1
Execution Copy
3,000,000 SHARES
BROADCOM CORPORATION
CLASS A COMMON STOCK, PAR VALUE $.0001 PER SHARE
UNDERWRITING AGREEMENT
October 20, 1998
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October 20, 1998
Xxxxxx Xxxxxxx & Co. Incorporated
BT Alex. Xxxxx Incorporated
Credit Suisse First Boston Corporation
Xxxxxxxxx & Xxxxx LLC
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs and Mesdames:
Broadcom Corporation, a California corporation (the "COMPANY")
co-founded by Xxxxx X. Xxxxxxxx, III and Xxxxx Xxxxxxx (individually a "FOUNDER"
and collectively the "Founders"), proposes to issue and sell to the several
Underwriters named in Schedule II hereto (the "UNDERWRITERS"), and certain
shareholders of the Company (the "SELLING SHAREHOLDERS") named in Schedule I
hereto severally propose to sell to the several Underwriters, an aggregate of
3,000,000 shares (the "FIRM SHARES") of the Class A Common Stock, par value
$0.0001 per share, of the Company (the "CLASS A COMMON STOCK"), of which 392,500
shares are to be issued and sold by the Company and 2,607,500 shares are to be
sold by the Selling Shareholders, each Selling Shareholder selling the amount
set forth opposite such Selling Shareholder's name in Schedule I hereto.
The Company also proposes to issue and sell and certain Selling
Shareholders propose to sell to the several Underwriters not more than an
additional 450,000 shares of its Class A Common Stock (the "ADDITIONAL SHARES")
if and to the extent that you, as Managers of the offering, shall have
determined to exercise, on behalf of the Underwriters, the right to purchase
such shares of common stock granted to the Underwriters in Section 3 hereof. The
Firm Shares and the Additional Shares are hereinafter collectively referred to
as the "SHARES." The shares of Class A Common Stock and Class B Common Stock,
par value $0.001 per share (the "CLASS B COMMON STOCK"), of the Company to be
outstanding after giving effect to the sales contemplated hereby are hereinafter
referred to as the "COMMON STOCK." The Company and the Selling Shareholders are
hereinafter sometimes collectively referred to as the "SELLERS."
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement, including a prospectus, relating to the
Shares. The registration statement as amended at the time it becomes effective,
including the information (if any) deemed to be part of the registration
statement at the time of effectiveness pursuant to Rule 430A under the
Securities Act of 1933, as amended (the "SECURITIES ACT"), is hereinafter
referred to as the "REGISTRATION STATEMENT;" the prospectus in the form first
used to confirm sales of Shares is hereinafter referred to as the "PROSPECTUS."
If the Company has filed an abbreviated registration statement to register
additional shares of Class A Common Stock pursuant to Rule 462(b) under the
Securities Act (the "RULE 462 REGISTRATION STATEMENT"), then any reference
herein to the "REGISTRATION STATEMENT" shall be deemed to include such Rule 462
Registration Statement.
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1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND FOUNDERS. The
Company and, to the best of their knowledge, the Founders severally, but not
jointly, represent and warrant to and agree with each of the Underwriters that:
(a) The Registration Statement has become effective under the
Securities Act; no stop order suspending the effectiveness of the
Registration Statement is in effect, and no proceedings for such purpose
are pending before or, to the Company's knowledge, threatened by the
Commission.
(b) (i) The Registration Statement, when it became effective, did 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
required to be stated therein or necessary to make the statements
therein not misleading, (ii) the Registration Statement and the
Prospectus comply and, as amended or supplemented, if applicable, will
comply in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder and (iii)
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 in order 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 do not apply to statements or omissions in the
Registration Statement or the Prospectus based upon information relating
to any Underwriter furnished to the Company in writing by such
Underwriter through you expressly for use therein.
(c) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the state of California,
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.
(d) The Company has no subsidiaries.
(e) This Agreement has been duly authorized, executed and delivered
by the Company.
(f) The authorized capital stock of the Company conforms as to legal
matters to the description thereof set forth under the caption
"Description of Capital Stock in the Prospectus."
(g) The shares of Common Stock (including the Shares to be sold by
the Selling Shareholders) outstanding prior to the issuance of the
Shares to be sold by the Company have been duly authorized and are
validly issued, fully paid and non-assessable; except as set forth in
the Prospectus, the Company does not have any outstanding options to
purchase, or any preemptive rights or other rights to subscribe for or
to purchase, any securities or obligations convertible into, or any
contracts or commitments to issue or sell, shares of its capital stock
or any such options, rights, convertible securities or obligations; and,
except where failure to do so would not have a material adverse effect
on the Company, all outstanding shares of capital stock and options and
other rights to acquire capital stock have been issued in compliance
with the registration and qualification provisions of all applicable
securities laws and were not issued in violation of any preemptive
rights, rights of first refusal or other similar rights that have not
been waived.
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(h) The Shares to be sold by the Company have been duly authorized
and, when issued and delivered in accordance with the terms of this
Agreement, will be validly issued, fully paid and non-assessable, and
the issuance of such Shares will not be subject to any preemptive
rights, rights of first refusal or similar rights.
(i) 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 bylaws of the Company or any agreement or other
instrument binding upon the Company that is material to the Company or
any judgment, order or decree of any governmental body, agency or court
having jurisdiction over the Company, and no consent, approval,
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 may be required by the
securities or Blue Sky laws of the various states and jurisdictions or
the National Association of Securities Dealers, Inc. (the "NASD") in
connection with the offer and sale of the Shares.
(j) There has not occurred any material adverse change, or any
development reasonably likely to result in a material adverse change, in
the condition, financial or otherwise, or in the earnings, business or
operations of the Company from that set forth in the Prospectus
(exclusive of any amendments or supplements thereto subsequent to the
date of this Agreement).
(k) There are no legal, regulatory or governmental proceedings
pending or, to the Company's knowledge, 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 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.
(l) The Company has all necessary consents, authorizations,
approvals, orders, certificates and permits of and from, and has made
all declarations and filings with, all foreign, 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, singly or in the aggregate, have a material
adverse effect on the Company.
(m) Each preliminary prospectus filed as part of the registration
statement after September 30, 1998 as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the Securities
Act, complied when so filed in all material respects with the Securities
Act and the applicable rules and regulations of the Commission
thereunder.
(n) The Company is not and, after giving effect to the offering and
sale of the Shares and the application of the proceeds thereof as
described in the Prospectus, will not be an "investment company" as such
term is defined in the Investment Company Act of 1940, as amended.
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(o) The Company (i) is in compliance with any and all applicable
foreign, federal, state and local laws and regulations relating to the
protection of human health and safety, the environment or hazardous or
toxic substances or wastes, pollutants or contaminants (collectively,
"ENVIRONMENTAL LAWS"), (ii) has received all permits, licenses or other
approvals required of them under applicable Environmental Laws to
conduct their respective businesses and (iii) is in compliance with all
terms and conditions of any such permit, license or approval, except
where such noncompliance with Environmental Laws, failure to receive
required permits, licenses or other approvals or failure to comply with
the terms and conditions of such permits, licenses or approvals would
not, singly or in the aggregate, have a material adverse effect on the
Company.
(p) There are no costs or liabilities associated with Environmental
Laws (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance
with Environmental Laws or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to
third parties) which would, singly or in the aggregate, have a material
adverse effect on the Company.
(q) Except as described in the Prospectus, there is no legal or
beneficial owner of any securities of the Company who has any rights,
not effectively satisfied or waived, to require registration of any
shares of capital stock of the Company in connection with the filing of
the Registration Statement.
(r) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, (i) the Company
has not incurred any material liability or obligation, direct or
contingent, nor entered into any material transaction not in the
ordinary course of business; (ii) the Company has not purchased any of
its outstanding capital stock, nor declared, paid or otherwise made any
dividend or distribution of any kind on its capital stock other than
ordinary and customary dividends; and (iii) there has not been any
material change in the capital stock, short-term debt or long-term debt
of the Company, except in each case as described in the Prospectus.
