3,865,000
TRIQUINT SEMICONDUCTOR, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
XX XXXXX SECURITIES CORPORATION
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
Banc of America Securities LLC
CIBC World Markets Corp.
Xxxx Xxxxxxxx Xxxxxxx, a division of Xxxx Xxxxxxxx Incorporated
U.S. Bancorp Xxxxx Xxxxxxx Inc.
c/o XX Xxxxx Securities Corporation
Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
1. INTRODUCTORY. TriQuint Semiconductor, Inc., a Delaware corporation
(the "Company"), and the selling stockholder named in Schedule B hereto (the
"Selling Stockholder") proposes to sell, pursuant to the terms of this
Agreement, to the several underwriters named in Schedule A hereto (the
"Underwriters," or, each, an "Underwriter"), an aggregate of 3,865,000 shares
of Common Stock, $.001 par value (the "Common Stock") of the Company. The
aggregate of 3,865,000 shares so proposed to be sold is hereinafter referred to
as the "Firm Stock." The Company also proposes to sell to the Underwriters, upon
the terms and conditions set forth in Section 3 hereof, up to an additional
579,750 shares of Common Stock (the "Optional Stock"). The Firm Stock and the
Optional Stock are hereinafter collectively referred to as the "Stock."
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to, and agrees with, the several Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-81245) (the
"Initial Registration Statement") in respect of the Stock has been filed with
the Securities and Exchange Commission (the "Commission"); the Initial
Registration Statement and any post-effective amendment thereto, each in the
form heretofore delivered to you, and, excluding exhibits thereto but including
all documents incorporated by reference in the prospectus contained therein, to
you for each of the other Underwriters, have been declared effective by the
Commission in such form; other than a registration statement, if any, increasing
the size of the offering (a "Rule 462(b) Registration Statement"), filed
pursuant to Rule 462(b) under the Securities Act of 1933, as amended (the
"Securities Act") and the rules and regulations (the "Rules and Regulations") of
the Commission thereunder, which became effective upon filing, no other document
with respect to the Initial Registration Statement or document incorporated by
reference therein has hereto-
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fore been filed with the Commission; and no stop order suspending the
effectiveness of the Initial Registration Statement, any post-effective
amendment thereto or the Rule 462(b) Registration Statement, if any, has been
issued and no proceeding for that purpose has been initiated or threatened by
the Commission (any preliminary prospectus included in the Initial
Registration Statement or filed with the Commission pursuant to Rule 424(a)
of the Rules and Regulations, is hereinafter called a "Preliminary
Prospectus"); the various parts of the Initial Registration Statement and the
Rule 462(b) Registration Statement, if any, including all exhibits thereto
and including (i) the information contained in the form of final prospectus
filed with the Commission pursuant to Rule 424(b) under the Securities Act
and deemed by virtue of Rule 430A under the Securities Act to be part of the
Initial Registration Statement at the time it was declared effective and (ii)
the documents incorporated by reference in the prospectus contained in the
Initial Registration Statement at the time such part of the Initial
Registration Statement became effective, each as amended at the time such
part of the Initial Registration Statement became effective or such part of
the Rule 462(b) Registration Statement, if any, became or hereafter becomes
effective, are hereinafter collectively called the "Registration Statements";
and such final prospectus, in the form first filed pursuant to Rule 424(b)
under the Securities Act, is hereinafter called the "Prospectus"; and any
reference herein to any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the Securities Act, as of the
date of such Preliminary Prospectus or Prospectus, as the case may be; any
reference to any amendment or supplement to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include any documents filed after
the date of such Preliminary Prospectus or Prospectus, as the case may be,
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and incorporated by reference in such Preliminary Prospectus or Prospectus,
as the case may be; and any reference to any amendment to the Registration
Statements shall be deemed to refer to and include any annual report of the
Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act after
the effective date of the Initial Registration Statement that is incorporated
by reference in the Registration Statements. No document has been or will be
prepared or distributed in reliance on Rule 434 under the Securities Act. No
order preventing or suspending the use of any Preliminary Prospectus has been
issued by the Commission.
(b) The Registration Statement conforms (and the Rule 462(b)
Registration Statement, if any, the Prospectus and any amendments or
supplements to either of the Registration Statements or the Prospectus, when
they become effective or are filed with the Commission, as the case may be,
will conform) in all material respects to the requirements of the Securities
Act and the Rules and Regulations and do not and will not, as of the
applicable effective date (as to the Registration Statements and any
amendment thereto) and as of the applicable filing date (as to the Prospectus
and any amendment or supplement thereto) contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading; PROVIDED,
however, that the foregoing representations and warranties shall not apply to
information contained in or omitted from the Registration Statements or the
Prospectus or any such amendment or supplement thereto in reliance upon, and
in conformity with, written information furnished to the Company through the
Underwriters by or on behalf of any Underwriter specifically for inclusion
therein.
(c) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may be,
conformed in all material
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respects to the requirements of the Securities Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder, and
none of such documents contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or necessary
to make the statements therein not misleading; and any further documents so
filed and incorporated by reference in the Prospectus, when such documents
become effective or filed with Commission, as the case may be, will conform
in all material respects to the requirements of the Securities Act or the
Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder and will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading.
(d) The Company and each of its subsidiaries (as defined in Section
15) 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 to conduct the businesses in which they are
engaged, except where the failure to so qualify or have such power or
authority would not have, singularly or in the aggregate, a material adverse
effect on the condition (financial or otherwise), results of operations,
business or prospects of the Company and its subsidiaries taken as a whole (a
"Material Adverse Effect"). The Company owns or controls, directly or
indirectly, only the following corporations, associations or other entities:
TriQuint Semiconductor GmbH.
(e) This Agreement has been duly authorized executed and delivered by
the Company.
(f) The Stock to be issued and sold by the Company to the Underwriters
hereunder has been duly and validly authorized and, when issued and delivered
against payment therefor as provided herein, will be duly and validly issued,
fully paid and nonassessable and free of any preemptive or similar rights and
will conform to the description thereof contained in the Prospectus.
(g) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company,
including the Stock, have been duly and validly authorized and issued, are fully
paid and non-assessable and conform to the description thereof contained in the
Prospectus.
(h) All the outstanding shares of capital stock of each subsidiary of
the Company have been duly authorized and validly issued, are fully paid and
nonassessable and, except to the extent set forth in the Prospectus, are owned
by the Company directly or indirectly through one or more wholly owned
subsidiaries, free and clear of any claim, lien, encumbrance, security interest,
restriction upon voting or transfer or any other claim of any third party.
(i) The execution, delivery and performance of this Agreement by the
Company 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
provisions of, or constitute a default under, any inden-
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ture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is subject, nor
will such actions result in any violation of the provisions of the charter or
bylaws of the Company or any of its subsidiaries or any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of their
properties or assets.
(j) Except for the registration of the Stock under the Securities Act
and such consents, approvals, authorizations, registrations or qualifications as
may be required under the Exchange Act and applicable state securities laws in
connection with the purchase and distribution of the Stock by the Underwriters,
no consent, approval, authorization or order of, or filing or registration with,
any such court or governmental agency or body is required for the execution,
delivery and performance of this Agreement by the Company and the consummation
of the transactions contemplated hereby.
(k) KPMG Peat Marwick LLP, who have expressed their opinions on the
audited financial statements and related schedules included or incorporated by
reference in the Registration Statements and the Prospectus are independent
public accountants as required by the Securities Act and the Rules and
Regulations.
(l) The financial statements, together with the related notes and
schedules, included or incorporation by reference in the Prospectus and in each
Registration Statement fairly present the financial position and the results of
operations and changes in financial position of the Company and its consolidated
subsidiaries at the respective dates or for the respective periods therein
specified. Such statements and related notes and schedules have been prepared
in accordance with generally accepted accounting principles applied on a
consistent basis except as may be set forth in the Prospectus.
(m) Neither the Company nor any of its subsidiaries has sustained,
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, 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 the Prospectus;
and, since such date, there has not been any change in the capital stock or
long-term debt of the Company or any of its subsidiaries or any material adverse
change, or any development involving a prospective material adverse change, in
or affecting the business, general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole, otherwise than as set forth or contemplated in
the Prospectus.
(n) Except as set forth in the Prospectus, there is no legal or
governmental proceeding pending to which the Company or any of its subsidiaries
is a party or of which any property or assets of the Company or any of its
subsidiaries is the subject which, singularly or in the aggregate, if determined
adversely to the Company or any of its subsidiaries, might have a Material
Adverse Effect or would prevent or adversely affect the ability of the Company
to perform its obligations under this Agreement; and to the best of the
Company's knowledge, no
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such proceedings are threatened or contemplated by governmental authorities
or threatened by others.
(o) Neither the Company nor any of its subsidiaries (i) is in
violation of its charter or bylaws, (ii) is in default in any respect, 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 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 property or assets is subject or (iii) is in violation in
any respect of any law, ordinance, governmental rule, regulation or court decree
to which it or its property or assets may be subject except any violations or
defaults which, singularly or in the aggregate, would not have a Material
Adverse Effect.
