Exhibit 1.2
DMC STRATEX NETWORKS, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
[Date]
[Names and Addresses of
Representatives]
Dear Sirs:
DMC Stratex Networks, Inc., a Delaware corporation (the "Company"),
proposes to issue up to _________ shares of its Common Stock, par value
$0.01 per share (the "Common Stock"), of which __________ shares of Common
Stock would be issued in connection with the sale of the Firm Shares (as
hereinafter defined) and up to _______ shares of Common Stock would be
issued in connection with any sale of Additional Shares (as hereinafter
defined).
The Company proposes to sell to the several underwriters named in Schedule
I hereto (the "Underwriters"), for whom you are acting as representatives
(the "Representatives") _________ of the shares of Common Stock (the "Firm
Shares"). The Company also proposes to issue and sell to the several
Underwriters not more than an additional ___________ of the shares of
Common Stock (the "Additional Shares") if and to the extent that the
Representatives shall have determined to exercise, on behalf of the
Underwriters, the right to purchase such shares of Common Stock granted to
the Underwriters in Article II hereof. The Firm Shares and the Additional
Shares are hereinafter collectively referred to as the "Common Shares".
The Company has filed with the Securities and Exchange Commission (the
"Commission") a "shelf" registration statement on Form S-3, including a
prospectus, relating (among other securities) to the Common Shares, which
registration statement has become effective, and will promptly file with
the Commission a prospectus supplement specifically relating to the Common
Shares pursuant to Rule 424 under the Securities Act of 1933, as amended
(the "Act"). As used in this Agreement, the term "Registration Statement"
means such registration statement, including exhibits, financial
statements, schedules and documents incorporated by reference therein, as
amended to the date hereof. The term "Basic Prospectus" means the
prospectus included in the Registration Statement. The term "Prospectus"
means the Basic Prospectus together with the prospectus supplement
specifically relating to the Common Shares as filed with the Commission
pursuant to such Rule 424. The term "preliminary prospectus" means any
preliminary prospectus supplement specifically relating to the Common
Shares together with the Basic Prospectus. Any reference herein to any
preliminary prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein as of the date of
such preliminary prospectus or the Prospectus, as the case may be.
I.
The Company represents and warrants to each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect;
and no proceedings for such purpose are pending before or threatened by the
Commission.
(b) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Delaware, has
the corporate power and authority to own its property and to conduct its
business as described in the Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction in which the conduct
of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or
be in good standing would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole.
(c) The authorized capital stock of the Company and the Common Shares
materially conform as to legal matters to the descriptions thereof
contained in the Prospectus.
(d) The Common Shares have been duly authorized and, when the Common Shares
are issued and delivered in accordance with the terms of this Agreement,
the Common Shares will be validly issued, fully paid and non-assessable,
and the issuance of such Common Shares is not subject to any preemptive or
similar rights.
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(e) This Agreement has been duly authorized, executed and delivered by the
Company.
(f) The execution and delivery by the Company of, and the performance by
the Company of its obligations under, this Agreement will not contravene
any provision of applicable law or the articles of incorporation or by-laws
of the Company or any order or decree of any governmental body, agency or
court having jurisdiction over the Company or any subsidiary, and no
consent, approval or authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the Company
of its obligations under this Agreement, except such as have been obtained
under the Act and such as may be required by the securities or Blue Sky
laws of the various states in connection with the offer and sale of the
Common Shares.
(g) There has not been any material adverse change, or any development
involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business or operations of the
Company and its subsidiaries, taken as a whole, from that set forth in the
Prospectus.
(h) There are no legal or governmental proceedings pending or threatened to
which the Company or to which any of the properties of the Company is
subject that are required to be described in the Registration Statement or
the Prospectus and are not so described or any statutes, regulations,
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as an exhibit to
the Registration Statement that are not described or filed as required.