(s) The Company has good and marketable title in fee simple to all
real property and good and marketable title to all personal property
owned by it that is material to the business of the Company, in each
case free and clear of any security interest, lien, encumbrance, claim,
defect or adverse interest of any nature except such as are described in
the Prospectus or such as do not materially affect the value of such
property and do not interfere with the use made and proposed to be made
of such property by the Company; and any real property and buildings
held under lease by the Company are held by it under valid, subsisting
and enforceable leases with such exceptions as are not material and do
not interfere with the use made and proposed to be made of such property
and buildings by the Company, in each case except as described in the
Prospectus.
(t) The Company owns or possesses adequate licenses or other rights
(except as disclosed in the Prospectus) to use all material patents,
patent rights inventions, trade secrets, copyrights, trademarks, service
marks, trade names, technology and know-how currently employed or
proposed to be employed by it in connection with its business as
described in the Prospectus; the Company is not obligated to pay a
royalty, grant a license, or provide other consideration to any third
party in connection with its material patents, copyrights, trademarks,
service marks, trade names, or technology other than as disclosed in the
Prospectus, and, except as disclosed in the Prospectus, the Company has
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not received any notice of infringement or conflict with (and the
Company does not know of any infringement or conflict with) asserted
rights of others with respect to any patents, patent rights, inventions,
trade secrets, copyrights, trademarks, service marks, trade names,
technology or know-how which could result in any material adverse effect
upon the Company; and, except as disclosed in the Prospectus, the
discoveries, inventions, products or processes of the Company referred
to in the Prospectus do not, to the knowledge of the Company, infringe
or conflict with any right or patent of any third party, or any
discovery, invention, product or process which is the subject of a
patent application filed by any third party known to the Company, which
could have a material adverse effect on the Company. The University of
California, Los Angeles, does not possess any rights to the Company's
patents, copyrights, trademarks, service marks, trade names, or
technology which, if exercised, could have a material adverse effect on
the ability of the Company to conduct its business in the manner
described in the Prospectus.
(u) No material labor dispute with the employees of the Company
exists, except as described in the Prospectus, or, to the knowledge of
the Company, is imminent; and the Company is not aware of any existing,
threatened or imminent labor disturbance by the employees of any of its
principal suppliers, manufacturers or contractors that could have a
material adverse effect on the Company.
(v) The Company is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are
prudent and customary in the businesses in which they are engaged; the
Company has not been refused any insurance coverage sought or applied
for during the previous four years; and the Company does not have any
reason to believe that it will not be able to renew its existing
insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue
its business at a cost that would not have a material adverse effect on
the Company, except as described in the Prospectus.
(w) The Company possesses all certificates, authorizations and
permits issued by the appropriate federal, state or foreign regulatory
authorities necessary to conduct its business, except where the failure
to possess such certificates, authorizations or permits would not have a
material adverse effect on the Company, and the Company has not received
any notice of proceedings relating to the revocation or modification of
any such certificate, authorization or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding,
would have a material adverse effect on the Company, except as described
the Prospectus
(x) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurance that (1) transactions are
executed in accordance with management's general or specific
authorizations; (2) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability; (3)
access to material assets is permitted only in accordance with
management's general or specific authorization; and (4) the recorded
accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(y) Ernst & Young LLP are, and during the periods covered by
their report included in the Registration Statement were, independent
certified public accountants with respect to the Company within the
meaning of the Securities Act.
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(z) The Nasdaq Stock Market, Inc. has approved the Shares to be
issued by the Company for listing on the Nasdaq National Market.
(aa) The section of the Prospectus entitled "Shares Eligible for
Future Sale" properly describes all agreements (collectively, the
"LOCK-UP AGREEMENTS") that restrict the holders thereof from selling,
making any short sale of, granting any option for the purchase of, or
otherwise transferring or disposing of, any of such shares of Common
Stock, or any such securities convertible into or exercisable or
exchangeable for Common Stock, for the respective periods of time
designated in such Lock-Up Agreements, without the prior written consent
of the Company or Xxxxxx Xxxxxxx & Co. Incorporated, and all of such
Lock-up Agreements are valid and binding.
2. REPRESENTATIONS AND WARRANTIES OF THE SELLING SHAREHOLDERS. Each of
the Selling Shareholders, including the Founders, represents and warrants to and
agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered
by or on behalf of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and
the performance by such Selling Shareholder of its obligations under,
this Agreement, the Custody Agreement and Power of Attorney signed by
such Selling Shareholder and U.S. Stock Transfer Corporation, as
Custodian, relating to the deposit of the Shares to be sold by such
Selling Shareholder and appointing certain individuals as such Selling
Shareholder's attorneys-in-fact to the extent set forth therein,
relating to the transactions contemplated hereby and by the Registration
Statement (the "CUSTODY AGREEMENT AND POWER OF ATTORNEY") will not
contravene any provision of applicable law, or the articles of
incorporation or by-laws of such Selling Shareholder (if such Selling
Shareholder is a corporation), or any agreement or other instrument
binding upon such Selling Shareholder or any judgment, order or decree
of any governmental body, agency or court having jurisdiction over such
Selling Shareholder, and no consent, approval, authorization or order
of, or qualification with, any governmental body or agency is required
for the performance by such Selling Shareholder of its obligations under
this Agreement or the Custody Agreement and Power of Attorney of such
Selling Shareholder, except 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 Shares.
(c) Such Selling Shareholder has, and on the Closing Date will have,
valid title to the Shares to be sold by such Selling Shareholder and the
legal right and power, and all authorization and approval required by
law, to enter into this Agreement and the Custody Agreement and Power of
Attorney and to sell, transfer and deliver the Shares to be sold by such
Selling Shareholder.
(d) The Shares to be sold by such Selling Shareholder pursuant to
this Agreement that are outstanding as of the date hereof have been duly
authorized and are validly issued, fully paid and non-assessable, and
the Shares to be sold by such Selling Shareholder that are issuable upon
exercise of outstanding options, will be, upon receipt by the Company of
the exercise price thereof, validly issued, fully paid and
non-assessable.
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(e) The Custody Agreement and Power of Attorney has been duly
authorized, executed and delivered by such Selling Shareholder and is a
valid and binding agreement of such Selling Shareholder.
(f) Delivery of the Shares to be sold by such Selling Shareholder
pursuant to this Agreement will pass title to such Shares free and clear
of any security interests, claims, liens, equities and other
encumbrances.
(g) All information furnished in writing by or on behalf of such
Selling Shareholder for use in the Registration Statement is, and on the
Closing Date will be, true, correct, and complete, and does not, and on
the Closing Date will not, contain any untrue statement of a material
fact or omit to state any material fact necessary to make such
information not misleading, and all information furnished in writing by
or on behalf of such Selling Shareholder for use in the Prospectus is,
and on the Closing Date will be, true, correct, and complete, and does
not, and on the Closing Date will not, contain any untrue statement of a
material fact or omit to state any material fact necessary to make such
information not misleading in the light of the circumstances under which
they were made.