(p) The Company and each of its subsidiaries possess all licenses,
certificates, authorizations and permits issued by, and have made all
declarations and filings with, the appropriate state, federal or foreign
regulatory agencies or bodies which are necessary or desirable for the ownership
of their respective properties or the conduct of their respective businesses as
described in the Prospectus except where any failures to possess or make the
same, singularly or in the aggregate, would not have a Material Adverse Effect,
and the Company has not received notification of any revocation or modification
of any such license, authorization or permit and has no reason to believe that
any such license, certificate, authorization or permit will not be renewed.
(q) Neither the Company nor any of its subsidiaries is or, after
giving effect to the offering of the Stock and the application of the proceeds
thereof as described in the Prospectus will become an "investment company"
within the meaning of the Investment Company Act of 1940, as amended and the
rules and regulations of the Commission thereunder.
(r) Neither the Company nor any of its officers, directors or
affiliates has taken or will take, directly or indirectly, any action designed
or intended to stabilize or manipulate the price of any security of the Company,
or which caused or resulted in, or which might in the future reasonably be
expected to cause or result in, stabilization or manipulation of the price of
any security of the Company.
(s) The Company and its subsidiaries own or possess the right to use
all patents, trademarks, trademark registrations, service marks, service xxxx
registrations, trade names, copyrights, licenses, inventions, trade secrets and
rights described in the Prospectus as being owned by them for the conduct of
their respective businesses, and the Company is not aware of any claim to the
contrary or any challenge by any other person to the rights of the Company and
its subsidiaries with respect to the foregoing. The Company's business as now
conducted and as proposed to be conducted does not and will not infringe or
conflict with any patents, trademarks, service marks, trade names, copyrights,
trade secrets, licenses or other intellectual property or franchise right of any
person. Except as described in the Prospectus, no claim has been made against
the Company alleging the infringement by the Company of any patent, trademark,
service xxxx, trade name, copyright, trade secret, license in or other
intellectual property right or franchise right of any person.
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(t) The Company and each of its subsidiaries have good and marketable
title in fee simple to, or have valid rights to lease or otherwise use, all
items of real or personal property which are material to the business of the
Company and its subsidiaries taken as a whole, in each case free and clear of
all liens, encumbrances, claims and defects that may result in a Material
Adverse Effect.
(u) No labor disturbance by the employees of the Company or any of its
subsidiaries exists or, to the best of the Company's knowledge, is imminent
which might be expected to have a Material Adverse Effect. The Company is not
aware that any key employee or significant group of employees of the Company or
any subsidiary plans to terminate employment with the Company or any such
subsidiary.
(v) No "prohibited transaction" (as defined in Section 406 of the
Employee Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder ("ERISA"), or Section 4975
of the Internal Revenue Code of 1986, as amended from time to time (the "Code"))
or "accumulated funding deficiency" (as defined in Section 302 of ERISA) or any
of the events set forth in Section 4043(b) of ERISA (other than events with
respect to which the 30-day notice requirement under Section 4043 of ERISA has
been waived) has occurred with respect to any employee benefit plan which could
have a Material Adverse Effect; each employee benefit plan is in compliance in
all material respects with applicable law, including ERISA and the Code; the
Company has not incurred and does not expect to incur liability under Title IV
of ERISA with respect to the termination of, or withdrawal from, any "pension
plan"; and each "pension plan" (as defined in ERISA) for which the Company would
have any liability that is intended to be qualified under Section 401(a) of the
Code is so qualified in all material respects and nothing has occurred, whether
by action or by failure to act, which could cause the loss of such
qualification.
(w) There has been no storage, generation, transportation, handling,
treatment, disposal, discharge, emission, or other release of any kind of toxic
or other wastes or other hazardous substances by, due to, or caused by the
Company or any of its subsidiaries (or, to the best of the Company's knowledge,
any other entity for whose acts or omissions the Company or any of its
subsidiaries is or may be liable) upon any of the property now or previously
owned or leased by the Company or any of its subsidiaries, or upon any other
property, in violation of any statute or any ordinance, rule, regulation, order,
judgment, decree or permit or which would, under any statute or any ordinance,
rule (including rule of common law), regulation, order, judgment, decree or
permit, give rise to any liability, except for any violation or liability which
would not have, singularly or in the aggregate with all such violations and
liabilities, a Material Adverse Effect; there has been no disposal, discharge,
emission or other release of any kind onto such property or into the environment
surrounding such property of any toxic or other wastes or other hazardous
substances with respect to which the Company or any of its subsidiaries have
knowledge, except for any such disposal, discharge, emission, or other release
of any kind which would not have, singularly or in the aggregate with all such
discharges and other releases, a Material Adverse Effect.
(x) The Company and its subsidiaries each (i) have filed with all
necessary federal, state and foreign income and franchise tax returns, (ii) have
paid all federal sate, local and foreign taxes due and payable for which it is
liable, and (iii) do not have any tax deficiency or
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claims outstanding or assessed or, to the best of the Company's knowledge,
proposed against it which could reasonably be expected to have a Material
Adverse Effect.
(y) The Company and each of its 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
as is customary for companies engaged in similar businesses in similar
industries.
(z) The Company and each of its subsidiaries maintains a system of
internal accounting controls sufficient to provide reasonable assurances that
(i) transactions are executed in accordance with management's general or
specific authorization; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets; (iii) access to
assets is permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(aa) The minute books of the Company and each of its subsidiaries have
been made available to the Underwriters and counsel for the Underwriters, and
such books (i) contain a complete summary of all meetings and actions of the
directors and stockholders of the Company and each of its subsidiaries since the
time of its respective incorporation through the date of the latest meeting and
action, and (ii) accurately in all material respects reflect all transactions
referred to in such minutes.
(bb) There is no franchise, lease, contract, agreement or document
required by the Securities Act or by the Rules and Regulations to be described
in the Prospectus or to be filed as an exhibit to the Registration Statements
which is not described or filed therein as required; and all descriptions of any
such franchises, leases, contracts, agreements or documents contained in the
Registration Statements are accurate and complete descriptions of such documents
in all material respects.
(cc) No relationship, direct or indirect, exists between or among the
Company on the one hand, and the directors, officers, stockholders, customers or
suppliers of the Company on the other hand, which is required to be described in
the Prospectus and which is not so described.
(dd) No person or entity has the right to require registration of
shares of Common Stock or other securities of the Company because of the filing
or effectiveness of the Registration Statements or otherwise, except for persons
and entities who have expressly waived such right or who have been given proper
notice and have failed to exercise such right within the time or times required
under the terms and conditions of such right.
(ee) Neither the Company nor any of its subsidiaries own any "margin
securities" as that term is defined in Regulations G and U of the Board of
Governors of the Federal Reserve System (the "Federal Reserve Board"), and none
of the proceeds of the sale of the Stock will be used, directly or indirectly,
for the purpose of purchasing or carrying any margin security, for the purpose
of reducing or retiring any indebtedness which was originally incurred to
purchase or carry any margin security or for any other purpose which might cause
any of the Securities to be
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considered a "purpose credit" within the meanings of Regulation G, T, U or X
of the Federal Reserve Board.
(ff) Neither the Company nor any of its subsidiaries is a party to any
contract, agreement or understanding with any person that would give rise to a
valid claim against the Company or the Underwriters for a brokerage commission,
finder's fee or like payment in connection with the offering and sale of the
Stock.
(gg) No forward-looking statement (within the meaning of Section 27A of
the Securities Act and Section 21E of the Exchange Act) contained in the
Prospectus has been made or reaffirmed without a reasonable basis or has been
disclosed other than in good faith.
(hh) The Company has reviewed its operations and that of its
subsidiaries and any third parties with which the Company or any of its
subsidiaries has a material relationship to evaluate the extent to which the
business or operations of the Company or any of its subsidiaries will be
affected by the Year 2000 Problem. As a result of such review, the Company has
no reason to believe, and does not believe, that the Year 2000 Problem will have
a Material Adverse Effect. The "Year 2000 Problem" as used herein means any
significant risk that computer hardware or software used in the receipt,
transmission, processing, manipulation, storage, retrieval, retransmission or
other utilization of data or in the operation of mechanical or electrical
systems of any kind will not, in the case of dates or time periods occurring
after December 31, 1999, function at least as effectively as in the case of
dates or time periods occurring prior to January 1, 2000.
(ii) The Stock is listed on the NASDAQ Stock Market's National Market.
3. REPRESENTATIONS AND WARRANTIES AND AGREEMENTS OF THE SELLING
STOCKHOLDER. The Selling Stockholder represents and warrants to, and agrees
with, the Underwriters that such Selling Stockholder:
(a) Has, and immediately prior to each Closing Date (as defined in
Section 3 hereof) the Selling Stockholder will have, good and valid title to the
shares of Stock to be sold by the Selling Stockholder hereunder on such date,
free and clear of all liens, encumbrances, equities or claims; and upon delivery
of such shares and payment therefor pursuant hereto, good and valid title to
such shares, free and clear of all liens, encumbrances, equities or claims, will
pass to the Underwriters.