(i) The Company has all necessary consents, authorizations, approvals,
orders, certificates and permits of and from, and has made all declarations
and filings with, all federal, state, local and other governmental
authorities, all self-regulatory organizations and all courts and other
tribunals, to own, lease, license and use its properties and assets and to
conduct its business in the manner described in the Prospectus, except to
the extent that the failure to obtain or file would not have a material
adverse effect on the Company.
(j) (i) Each document, if any, filed or to be filed pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in the Prospectus complied or will comply when so
filed in all material respects with the Exchange Act and the applicable
rules and regulations of the Commission thereunder, (ii) each part of the
Registration Statement, when such part became effective, did not contain
and each such part, as amended or supplemented, if applicable, will not
contain, any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, (iii) the Registration Statement and the
Prospectus comply and, as amended or supplemented, if applicable, will
comply in all material respects with the Act and the applicable rules and
regulations of the Commission thereunder and (iv) the Prospectus does not
contain and, as amended or supplemented, if applicable, will not contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, except that the representations
and warranties set forth in this paragraph (m) do not apply to statements
or omissions in the Registration Statement or the Prospectus based upon
information concerning any Underwriter furnished to the Company in writing
by such Underwriter through you expressly for use therein.
II.
The Company hereby agrees to sell to the several Underwriters named in
Schedule I hereto, and the Underwriters, upon the basis of the
representations and warranties herein contained, but subject to the
conditions hereinafter stated, agree, severally and not jointly, to
purchase from the Company the respective numbers of Firm Shares set forth
opposite their names in Schedule I hereto at $_____ a share (the "Purchase
Price").
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to
sell to the Underwriters the Additional Shares, and the Underwriters shall
have a one-time right to purchase, severally and not jointly, up to _______
Additional Shares at the Purchase Price. Additional Shares may be purchased
as provided in Article IV hereof solely for the purpose of covering
over-allotments made in connection with the offering of the Firm Shares. If
any Additional Shares are to be purchased, each Underwriter agrees,
severally and not jointly, to purchase the number of Additional Shares
(subject to such adjustments to eliminate fractional shares as the
Representatives may determine) that bears the same proportion to the total
number of Additional Shares to be purchased as the number of Firm Shares
set forth in Schedule I hereto opposite the name of such Underwriter bears
to the total number of Firm Shares set forth in Schedule I hereto.
The Company hereby agrees that, without the prior written consent of the
Representatives, it will not file any registration statement with the
Commission in respect of any shares of Common Stock of the Company or
offer, sell, contract to sell or
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otherwise dispose of any shares of such Common Stock or any securities
convertible into or exercisable or exchangeable for such Common Stock for a
period of ______ days after the date of this Agreement, other than (i) any
shares of such Common Stock sold upon the exercise of an option or warrant
or the conversion of a security outstanding on the date hereof, (ii) any
shares of such Common Stock registered, offered or issued, or options in
respect of such Common Stock granted, in connection with any employee
benefit plans of the Company or any of its subsidiaries (including employee
benefit plans assumed by the Company or any of its subsidiaries in
connection with an acquisition by the Company), or (iii) any shares of such
Common Stock registered, offered or issued in connection with an
acquisition by the Company.
III.
The Company is advised by you that the Underwriters propose to make a
public offering of their respective portions of the Common Shares as soon
after this Agreement has been entered into as in your judgment is
advisable. The Company is further advised by you that the Common Shares are
to be offered to the public initially at $______ per Common Share (the
public offering price) plus accrued dividends, if any, and to certain
dealers selected by you at a price that represents a concession not in
excess of $_____ per Common Share under the public offering price, and that
the Underwriters may allow, and such dealers may reallow, a concession, not
in excess of $.____ per Common Share, to any Underwriter or to certain
other dealers.
IV.
Delivery of the Firm Shares shall be made, against payment therefor in
immediately available funds, at the office of
_____________________________, _____________________, at 10:00 A.M., local
time, on ___________, ___, or at such other time on the same or such other
date, not later than ____________, ____, as shall be designated in writing
by you. The time and date of such delivery and payment are hereinafter
referred to as the Closing Date.