3. AGREEMENTS TO SELL AND PURCHASE. Each Seller, severally and not
jointly, hereby agrees to sell to the several Underwriters, and each
Underwriter, upon the basis of the representations and warranties herein
contained, but subject to the conditions hereinafter stated, agrees, severally
and not jointly, to purchase from such Seller at $66.24 a share (the "PURCHASE
PRICE") the number of Firm Shares (subject to such adjustments to eliminate
fractional shares as you may determine) that bears the same proportion to the
number of Firm Shares to be sold by such Seller as the number of Firm Shares set
forth in Schedule II hereto opposite the name of such Underwriter bears to the
total number of Firm Shares.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to issue
and sell and certain Selling Shareholders named in Schedule III hereto severally
agree to sell to the Underwriters the Additional Shares, of which 77,500 shares
are to be issued and sold by the Company and 372,500 shares are to be sold by
such Selling Shareholders, each such Selling Shareholder selling the amount set
forth opposite such Selling Shareholder's name in Schedule III hereto, and the
Underwriters shall have a one-time right to purchase, severally and not jointly,
up to 450,000 Additional Shares at the Purchase Price. If you, on behalf of the
Underwriters, elect to exercise such option, you shall so notify the Company in
writing not later than 30 days after the date of this Agreement, which notice
shall specify the number of Additional Shares to be purchased by the
Underwriters and the date on which such shares are to be purchased. Such date
may be the same as the Closing Date (as defined below) but not earlier than the
Closing Date nor later than ten business days after the date of such notice.
Additional Shares may be purchased as provided in Section 5 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 you 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 II
hereto opposite the name of such Underwriter bears to the total number of Firm
Shares.
Each Seller hereby agrees that, without the prior written consent of
Xxxxxx Xxxxxxx & Co. Incorporated on behalf of the Underwriters, it will not (x)
in the case of the Company, during the period ending 90 days after the date of
the Prospectus, and (y) in the case of each other Seller, during the period
specified in the Lock-up Agreements between the Seller and Xxxxxx Xxxxxxx & Co.
Incorporated (i) offer, pledge, sell,
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contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant to purchase, lend, or
otherwise transfer or dispose of, directly or indirectly, any shares of Common
Stock or any securities convertible into or exercisable or exchangeable for
Common Stock or (ii) enter into any swap or other arrangement that transfers to
another, in whole or in part, any of the economic consequences of ownership of
the Common Stock, whether any such transaction described in clause (i) or (ii)
above is to be settled by delivery of Common Stock or such other securities, in
cash or otherwise. The foregoing sentence shall not apply to (A) the sale of any
Shares to the Underwriters to be sold hereunder, (B) the issuance by the Company
of shares of Common Stock upon the exercise of an option or warrant or the
conversion of a security outstanding, on the date hereof, of which the
Underwriters have been advised in writing or (C) transactions by any person
other than the Company relating to shares of Common Stock or other securities
acquired in open market transactions after the completion of the offering of the
Shares. In addition, each Selling Shareholder agrees that, without the prior
written consent of Xxxxxx Xxxxxxx & Co. Incorporated on behalf of the
Underwriters, it will not, during the period ending 90 days after the date of
the Prospectus, make any demand for, or exercise any right with respect to, the
registration of any shares of Common Stock or any security convertible into or
exercisable or exchangeable for Common Stock.
4. TERMS OF PUBLIC OFFERING. The Sellers are advised by you that the
Underwriters propose to make a public offering of their respective portions of
the Shares as soon after the Registration Statement and this Agreement have
become effective as in your judgment is advisable. The Sellers are further
advised by you that the Shares are to be offered to the public initially at
$69.00 a share (the "PUBLIC OFFERING PRICE") and to certain dealers selected by
you at a price that represents a concession not in excess of $1.66 a share under
the Public Offering Price, and that any Underwriter may allow, and such dealers
may reallow, a concession, not in excess of $0.10 a share, to any Underwriter or
to certain other dealers.
5. PAYMENT AND DELIVERY. Payment for the Firm Shares to be sold by each
Seller shall be made to such Seller in federal or other funds immediately
available in New York City against delivery of such Firm Shares for the
respective accounts of the several Underwriters at 10:00 a.m., New York City
time, on October 26, 1998, or at such other time on the same or such other date,
not later than November 2, 1998, as shall be designated in writing by you. The
time and date of such payment are hereinafter referred to as the "CLOSING DATE."
Payment for any Additional Shares shall be made to each Seller in
federal or other funds immediately available in New York City against delivery
of such Additional Shares for the respective accounts of the several
Underwriters at 10:00 a.m., New York City time, on the date specified in the
notice described in Section 3 or at such other time on the same or on such other
date, in any event not later than December 3, 1998, as shall be designated in
writing by you. The time and date of such payment are hereinafter referred to as
the "OPTION CLOSING DATE."
Certificates for the Firm Shares and Additional Shares shall be in
definitive form and registered in such names and in such denominations as you
shall request in writing not later than one full business day prior to the
Closing Date or the Option Closing Date, as the case may be. The certificates
evidencing the Firm Shares and Additional Shares shall be delivered to you on
the Closing Date or the Option Closing Date, as the case may be, for the
respective accounts of the several Underwriters, with any transfer taxes payable
in connection with the transfer of the Shares to the Underwriters duly paid,
against payment of the Purchase Price therefor.
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6. CONDITIONS TO THE UNDERWRITERS' OBLIGATIONS. The obligations of the
Sellers to sell the Shares to the Underwriters and the several obligations of
the Underwriters to purchase and pay for the Shares on the Closing Date are
subject to the condition that the Registration Statement shall have become
effective not later than 3:00 p.m. (New York City time) on the date hereof.
The several obligations of the Underwriters hereunder are subject to the
following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of
any review for a possible change that does not indicate the direction
of the possible change, in the rating accorded any of the Company's
securities by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act; and
(ii) 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
from that set forth in the Prospectus (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement) that,
in your judgment, is material and adverse and that makes it, in your
judgment, impracticable to market the 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 the chief executive
officer and the chief financial officer of the Company, to the effect
set forth in Section 6(a)(i) above and to the effect that the
representations and warranties of the Company contained in this
Agreement are true and correct as of the Closing Date and that the
Company has complied with all of the agreements and satisfied all of the
conditions on its part to be performed or satisfied hereunder on or
before the Closing Date.
The officers signing and delivering such certificate may rely upon
the best of their knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by the Selling
Shareholders (or by their attorney-in-fact on their behalf), to the
effect that the representations and warranties of the Selling
Shareholders contained in this Agreement are true and correct as of the
Closing Date and that each Selling Shareholder has complied with all of
the agreements and satisfied all of the conditions on its part to be
performed or satisfied hereunder on or before the Closing Date.
(d) The Underwriters shall have received on the Closing Date an
opinion of Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP, outside counsel for the
Company, dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the state of
California, has the corporate power and
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authority to own its property and to conduct its business as
described in the Registration Statement and Prospectus (and any
amendment or supplement thereto) 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
so qualify or be in good standing would not have a material adverse
effect on the financial condition, business, properties or results of
operations of the Company;
(ii) to such counsel's knowledge, the Company does not own or
control, directly or indirectly, any corporation, association or
other entity;
(iii) the authorized capital stock of the Company as of the date
of the Prospectus is as set forth in the description thereof set
forth under the caption "Description of Capital Stock" in the
Prospectus;
(iv) the shares of Common Stock (including the Shares to be sold
by the Selling Shareholders) outstanding prior to the issuance of the
Shares to be sold by the Company have been duly authorized and are
validly issued and non-assessable and, to such counsel's knowledge,
fully paid; and, to such counsel's knowledge, except as set forth in
the Prospectus, the Company does not have outstanding any options to
purchase, or any preemptive rights arising under the Company's
Restated and Amended Articles of Incorporation (the "Articles") or
other rights to subscribe for or to purchase, any securities or
obligations convertible into, or any contracts or commitments to
issue or sell, shares of the Company's capital stock or any such
options, rights, convertible securities or obligations; and all
outstanding shares of capital stock were not issued in violation of
any preemptive rights or, to such counsel's knowledge, rights of
first refusal of the Company or other similar rights.