(b) Has duly and irrevocably executed and delivered a power of
attorney, in substantially the form heretofore delivered by the Underwriters
(the "Power of Attorney"), appointing, Xxxxxx X. Xxxxx and Xxxxxx X.X. Xxxx and
each of them, as attorney-in-fact (the "Attorneys-in-fact") with authority to
execute and deliver this Agreement on behalf of such Selling Stockholder, to
authorize the delivery of the shares of Stock to be sold by such Selling
Stockholder hereunder and otherwise to act on behalf of such Selling Stockholder
in connection with the transactions contemplated by this Agreement.
(c) Has duly and irrevocably executed and delivered a custody
agreement, in substantially the form heretofore delivered by the Underwriters
(the "Custody Agreement"), with Xxxxx Xxxxxx Shareholder Services LLC as
custodian (the "Custodian"), pursuant to which certificates in
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negotiable form for the shares of Stock to be sold by such Selling
Stockholder hereunder have been placed in custody for delivery under this
Agreement.
(d) Has full right, power and authority to enter into this Agreement,
the Power of Attorney and the Custody Agreement; the execution, delivery and
performance of this Agreement, the Power of Attorney and the Custody Agreement
by such Selling Stockholder and the consummation by such Selling Stockholder of
the transactions contemplated hereby and thereby will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which such Selling Stockholder is
a party or by which the Selling Stockholder is bound or to which any of the
property or assets of the Selling Stockholder is subject, nor will such actions
result in any violation of the provisions of the charter or bylaws of the
Selling Stockholder, the articles of partnership of the Selling Stockholder or
the deed of trust of the Selling Stockholder or any statute or any order, rule
or regulation of any court or governmental agency or body having jurisdiction
over the Selling Stockholder or the property or assets of the Selling
Stockholder; and, except for the registration of the Stock under the Securities
Act and such consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act and applicable state
securities laws in connection with the purchase and distribution of the Stock by
the Underwriters, no consent, approval, authorization or order of, or filing or
registration with, any such court or governmental agency or body is required for
the execution, delivery and performance of this Agreement, the Power of Attorney
or the Custody Agreement by such Selling Stockholder and the consummation by the
Selling Stockholder of the transactions contemplated hereby and thereby.
(e) The Registration Statements do not, and the Prospectus and any
further amendments or supplements to the Registration Statements or the
Prospectus will not, as of the applicable effective date (as to the Registration
Statements and any amendment thereto) and as of the applicable filing date (as
to the Prospectus and any amendment or supplement thereto) contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading. The
preceding sentence applies only to the extent that any information contained in
or omitted from the Registration Statements or Prospectus was in reliance upon
and in conformity with written information furnished to the Company by such
Selling Stockholder specifically for inclusion therein.
4. PURCHASE SALE AND DELIVERY OF OFFERED SECURITIES. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Company and the Selling
Stockholder agrees, severally and not jointly, to sell to each Underwriter, and
each Underwriter agrees, severally and not jointly, to purchase from the Company
and the Selling Stockholder, that number of shares of Firm Stock (rounded up or
down, as determined by XX Xxxxx in its discretion, in order to avoid fractions)
obtained by multiplying 3,865,000 shares of Firm Stock in the case of the
Company and the number of shares of Firm Stock set forth opposite the name of
such Selling Stockholder in Schedule B hereto, in the case of a Selling
Stockholder, in each case by a fraction the numerator of which is the number of
shares of Firm Stock set forth opposite the name of such Underwriter in
Schedule A hereto and the denominator of which is the total number of shares of
Firm Stock.
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The purchase price per share to be paid by the Underwriters to the
Company and the Selling Stockholder for the Stock will be $_____ per share (the
"Purchase Price").
The Company and the Selling Stockholder will deliver the Firm Stock to
the Underwriters for the respective accounts of the several Underwriters (in
the form of definitive certificates, issued in such names and in such
denominations as the Underwriters may direct by notice in writing to the
Company given at or prior to 12:00 Noon, New York time, on the second full
business day preceding the First Closing Date (as defined below) against
payment of the aggregate Purchase Price therefor by wire transfer to an
account at a bank acceptable to XX Xxxxx, payable to the order of the Company
and Xxxxx Xxxxxx Shareholder Services LLC as Custodian for the Selling
Stockholder, all at the offices of __________. Time shall be of the essence,
and delivery at the time and place specified pursuant to this Agreement is a
further condition of the obligations of each Underwriter hereunder. The time
and date of the delivery and closing shall be at 10:00 a.m., New York time,
on ___________, 1999, in accordance with Rule 15c6-1 of the Exchange Act.
The time and date of such payment and delivery are herein referred to as the
"First Closing Date." The First Closing Date and the location of delivery
of, and the form of payment for, the Firm Stock may be varied by agreement
among the Company, the Selling Stockholder and XX Xxxxx.
The Company and the Selling Stockholder shall make the certificates for
the Stock available to the Underwriters for examination on behalf of the
Underwriters in New York, New York at least twenty-four hours prior to the First
Closing Date.
For the purpose of covering any over-allotments in connection with the
distribution and sale of the Firm Stock as contemplated by the Prospectus, the
Underwriters may purchase all or less than all of the Optional Stock. The price
per share to be paid for the Optional Stock shall be the Purchase Price. The
Company agrees to sell to the Underwriters the number of shares of Optional
Stock specified in the written notice by XX Xxxxx described below and the
Underwriters agree, severally and not jointly, to purchase such shares of
Optional Stock for the account of each Underwriter in the same proportion as the
number of shares of Firm Stock set forth opposite such Underwriter's name bears
to the total number of shares of Firm Stock (subject to adjustment by XX Xxxxx
to eliminate fractions). The option granted hereby may be exercised as to all or
any part of the Optional Stock at any time, and from time to time, not more than
thirty (30) days subsequent to the date of this Agreement. No Optional Stock
shall be sold and delivered unless the Firm Stock previously has been, or
simultaneously is, sold and delivered. The right to purchase the Optional Stock
or any portion thereof may be surrendered and terminated at any time upon notice
by XX Xxxxx to the Company.
The option granted hereby may be exercised by written notice being given
to the Company by XX Xxxxx setting forth the number of shares of the Optional
Stock to be purchased by the Underwriters and the date and time for delivery of
and payment for the Optional Stock. Each date and time for delivery of and
payment for the Optional Stock (which may be the First Closing Date, but not
earlier) is herein called the "Option Closing Date" and shall in no event be
earlier than two (2) business days nor later than five (5) business days after
written notice is given. (The Option Closing Date and the First Closing Date
are herein called the "Closing Dates.")
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The Company will deliver the Optional Stock to the Underwriter (in the
form of definitive certificates, issued in such names and in such denominations
as the Underwriters may direct by notice in writing to the Company given at or
prior to 12:00 Noon, New York time, on the second full business day preceding
the Option Closing Date against payment of the aggregate Purchase Price therefor
in federal (same day) funds by certified or official bank check or checks or
wire transfer to an account at a bank acceptable to XX Xxxxx payable to the
order of the Company all at the offices of XX Xxxxx. Time shall be of the
essence, and delivery at the time and place specified pursuant to this Agreement
is a further condition of the obligations of each Underwriter hereunder. The
Company shall make the certificates for the Optional Stock available to the
Underwriters for examination on behalf of the Underwriters in New York, New York
not later than 10:00 a.m., New York Time, on the business day preceding the
Option Closing Date. The Option Closing Date and the location of delivery of,
and the form of payment for, the Optional Stock may be varied by agreement
between the Company and XX Xxxxx.
The several Underwriters propose to offer the Stock for sale upon the
terms and conditions set forth in the Prospectus.
5. FURTHER AGREEMENTS OF THE COMPANY. The Company agrees with the
several Underwriters that:
(a) The Company will prepare the Rule 462(b) Registration Statement,
if necessary, in a form approved by the Underwriters and file such Rule 462(b)
Registration Statement with the Commission on the date hereof; prepare the
Prospectus in a form approved by the Underwriters and file such Prospectus
pursuant to Rule 424(b) under the Securities Act not later than the second
business day following the execution and delivery of this Agreement; make no
further amendment or any supplement to the Registration Statements or to the
Prospectus prior to the Option Closing Date to which the Underwriters shall
reasonably object by notice to the Company after a reasonable period to review;
advise the Underwriters, promptly after it receives notice thereof, of the time
when any amendment to either Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended Prospectus has been
filed and to furnish the Underwriters with copies thereof; file promptly all
reports and any definitive proxy or information statements required to be filed
by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act subsequent to the date of the Prospectus and for so long as
the delivery of a prospectus is required in connection with the offering or sale
of the Stock; advise the Underwriters, promptly after it receives 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 or the
Prospectus, of the suspension of the qualification of the Stock 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 Statements or the Prospectus 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 or the Prospectus
or suspending any such qualification, use promptly its best efforts to obtain
its withdrawal.
(b) If at any time prior to the expiration of nine months after the
effective date of the Initial Registration Statement when a prospectus relating
to the Stock is required to be delivered any event occurs as a result of which
the Prospectus as then amended or supplemented would
-11-
include any untrue statement of a material fact, or omit to state any
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus or to file under the Exchange
Act any document incorporated by reference in the Prospectus to comply with
the Securities Act or the Exchange Act, the Company will promptly notify the
Underwriters thereof and upon their request will prepare an amended or
supplemented Prospectus or make an appropriate filing pursuant to Section 13
or 14 of the Exchange Act which will correct such statement or omission or
effect such compliance. The Company will 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 such amended or
supplemented Prospectus; and in case any Underwriter is required to deliver a
prospectus relating to the Stock nine months or more after the effective date
of the Initial Registration Statement, the Company upon the request of the
Underwriters and at the expense of such Underwriter will prepare promptly an
amended or supplemented Prospectus as may be necessary to permit compliance
with the requirements of Section 10(a)(3) of the Securities Act.