Delivery of any Additional Shares shall be made, against payment therefor
in immediately available funds, at the office of ______________________,
_______________, at 10:00 A.M., local time, on such date (which may be the
same as the Closing Date but shall in no event be earlier than the Closing
Date nor later than ten business days after the giving of the notice
hereinafter referred to) as shall be designated in a written notice from
the Representatives to the Company of their determination, on behalf of the
Underwriters, to purchase a number, specified in said notice, of Additional
Shares, or on such other date, in any event not later than _____________,
____, as shall be designated in writing by the Representatives. The time
and date of such delivery and payment are hereinafter referred to as the
Option Closing Date. The notice of the determination to exercise the option
to purchase Additional Shares and of the Option Closing Date may be given
at any time within 30 days after the date of this Agreement.
Payment for the Firm Shares and Additional Shares shall be made against
delivery to you on the Closing Date or the Option Closing Date, as the case
may be, for the respective accounts of the several Underwriters of stock
certificates evidencing the Firm Shares or Additional Shares, as the case
may be, registered in such names and in such denominations as you shall
request in writing not later than five full business days prior to the
Closing Date or the Option Closing Date, as the case may be, with any
transfer taxes payable in connection with the transfer of the Common Shares
to the Underwriters duly paid.
V.
The several obligations of the Underwriters hereunder are subject to the
following conditions:
(a) There shall not have occurred any change, or any development involving
a prospective change, in the condition, financial or otherwise, or in the
earnings, business or operations, of the Company and its subsidiaries,
taken as a whole, from that set forth in the Prospectus, that, in your
judgment, is material and adverse and that makes it, in your judgment,
impracticable to market the Common Shares on the terms and in the manner
contemplated in the Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate,
dated the Closing Date and signed by an executive officer of the Company,
to the effect set forth in clause (a) above and to the effect that the
representations and warranties of the Company contained in this Agreement
shall be true and correct as of the Closing Date and the Company shall have
performed all of its obligations to be performed hereunder on or prior to
the Closing Date.
The officer signing and delivering such certificate may rely upon his
knowledge as to proceedings threatened.
(c) You shall have received on the Closing Date an opinion of Xxxxxxxx &
Xxxxxxxx LLP, dated the Closing Date, to the effect that
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(i) the Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Delaware, has
the corporate power and authority to own its property and to conduct its
business as described in the Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction in which the conduct
of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or
be in good standing would not have a material adverse effect on the Company
and its subsidiaries taken as a whole;
(ii) the authorized capital stock of the Company and the Common Shares
materially conform as to legal matters to the descriptions thereof
contained in the Prospectus;
(iii) the Common Shares have been duly authorized and, when issued and
delivered in accordance with the terms of this Agreement, the Common Shares
will be validly issued, fully paid and non-assessable, and the issuance of
such Common Shares is not subject to any preemptive or similar rights;
(iv) this Agreement has been duly authorized, executed and delivered by
the Company;
(v) the execution and delivery by the Company of, and the performance by
the Company of its obligations under, this Agreement will not contravene
any provision of applicable law or the articles of incorporation or by-laws
of the Company or to such counsel's knowledge, any judgment or decree of
any governmental body, agency or court having jurisdiction over the Company
or any subsidiary, and no consent, approval or authorization or order of,
or qualification with, any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement, except
such as have been obtained under the Act and such as may be required by the
securities or blue sky laws of the various states in connection with the
offer and sale of the Common Shares by the Underwriters;
(vi) such counsel has no reason to believe that the statements (x) in the
Basic Prospectus under "Description of Common Stock" and "Plan of
Distribution" and (y) in the prospectus supplement specifically relating to
the Common Shares under "Description of Capital Stock" and "Underwriters",
and (z) in the Registration Statement in Item 15, insofar as such
statements constitute a summary of the legal matters, documents or
proceedings referred to therein, fairly present the information called for
with respect to such legal matters, documents and proceedings and fairly
summarize the matters referred to therein;
(vii) such counsel does not know of any legal or governmental proceeding
pending or threatened to which the Company is a party or to which any of
