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EXHIBIT 1.1
METRICOM, INC.
METRICOM FINANCE, INC.
UNDERWRITING AGREEMENT
February 1, 2000
TO: XXXXXX BROTHERS INC.
XXXXXXX XXXXX BARNEY INC.
CHASE SECURITIES INC.
XXXXXXXXX & XXXXX LLC
X.X. XXXXXX SECURITIES INC.
MERRILL, LYNCH, XXXXXX, XXXXXX & XXXXX INCORPORATED
As Representatives of the Several Underwriters
C/X XXXXXX BROTHERS INC.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Metricom, Inc., a Delaware corporation (the "Company"), and
Metricom Finance, Inc., a Delaware corporation ("Finance Sub" and, together with
the Company, the "Issuers"), propose to issue and sell from time to time, either
together or separately, certain of their (i) senior debt securities (the "Senior
Notes"), (ii) subordinated debt securities (the "Subordinated Notes," and
together with the Senior Notes, the "Debt Securities"), (iii) shares of the
Company's common stock, par value $.001 per share (the "Common Stock"), and/or
(iv) warrants to purchase shares of Common Stock (the "Warrants") in one or more
offerings on terms determined at the time of sale and set forth in a term
agreement in the form of Exhibit A hereto (the "Terms Agreement"). The Debt
Securities may be convertible into shares of Common Stock as set forth in the
applicable Terms Agreement relating thereto.
The Senior Notes are to be issued under a Senior Indenture,
dated as of December 29, 1999, to be supplemented by one or more supplemental
indentures dated subsequent to the date hereof, and may be amended and further
supplemented (the "Senior Supplemental Indenture" and, together with the Senior
Indenture, the "Senior Indenture"), between the Issuers and Bank One Trust
Company, N.A., as trustee (the "Senior Trustee"). The Subordinated Notes are to
be issued under a Subordinated Indenture dated as of December 29, 1999, to be
supplemented by one or more supplemental indentures dated subsequent to the date
hereof, and may be amended or further supplemented (the "Supplemental
Subordinated Indenture" and, together with the Subordinated Indenture, the
"Subordinated Indenture"), between the Issuers and Bank One Trust Company, N.A.,
as trustee (the "Subordinated Trustee," and together with the Senior Trustee,
the "Trustees"). The Senior Indenture and the Subordinated Indenture are
collectively referred to herein as the "Indentures." The Senior Notes and the
Subordinated Notes may have varying designations, maturities, rates and times of
payment of interest, if any, selling prices, redemption terms, if any, exchange
terms, if any, conversion terms (in the case of Subordinated Notes) and other
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specific terms as set forth in the applicable Terms Agreement relating thereto.
The Senior Notes and the Subordinated Notes may be issued alone or together with
Warrants as units with such terms as set forth in the applicable Terms Agreement
relating thereto.
The Warrants are to be issued under a Warrant Agreement, to be
dated subsequent to the date hereof (the "Warrant Agreement"), between the
Company and the warrant agent named therein (the "Warrant Agent"). The Warrants
may be issued with respect to varying numbers of shares of Common Stock and with
varying exercise prices, antidilution provisions and other specific terms as set
forth in the applicable Terms Agreement relating thereto. Warrants may be issued
alone or together with the Debt Securities as units with such terms as set forth
in the applicable Terms Agreement relating thereto.
The Debt Securities, Warrants and Common Stock, to be issued and
sold as specified in the applicable Terms Agreement, shall collectively be
referred to herein as the "Offered Securities." As used herein, unless the
context otherwise requires, the term "Underwriters" shall mean the firm or firms
specified as Underwriter or Underwriters in the applicable Terms Agreement
relating to the Offered Securities and the term "you" shall mean the Underwriter
or Underwriters, if no underwriting syndicate is purchasing the Offered
Securities, or the representative or representatives of the Underwriters, if an
underwriting syndicate is purchasing the Offered Securities, as specified in the
applicable Terms Agreement.