(c) To furnish promptly to each of the Underwriters and to counsel for
the Underwriters a signed copy of each of the Registration Statements as
originally filed with the Commission, and each amendment thereto filed with the
Commission, including all consents and exhibits filed therewith.
(d) To deliver promptly to the Underwriters in New York City such
number of the following documents as the Underwriters shall reasonably request:
(i) conformed copies of the Registration Statements as originally filed with the
Commission and each amendment thereto (in each case excluding exhibits),
(ii) each Preliminary Prospectus, (iii) the Prospectus (not later than
10:00 a.m., New York time, of the business day following the execution and
delivery of this Agreement) and any amended or supplemented Prospectus (not
later than 10:00 a.m., New York City time, on the business day following the
date of such amendment or supplement) and (iv) any document incorporated by
reference in the Prospectus (excluding exhibits thereto).
(e) To make generally available to its stockholders as soon as
practicable, but in any event not later than 18 months after the effective date
of the Registration Statement (as defined in Rule 158(c) under the Securities
Act), an earnings statement of the Company and its 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 Company, Rule 158).
(f) The Company will promptly take from time to time such actions as
the Underwriters may reasonably request to qualify the Stock for offering and
sale under the securities or Blue Sky laws of such jurisdictions as the
Underwriters may designate and to continue such qualifications in effect for so
long as required for the distribution of the Stock; PROVIDED that the Company
and its subsidiaries shall not be obligated to qualify as foreign corporations
in any jurisdiction in which they are not so qualified or to file a general
consent to service of process in any jurisdiction;
(g) During the period of five years from the date hereof, the Company
will deliver to the Underwriters and, upon request, to each of the other
Underwriters, (i) as soon as they are available, copies of all reports or other
communications furnished to stockholders and (i) as soon
-12-
as they are available, copies of any reports and financial statements
furnished or filed with the Commission pursuant to the Exchange Act or any
national securities exchange or automatic quotation system on which the Stock
is listed or quoted.
(h) The Company will not directly or indirectly offer, sell, assign,
transfer, pledge, contract to sell, or otherwise dispose of any shares of Common
Stock or securities convertible into or exercisable or exchangeable for Common
Stock for a period of 90 days from the date of the Prospectus without the prior
written consent of XX Xxxxx other than the Company's sale of the Stock hereunder
and the issuance of shares pursuant to employee benefit plans, qualified stock
option plans or other employee compensation plans existing on the date hereof or
pursuant to currently outstanding options, warrants or rights, except as
otherwise contemplated in such letter. The Company will cause each officer,
director and stockholder listed in Schedule C to furnish to the Underwriters,
prior to the First Closing Date, a letter, substantially in the form of Exhibit
I hereto, pursuant to which each such person shall agree not to directly or
indirectly offer, sell, assign, transfer, pledge, contract to sell, or otherwise
dispose of any shares of Common Stock or securities convertible into or
exercisable or exchangeable for Common Stock for a period of 90 days from the
date of the Prospectus, without the prior written consent of XX Xxxxx, except as
otherwise contemplated in such letter.
(i) The Company will supply the Underwriters with copies of all
correspondence to and from, and all documents issued to and by, the Commission
in connection with the registration of the Stock under the Securities Act.
(j) Prior to each of the Closing Dates the Company will furnish to the
Underwriters, as soon as they have been prepared, copies of any unaudited
interim consolidated financial statements of the Company for any periods
subsequent to the periods covered by the financial statements appearing in the
Registration Statement and the Prospectus.
(k) Prior to each of the Closing Dates, the Company will not issue any
press release or other communication directly or indirectly or hold any press
conference with respect to the Company, its condition, financial or otherwise,
or earnings, business affairs or business prospects (except for routine oral
marketing communications in the ordinary course of business and consistent with
the past practices of the Company and of which the Underwriters are notified),
without the prior written consent of the Underwriters, unless in the judgment of
the Company and its counsel, and after notification to the Underwriters, such
press release or communication is required by law.
(l) In connection with the offering of the Stock, until XX Xxxxx shall
have notified the Company of the completion of the resale of the Stock, the
Company will not, and will cause its affiliated purchasers (as defined in
Regulation M under the Exchange Act) not to, either alone or with one or more
other persons, bid for or purchase, for any account in which it or any of its
affiliated purchasers has a beneficial interest, any Stock, or attempt to induce
any person to purchase any Stock; and not to, and to cause its affiliated
purchasers not to, make bids or purchase for the purpose of creating actual, or
apparent, active trading in or of raising the price of the Stock.
-13-
(m) The Company will not take any action prior to the Option Closing
Date which would require the Prospectus to be amended or supplemented pursuant
to Section 4(b);
(n) The Company will apply the net proceeds from the sale of the Stock
as set forth in the Prospectus under the heading "Use of Proceeds."
6. FURTHER AGREEMENTS OF THE SELLING STOCKHOLDER. The Selling
Stockholder agrees with the several Underwriters that:
(a) It will not directly or indirectly offer, sell, assign, transfer,
pledge, contract to sell, or otherwise dispose of any shares of Common Stock or
securities convertible into or exercisable or exchangeable for Common Stock
other than the sale of the Stock hereunder for a period of 90 days from the date
of the Prospectus, without the prior written consent of XX Xxxxx.
(b) The shares of Stock represented by the certificates held in
custody under the Custody Agreement are for the benefit of and coupled with and
subject to the interests of the Underwriters and the Selling Stockholder, and
that the arrangement for such custody and the appointment of the
Attorneys-in-fact are irrevocable; that the obligations of such Selling
Stockholder hereunder shall not be terminated by operation of law, whether by
the death or incapacity, liquidation or distribution of such Selling
Stockholder, or any other event, that if such Selling Stockholder should die or
become incapacitated or is liquidated or dissolved or any other event occurs,
before the delivery of the Stock hereunder, certificates for the Stock to be
sold by such Selling Stockholder shall be delivered on behalf of such Selling
Stockholder in accordance with the terms and conditions of this Agreement and
the Custody Agreement, and action taken by the Attorneys-in-fact or any of them
under the Power of Attorney shall be as valid as if such death, incapacity,
liquidation or dissolution or other event had not occurred, whether or not the
Custodian, the Attorneys-in-fact or any of them shall have notice of such death,
incapacity, liquidation or dissolution or other event.
(c) They will deliver to XX Xxxxx on or prior to the First Closing
Date a properly completed and executed United States Treasury Department Form
W-8 (if the Selling Stockholder is a non-United States person) or Form W-9
(if the Selling Stockholder is a United States person) or such other
applicable form or statement specified by Treasury Department regulations in
lieu thereof.
7. PAYMENT OF EXPENSES. The Company agrees with the Underwriter to
pay (a) the costs incident to the authorization, issuance, sale, preparation and
delivery of the Stock and any taxes payable in that connection; (b) the costs
incident to the Registration of the Stock under the Securities Act; (c) the
costs incident to the preparation, printing and distribution of the Registration
Statement, Preliminary Prospectus, Prospectus any amendments and exhibits
thereto or any document incorporated by reference therein the costs of printing,
reproducing and distributing the Power of Attorney, the Custody Agreement, the
"Agreement Among Underwriters" between the Underwriters and the Underwriters,
the Master Selected Dealers' Agreement, the Underwriters' Questionnaire and this
Agreement by mail, telex or other means of communications; (d) the fees and
expenses (including related fees and expenses of counsel for the Underwriters)
incurred in connection with filings made with the National Association of
Securities Dealers; (e) any applicable listing or other fees; (f) the fees and
expenses of qualifying the Stock under
-14-
the securities laws of the several jurisdictions as provided in Section 5(f)
and of preparing, printing and distributing Blue Sky Memoranda and Legal
Investment Surveys (including related fees and expenses of counsel to the
Underwriters); (g) all fees and expenses of the registrar and transfer agent
of the Stock; and (h) all other costs and expenses incident to the
performance of the obligations of the Company and of the Selling Stockholder
under this Agreement (including, without limitation, the fees and expenses of
the Company's counsel and the Company's independent accountants); PROVIDED
that, except as otherwise provided in this Section 5 and in Section 10, the
Underwriters shall pay their own costs and expenses, including the fees and
expenses of their counsel, any transfer taxes on the Stock which they may
sell and the expenses of advertising any offering of the Stock made by the
Underwriters.
8. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The respective
obligations of the several Underwriters hereunder are subject to the accuracy,
when made and on each of the Closing Dates, of the representations and
warranties of the Company and the Selling Stockholder contained herein, to the
accuracy of the statements of the Company and the Selling Stockholder made in
any certificates pursuant to the provisions hereof, to the performance by the
Company and the Selling Stockholder of their obligations hereunder, and to each
of the following additional terms and conditions:
(a) No stop order suspending the effectiveness of either the
Registration Statements shall have been issued and no proceedings for that
purpose shall have been initiated or threatened by the Commission, and any
request for additional information on the part of the Commission (to be included
in the Registration Statements or the Prospectus or otherwise) shall have been
complied with to the reasonable satisfaction of the Underwriters. The Rule
462(b) Registration Statement, if any, and the Prospectus shall have been timely
filed with the Commission in accordance with Section 5(a).
(b) None of the Underwriters shall have discovered and disclosed to
the Company on or prior to the Closing Date that the Registration Statement or
the Prospectus or any amendment or supplement thereto contains an untrue
statement of a fact which, in the opinion of counsel for the Underwriters, is
material or omits to state any fact which, in the opinion of such 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 each of this Agreement, the Custody
Agreements, the Powers of Attorney, the Stock, the Registration Statement and
the Prospectus and all other legal matters relating to this Agreement and the
transactions contemplated hereby shall be reasonably satisfactory in all
material respects to counsel for the Underwriters, and the Company and the
Selling Stockholder 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 Xxxxxxx Xxxxxxxx & Xxxxxx, P.C. shall have furnished to
the Underwriters such counsel's written opinion, as counsel to the Company,
addressed to the Underwriters and dated the Closing Date, in form and substance
reasonably satisfactory to the Underwriters, to the effect that:
-15-
(i) The Company and each of its 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 to conduct the businesses in which they are
engaged, except where the failure to so qualify or have such power
or authority would not have, singularly or in the aggregate, a
Material Adverse Effect.
(ii) The Company has an authorized capitalization as set
forth in the Prospectus, and all of the issued shares of capital
stock of the Company, including the Stock being delivered on the
Closing Date, have been duly and validly authorized and issued,
are fully paid and non-assessable and conform to the description
thereof contained or incorporated by reference in the Prospectus.
(iii) All the outstanding shares of capital stock of each
subsidiary of the Company have been duly authorized and validly
issued, are fully paid and nonassessable and, except to the extent
set forth in the Prospectus, are owned by the Company directly or
indirectly through one or more wholly owned subsidiaries, free and
clear of any claim, lien, encumbrance, security interest,
restriction upon voting or transfer or any other claim of any
third party.
(iv) Except as disclosed in or contemplated by the
Prospectus, to such counsel's knowledge, there are no outstanding
options, warrants or other rights calling for the issuance of, and
no commitments, plans or arrangements to issue, any shares of
capital stock of the Company or any security convertible into or
exchangeable for capital stock of the Company. There are no
preemptive or other rights to subscribe for or to purchase, nor
any restriction upon the voting or transfer of, any shares of the
Stock pursuant to the Company's charter or bylaws or any agreement
or other instrument known to such counsel.
(v) The execution, delivery and performance 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 provisions of, or constitute a default
under any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument known to such counsel after
reasonable investigation to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the properties or assets
of the Company or any of its subsidiaries is subject, nor will
such actions result in any violation of the Charter or bylaws of
the Company or of any of its subsidiaries or any statute or any
order, rule or regulation of any court or governmental agency or
body or court having jurisdiction over the Company or any of its
subsidiaries or any of their properties or assets.
-16-
(vi) The Company has full corporate right, power and
authority to enter into this Agreement and to sell and deliver the
Common Shares to be sold by it to the several Underwriters; this
Agreement has been duly and validly authorized by all necessary
corporate action by the Company, has been duly and validly
executed and delivered by and on behalf of the Company, and is a
valid and binding agreement of the Company in accordance with its
terms, except as enforceability may be limited by general
equitable principles, bankruptcy, insolvency, reorganization,
moratorium or other laws affecting creditors' rights generally and
except with respect to those provisions relating to indemnity or
contribution for liabilities arising under the Act as to which no
opinion need be expressed; and no approval, authorization, order,
consent, registration, filing, qualification, license or permit of
or with any court, regulatory, administrative or other
governmental body is required for the execution and delivery of
this Agreement by the Company or the consummation of the
transactions contemplated by this Agreement, except such as have
been obtained and are in full force and effect under the Act and
such as may be required under applicable Blue Sky laws in
connection with the purchase and distribution of the Common Stock
by the Underwriters and the clearance of such offering with NASD.
(vii) The description in the Registration Statement and
Prospectus of statutes, legal or governmental proceedings and
contracts and other documents are accurate in all material
respects; and to the best of such counsel's knowledge, there are
no statutes, legal or governmental proceedings, contracts or other
documents of a character required to be described in the
Registration Statement or Prospectus or to be filed as exhibits to
the Registration Statement which are not described or filed as
required.
(viii) To the best of such counsel's knowledge, neither the
Company nor any of its subsidiaries (i) is in violation of its
charter or bylaws, (ii) is in default, and no event has occurred,
which, with notice or lapse of time or both, would constitute a
default, in the due performance or observance of any term,
covenant or condition contained in any 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 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 license, permit, certificate, franchise or other
governmental authorization or permit necessary to the ownership of
its property or to the conduct of its business except, in the case
of clauses (ii) and (iii), for those defaults, violations or
failures which, either individually or in the aggregate, would not
have a Material Adverse Effect.
(ix) To the best of such counsel's knowledge and other
than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of
its subsidiaries is a party or of which any property or asset of
the Company or any of its subsidiaries is the subject which,
singularly or in the aggregate, if determined adversely to the
Company or any of its subsidiaries, might have a Material Adverse
Effect or would prevent or adversely affect
-17-
the ability of the Company to perform its obligations under
this Agreement; and, to the best of such counsel's knowledge, no
such proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(x) The Registration Statement was declared effective
under the Securities Act as of the date and time specified in such
opinion, the Rule 462(b) Registration Statement, if any, was filed
with the Commission on the date specified therein, the Prospectus
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.
(xi) The Registration Statements, as of the respective
effective dates and the Prospectus, as of its date, and any
further amendments or supplements thereto, as of their respective
dates, made by the Company prior to the Closing Date (other than
the financial statements and other financial data contained
therein, as to which such counsel need express no opinion)
complied as to form in all material respects with the requirements
of the Securities Act and the Rules and Regulations; and the
documents incorporated by reference in the Prospectus and any
further amendment or supplement to any such incorporated document
made by the Company prior to the Closing Date (other than the
financial statements and related schedules therein, as to which
such counsel need express no opinion), when they became effective
or were filed with the Commission, as the case may be, complied as
to form in all material respects with the requirements of the
Securities Act or the Exchange Act, as applicable, and the rules
and regulations of the Commission thereunder.
(xii) To the best of such counsel's no person or entity
has the right to require registration of shares of Common Stock or
other securities of the Company because of the filing or
effectiveness of the Registration Statements or otherwise, except
for persons and entities who have expressly waived such right or
who have been given proper notice and have failed to exercise such
right within the time or times required under the terms and
conditions of such right.
Such counsel shall also have furnished to the Underwriters a written
statement, addressed to the Underwriters and dated the Closing Date, in form and
substance satisfactory to the Underwriters, to the effect that (x) such counsel
has acted as counsel to the Company in connection with the preparation of the
Registration Statements (y) based on such counsel's examination of the
Registration Statements and such counsel's investigations made in connection
with the preparation of the Registration Statements and "conferences with
certain officers and employees of and with auditors for and counsel to the
Company," such counsel has no reason to believe that (i) the Registration
Statements, as of the respective effective dates, contained any untrue statement
of a material fact or omitted to state any material fact required to be stated
therein or necessary in order to make the statements therein not misleading, or
that the Prospectus contains any untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which
-18-
they were made, not misleading or (ii) any document incorporated by reference
in the Prospectus or any further amendment or supplement to any such
incorporated document made by the Company prior to the Closing Date, when
they became effective or were filed with the Commission, as the case may be,
contained, in the case of a registration statement which became effective
under the Securities Act, any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading, or, in the case of other
documents which were filed under the Exchange Act with the Commission, any
untrue statement of a material fact or omitted to state any material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading; it being understood
that such counsel need express no opinion as to the financial statements or
other financial data contained in the Registration Statement or the
Prospectus.
The foregoing opinion and statement may be qualified by a statement to
the effect that such counsel has not independently verified the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus and takes no responsibility therefor except to the
extent set forth in the opinion described in clauses (viii) and (ix) above.
(e) _______________________ shall have furnished to the Underwriters
such counsel's written opinion, as counsel to the Selling Stockholder, addressed
to the Underwriters and dated the Closing Date, in form and substance reasonably
satisfactory to the Underwriters, to the effect that:
(i) The Selling Stockholder has full right, power and
authority to enter into this Agreement, the Power of Attorney and
the Custody Agreement; the execution, delivery and performance of
this Agreement, the Power of Attorney and the Custody Agreement by
the Selling Stockholder and the consummation by the Selling
Stockholder 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
statute, any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument known to such counsel to which the
Selling Stockholder is a party or by which the Selling Stockholder
is bound or to which any of the property or assets of the Selling
Stockholder is subject, nor will such actions result in any
violation of the provisions of the charter or bylaws of the
Selling Stockholder the articles of partnership of the Selling
Stockholder or the deed of trust of the Selling Stockholder 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 Selling Stockholder or the property or assets of the Selling
Stockholder; and, except for the registration of the Stock under
the Securities Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under the
Exchange Act and applicable state securities laws in connection
with the purchase and distribution of the Stock by the
Underwriters, no consent, approval, authorization or order of, or
filing or registration with, any such court or governmental agency
or body is required for the execution, delivery and performance of
this Agreement, the Power of Attorney or the Custody Agreement by
the Selling Stockholder and the consum-
-19-
mation by the Selling Stockholder of the transactions contemplated
hereby and thereby.