the properties of the Company is subject that are required to be described
in the Registration Statement or the Prospectus and are not so described or
of any statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the Prospectus or
to be filed as exhibits to the Registration Statement that are not
described or filed as required; and
(viii) such counsel (x) is of the opinion that each document, if any, filed
pursuant to the Exchange Act and incorporated by reference in the
Registration Statement and the Prospectus (except for financial statements
and schedules as to which such counsel need not express any opinion)
complied when so filed as to form in all material respects with the
Exchange Act and the rules and regulations of the Commission thereunder,
(y) is of the opinion that the Registration Statement and the Prospectus
and any supplements or amendments thereto (except for financial statements
and schedules as to which such counsel need not express any opinion) comply
as to form in all material respects with the Act and the rules and
regulations of the Commission thereunder and (z) believes that (except for
financial statements and schedules as to which such counsel need not
express any belief) the Registration Statement and the Prospectus, as
amended or supplemented, if applicable, included therein at the time the
Registration Statement became effective did not contain any untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading and the Prospectus, as amended or supplemented, if applicable,
does not contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(d) You shall have received on the Closing Date an opinion of
____________________________, counsel for the Underwriters, dated the
Closing Date, covering the matters referred to in subparagraphs (iv), (v)
and (vi) (but only as to the statements (x) in the Basic Prospectus under
"Description of Common Stock" and "Plan of Distribution," and (y) in the
prospectus supplement specifically relating to the Common Shares under
"Description of Capital Stock" and "Underwriters") and clauses (x) and (y)
of (viii) of paragraph (c) above.
With respect to subparagraph (viii) of paragraph (c) above, Xxxxxxxx &
Xxxxxxxx LLP may state that its opinion and belief are based on its
participation in the preparation of the Registration Statement and the
Prospectus and any amendments or
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supplements thereto and documents incorporated therein by reference and
review and discussion of the contents thereof, but are without independent
check or verification, except as specified.
(e) You shall have received on the date of this Agreement a letter dated
such date and also on the Closing Date a letter dated the Closing Date, in
each case in form and substance satisfactory to you, from Xxxxxx Xxxxxxxx
LLP, independent public accountants, containing statements and information
of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain financial
information contained in or incorporated by reference into the Registration
Statement and the Prospectus.
The several obligations of the Underwriters to purchase Additional Shares
hereunder are subject to the delivery to the Representatives on the Option
Closing Date of such documents as the Representatives may reasonably
request with respect to the good standing of the Company, the due
authorization and issuance of the Additional Shares and other matters
related to the issuance of the Additional Shares.
VI.
In further consideration of the agreements of the Underwriters herein
contained, the Company covenants as follows:
(a) To furnish you and each other Underwriter with copies of the
Registration Statement (including exhibits thereto) and, during the period
mentioned in paragraph (c) below, as many copies of the Prospectus, any
documents incorporated therein by reference and any supplements and
amendments thereto as you may reasonably request.
(b) Before amending or supplementing the Registration Statement or the
Prospectus, to furnish you a copy of each such proposed amendment or
supplement, and to file no such proposed amendment or supplement to which
you reasonably object.
(c) If, during such period after the first date of the public offering of
the Common Shares as in the opinion of your counsel the Prospectus is
required by law to be delivered in connection with sales by an Underwriter
or a dealer, any event shall occur as a result of which it is necessary to
amend or supplement the Prospectus in order to make the statements therein,
in the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if it is necessary to amend or supplement the
Prospectus to comply with law, forthwith to prepare and furnish, at its own
expense (unless the amendment or supplement is required as the result of
the act or omission of any Underwriter, in which case such Underwriter(s)
shall reimburse the Company for its reasonable expenses incurred to effect
the amendment or supplement), to the Underwriters and to the dealers (whose
names and addresses you will furnish to the Company) to which Common Shares
may have been sold by you on behalf of the Underwriters and to any other
dealers upon request, either amendments or supplements to the Prospectus so
that the statements in the Prospectus as so amended or supplemented will
not, in the light of the circumstances when the Prospectus is delivered to
a purchaser, be misleading or so that the Prospectus will comply with law.
