwriters on the other with respect to the
statements or omissions which resulted in such loss, claim, damage or
liability, or action in respect thereof, as well as any other relevant
equitable considerations. The relative benefits received by the Issuers
or the Company, as applicable, on the one hand and the Underwriters on
the other with respect to such offering shall be deemed to be in the
same proportion as the total net proceeds from the offering of the
Offered Securities purchased under this Agreement (before deducting
expenses but after deducting amounts with respect to any reserves for
the payment of interest in connection with Debt Securities) received by
the Issuers or the Company, as applicable, on the one hand, and the
total underwriting discounts and commissions received by the
Underwriters with respect to the Offered Securities purchased under
this Agreement, on the other hand, bear to the total gross proceeds
from the offering of the Offered Securities under this Agreement, in
each case as set forth in the table on the cover page of each
Prospectus Supplement. The relative fault shall be determined by
reference to whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact
relates to information supplied by the Issuers or the Company, as
applicable, or the Underwriters, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Issuers or Company, as
applicable, agree that it would not be just and equitable if
contributions pursuant to this Section were to be determined by pro
rata allocation (even if the Underwriters were treated as one entity
for such purpose) or by any other method of allocation which does not
take into account the equitable considerations referred to herein. The
amount paid or payable by an indemnified party as a result of the loss,
claim, damage or liability, or action in respect thereof, referred to
above in this Section shall be deemed to include, for purposes of this
Section 7(d), 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 Section
7(d), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Offered
Securities underwritten by it and distributed to the public was offered
to the public exceeds the amount of any damages which such Underwriter
has otherwise paid or become liable to pay by reason of any 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
Underwriters' obligations to contribute as provided in this Section
7(d) are several in proportion to their respective underwriting
obligations and not joint.
8. Defaulting Underwriters.
If, on the applicable Delivery Date, any Underwriter defaults in the
performance of its obligations under this Agreement, the remaining
non-defaulting
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Underwriters participating in an offering of Offered Securities shall be
obligated to purchase the Offered Securities which the defaulting Underwriter
agreed but failed to purchase on such Delivery Date in the respective
proportions which the number of the Offered Securities set opposite the name of
each remaining non-defaulting Underwriter named in the applicable Terms
Agreement bears to the total number of the Offered Securities set opposite the
names of all the remaining non-defaulting Underwriters named in the applicable
Terms Agreement; provided, however, that the remaining non-defaulting
Underwriters shall not be obligated to purchase any of the Offered Securities on
such Delivery Date if the total number of the Offered Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase on such
date exceeds 9.09% of the total number of the Offered Securities to be purchased
on such Delivery Date, and any remaining non-defaulting Underwriter shall not be
obligated to purchase more than 110% of the number of the Offered Securities
which it agreed to purchase on such Delivery Date pursuant to the terms of
Section 3. If the foregoing maximums are exceeded, the remaining non-defaulting
Underwriters, or those other underwriters satisfactory to the Underwriters who
so agree, shall have the right, but shall not be obligated, to purchase, in such
proportion as may be agreed upon among them, all the Offered Securities to be
purchased on such Delivery Date. If the remaining Underwriters or other
underwriters satisfactory to the Underwriters do not elect to purchase the
shares which the defaulting Underwriter or Underwriters agreed but failed to
purchase on such Delivery Date, this Agreement (or, with respect to the Second
Delivery Date, the obligation of the Underwriters to purchase, and of the
Issuers and the Company, as applicable, to sell, the Option Securities) shall
terminate without liability on the part of any non-defaulting Underwriter or the
Issuers or the Company, as applicable, except that the Issuer or the Company, as
applicable, will continue to be liable for the payment of expenses to the extent
set forth in Sections 5 and 10.
Nothing contained herein shall relieve a defaulting Underwriter of any
liability it may have to the Issuers or the Company, as applicable, for damages
caused by its default. If other underwriters are obligated or agree to purchase
the Offered Securities of a defaulting or withdrawing Underwriter, either the
Underwriters or the Issuers or the Company, as applicable, may postpone the
Delivery Date for up to seven full business days in order to effect any changes
that in the opinion of counsel for the Company or counsel for the Underwriters
may be necessary in the Registration Statement, any Prospectus Supplement or in
any other document or arrangement.
9. Termination. The obligations of the Underwriters hereunder may be
terminated by the Underwriters by notice given to and received by the Issuers or
the Company, as applicable, prior to delivery of and payment for the Offered
Securities if, prior to that time, any of the events described in Sections 6(i)
or 6(j), shall have occurred or if the Underwriters shall decline to purchase
the Offered Securities for any reason permitted under this Agreement.