(ii) This Agreement has been duly authorized, executed
and delivered by or on behalf of the Selling Stockholder.
(iii) A Power-of-Attorney and a Custody Agreement have
been duly authorized, executed and delivered by the Selling
Stockholder and constitute valid and binding agreements of the
Selling Stockholder.
(iv) Upon payment for, and delivery of, the shares of
Stock to be sold by the Selling Stockholder under this Agreement
in accordance with the terms hereof, the Underwriters will acquire
good and valid title to such shares, free and clear of all liens,
encumbrances, equities or claims.
(f) An opinion of Skjerven, Morrill, XxxXxxxxxx, Xxxxxxxx & Xxxxx,
patent counsel for the Company, dated the First Closing Date, or the Second
Closing Date, as the case may be, to the effect that:
(i) The Company is listed in the records of the U.S.
Patent and Trademark Office as the holder of trademarks set forth
in a schedule to such opinion. Such counsel knows of no claims of
third parties to any ownership interest or lien with respect to
any of such patents, patent applications or trademarks;
(ii) To the best of such counsel's knowledge, the Company
owns [fifty (50)] issued U.S. patents, [two (2)] issued foreign
patents, two (2) pending U.S. patent applications, [ten (10)]
pending foreign patent applications, [three (3)] registered U.S.
trademarks and [thirteen (13)] registered foreign trademarks;
(iii) Such counsel is not aware of any material defects of
form in the preparation or filing of patent applications or
trademark applications on behalf of the Company;
(iv) Such counsel (A) is not aware of any pending or
threatened action, suit, proceeding or claim by others that the
Company is infringing or otherwise violating any patents,
trademarks or trade secrets, and (B) is not aware of any pending
or threatened action, suit, proceeding, or claim by others
challenging the validity or scope of the patent applications or
the patents or trademarks held by or licensed to the Company; and
(v) According to such counsel's records, the Company is
listed or is in the process of being listed in the records of the
appropriate foreign office as the sole holder of record of the
foreign patent applications and foreign trademark applications set
forth in a schedule of such opinion. Such counsel has no actual
knowledge of any claims of third parties to any ownership interest
or lien with respect to any patents or patent applications or
trademarks or any trademark applications, and has not been advised
that any pending foreign patent applica-
-20-
tions or pending foreign trademark applications have been rejected.
Such opinion and knowledge may be based upon inquiry of the foreign
patent and trademark attorneys engaged to prepare, file and prosecute
such patents, patent applications, trademarks and trademark applications.
Such counsel shall also state that they have participated in telephone
conferences with employees of the Company (that counsel are informed have
primary responsibility for the Company's patents, patent applications,
trademarks, trademark applications and other intellectual property) in which the
Company's patents, patent applications, trademarks, trademark applications and
the contents of the statements in the Prospectus under the captions "Risk
Factors - Our business may be harmed if we fail to protect our proprietary
technology" and "Risk Factors - Our ability to produce our semiconductors may
suffer if someone claims we infringe on their intellectual property"
(collectively, the "Intellectual Property Portion") were discussed, and,
although such counsel is not passing upon and does not assume any responsibility
for the accuracy, completeness or fairness of the statements contained in the
Registration Statement (except to the extent stated in this subparagraph (f)),
on the basis of such conferences and such representation of the Company, and to
the best of such counsel's knowledge, the Intellectual Property Portion, insofar
as it constitutes a summary of the Company's patents and patent applications and
trademarks and trademark applications, is in all material respects an accurate
summary of, and fairly summarizes in all material respects the legal matters,
documents and proceedings relating to, the patents, patent applications,
trademarks and trademark application as described therein, and nothing has come
to the attention of such counsel which leads them to believe that the
Intellectual Property Portion of the Registration Statement, as of the time the
Registration Statement became effective under the Act, and such portion of the
Prospectus or any amendment or supplement thereto, on the date such Prospectus,
amendment or supplement thereto was filed pursuant to Rule 424(b), and such
portion of the Registration Statement and the Prospectus, or any amendment or
supplement thereto, as of the Closing Date or the Option Closing Date, as the
case may be, contains an untrue statement of a material fact or omits to state a
material fact required to be misleading. With respect to such statement,
Skjerven, Morrill, XxxXxxxxxx, Xxxxxxxx & Xxxxx may state that their belief is
based upon the procedures set forth therein, but is without independent check
and verification not referred to therein.
(g) The Underwriters shall have received from Pillsbury Madison &
Sutro LLP counsel for the Underwriters, such opinion or opinions, dated the
Closing Date, with respect to such matters as the Underwriters may reasonably
require, and the Company and the Selling Stockholder shall have furnished to
such counsel such documents as they request for enabling them to pass upon such
matters.
(h) At the time of the execution of this Agreement, the Underwriters
shall have received from KPMG Peat Marwick LLP a letter, addressed to the
Underwriters and dated such date, in form and substance satisfactory to the
Underwriters (i) confirming that they are independent certified public
accountants with respect to the Company and its subsidiaries within the meaning
of the Securities Act and the Rules and Regulations and (ii) stating the
conclusions and findings of such firm with respect to the financial statements
and certain financial information contained or incorporated by reference in the
Prospectus.
-21-
(i) On the Closing Date, the Underwriters shall have received a
letter (the "bring-down letter") from KPMG Peat Marwick LLP addressed to the
Underwriters and dated the Closing Date confirming, 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 the Prospectus as of a date not more than three
business 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 its letter delivered to the Underwriters concurrently with
the execution of this Agreement pursuant to Section 6(g).
(j) The Company shall have furnished to the Underwriters a
certificate, dated the Closing Date, of its Chairman of the Board, its
President or a Vice President and its chief financial officer stating that
(i) such officers have carefully examined the Registration Statements and the
Prospectus and, in their opinion, the Registration Statements as of their
respective effective dates and the Prospectus, as of each such effective
date, 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, (ii) since the effective date of
the Initial Registration Statement no event has occurred which should have
been set forth in a supplement or amendment to the Registration Statements or
the Prospectus, (iii) to the best of their knowledge after reasonable
investigation, as of the Closing Date, the representations and warranties of
the Company in this Agreement are true and correct and the Company has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date, and (iv)
subsequent to the date of the most recent financial statements included or
incorporated by reference in the Prospectus, there has been no material
adverse change in the financial position or results of operation of the
Company and its subsidiaries, or any change, or any development including a
prospective change, in or affecting the condition (financial or otherwise),
results of operations, business or prospects of the Company and its
subsidiaries taken as a whole, except as set forth in the Prospectus.
(k) The Selling Stockholder (or the Custodian or one or more
attorneys-in-fact on behalf of the Selling Stockholder) shall have furnished to
the Underwriters on the Closing Date a certificate, dated the such date, signed
by, or on behalf of, the Selling Stockholder stating that the representations,
warranties and agreements of the Selling Stockholder contained herein are true
and correct as of the Closing Date and that the Selling Stockholder has complied
with all agreements contained herein to be performed by the Selling Stockholder
at or prior to the Closing Date.
(l) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus 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 the Prospectus
(ii) since such date there shall not have been any change in the capital stock
[consider the appropriateness of adding other items] or long-term debt of the
Company or any of its subsidiaries or any change, or any development involving a
prospective change, in or affecting the business, general affairs, management,
financial position, stockholders' equity or results of operations of the Company
and its subsidiaries, otherwise than as set forth or contemplated in the
Prospectus, the effect of which, in any such case described in clause (i) or
(ii), is, in the judgment of the Underwriters, so
-22-
material and adverse as to make it impracticable or inadvisable to proceed
with the sale or delivery of the Stock on the terms and in the manner
contemplated in the Prospectus.
(m) No action shall have been taken and no statute, rule, regulation
or order shall have been enacted, adopted or issued by any governmental agency
or body which would, as of the Closing Date, prevent the issuance or sale of the
Stock; and no injunction, restraining order or order of any other nature by any
federal or state court of competent jurisdiction shall have been issued as of
the Closing Date which would prevent the issuance or sale of the Stock.
(n) Subsequent to the execution and delivery of this Agreement (i) no
downgrading shall have occurred in the rating accorded the Company's debt
securities by any "nationally recognized statistical rating organization," as
that term is defined by the Commission for purposes of Rule 436(g)(2) of the
Rules and Regulations and (ii) no such organization shall have publicly
announced that it has under surveillance or review (other than an announcement
with positive implications of a possible upgrading), its rating of any of the
Company's debt securities.
(o) 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 Company 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 sale or
delivery of the Stock on the terms and in the manner contemplated in the
Prospectus.
(p) The National Market System shall have approved the Stock for
inclusion, subject only to official notice of issuance.