Whenever the Issuers or the Company, as applicable, determine to
make an offering of Offered Securities, the Issuers or the Company, as
applicable, will enter into a Terms Agreement providing for the sale of the
applicable Offered Securities to, and the purchase and offering thereof by, the
Underwriters. The Terms Agreement relating to the Offered Securities shall
specify the type of Offered Securities to be issued, the names of the
Underwriters participating in such offering (subject to substitution as provided
in Section 8 hereof), the principal amount or number of Offered Securities that
each such Underwriter severally agrees to purchase, the price at which the
Offered Securities are to be purchased by the Underwriters from the Issuers or
the Company, as applicable, the public offering price, the time and place of
delivery and payment and other specific terms. In addition, each Terms Agreement
shall specify whether the Issuers or the Company, as applicable, have agreed to
grant to the Underwriters an option to purchase additional Offered Securities to
cover over-allotments, if any, and the amount of Offered Securities subject to
such option (the "Option Securities"). As used herein, the term "Offered
Securities" shall include the Option Securities, if any. The Terms Agreement may
take the form of an exchange of any standard form of written telecommunication
between you and the Issuers or the Company, as applicable. Each offering of
Offered Securities will be governed by this Agreement, as supplemented by the
applicable Terms Agreement, and this Agreement and such Terms Agreement shall
inure to the benefit of and be binding upon the Issuers or the Company, as
applicable, and each Underwriter participating in the offering of such Offered
Securities, except as set forth in Section 12 hereof.
The Issuers have prepared and filed with the Securities and
Exchange Commission (the "Commission") registration statements on Form S-3 (File
Nos. 333-91359
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and 333-95669), each including a prospectus, collectively relating to the
Offered Securities and the offering thereof from time to time in accordance with
Rule 415 under the Securities Act of 1933, as amended (the "Securities Act").
Such registration statements have been declared effective by the Commission. As
provided in Section 4(a), a final prospectus supplement for each applicable
prospectus reflecting the terms of the Offered Securities covered thereby, the
terms of the offering thereof and the other matters set forth therein will be
prepared and filed pursuant to Rule 424 under the Securities Act. Each final
prospectus supplement or prospectus supplements, in the form first filed after
the date of the applicable Terms Agreement pursuant to Rule 424, is herein
referred to as a "Prospectus Supplement." Such registration statements, as
amended at the date of the applicable Terms Agreement, including the exhibits
thereto and the documents incorporated by reference therein, are herein called
the "Registration Statements," each being called a "Registration Statement,"
which also means such registration statements as amended at the Effective Time
(as defined below). The prospectuses included in and relating to all offerings
of securities under the Registration Statements, as supplemented by any
Prospectus Supplement, are herein called the "Prospectuses", except that, if
such prospectuses are amended or supplemented on or prior to the date on which
any Prospectus Supplement is first filed pursuant to Rule 424, the term
"Prospectus" shall refer to the prospectus as so amended or supplemented and as
supplemented by any Prospectus Supplement, in either case including any
documents filed by the Issuers with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), that are incorporated by
reference therein. As used herein, "Effective Time" means the date and the time
as of which the Registration Statements, or the most recent post-effective
amendment thereto, if any, was declared effective by the Commission; "Effective
Date" means the date of the Effective Time; "Preliminary Prospectus Supplement"
means each prospectus supplement included in such registration statement, or
amendments thereof, after the Registration Statement became effective under the
Securities Act but containing a "Subject to Completion" legend comparable to
that contained in paragraph 10 of Item 501 under Regulation S-K of the Rules and
Regulations.
1. Representations, Warranties and Agreements of the
Issuers. The Issuers represent, warrant and agree that:
(a) The Issuers meet the requirements for use of Form
S-3 under the Securities Act and the rules and regulations of
the Commission thereunder (the "Rules and Regulations"). The
Registration Statement (File No. 333-91359) was declared
effective by the Commission on December 30, 1999 and the
Registration Statement (File No. 333-95669) was declared
effective on February 1, 2000.
(b) Each Registration Statement and any amendments
thereto conformed when it became effective, and each
Prospectus Supplement and any further amendments or
supplements to the Registration Statements or any Prospectus
Supplement will when they were or are filed with the
Commission, as the case may be, conform in all respects to the
requirements of the Securities Act and the Rules and
Regulations and did not, as of the applicable effective date
(as to the Registration Statement and any amendment thereto)
and as of the applicable filing date (as to each Prospectus
Supplement and any
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supplement thereto) contain an untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein (in the
case of any Prospectus Supplement, in light of the
circumstances under which they were made) not misleading;
provided, however, that no representation or warranty is made
as to information contained in or omitted from a Registration
Statement or any Prospectus Supplement in reliance upon and in
conformity with written information furnished to the Issuers
through any Underwriter specifically for inclusion therein.
(c) Each Registration Statement and any amendment
thereto conformed, and each Prospectus Supplement and any
further amendments or supplements to the Registration
Statements or any Prospectus Supplement will, when they were
or are filed with the Commission, as the case may be, conform
in all respects to the requirements of the Trust Indenture Act
of 1939, as amended (the "TIA") and the rules and regulations
thereunder. At each Delivery Date, the applicable Indenture,
if any, will comply in all material respects with the
requirements of the TIA and the rules and regulations
thereunder.