(d) To cooperate with the Underwriters to qualify the Common Shares for
offer and sale under the securities or Blue Sky laws of such jurisdictions
as you shall reasonably request and to pay all reasonable expenses
(including reasonable fees and disbursements of counsel) in connection
therewith as well as all fees payable in connection with the review (if
any) of the offering of the Common Shares by the National Association of
Securities Dealers, Inc.
(e) To make generally available to the Company's security holders as soon
as practicable an earnings statement covering the twelve-month period
ending ____________, ____, that satisfies the provisions of Section 11(a)
of the Act and the rules and regulations of the Commission thereunder.
(f) To endeavor to list the Common Shares on the Nasdaq National Market.
VII.
The Company agrees to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of either
Section 15 of the Act or Section 20 of the Exchange Act, from and against
any and all losses, claims, damages and liabilities caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) or any
preliminary prospectus, or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, except insofar as such losses,
claims, damages or liabilities are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon information
relating to the Underwriters furnished to the Company in writing by any
Underwriter through you expressly for use therein.
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Each Underwriter agrees, severally and not jointly, to indemnify and hold
harmless the Company, its directors, its officers who sign the Registration
Statement and each person, if any, who controls the Company within the
meaning of either Section 15 of the Act or Section 20 of the Exchange Act
to the same extent as the foregoing indemnity from the Company to each
Underwriter, but only with reference to information relating to such
Underwriter furnished to the Company by such Underwriter through you
expressly for use in the Registration Statement, the Prospectus, any
amendment or supplement thereto, or any preliminary prospectus.
In case any proceeding (including any governmental investigation) shall be
instituted involving any person in respect of which indemnity may be sought
pursuant to either of the two preceding paragraphs, such person
(hereinafter called the indemnified party) shall promptly notify the person
against whom such indemnity may be sought (hereinafter called the
indemnifying party) in writing and the indemnifying party, upon request of
the indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees
and disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) conclude both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them.
It is understood that the indemnifying party shall not, in connection with
any proceeding or related proceedings in the same jurisdiction, be liable
for the fees and expenses of more than one separate firm (in addition to
any local counsel) for all such indemnified parties, and that all such fees
and expenses shall be reimbursed as they are incurred. In the case of any
such separate firm for the Underwriters and such control persons of
Underwriters, such firm shall be designated in writing by
___________________________. In the case of any such separate firm for the
Company, and such directors, officers and control persons of the Company,
such firm shall be designated in writing by the Company. The indemnifying
party shall not be liable for any settlement of any proceeding effected
without its written consent, but if settled with such consent or if there
be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by
reason of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses
of counsel as contemplated by the third sentence of this paragraph, the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of
the aforesaid request and (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request prior to
the date of such settlement. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party
is or could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on
claims that are the subject matter of such proceeding.
If the indemnification provided for in the first or second paragraph of
this Article VII is unavailable to an indemnified party in respect of any
losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect
the relative benefits received by the Company and the Underwriters from the
offering of the Common Shares or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company and of the
Underwriters in connection with the statements or omissions that resulted
in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the
Company and the Underwriters shall be deemed to be in the same respective
proportions as the net proceeds from the offering (before deducting
expenses) received by the Company and the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the
table on the cover of the Prospectus, bear to the aggregate public offering
price of the Common Shares. The relative fault of the Company and the
Underwriters shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Article VII were determined by
pro rata allocation (even if the Underwriters were treated as one entity
for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as
a result of the losses, claims, damages and liabilities referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any such
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action or claim. Notwithstanding the provisions of this Article VII, no
Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Common Shares underwritten by
it and distributed to the public were offered to the public exceeds the
amount of any damages that such Underwriter has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
The Underwriters' obligations to contribute pursuant to this Article VII
are several, in proportion to the respective number of Firm Shares to be
purchased by each of such Underwriters as set forth opposite each
Underwriter's name in Schedule I hereto plus any additional Firm Shares
which such Underwriter may become obligated to purchase under this
Agreement or the Agreement Among Underwriters, and not joint.