(q) XX Xxxxx shall have received the written agreements, substantially
in the form of Exhibit I hereto, of the officers, directors and stockholders of
the Company listed in Schedule C to this Agreement.
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.
9. INDEMNIFICATION AND CONTRIBUTION. The Company shall indemnify and
hold harmless each Underwriter, its officers, employees, Underwriters and agents
and each person, if any, who controls any Underwriter within the meaning of the
Securities Act (collectively the "Underwriter Indemnified Parties" and, each an
"Underwriter Indemnified Party") against any loss, claim, damage or liability,
joint or several, or any action in respect thereof, to which that
-23-
Underwriter Indemnified Party 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 Preliminary Prospectus , either of the
Registration Statements or the Prospectus or in any amendment or supplement
thereto or (ii) the omission or alleged omission to state in any Preliminary
Prospectus, either of the Registration Statements or the Prospectus or in any
amendment or supplement thereto a 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 Stock 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 the Company shall not be
liable in the case of any matter covered by this clause (iii) to the extent
that it is determined in a final judgement by a court of competent
jurisdiction that such loss, claim, damage, liability or action resulted
directly from any such act or failure to act undertaken or omitted to be
taken by such Underwriter through its gross negligence or willful misconduct)
and shall reimburse each Underwriter Indemnified Party promptly upon demand
for any legal or other expenses reasonably incurred by that Underwriter
Indemnified Party in connection with investigating or preparing to defend or
defending against or appearing as a third party witness in connection with
any such loss, claim, damage, liability or action as such expenses are
incurred; PROVIDED, HOWEVER, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage, liability or action
arises out of or is based upon (i) an untrue statement or alleged untrue
statement in or omission or alleged omission from the Preliminary Prospectus,
either of the Registration Statements or the Prospectus or any such amendment
or supplement in reliance upon and in conformity with written information
furnished to the Company through the Underwriters by or on behalf of any
Underwriter specifically for use therein, which information the parties
hereto agree is limited to the Underwriter's Information (as defined in
Section 17); provided, further however, that the foregoing indemnification
agreement with respect to the Preliminary Prospectus shall not inure to the
benefit of any Underwriter from whom the person asserting any such loss,
claim, damage or liability purchased Securities, or any officers, employees,
Underwriters, agents or controlling persons of such Underwriter, if (i) a
copy of the Prospectus (as then amended or supplemented) was required by law
to be delivered to such person at or prior to the written confirmation of the
sale of Securities to such person, (ii) a copy of the Prospectus (as then
amended or supplemented) excluding documents incorporated by reference
therein was not sent or given to such person by or on behalf of such
Underwriter and such failure was not due to non-compliance by the Company
with Section 5(d), and (iii) the Prospectus (as so amended or supplemented)
would have cured the defect giving rise to such loss, claim, damage or
liability. This indemnity agreement is not exclusive and will be in addition
to any liability which the Company might otherwise have and shall not limit
any rights or remedies which may otherwise be available at law or in equity
to each Underwriter Indemnified Party.
(a) The Selling Stockholder shall indemnify and hold harmless each
Underwriter Indemnified Party, against any loss, claim, damage or liability,
joint or several, or any action in respect thereof, to which that Underwriter
Indemnified 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 Preliminary Prospectus , either of the Registration Statements
or the Prospectus or in any amend-
-24-
ment or supplement thereto or (ii) the omission or alleged omission to state
in any Preliminary Prospectus, either of the Registration Statements or the
Prospectus or in any amendment or supplement thereto a 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 furnished to the Company
through the Underwriters by or on behalf of the Selling Stockholder
specifically for inclusion therein, and shall reimburse each Underwriter
Indemnified Party promptly upon demand for any legal or other expenses
reasonably incurred by that Underwriter Indemnified Party in connection with
investigating or preparing to defend or defending against or appearing as a
third party witness in connection with any such loss, claim, damage,
liability or action as such expenses are incurred; PROVIDED, HOWEVER, the
liability of the Selling Stockholder under this Section 8 shall be limited to
the net proceeds received by the Selling Stockholder.
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Company its officers, employees, Underwriters and agents, each
of its directors and each person, if any, who controls the Company within the
meaning of the Securities Act (collectively the "Company Indemnified Parties"
and each a "Company Indemnified Party") and the Selling Stockholder, its
officers, employees, Underwriters and agents and each person, if any, who
controls the Selling Stockholder within the meaning of the Securities Act
(collectively, the "Stockholder Indemnified Parties" and each a "Stockholder
Indemnified Party"), against any loss, claim, damage or liability, joint or
several, or any action in respect thereof, to which the Company Indemnified
Parties or the Selling Stockholder Indemnified Parties 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 Preliminary Prospectus,
either of the Registration Statements or the Prospectus or in any amendment or
supplement thereto or (ii) the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, 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 furnished to the
Company through the Underwriters by or on behalf of that Underwriter
specifically for use therein, and shall reimburse the Company Indemnified
Parties and the Selling Stockholder Indemnified Parties for any legal or other
expenses reasonably incurred by such parties in connection with investigating or
preparing to defend or defending against or appearing as third party witness in
connection with any such loss, claim, damage, liability or action as such
expenses are incurred; provided that the parties hereto hereby agree that such
written information provided by the Underwriters consists solely of the
Underwriter's Information. This indemnity agreement is not exclusive and will
be in addition to any liability which the Underwriters might otherwise have and
shall not limit any rights or remedies which may otherwise be available at law
or in equity to the Company Indemnified Parties and Selling Stockholder
Indemnified Parties.
(c) Promptly after receipt by an indemnified party under this
Section 8 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 8, 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
-25-
under this Section 8 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 8. If any such
claim or action shall be brought against an indemnified party, and it shall
notify the 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 8 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 any indemnified party shall have the right to employ
separate counsel in any such action and to participate in the defense thereof
but the fees and expenses of such counsel shall be at the expense of such
indemnified party unless (i) the employment thereof has been specifically
authorized by the indemnifying party in writing, (ii) such indemnified party
shall have been advised by such counsel that there may be one or more legal
defenses available to it which are different from or additional to those
available to the indemnifying party and in the reasonable judgment of such
counsel it is advisable for such indemnified party to employ separate counsel
or (iii) the indemnifying party has failed to assume the defense of such
action and employ counsel reasonably satisfactory to the indemnified party,
in which case, if such indemnified party notifies the indemnifying party in
writing that it elects to employ separate counsel at the expense of the
indemnifying party, the indemnifying party shall not have the right to assume
the defense of such action on behalf of such indemnified party, it being
understood, however, that the indemnifying party shall not, in connection
with any one such action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general allegations
or circumstances, be liable for the reasonable fees and expenses of more than
one separate firm of attorneys at any time for all such indemnified parties,
which firm shall be designated in writing by XX Xxxxx, if the indemnified
parties under this Section 8 consist of any Underwriter Indemnified Party, or
by the Company if the indemnified parties under this Section 8 consist of any
Company Indemnified Parties. Each indemnified party, as a condition of the
indemnity agreements contained in Sections 8(a), 8(b) and 8(c), shall use all
reasonable efforts to cooperate with the indemnifying party in the defense of
any such action or claim. Subject to the provisions of Section 8(e) below,
no indemnifying party shall 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 its written consent or if there be a final
judgment for 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 at any time an indemnified party shall have requested that an
indemnifying party reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by this Section 8 effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the request for reimbursement, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
-26-
(e) If the indemnification provided for in this Section 8 is
unavailable or insufficient to hold harmless an indemnified party under
Section 8(a), 8(b) or 8(c), 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 Company and the
Selling Stockholder on the one hand and the Underwriters on the other from
the offering of the Stock or if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company and the Selling Stockholder 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 Company and the Selling Stockholder 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 Stock purchased under this Agreement (before deducting
expenses) received by the Company and the Selling Stockholder bear to the
total underwriting discounts and commissions received by the Underwriters
with respect to the Stock purchased under this Agreement, in each case as set
forth in the table on the cover page of the Prospectus. The relative fault
shall be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company the Selling Stockholder on the one hand or the Underwriters on the
other, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission; provided that the parties hereto agree that the written information
furnished to the Company through the Underwriters by or on behalf of the
Underwriters for use in any Preliminary Prospectus, either of the
Registration Statements or the Prospectus consists solely of the
Underwriter's Information. The Company, the Selling Stockholder and the
Underwriters agree that it would not be just and equitable if contributions
pursuant to this Section 8(f) 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 8(f) shall be
deemed to include, for purposes of this Section 8(f), 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 8(f), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at
which the Stock underwritten by it and distributed to the public were offered
to the public less 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 8(f) are several in proportion to their respective underwriting
obligations and not joint.
10. TERMINATION. The obligations of the Underwriters hereunder may be
terminated by XX Xxxxx, in its absolute discretion by notice given to and
received by the Company prior to
-27-
delivery of and payment for the Firm Stock if, prior to that time, any of the
events described in Sections 8(l), 8(m), 8(n) or 8(o) have occurred or if the
Underwriters shall decline to purchase the Stock for any reason permitted
under this Agreement.
11. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If (a) this Agreement
shall have been terminated pursuant to Section 9 or 11, (b) the Company or
the Selling Stockholder shall fail to tender the Stock for delivery to the
Underwriters for any reason permitted under this Agreement, or (c) the
Underwriters shall decline to purchase the Stock for any reason permitted
under this Agreement the Company and the Selling Stockholder shall reimburse
the Underwriters for the fees and expenses of their counsel and for such
other out-of-pocket expenses as shall have been reasonably incurred by them
in connection with this Agreement and the proposed purchase of the Stock, and
upon demand the Company and the Selling Stockholder shall pay the full amount
thereof to the XX Xxxxx. If this Agreement is terminated pursuant to Section
11 by reason of the default of one or more Underwriters, neither the Company
nor the Selling Stockholder shall be obligated to reimburse any defaulting
Underwriter on account of those expenses.
12. SUBSTITUTION OF UNDERWRITERS. If any Underwriter or Underwriters
shall default in its or their obligations to purchase shares of Stock hereunder
and the aggregate number of shares which such defaulting Underwriter or
Underwriters agreed but failed to purchase does not exceed ten percent (10%) of
the total number of shares underwritten, the other Underwriters shall be
obligated severally, in proportion to their respective commitments hereunder, to
purchase the shares which such defaulting Underwriter or Underwriters agreed but
failed to purchase. If any Underwriter or Underwriters shall so default and the
aggregate number of shares with respect to which such default or defaults occur
is more than ten percent (10%) of the total number of shares underwritten and
arrangements satisfactory to the Underwriters and the Company for the purchase
of such shares by other persons are not made within forty-eight (48) hours after
such default, this Agreement shall terminate.
If the remaining Underwriters or substituted Underwriters are required
hereby or agree to take up all or part of the shares of Stock of a defaulting
Underwriter or Underwriters as provided in this Section 11, (i) the Company and
the Selling Stockholder shall have the right to postpone the Closing Dates for a
period of not more than five (5) full business days in order that the Company
and the Selling Stockholder may effect whatever changes may thereby be made
necessary in the Registration Statement or the Prospectus, or in any other
documents or arrangements, and the Company agrees promptly to file any
amendments to the Registration Statement or supplements to the Prospectus which
may thereby be made necessary, and (ii) the respective numbers of shares to be
purchased by the remaining Underwriters or substituted Underwriters shall be
taken as the basis of their underwriting obligation for all purposes of this
Agreement. Nothing herein contained shall relieve any defaulting Underwriter of
its liability to the Company, the Selling Stockholder or the other Underwriters
for damages occasioned by its default hereunder. Any termination of this
Agreement pursuant to this Section 11 shall be without liability on the part of
any non-defaulting Underwriter, the Selling Stockholder or the Company, except
expenses to be paid or reimbursed pursuant to Sections 5 and 10 and except the
provisions of Section 8 shall not terminate and shall remain in effect.
13. SUCCESSORS; PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This
Agreement shall inure to the benefit of and be binding upon the several
Underwriters, the Company and the
-28-
Selling Stockholder and their respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
person other than the persons mentioned in the preceding sentence any legal
or equitable right, remedy or claim under or in respect of this Agreement, or
any provisions herein contained, this Agreement and all conditions and
provisions hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person; except that
the representations, warranties, covenants, agreements and indemnities of the
Company and the Selling Stockholder contained in this Agreement shall also be
for the benefit of the Underwriter Indemnified Parties, and the indemnities
of the several Underwriters shall also be for the benefit of the Company
Indemnified Parties and the Selling Stockholder Indemnified Parties.
14. SURVIVAL OF INDEMNITIES, REPRESENTATIONS, WARRANTIES, ETC. The
respective indemnities, covenants, agreements, representations, warranties and
other statements of the Company, the Selling Stockholder and the several
Underwriters, as set forth in this Agreement or made by them respectively,
pursuant to this Agreement, shall remain in full force and effect, regardless of
any investigation made by or on behalf of any Underwriter, the Selling
Stockholder, the Company or any person controlling any of them and shall survive
delivery of and payment for the Stock.
15. NOTICES. 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 XX Xxxxx Securities Corporation, 0 Xxxxxxxxxxx
Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, Attention: Xxx Xxxxxx (Fax:
(000) 000-0000);
(b) if to the Company shall be delivered or sent by mail, telex or
facsimile transmission to TriQuint Semiconductor, Inc., 0000 XX Xxxxxxxxx
Xxxxxxx, Xxxxxxxxx, Xxxxxx 00000, Attention: Xxxxxx X. Xxxxx; (Fax:
(000) 000-0000);
(c) if to the Selling Stockholder, shall be delivered or sent by mail,
telex or facsimile transmission to such Selling Stockholder at the address set
forth on Schedule B hereto; PROVIDED, HOWEVER, that any notice to an Underwriter
pursuant to Section 8 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.
16. DEFINITION OF CERTAIN TERMS. For purposes of this Agreement,
(a) "business day" means any day on which the New York Stock Exchange, Inc. is
open for trading and (b) "subsidiary" has the meaning set forth in Rule 405 of
the Rules and Regulations.
17. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
18. UNDERWRITERS' INFORMATION. The parties hereto acknowledge and
agree that, for all purposes of this Agreement, the Underwriters' Information
consists solely of the following information in the Prospectus: (i) the last
two paragraphs on the front cover page concerning the
-29-
terms of the offering by the Underwriters; and (ii) the statements concerning
the Underwriters contained in the first, third and seventh paragraphs under
the heading "Underwriting."
19. AUTHORITY OF THE UNDERWRITERS. In connection with this Agreement,
you will act for and on behalf of the several Underwriters, and any action taken
under this Agreement by the Underwriters, will be binding on all the
Underwriters; and any action taken under this Agreement by any of the
Attorneys-in-fact will be binding on all the Selling Stockholder.
20. PARTIAL UNENFORCEABILITY. The invalidity or unenforceability of
any Section, paragraph or provision of this Agreement shall not affect the
validity or enforceability of any other Section, paragraph or provision hereof.
If any Section, paragraph or provision of this Agreement is for any reason
determined to be invalid or unenforceable, there shall be deemed to be made such
minor changes (and only such minor changes) as are necessary to make it valid
and enforceable.
21. GENERAL. This Agreement constitutes the entire agreement of the
parties to this Agreement and supersedes all prior written or oral and all
contemporaneous oral agreements, understandings and negotiations with respect to
the subject matter hereof. In this Agreement, the masculine, feminine and
neuter genders and the singular and the plural include one another. The section
headings in this Agreement are for the convenience of the parties only and will
not affect the construction or interpretation of this Agreement. This Agreement
may be amended or modified, and the observance of any term of this Agreement may
be waived, only by a writing signed by the Company, the Selling Stockholder and
the Underwriters.
22. COUNTERPARTS. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
Any person executing and delivering this Agreement as Attorney-in-fact
for the Selling Stockholder represents by so doing that he or she has been duly
appointed as Attorney-in-fact by such Selling Stockholder pursuant to a validly
existing and binding Power of Attorney which authorizes such Attorney-in-fact to
take such action.
-30-
If the foregoing is in accordance with your understanding of the
agreement between the Company, the Selling Stockholder and the several
Underwriters, kindly indicate your acceptance in the space provided for that
purpose below.
Very truly yours,
TRIQUINT SEMICONDUCTOR, INC.
By
------------------------------------
Name
----------------------------------
Title
---------------------------------
LUCENT TECHNOLOGIES, INC.
By [Attorney-in-fact]
By
------------------------------------
Attorney-in-fact Acting on his own
behalf and on behalf of the Selling
Stockholder listed in Schedule B
-31-
Accepted as of the date first above written:
XX XXXXX SECURITIES CORPORATION
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
Banc of America Securities LLC
CIBC World Markets Corp.
Xxxx Xxxxxxxx Xxxxxxx, a division of
Xxxx Xxxxxxxx Incorporated
U.S. Bancorp Xxxxx Xxxxxxx Inc.
By XX XXXXX SECURITIES CORPORATION
By
---------------------------------
Name
-------------------------------
Title
------------------------------
-32-
SCHEDULE A
Number of Firm Number of Optional
Shares to be Shares to be
Name Purchased Purchased
--------------------------------------- -------------- ------------------
XX Xxxxx Securities Corporation
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation
Banc of America Securities LLC
CIBC world Markets Corp.
Xxxx Xxxxxxxx Xxxxxxx, a Division of
Xxxx Xxxxxxxx Incorporated
U.S. Bancorp Xxxxx Xxxxxxx Inc.
TOTAL
A-1
SCHEDULE B
Number of Firm Number of Optional
Selling Stockholder Shares to be Sold Shares to be Sold
------------------------------- ----------------- ------------------
Lucent Technologies, Inc. 858,254 ________
000 Xxxxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
TOTAL
B-1
SCHEDULE C
LIST OF STOCKHOLDERS SUBJECT TO SECTION 4(h)
Xxxxxx X. Xxxxx
Xxxxxx C.V. Xxxx
Xxxxxxx Xxxxx Xxxxxx
Xxxxx Xxxxxxxx
Xxxxxx Xxxxxx
J. Xxxxx Xxx
Xxxxxx X. Xxxx
Xxxxxx X. Xxxxxxx
Xxxx X. Xxxx
C-1