(v) the Shares to be sold by the Company have been duly
authorized and, when issued and delivered in accordance with the
terms of this Agreement, will be validly issued, fully paid and
non-assessable, and the issuance of such Shares will not be subject
to (A) any preemptive rights arising under the Articles or the
California General Corporation Law or (B) to such counsel's
knowledge, any similar rights that entitle or will entitle any person
to acquire any shares of capital stock of the Company upon the
issuance and sale of the Shares by the Company;
(vi) this Agreement has been duly authorized, executed and
delivered by the Company;
(vii) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement
will not (A) contravene the Articles or bylaws of the Company or (B)
to such counsel's knowledge, constitute a breach or default under any
agreement or other instrument binding upon the Company that is an
exhibit to the Registration Statement, or (C) result in any violation
of an existing provision of California or federal law or regulation
(other than applicable state securities and Blue Sky laws, as to
which such counsel need express no opinion) or any ruling, judgment,
order or decree known to such counsel and applicable to the Company
or any of its properties;
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(viii) no consent, approval, 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 (A) as have been obtained under the Securities Act
or the Exchange Act, or (B) such as may be required by the securities
or Blue Sky laws governing the purchase and distribution of the
Shares, as to which such counsel need express no opinion;
(ix) the statements (A) in the Prospectus under the captions
"Risk Factors--Shares Eligible for Future Sale," "Business--Customers
and Strategic Relationships (except that such counsel need express an
opinion only as to the second paragraph in such section),"
"Management--Employee Benefit Plans (to the extent of the description
of the terms of the employee benefit plans)," "Management--Limitation
of Liability and Indemnification Matters," "Certain Transactions"
(except that such counsel need express an opinion only as to the
paragraph entitled "Development Agreement with Cisco Systems"),
"Description of Capital Stock" and "Shares Eligible for Future Sale"
and (B) in the Registration Statement in Items 14 and 15, in each
case insofar as such statements constitute summaries 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;
(x) to such counsel's knowledge, (A) there are no legal,
regulatory or governmental proceedings 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 California or federal statutes or regulations, and (B) there
are no agreements, 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, as the case may be;
(xi) the Company is not an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended;
(xii) to such counsel's knowledge, except as described in the
Prospectus, no holder of any securities of the Company or any other
person has the right, contractual or otherwise, to cause the Company
to sell or otherwise issue them, or to permit them to underwrite the
sale of, any of the Shares or the right to have any Common Stock or
other securities of the Company included in the Registration
Statement or the right, as a result of the filing of the Registration
Statement, to require the Company to register under the Securities
Act any shares of Common Stock or other securities of the Company,
any registration rights in connection with the offering contemplated
hereby have been waived;
(xiii) such counsel is of the opinion that the Registration
Statement and Prospectus (except for financial statements, including
notes and the schedules thereto and the other financial and
statistical data included therein, as to which such counsel need not
express any opinion) comply as to form in all material respects with
the Securities Act and the applicable rules and regulations of the
Commission thereunder;
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(xiv) such counsel (A) has no reason to believe that (other than
the financial statements, including the notes and schedules thereto
and the other financial and statistical data included therein, as to
which such counsel need not express any belief) at the time the
Registration Statement became effective, the Registration Statement
contained any untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make
the statements therein not misleading and (B) has no reason to
believe that (other than the financial statements, including the
notes and schedules thereto and other financial and statistical data
derived therefrom, as to which such counsel need not express any
belief) the Prospectus, on the date hereof, contains any untrue
statement of a material fact or omits 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;
(xv) to such counsel's knowledge: (A) the Registration Statement
has become effective under the Securities Act, no stop order
proceedings with respect thereto have been instituted or are pending,
threatened or contemplated under the Securities Act; and (B) any
required filing of the Prospectus and any supplement thereto pursuant
to Rule 424(b) under the Securities Act has been made in the manner
and within the time period required by such Rule 424(b); and
(xvi) the Shares to be sold under this Agreement to the
Underwriters have been approved for quotation on the Nasdaq National
Market, upon issuance as contemplated by this Agreement.
(e) The Underwriters shall have received on the Closing Date an
opinion of Xxxxxxx, Phleger & Xxxxxxxx LLP, counsel for the Selling
Shareholders, dated the Closing Date, to the effect that:
(i) this Agreement has been duly authorized, executed and
delivered by or on behalf of each of the Founders;
(ii) the execution and delivery by each Founder of, and the
performance by such Founder of its obligations under, this Agreement
and the Custody Agreement and Power of Attorney of such Founder will
not (A) result in a violation of any existing provision of applicable
California or federal law (other than applicable state securities and
Blue Sky laws, as to which such counsel need express no opinion) or
any judgment, order or decree known to such counsel and applicable to
the Founders and any of its properties, or, (B) to such counsel's
knowledge, constitute a breach or default under any material
agreement or other instrument binding upon such Founder;
(iii) no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for
the performance by such Founder of its obligations under this
Agreement or the Custody Agreement and Power of Attorney of such
Founder, except such as may be required by the securities or Blue Sky
laws of the various states in connection with offer and sale of the
Shares;
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(iv) each of the Founders is the sole registered owner of the
Shares to be sold by such Founder and has the right, power and
authority to enter into this Agreement and the Custody Agreement and
Power of Attorney of such Founder and to sell, transfer and deliver
the Shares to be sold by such Founder;
(v) the Custody Agreement and the Power of Attorney of each
Founder has been duly authorized, executed and delivered by such
Founder and are valid and binding agreements of such Founder;
(vi) upon the delivery of and payment for the Shares as
contemplated in the Underwriting Agreement, each of the Underwriters
will receive valid marketable title to the Shares purchased by it
from such Founder, free of any adverse claim, assuming the
Underwriters purchase such Shares for value, in good faith and
without notice of any adverse claim, as such terms are defined in the
Uniform Commercial Code in effect in the State of California.
(vii) as to each Selling Shareholder who is not a Corporate
Selling Shareholder (as defined below) or a Founder (each, an
"Individual Selling Shareholder"), to such counsel's knowledge, this
Agreement has been duly authorized, executed and delivered by or on
behalf of each of the Individual Selling Shareholders;
(viii) to such counsel's knowledge, the execution and delivery by
each Individual Selling Shareholder of, and the performance by such
Individual Selling Shareholder of its obligations under, this
Agreement and the Custody Agreement and Power of Attorney of such
Individual Selling Shareholder will not (A) contravene any material
provision of applicable California or federal law (other than
applicable state securities and Blue Sky laws, as to which such
counsel need express no opinion) or any judgment, order or decree of
any governmental body, agency or court having jurisdiction over the
Individual Selling Shareholder or, (B) contravene any material
agreement or other instrument binding upon such Individual Selling
Shareholder;
(ix) to such counsel's knowledge, no consent, approval,
authorization or order of, or qualification with, any governmental
body or agency is required for the performance by such Individual
Selling Shareholder of its obligations under this Agreement or the
Custody Agreement and Power of Attorney of such Individual Selling
Shareholder, except such as may be required by the securities or Blue
Sky laws of the various states in connection with offer and sale of
the Shares;
(x) to such counsel's knowledge, each of the Individual Selling
Shareholders is the sole registered owner of the Shares to be sold by
such Individual Selling Shareholder and has the right, power and
authority to enter into this Agreement and the Custody Agreement and
Power of Attorney of such Individual Selling Shareholder and to sell,
transfer and deliver the Shares to be sold by such Individual Selling
Shareholder;
(xi) to such counsel's knowledge, the Custody Agreement and the
Power of Attorney of each Individual Selling Shareholder has been
duly authorized, executed and delivered by such Individual Selling
Shareholder and are valid and binding agreements of such Individual
Selling Shareholder;
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(xii) upon the delivery of and payment for the Shares as
contemplated in the Underwriting Agreement, each of the Underwriters
will receive valid marketable title to the Shares purchased by it
from such Individual Selling Shareholder, free of any adverse claim,
assuming the Underwriters purchase such Shares for value, in good
faith and without notice of any adverse claim, as such terms are
defined in the Uniform Commercial Code in effect in the State of
California.