(d) The documents incorporated by reference or deemed to
be incorporated in any Prospectus or Prospectus Supplement
pursuant to Item 12 of Registration Statements on Form S-3
under the Securities Act, at the time they were filed with the
Commission, complied or will comply in all material respects
with the requirements of the Exchange Act, and the rules and
regulations of the Commission thereunder (the "Exchange Act
Regulations") and, when read together and with the other
information in the Prospectus, as of the Effective Date of the
Registration Statement and any amendment thereto, did not and
will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading.
(e) The Issuers have been duly incorporated and are
validly existing as corporations in good standing under the
laws of their respective jurisdictions of incorporation, are
duly qualified to do business and are in good standing as
foreign corporations in each jurisdiction in which their
respective ownership or lease of property or the conduct of
their respective businesses requires such qualification,
except where the failure to be so qualified would not have a
material adverse effect on the business, financial condition
or results of operations of the Issuers, and have all power
and authority necessary to own or hold their respective
properties and to conduct the businesses in which they are
engaged; and none of the subsidiaries of the Company is a
"significant subsidiary," as such term is defined in Rule 405
of the Rules and Regulations.
(f) At each Delivery Date (as defined in Section 3), the
Issuers or the Company, as applicable, will have an authorized
capitalization as set forth in,
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or included in, the applicable Prospectus Supplement, and all
of the issued shares of capital stock of the Issuers or the
Company, as applicable, have been duly and validly authorized
and issued, are fully paid and non-assessable and conform in
all material respects to the description thereof contained in
the Registration Statement and Prospectus; and all of the
issued shares of capital stock of each subsidiary of the
Issuers or the Company, as applicable, have been duly and
validly authorized and issued and are fully paid and
non-assessable and are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities
or claims.
(g) If the Offered Securities include Common Stock, such
shares of Common Stock to be issued and sold by the Issuers or
the Company, as applicable, to the Underwriters have been duly
and validly authorized and, when issued and delivered against
payment therefor as provided herein and in the applicable
Terms Agreement, will be duly and validly issued, fully paid
and non-assessable and the terms of such Common Stock conform
in all material respects to the description thereof contained
in each Prospectus Supplement or contained in or incorporated
by reference in the Prospectus.
(h) This Agreement has been duly authorized, executed
and delivered by the Issuers or the Company, as applicable,
and upon execution and delivery of each Terms Agreement by the
Issuers or the Company, as applicable, such Terms Agreement
shall have been duly authorized, executed and delivered by the
Issuers or the Company, as applicable.
(i) The execution, delivery and performance of this
Agreement and each Terms Agreement by the Issuers or the
Company, as applicable, and the consummation of the
transactions contemplated hereby and thereby will not conflict
with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Issuers or the Company, as applicable,
or any of its subsidiaries is a party or by which the Issuers
or the Company, as applicable, or any of their subsidiaries is
bound or to which any of the property or assets of the Issuers
or the Company, as applicable, or any of their subsidiaries is
subject, except where such a breach, violation or default
would not have a material adverse effect on the business,
financial condition or results of operations of the Issuers,
nor will such actions result in any violation of the
provisions of the charter or by-laws of the Issuers or the
Company, as applicable, or any of their subsidiaries, nor will
such actions result in a violation of any statute or any
order, rule or regulation of any court or governmental agency
or body having jurisdiction over the Issuers or Company, as
applicable, or any of their subsidiaries or any of their
properties or assets, except where such a violation would not
have a material adverse effect on the business, financial
condition or results of operations of the Issuers; and except
for the registration of the Offered Securities under the
Securities Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under the
Exchange Act and applicable state
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or foreign securities laws in connection with the purchase and
distribution of the Offered Securities by the Underwriters, no
consent, approval, authorization or order of, or filing or
registration with, any such court or governmental agency or
body is required for the execution, delivery and performance
of this Agreement or the applicable Terms Agreement by the
Issuers or the Company, as applicable, and the consummation of
the transactions contemplated hereby and thereby.
(j) There are no contracts, agreements or understandings
between the Issuers or the Company, as applicable, and any
person granting such person the right (other than rights which
have been waived or satisfied) to require the Issuers or the
Company, as applicable, to file a registration statement under
the Securities Act with respect to any securities of the
Issuers or the Company, as applicable owned or to be owned by
such person or to require the Issuers or the Company, as
applicable, to include such securities in the securities
registered pursuant to the Registration Statement or in any
securities being registered pursuant to any other registration
statement filed by the Issuers or the Company, as applicable,
under the Securities Act.