The indemnity and contribution agreements contained in this Article VII and
the representations and warranties of the Company contained in this
Agreement shall remain operative and in full force and effect regardless of
(i) any termination of this Agreement, (ii) any investigation made by or on
behalf of any Underwriter or any person controlling any Underwriter or by
or on behalf of the Company, its officers or directors or any other person
controlling the Company and (iii) acceptance of and payment for any of the
Common Shares.
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VIII.
This Agreement shall be subject to termination in your absolute discretion,
by notice given to the Company, if (a) after the execution and delivery of
this Agreement and prior to the Closing Date (i) trading generally shall
have been suspended or materially limited on or by, as the case may be, any
of the New York Stock Exchange, the American Stock Exchange, the National
Association of Securities Dealers, Inc., the Chicago Board Options
Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade,
(ii) trading of any securities of the Company shall have been suspended on
any exchange or in any over-the-counter market, (iii) a general moratorium
on commercial banking activities in New York shall have been declared by
either Federal or New York State authorities, or (iv) there shall have
occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in your judgment, is
material and adverse and (b) in the case of any of the events specified in
clauses (a)(i) through (iv), such event singly or together with any other
such event makes it, in your judgment, impracticable to market the Common
Shares on the terms and in the manner contemplated in the Prospectus.
IX.
If, on the Closing Date or the Option Closing Date, as the case may be, any
one or more of the Underwriters shall fail or refuse to purchase Common
Shares that it or they have agreed to purchase hereunder on such date, and
the aggregate number of Common Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than
one-tenth of the aggregate number of the Common Shares to be purchased on
such date, the other Underwriters shall be obligated severally in the
proportions that the number of Firm Shares set forth opposite their
respective names in Schedule I bears to the aggregate number of Firm Shares
set forth opposite the names of all such non-defaulting Underwriters, or in
such other proportions as you may specify, to purchase the Common Shares
which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase on such date; provided that in no event shall the
number of Common Shares that any Underwriter has agreed to purchase
pursuant to Article II be increased pursuant to this Article IX by an
amount in excess of one-ninth of such number of Common Shares without the
written consent of such Underwriter. If, on the Closing Date, or the Option
Closing Date, as the case may be, any Underwriter or Underwriters shall
fail or refuse to purchase Common Shares and the aggregate number of Common
Shares with respect to which such default occurs is more than one-tenth of
the aggregate number of Common Shares to be purchased on such date, and
arrangements satisfactory to you and the Company for the purchase of such
Common Shares are not made within 36 hours after such default, this
Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case either you or
the Company shall have the right to postpone the Closing Date or the Option
Closing Date, as the case may be, but in no event for longer than seven
days, in order that the required changes, if any, in the Registration
Statement and in the Prospectus or in any other documents or arrangements
may be effected. Any action taken under this paragraph shall not relieve
any defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them,
because of any failure or refusal on the part of the Company to comply with
the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under
this Agreement, the Company will reimburse the Underwriters, or such
Underwriters as have so terminated this Agreement with respect to
themselves, severally, for all out-of-pocket expenses (including the fees
and disbursements of their counsel) reasonably incurred by such
Underwriters in connection with this Agreement or the offering contemplated
hereunder.
This Agreement may be signed in two or more counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and
hereto were upon the same instrument.
This Agreement shall be governed by and construed in accordance with the
laws of the State of California, without regard to conflict of laws
principles.
Very truly yours,
DMC STRATEX NETWORKS, INC.
By: ________________________________
Name: ______________________________
Its: _______________________________
8
ACCEPTED AND AGREED TO BY:
[Lead Underwriter]
By: ________________________________
Name: ______________________________
Its: _______________________________
Each acting severally on behalf of itself and the several Underwriters
named herein.
9
SCHEDULE I
Number of
Underwriter Common Shares Total
------------------------- -----
10