(f) The Underwriters shall have received on the Closing Date an
opinion of Fulwider, Patton, Xxx & Xxxxxx, special patent counsel to the
Company, dated the Closing Date, to the effect that:
(i) the Company is listed in the records of the United States
Patent and Trademark Office ("PTO") as the holder of record of the
patent applications listed in Exhibit A to such counsel's opinion
(the "PATENT APPLICATIONS"). Three of such Patent Applications,
listed on Exhibit B to such counsel's opinion, have been allowed or
indicated as containing allowable subject matter. To such counsel's
knowledge, written assignments to the Company of all ownership
interests in the Patent Applications have been duly authorized,
executed and delivered by all of the inventors in accordance with
their terms. To such counsel's knowledge, there is no claim of any
party other than the Company to any ownership interest or lien with
respect to any of the Patent Applications;
(ii) the statements in the Prospectus under the captions "Risk
Factors -- Risks Associated With Intellectual Property Protection"
and "Business -Intellectual Property," to such counsel knowledge,
insofar as such statements relate to the Patent Applications or any
legal matters, documents and proceedings relating thereto fairly
present the information called for with respect to such legal
matters, documents and proceedings and fairly summarize the matters
referred to therein;
(iii) to such counsel's knowledge, other than in connection with
assertions or inquiries made by patent office examiners in the
ordinary course of the prosecution of the Company's Patent
Applications, there is not pending or threatened in writing any
action, suit, proceeding or claim by others (A) challenging the
validity or scope of the Patent Applications or any other material
patent or patent applications held by or licensed to the Company, or
(B) other than as disclosed to the Underwriters in writing, asserting
that any patent is infringed by the activities of the Company
described in the Prospectus or by the manufacture, use or sale of any
of the Company's products or other items made and used according to
the Patent Applications held by or licensed to the Company; and
(iv) to such counsel's knowledge, there is not pending or
threatened in writing any action, suit, proceeding or claim by the
Company asserting infringement on the part of any third party of the
Patent Applications or any other patents or patent applications held
by or licensed to the Company.
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(g) The Underwriters shall have received on the Closing Date an
opinion of Irell & Xxxxxxx LLP, special litigation counsel to the
Company, dated the Closing Date, to the effect that:
(i) the statements in the Prospectus under the caption "Business
-Legal Proceedings," to such counsel's knowledge, insofar as such
statements relate to any legal matters, documents and proceedings
relating thereto fairly present the information called for with
respect to such legal matters, documents and proceedings and fairly
summarize the matters referred to therein; and such counsel concurs
with the Company's belief as stated in the fifth sentence of the
first paragraph of "Business--Legal Proceedings."
(h) The Underwriters shall have received on the Closing Date an
opinion of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, counsel for the
Underwriters, dated the Closing Date, covering the matters referred to
in Sections 6(d)(v), 6(d)(vi), 6(d)(ix) (but only as to the statements
in the Prospectus under "Description of Capital Stock" and
"Underwriters"), 6(d)(xiii) and 6(d)(xiv) above.
With respect to Section 6(d)(xiii) above, Xxxxxxx, Phleger & Xxxxxxxx
LLP and Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx may state that their belief is
based upon their participation in the preparation of the Registration
Statement and Prospectus and any amendments or supplements thereto and
review and discussion of the contents thereof, but are without
independent check or verification, except as specified. With respect to
Section 6(e) above, Xxxxxxx, Phleger & Xxxxxxxx LLP may rely upon an
opinion or opinions of counsel for any Selling Shareholders and, with
respect to factual matters and to the extent such counsel deems
appropriate, upon the representations of each Selling Shareholder
contained herein and in the Custody Agreement and Power of Attorney of
such Selling Shareholder and in other documents and instruments;
provided that (A) each such counsel for the Selling Shareholders is
satisfactory to your counsel, (B) a copy of each opinion so relied upon
is delivered to you and is in form and substance satisfactory to your
counsel, (C) copies of such Custody Agreements and Powers of Attorney
and of any such other documents and instruments shall be delivered to
you and shall be in form and substance satisfactory to your counsel and
Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP shall state in their opinion that they
are justified in relying on each such other opinion.
The opinions of Xxxxxxx, Phleger & Xxxxxxxx LLP described in Sections
6(d) and 6(e) above (and any opinions of counsel for any Selling
Shareholder referred to in the immediately preceding paragraph) and the
opinions of Fulwider, Patton, Xxx & Xxxxxx and Irell & Xxxxxxx LLP
described in Sections 6(f) and 6(g) above shall be rendered to the
Underwriters at the request of the Company or one or more of the Selling
Shareholders, as the case may be, and shall so state therein.
(i) The Underwriters shall have received, on each of the date hereof
and the Closing Date, a letter dated the date hereof or the Closing
Date, as the case may be, in form and substance satisfactory to the
Underwriters, from Ernst & Young 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 the
Registration Statement and the Prospectus; provided, however, that the
letter delivered on the Closing Date shall use a "cut-off date" not
earlier than the date hereof.
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(j) The Underwriters shall have received on the Closing Date opinions
of counsel for each of Intel Corporation and Scientific-Atlanta, Inc.
(the "Corporate Selling Shareholders"), dated the Closing Date, to the
effect that:
(i) this Agreement has been duly authorized by such Corporate
Selling Shareholder and, when executed on such Corporate Selling
Shareholder's behalf by one of the attorneys-in-fact named in the
Custody Agreement and Power of Attorney, will be duly executed and
delivered by or on behalf of such Corporate Selling Shareholder;
(ii) the execution and delivery by such Corporate Selling
Shareholder of, and the performance by such Corporate Selling
Shareholder of its obligations under, this Agreement and the Custody
Agreement and Power of Attorney of such Corporate Selling Shareholder
will not (A) result in a violation of any existing provision of
applicable California or federal law (other than applicable state
securities and Blue Sky laws, as to which such counsel need express
no opinion) or any judgment, order or decree known to such counsel
and applicable to such Corporate Selling Shareholder and any of its
properties, (B) conflict with, or result in a breach or other
violation of any of the terms, conditions or provisions of such
Corporate Selling Shareholder's Certificate of Incorporation or
Bylaws, or (C) to such counsel's knowledge, constitute a breach or
default under any material agreement or other instrument binding upon
such Corporate Selling Shareholder;
(iii) no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for
the performance by such Corporate Selling Shareholder of its
obligations under this Agreement or the Custody Agreement and Power
of Attorney of such Corporate Selling Shareholder, except such as may
be required by the securities or Blue Sky laws of the various states
in connection with offer and sale of the Shares;
(iv) such Corporate Selling Shareholder is the sole registered
owner of the Shares to be sold by such Corporate Selling Shareholder
and has the right, power and authority to enter into this Agreement
and the Custody Agreement and Power of Attorney of such Corporate
Selling Shareholder and to sell, transfer and deliver the Shares to
be sold by such Corporate Selling Shareholder;
(v) the Custody Agreement and Power of Attorney of such Corporate
Selling Shareholder has been duly authorized, executed and delivered
by such Corporate Selling Shareholder and is a valid and binding
agreement of such Corporate Selling Shareholder;
(vi) upon the delivery of and payment for the Shares as
contemplated in the Underwriting Agreement, each of the Underwriters
will receive valid marketable title to the Shares purchased by it
from such Corporate Selling Shareholder, free of any adverse claim,
assuming the Underwriters purchase such Shares for value, in good
faith and without notice of any adverse claim, as such terms are
defined in the Uniform Commercial Code in effect in the State of
California.
(k) The Lock-up Agreements between you and all officers and directors
of the Company and certain shareholders relating to sales and certain
other dispositions of shares of Common Stock or certain other
securities, delivered to you on or before the date hereof, shall be in
full force and effect on the Closing Date.