10. Reimbursement of Underwriters' Expenses. If (a) the Issuers or the
Company, as applicable, shall fail to tender the Offered Securities for delivery
to the Underwriters by reason of any failure, refusal or inability on the part
of the Issuers or the Company, as applicable, to perform any agreement on its
part to be performed, or because
29
30
any other condition of the Underwriters' obligations hereunder required to be
fulfilled by the Company is not fulfilled, the Issuers or the Company, as
applicable, will reimburse the Underwriters for all reasonable out-of-pocket
expenses (including fees and disbursements of counsel) incurred by the
Underwriters in connection with this Agreement and the proposed purchase of the
Offered Securities, and upon demand the Issuers or the Company, as applicable,
shall pay the full amount thereof to the Representative(s). If this Agreement is
terminated pursuant to Section 9 by reason of the default of one or more
Underwriters, neither the Issuer nor the Company, as applicable, shall be
obligated to reimburse any defaulting Underwriter on account of those expenses.
11. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail,
telex or facsimile transmission to such persons as are indicated in any
Terms Agreement;
(b) if to the Issuer or the Company shall be delivered or sent by
mail, telex or facsimile transmission to the address of the Company set
forth in the Registration Statement, Attention: Chief Financial Officer
(Fax: (000) 000-0000), with a copy to Xxxxxxx X. Xxxxxxxx, Xxxxxx
Godward LLP, Xxx Xxxxxxxx Xxxxx, 00xx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx
00000 (Fax: (000) 000-0000;
provided, however, that any notice to an Underwriter pursuant to Section 7(c)
shall be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its acceptance telex to the
Underwriters, which address will be supplied to any other party hereto by the
Underwriters upon request. Any such statements, requests, notices or agreements
shall take effect at the time of receipt thereof. The Issuers or the Company, as
applicable, shall be entitled to act and rely upon any request, consent, notice
or agreement given or made on by the Underwriters.
12. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the Underwriters, the Issuers or the
Company, as applicable, and their respective successors. This Agreement and the
terms and provisions hereof are for the sole benefit of only those persons,
except that (A) the representations, warranties, indemnities and agreements of
the Issuers or the Company, as applicable, contained in this Agreement shall
also be deemed to be for the benefit of the person or persons, if any, who
control any Underwriter within the meaning of Section 15 of the Securities Act
and (B) the indemnity agreement of the Underwriters contained in Section 7(b) of
this Agreement shall be deemed to be for the benefit of the respective directors
of the Issuers, respective officers of the Issuers who have signed the
Registration Statement and any person controlling the Issuers or the Company, as
applicable, within the meaning of Section 13 of the Securities Act. Nothing in
this Agreement is intended or shall be construed to give any person, other than
the persons referred to in this Section 12, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision contained
herein.
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13. Survival. The respective indemnities, representations, warranties
and agreements of the Issuers or the Company, as applicable, and the
Underwriters contained in this Agreement and each Terms Agreement or made by or
on behalf on them, respectively, pursuant to this Agreement, shall survive the
delivery of and payment for the Offered Securities and shall remain in full
force and effect, regardless of any investigation made by or on behalf of any of
them or any person controlling any of them.
14. Definition of "Business Day" and "Subsidiary". For purposes of this
Agreement, (a) "business day" means each Monday, Tuesday, Wednesday, Thursday or
Friday which is not a day on which banking institutions in New York are
generally authorized or obligated by law or executive order to close and (b)
"subsidiary" has the meaning set forth in Rule 405 of the Rules and Regulations.
15. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of New York.
16. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
17. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
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Very truly yours,
METRICOM, INC.
By /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: President and CEO
METRICOM FINANCE, INC.
By /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------
Name:Xxxxxxx X. Xxxxxxxxx
Title:President and CEO
Accepted:
For itself and as Representative of the
several Underwriters named above
By XXXXXX BROTHERS INC.
By /s/ Xxxxx Xxxxxxxxxxx
------------------------------
Xxxxx Xxxxxxxxxxx
Managing Director
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Exhibit A
[UNDERWRITERS]
[Title of Securities]
TERMS AGREEMENT
Dated: , 200_
TO: METRICOM, INC.
METRICOM FINANCE, INC.
RE: UNDERWRITING AGREEMENT DATED ________, 2000.