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All of the agreements, opinions, certificates and letters mentioned
above or elsewhere in this Agreement shall be deemed in compliance with the
provisions hereof only if Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, counsel for the
Underwriters, shall be reasonably satisfied that they comply in form and scope.
The several obligations of the Underwriters to purchase Additional
Shares hereunder are subject to the delivery to you on the Option Closing Date
of such documents as you may reasonably request with respect to the good
standing of the Company, the due authorization and issuance of the Additional
Shares, other matters related to the issuance of the Additional Shares and an
opinion or opinions of Xxxxxxx Phleger and Xxxxxxxx LLP in form and substance
satisfactory to Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, counsel for the Underwriters.
7 COVENANTS OF THE COMPANY. In further consideration of the agreements
of the Underwriters herein contained, the Company covenants with each
Underwriter as follows:
(a) To furnish to you, without charge, six signed copies of the
Registration Statement (including exhibits thereto) and for delivery to
each other Underwriter a conformed copy of the Registration Statement
(without exhibits thereto) and to furnish to you in New York City,
without charge on the business day following the date of this Agreement
and during the period mentioned in Section 7(c) below, as many copies of
the Prospectus and any supplements and amendments thereto or to the
Registration Statement as you may reasonably request.
(b) Before amending or supplementing the Registration Statement or
the Prospectus, to furnish to you a copy of each such proposed amendment
or supplement and not to file any such proposed amendment or supplement
to which you reasonably object, and to file with the Commission within
the applicable period specified in Rule 424(b) under the Securities Act
any prospectus required to be filed pursuant to such Rule.
(c) If, during such period after the first date of the public
offering of the Shares as in the reasonable opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall occur
or condition exist 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, in the reasonable opinion of counsel
for the Underwriters, it is necessary to amend or supplement the
Prospectus to comply with applicable law, forthwith to prepare, file
with the Commission and furnish, at its own expense, to the Underwriters
and to the dealers (whose names and addresses you will furnish to the
Company) to which 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, as amended or supplemented, will
comply with law.
(d) To endeavor to qualify the Shares for offer and sale under the
securities or Blue Sky laws of such jurisdictions as you shall
reasonably request.
(e) To make generally available to the Company's security holders and
to you as soon as practicable an earnings statement covering the
twelve-month period ending June 30, 1999 that satisfies the provisions
of Section 11(a) of the Securities Act and the rules and regulations of
the Commission thereunder.
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(f) to (i) enforce the terms of each Lock-up Agreement and (ii) issue
stop-transfer instructions to the transfer agent for the Common Stock
with respect to any transaction or contemplated transaction that would
constitute a breach of or default under the applicable Lock-up
Agreement. In addition, except with the prior written consent of Xxxxxx
Xxxxxxx & Co. Incorporated, the Company agrees until the expiration of
the Lock-up Agreements (i) not to amend or terminate, or waive any right
under, any Lock-up Agreement, or take any other action that would
directly or indirectly have the same effect as an amendment or
termination, or waiver of any right under, any Lock-up Agreement, that
would permit any holder of shares of Common Stock, or securities
convertible into or exercisable or exchangeable for Common Stock, to
sell, make any short sale of, grant any option for the purchase of, or
otherwise transfer or dispose of, any of such shares of Common Stock or
other securities prior to the expiration of 90 days after the date of
the Prospectus, and (ii) not to consent to any sale, short sale, grant
of an option for the purchase of, or other disposition or transfer of
shares of Common Stock, or securities convertible into or exercisable or
exchangeable for Common Stock, subject to a Lock-up Agreement.
8 EXPENSES. Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, the Company agrees to
pay or cause to be paid all expenses incident to the performance of the Sellers'
obligations under this Agreement, including: (i) the fees, disbursements and
expenses of the Company's counsel, the Company's accountants and counsel for the
Selling Shareholders in connection with the registration and delivery of the
Shares under the Securities Act and all other fees or expenses in connection
with the preparation and filing of the Registration Statement, any preliminary
prospectus, the Prospectus and amendments and supplements to any of the
foregoing, including all printing costs associated therewith, and the mailing
and delivering of copies thereof to the Underwriters and dealers, in the
quantities hereinabove specified, (ii) all costs and expenses related to the
transfer and delivery of the Shares to the Underwriters, including any transfer
or other taxes payable thereon, (iii) the cost of printing or producing any Blue
Sky or Legal Investment memorandum in connection with the offer and sale of the
Shares under securities laws of various states and other jurisdictions and all
expenses in connection with the qualification of the Shares for offer and sale
under state securities laws as provided in paragraph (d) of Section 7 hereof,
including filing fees and the reasonable fees, in the amount not to exceed
$10,000, and disbursements of counsel for the Underwriters in connection with
such qualification and in connection with the Blue Sky or Legal Investment
memorandum, (iv) all filing fees and the reasonable fees, in the amount not to
exceed $5,000, and disbursements of counsel to the Underwriters incurred in
connection with the review and qualification of the offering of the Shares by
the NASD, (v) all costs and expenses incident to listing the Shares on the
Nasdaq National Market, (vi) the cost of printing certificates representing the
Shares, (vii) the costs and charges of any transfer agent, registrar or
depositary, (viii) the costs and expenses of the Company relating to investor
presentations on any "road show" undertaken in connection with the marketing of
the offering of the Shares, including, without limitation, expenses associated
with the production of road show slides and graphics, fees and expenses of any
consultants engaged in connection with the road show presentations with the
prior approval of the Company, and one-half of the total cost of all travel and
lodging expenses of the representatives and officers of the Company and the
representatives and officers of the Underwriters and any consultants to such
parties, and one-half the cost of any aircraft chartered in connection with the
road show, (ix) all expenses in connection with any offer and sale of the Shares
outside of the United States, including filing fees and the reasonable fees and
disbursements of counsel for the Underwriters in connection with offers and
sales outside of the United States, and (x) all other costs and expenses
incident to the performance of the
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obligations of the Company hereunder for which provision is not otherwise made
in this Section. It is understood, however, that except as provided in this
Section, Section 9 entitled "Indemnity and Contribution," and the last paragraph
of Section 11 below, the Underwriters will pay all of their costs and expenses,
including fees and disbursements of their counsel, stock transfer taxes payable
on resale of any of the Shares by them and any advertising expenses connected
with any offers they may make.
The provisions of this Section shall not supersede or otherwise affect
any agreement that the Sellers may otherwise have for the allocation of such
expenses among themselves.
9. INDEMNITY AND CONTRIBUTION.
(a) The Company and Founders, jointly and severally, agree 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 Securities Act or Section 20 of the Securities Exchange Act of 1934,
as amended (the "EXCHANGE ACT"), from and against any and all losses,
claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending
or investigating any such action or claim) caused by any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement or any amendment thereof, any preliminary
prospectus or the Prospectus (as amended or supplemented if the Company
shall have furnished any amendments or supplements thereto), 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
any Underwriter furnished to the Company in writing by such Underwriter
through you expressly for use therein. Notwithstanding the foregoing
provisions of this paragraph (a), the Company and each of the
Underwriters agrees with each of the Founders that any claim of such
Underwriter against such Founder for indemnification, reimbursement or
advancement of expenses pursuant to this Section 9(a) or for breach of
any representation or warranty in Section 1 hereof shall first be sought
by such Underwriter to be satisfied in full by the Company and, subject
to the limitation on the aggregate liability of the Founders set forth
below, shall be satisfied by the Founders only to the extent that such
claim has not been satisfied in full by the Company within the 60-day
period following the date requested for payment in accordance with the
terms of this Agreement. The liability of each Founder under this
Agreement shall be limited to an amount equal to the net proceeds
received by such Founder from the offering of the Shares sold by such
Founder, except with respect to (i) any breaches of the representations
and warranties set forth in paragraphs (a), (c), (e) or (f) of Section 2
hereof, (ii) intentional misrepresentation or (iii) fraud.
(b) Each Selling Shareholder (other than the Founders) agrees,
severally and not jointly, 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 Securities Act or Section 20 of
the Exchange Act, or is under common control with, or is controlled by,
any Underwriter, and 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 Securities Act or
Section 20 of the Exchange Act, from and against any and all losses,
claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending
or investigating any such action or claim) caused by any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement or any amendment thereof, any preliminary
prospectus or the Prospectus (as amended or supplemented if the Company
shall have furnished any amendments or supplements thereto), 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, but only with reference to information relating
to such Selling Shareholder furnished in writing by or on behalf of such
Selling Shareholder expressly for use in the Registration Statement, any
preliminary
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prospectus, the Prospectus or any amendments or supplements thereto, and
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 any Underwriter furnished to
the Company in writing by such Underwriter through you expressly for use
therein. The liability of each Selling Shareholder under the indemnity
agreement contained in this paragraph shall be limited to an amount
equal to the net proceeds received by such Selling Shareholder from the
offering of the Shares sold by such Selling Shareholder.
(c) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, the Selling Shareholders, the directors
of the Company, the officers of the Company who sign the Registration
Statement and each person, if any, who controls the Company or any
Selling Shareholder within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act from and against any
and all losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses reasonably incurred in
connection with defending or investigating any such action or claim)
caused by any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or any amendment thereof,
any preliminary prospectus or the Prospectus (as amended or supplemented
if the Company shall have furnished any amendments or supplements
thereto), 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, but only with reference to
information relating to such Underwriter furnished to the Company in
writing by such Underwriter through you expressly for use in the
Registration Statement, any preliminary prospectus, the Prospectus or
any amendments or supplements thereto.
(d) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity
may be sought pursuant to Section 9(a), 9(b) or 9(c), such person (the
"INDEMNIFIED PARTY") shall promptly notify the person against whom such
indemnity may be sought (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) include 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 respect
of the legal expenses of any Indemnified Party in connection with any
proceeding or related proceedings in the same jurisdiction, be liable
for (i) the fees and expenses of more than one separate firm (in
addition to any local counsel) for all Underwriters and all persons, if
any, who control any Underwriter within the meaning of either Section 15
of the Securities Act or Section 20 of the Exchange Act, (ii) the fees
and expenses of more than one separate firm (in addition to any local
counsel) for the Company, its directors, its officers who sign the
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Registration Statement and each person, if any, who controls the Company
within the meaning of either such Section and (iii) the fees and
expenses of more than one separate firm (in addition to any local
counsel) for all Selling Shareholders and all persons, if any, who
control any Selling Shareholder within the meaning of either such
Section, 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 any Underwriters, such firm shall be
designated in writing by Xxxxxx Xxxxxxx & Co. Incorporated. 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. In the case of any such separate firm for the
Selling Shareholders and such control persons of any Selling
Shareholders, such firm shall be designated in writing by the persons
named as attorneys-in-fact for the Selling Shareholders under the Powers
of Attorney. 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. 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.
(e) To the extent the indemnification provided for in Section 9(a),
9(b) or 9(c) is unavailable to an Indemnified Party or insufficient 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
Indemnifying Party or parties on the one hand and the Indemnified Party
or parties on the other hand from the offering of the Shares or (ii) if
the allocation provided by clause 9(e)(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 9(e)(i) above but also the
relative fault of the Indemnifying Party or parties on the one hand and
of the Indemnified Party or parties on the other hand 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 Sellers on the one
hand and the Underwriters on the other hand in connection with the
offering of the Shares shall be deemed to be in the same respective
proportions as the net proceeds from the offering of the Shares (before
deducting expenses) received by each Seller 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 Shares. The relative fault of the
Sellers on the one hand and the Underwriters on the other hand 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
Sellers or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Underwriters' respective obligations to
contribute pursuant to this Section 9 are several in proportion to the
respective number of Shares they have purchased hereunder, and not
joint.
(f) The Sellers and the Underwriters agree that it would not be just
or equitable if contribution pursuant to this Section 9 were determined
by pro rata allocation (even if the
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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 Section 9(e). 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 action or claim.
Notwithstanding the provisions of this Section 9, no Underwriter shall
be required to contribute any amount in excess of the amount by which
the total price at which the 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 Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 9 are not
exclusive and shall not limit any rights or remedies which may otherwise
be available to any Indemnified Party at law or in equity.
(g) The indemnity and contribution provisions contained in this
Section 9 and the representations, warranties and other statements of
the Company and the Selling Shareholders 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, any
Selling Shareholder or any person controlling any Selling Shareholder,
or the Company, its officers or directors or any person controlling the
Company and (iii) acceptance of and payment for any of the Shares.
10 TERMINATION. This Agreement shall be subject to termination by notice
given by you 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 NASD, the Chicago Board of
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 10(a)(i) through 10(a)(iv),
such event, singly or together with any other such event, makes it, in your
judgment, impracticable to market the Shares on the terms and in the manner
contemplated in the Prospectus.
11 EFFECTIVENESS; DEFAULTING UNDERWRITERS. This Agreement shall become
effective upon the execution and delivery hereof by the parties hereto.
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 Shares that
it has or they have agreed to purchase hereunder on such date, and the aggregate
number of 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 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 II 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
Shares which such defaulting Underwriter or Underwriters agreed but failed or
refused
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to purchase on such date; provided, however, that in no event shall the number
of Shares that any Underwriter has agreed to purchase pursuant to this Agreement
be increased pursuant to this Section 11 by an amount in excess of one-ninth of
such number of Shares without the written consent of such Underwriter. If, on
the Closing Date, any Underwriter or Underwriters shall fail or refuse to
purchase Firm Shares and the aggregate number of Firm Shares with respect to
which such default occurs is more than one-tenth of the aggregate number of Firm
Shares to be purchased, and arrangements satisfactory to you, the Company and
the Selling Shareholders for the purchase of such Firm Shares are not made
within 36 hours after such default, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter, the Company or the
Selling Shareholders. In any such case either you or the relevant Sellers shall
have the right to postpone the Closing Date, 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. If, on the Option Closing Date, any Underwriter or Underwriters shall
fail or refuse to purchase Additional Shares and the aggregate number of
Additional Shares with respect to which such default occurs is more than
one-tenth of the aggregate number of Additional Shares to be purchased, the
non-defaulting Underwriters shall have the option to (i) terminate their
obligation hereunder to purchase Additional Shares or (ii) purchase not less
than the number of Additional Shares that such non-defaulting Underwriters would
have been obligated to purchase in the absence of such default. 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 any Seller to comply with
the terms or to fulfill any of the conditions of this Agreement, or if for any
reason any Seller shall be unable to perform its obligations under this
Agreement, the Sellers 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.
12 COUNTERPARTS. 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.
13 APPLICABLE LAW. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
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14 HEADINGS. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
Very truly yours,
BROADCOM CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxxx, III
Title: Co-Chairman and Chief
Executive Officer
FOUNDERS
/s/ Xxxxx X. Xxxxxxxx
------------------------------------------
Xxxxx X. Xxxxxxxx, III
/s/ Xxxxx Xxxxxxx
------------------------------------------
Xxxxx Xxxxxxx
The Selling Shareholders
named in Schedule I hereto,
acting severally
By: /s/ Xxxxx Xxxxxxx
------------------------------------------
Attorney-in-Fact
Accepted as of the date hereof
Xxxxxx Xxxxxxx & Co. Incorporated
BT Alex. Xxxxx Incorporated
Credit Suisse First Boston Corporation
Xxxxxxxxx & Xxxxx LLC
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Acting severally on behalf of
themselves and the several
Underwriters named in
Schedule II hereto.