DEAR SIRS:
WE (THE "REPRESENTATIVE[S]") UNDERSTAND THAT METRICOM, INC., A DELAWARE
CORPORATION (THE "COMPANY") AND/OR METRICOM FINANCE, INC. ("FINANCE SUB" AND,
TOGETHER WITH THE COMPANY, THE "ISSUERS"), PROPOSE TO ISSUE AND SELL [[$
AGGREGATE PRINCIPAL AMOUNT] OF THEIR [SENIOR DEBT SECURITIES] [AND]
[SUBORDINATED [CONVERTIBLE DEBT SECURITIES] (THE "DEBT SECURITIES")] [AND]
[_________ SHARES OF THE COMPANY'S COMMON STOCK, PAR VALUE $.001 PER SHARE (THE
"COMMON STOCK")]. THIS AGREEMENT IS THE TERMS AGREEMENT REFERRED TO IN THE
UNDERWRITING AGREEMENT DATED _______________, 200_ (THE "UNDERWRITING
AGREEMENT"). SUBJECT TO THE TERMS AND CONDITIONS SET FORTH HEREIN OR
INCORPORATED BY REFERENCE HEREIN, THE UNDERWRITERS NAMED BELOW (THE
"UNDERWRITERS") OFFER TO PURCHASE, SEVERALLY AND NOT JOINTLY, THE RESPECTIVE
[AMOUNTS OF [DEBT SECURITIES] [AND] [COMMON STOCK]] SET FORTH BELOW.
PRINCIPAL AMOUNT OF PRINCIPAL AMOUNT OF
UNDERWRITER DEBT SECURITIES COMMON STOCK
TOTAL $_________ $_________
DEBT SECURITIES
TITLE OF DEBT SECURITIES: PRINCIPAL AMOUNT TO BE ISSUED: $
SENIOR OR SUBORDINATED:
CURRENCY:
CURRENT RATINGS:
34
INTEREST RATE OR FORMULA: %
INTEREST PAYMENT DATES:
DATE OF MATURITY:
REDEMPTION PROVISIONS:
SINKING FUND REQUIREMENTS:
INITIAL PUBLIC OFFERING PRICE: % OF THE PRINCIPAL AMOUNT, PLUS ACCRUED
INTEREST, IF ANY, [OR AMORTIZED ORIGINAL ISSUE DISCOUNT, IF ANY,] FROM , 200_.
PURCHASE PRICE: % OF THE PRINCIPAL AMOUNT, PLUS ACCRUED INTEREST, IF
ANY, [OR AMORTIZED ORIGINAL ISSUE DISCOUNT, IF ANY,] FROM , 200_ (PAYABLE IN
NEXT DAY FUNDS).
LISTING REQUIREMENT: [NONE] [NASDAQ]
CONVERTIBLE:
CONVERSION PROVISIONS:
DELIVERY DATE AND LOCATION:
ADDITIONAL REPRESENTATIONS, IF ANY:
REDEMPTION PROVISIONS:
LOCK-UP PROVISIONS:
SINKING FUND REQUIREMENTS:
NUMBER OF OPTION SECURITIES, IF ANY:
OTHER TERMS AND CONDITIONS:
COMMON STOCK
TITLE OF COMMON STOCK:
NUMBER OF SHARES TO BE ISSUED:
CURRENCY:
2
35
ANNUAL CASH DIVIDEND RATE: %
PAYABLE:
LIQUIDATION PREFERENCE PER SHARE:
INITIAL PUBLIC OFFERING PRICE: %, PLUS ACCRUED INTEREST OR AMORTIZED
ORIGINAL ISSUE DISCOUNT, IF ANY, FROM ____________, 200_
PURCHASE PRICE: % PLUS ACCRUED INTEREST OR AMORTIZED ORIGINAL
ISSUE DISCOUNT, IF ANY, FROM _____________, 200_ (PAYABLE IN NEXT DAY FUNDS).
LISTING REQUIREMENT: [NONE] [NASDAQ]
CONVERTIBLE:
INITIAL CONVERSION PRICE: $_____ PER SHARE OF [COMMON STOCK].
OTHER CONVERSION PROVISIONS:
DELIVERY DATE AND LOCATION:
ADDITIONAL REPRESENTATIONS, IF ANY:
REDEMPTION PROVISIONS:
LOCK-UP PROVISIONS:
SINKING FUND REQUIREMENTS:
NUMBER OF OPTION SECURITIES, IF ANY:
OTHER TERMS AND CONDITIONS:
2