By: Xxxxxx Xxxxxxx & Co. Incorporated
By: /s/ Xxxx X. Xxxxxxxxxxx
----------------------------------
Name: Xxxx X. Xxxxxxxxxxx
Title: Principal
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SCHEDULE I
NUMBER OF
FIRM SHARES
SELLING SHAREHOLDER TO BE SOLD
------------------- -----------
Xxxxxx, Xxxx 22,195
Xxxxxx, Xxxxxxx 150
Xxxxxxxx, Xxxxx 2,250
Xxxxxx, Xxxxxx 37,168
Xxxxxxx, Xxxxx 25,650
Carlcom Investments, Inc. 9,749
Xxxxxxxxx, Xxxxxxx 22,195
Xxxxx, Xxxxx 500
Xxxxxxxx, Xxxxxxx & Xxxxxxx, Trustees of the Xxxxxxxx
Family Trust dated March 15, 1989 9,878
Xxxxxx, Xxxx 5,625
Xxxx, Xxxxx 15,000
Xxxxxxxxx, Xxxx 6,750
Xxxxxxxxxx, Xxxxxxx 2,500
Xxxxxx, Xxxxx X. & Xxxx X., as Trustees under
Trust Agreement dated May 26, 1982 45,000
Xxxxxxxxx, Xxxxxxx 30,000
Xxxxxxx, Xxxxxx Xxxxx 250
Xxxx, Xxxxxxxx 450
Xxxxxx, Xxxxxxxx 300
Glelter, Xxxx 4,000
Xxxx, Xxxxxxx 225
Xxxxxxx, Xxxxxx 375
Xxxxx, Ganalios 5,000
Hao, Yi-Hsien 2,000
Xxxxxx, Xxxxx 6,300
Xxxxx Xxxxxxx and Xxxxx Xxxx Xxxxxxx, Trustees of the
Samueli Family 1995 Trust 430,000
Xxxxx Xxxxxxxx Xxxxxxxx and Xxxxxx Xxxxxxxxx Xxxxxxxx,
Trustees of the Xxxxxxxx Family Trust d/o/e 11-2-94 430,000
Hollywood Venture Capital, Inc. 5,488
Xxxxx, Xxxxxx 500
Intel Corporation 630,580
Irell & Xxxxxxx 52,036
27
NUMBER OF
FIRM SHARES
SELLING SHAREHOLDER TO BE SOLD
------------------- -----------
Xxxxxx, Xxxxx 2,500
Judicrest Holdings, Inc. 4,390
Xxxxxxxxxxxx, Xxxxxx 5,000
Kwei, Xxxxxx X. 2,000
Law, Honmann Xxxxxx 3,000
Xxxxxxxx, X. Xxxxx & Xxxx X., Trustees of the
Xxxxxxxx Family Trust dated June 4, 1996 11,564
Xxx, Jind-Yeh (Xxxxxxx) 500
Xxx, Xxxx 1,200
Xx, Xxxxxxx (Xxxxxxx) 750
Xxxxxxxxxxxx, Xxx 90,000
Xxxxxx, Xxxx 3,281
XxxXxxxx, Xxxxxxxxx 10,000
Maine, Xxxxxxx 7,866
Mali, Jagan 10,000
Xxxxxx, Xxxxx 6,143
Xxxxxx, Xxxx 9,170
Xxxxxx, Xxxxx 33,000
Xxxxxx-XxXxxxx, Xxxxxxx 630
Xxxxxxx, Xxxxxx 2,250
Xxxxxx, Xxxxx 3,375
Moshar, Hooman 9,000
Xxxxxxxxx, Xxxxxxx, Trustee 9,878
Xxxx, Xxxxxx X. 22,195
Xxxxx, Xxxxx 2,000
Xxxxxxx, Xxxxxxx 3,567
X'Xxxxxx, Xxxxx 6,750
Xxxxxxx, Xxxxx 1,000
Xxxxxxxx, Xxx 8,115
Xxxxxxxx, Xxxx 6,586
Xxxx, Xxxxxx 500
Pharn, Art 1,000
Xxxxxx, Xxxxx 6,145
Reddy, Venkatesh 5,000
28
NUMBER OF
FIRM SHARES
SELLING SHAREHOLDER TO BE SOLD
------------------- -----------
Xxxx, Xxxx X. 19,800
Rossfield Investments Ltd. 4,390
Xxxxxx Enterprises 23,718
Xxxxxx, Xxxxxxx X. 40,000
Samueli, Xxxx X. and Xxxxxxx Xxxx 9,878
Scientific-Atlanta, Inc. 340,000
Xxxx, Xxxxxxxx Xxxxxxx 2,500
Xxxxxx, Xxxxxxx 562
Xxxxxxxxxx, Xxxxxx 3,293
Xxxxxxxx, Xxxxx 2,000
Xxxxxxx, Xxxx 320
Xx, Xxxx 2,000
Xxxxxx, Xxxxxxx 4,375
Xxxx, Xxxx X. 1,500
Xxxxxx, Xxxxxxxx 15,750
Wolfen, Xxxxxx X. 22,500
Xxx, Xxxxxxxx 2,000
Xxxxxx, Xxxxxxxxx Xxx 250
Xxxxxxx, Xxxxxx 22,195
---------
Total 2,607,500
=========
29
SCHEDULE II
NUMBER OF
FIRM SHARES
TO BE
UNDERWRITER PURCHASED
----------- -----------
Xxxxxx Xxxxxxx & Co. Incorporated............................... 600,000
BT Alex. Xxxxx Incorporated..................................... 600,000
Credit Suisse First Boston Corporation.......................... 600,000
Xxxxxxxxx & Xxxxx LLC........................................... 600,000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated.............. 600,000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated.............. 600,000
---------
Total............................................ 3,000,000
=========
30
SCHEDULE III
MAXIMUM
NUMBER OF
ADDITIONAL
SHARES
SELLING SHAREHOLDER TO BE SOLD
------------------- ----------
Xxxxxx, Xxxx 5,104
Xxxxxx, Xxxxxx 8,547
Carlcom Investments, Inc. 2,242
Xxxxxxxxx, Xxxxxxx 5,104
Xxxxxxxx, Xxxxxxx & Xxxxxxx, Trustees of the
Xxxxxxxx Family Trust dated March 15, 1989 2,272
Xxxxx Xxxxxxx and Xxxxx Xxxx Xxxxxxx, Trustees of
the Samueli Family 1995 Trust 60,000
Xxxxx Xxxxxxxx Xxxxxxxx and Xxxxxx Xxxxxxxxx Xxxxxxxx,
Trustees of the Xxxxxxxx Family Trust d/o/e 11-2-94 60,000
Hollywood Venture Capital, Inc. 1,262
Intel Corporation 119,420
Irell & Xxxxxxx 11,965
Judicrest Holdings, Inc. 1,010
Xxxxxxxx, X. Xxxxx & Xxxx X., Trustees of the
Xxxxxxxx Family Trust dated June 4, 1996 2,658
Maine, Xxxxxxx 1,809
Xxxxxx, Xxxxx 1,412
Xxxxxx, Xxxx 2,109
Xxxxxxxxx, Xxxxxxx, Trustee 2,272
Xxxx, Xxxxxx X. 5,104
Xxxxxxx, Xxxxxxx 820
Xxxxxxxx, Xxx 1,866
Xxxxxxxx, Xxxx 1,514
Xxxxxx, Xxxxx 1,413
Rossfield Investments Ltd. 1,010
Xxxxxx Enterprises 5,454
Samueli, Xxxx X. and Xxxxxxx Xxxx 2,272
Scientific-Atlanta, Inc. 60,000
Xxxxxxxxxx, Xxxxxx 757
Xxxxxxx, Xxxxxx 5,104
-------
Total.................................................... 372,500
=======