(k) Except as described in each Prospectus Supplement,
the Issuers or the Company, as applicable, have not and will
not have as of any Delivery Date sold or issued any shares of
Common Stock or Debt Securities during the six-month period
preceding the date of such Prospectus Supplement, including
any sales pursuant to Rule 144A under, or Regulations D or S
of, the Securities Act, other than shares issued pursuant to
employee benefit plans, qualified stock options plans or other
employee compensation plans or pursuant to outstanding
options, rights or warrants.
(l) None of the Issuers or the Company, as applicable,
or any of their subsidiaries has sustained, since the date of
the latest financial statements included or incorporated by
reference in each Prospectus or subsequent Prospectus
Supplement, any material loss or interference with its
business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, otherwise
than as set forth or contemplated in each Prospectus
Supplement; and, since such date, there has not been any
change in the capital stock or long-term debt of the Issuers
or the Company, as applicable, or any of their subsidiaries or
any material adverse change, or any development involving a
prospective material adverse change, in or affecting the
general affairs, management, financial position, stockholders'
equity or results of operations of the Issuers or the Company,
as applicable, and their subsidiaries, otherwise than as set
forth or contemplated in the Prospectus or each Prospectus
Supplement.
(m) The historical and pro forma financial statements
(including the related notes and supporting schedules) filed
as part of the Registration Statement or included in, or
incorporated by reference in, each Prospectus or
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subsequent Prospectus Supplement present fairly the financial
condition and results of operations of the entities purported
to be shown thereby, at the dates and for the periods
indicated, and have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis
throughout the periods involved. The pro forma financial
statements have been prepared on a basis consistent with such
historical statements of the Issuers or the Company, as
applicable, except for the pro forma adjustments specified
therein, and give effect to assumptions made on a reasonable
basis and in good faith and present fairly the historical and
proposed transactions contemplated by each Prospectus
Supplement, each applicable Terms Agreement and this
Agreement. The other financial and statistical information and
data included in each Prospectus or subsequent Prospectus
Supplement, historical and pro forma, have been derived from
the financial records of the Issuers or the Company (or its
predecessors), as applicable, and, in all material respects,
have been prepared on a basis consistent with such books and
records of the Issuers or the Company, as applicable, (or its
predecessor).
(n) Xxxxxx Xxxxxxxx LLP, who have certified certain
financial statements of the Company, whose report is
incorporated by reference in the Registration Statement and
who have delivered the initial letter referred to in Section
6(f) hereof, are independent public accountants as required by
the Securities Act and the Rules and Regulations.
(o) The Issuers or the Company, as applicable, and each
of their subsidiaries have good and marketable title in fee
simple to all real property and good and marketable title to
all personal property owned by them, in each case free and
clear of all liens, encumbrances and defects except such as do
not materially affect the value of such property and do not
materially interfere with the use made and proposed to be made
of such property by the Issuers or the Company, as applicable,
and their subsidiaries; and all real property and buildings
held under lease by the Issuers or the Company, as applicable,
and their subsidiaries are held by them under valid,
subsisting and enforceable leases, with such exceptions as are
not material and do not interfere with the use made and
proposed to be made of such property and buildings by the
Issuers or the Company, as applicable, and their subsidiaries.
(p) The Issuers or the Company, as applicable and each
of their subsidiaries carry, or are covered by, insurance in
such amounts and covering such risks as is adequate for the
conduct of their respective businesses and the value of their
respective properties and, to the best knowledge of the
Issuers or the Company, as applicable, as is customary for
companies engaged in similar businesses in similar industries.
(q) The Issuers or the Company, as applicable, and each
of their subsidiaries own or possess adequate rights to use
all material patents, patent applications, trademarks, service
marks, trade names, trademark registrations,
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service xxxx registrations, copyrights and licenses necessary
for the conduct of their respective businesses and have no
reason to believe that the conduct of their respective
businesses will conflict with, and have not received any
notice of any claim of conflict with, any such rights of
others.
(r) There are no legal or governmental proceedings
pending to which the Issuers or the Company, as applicable, or
any of their subsidiaries is a party or of which any property
or assets of the Issuers or the Company, as applicable, or any
of their subsidiaries is the subject which, if determined
adversely to the Issuers or the Company, as applicable, or any
of their subsidiaries, might have a material adverse effect on
the consolidated financial position, stockholders' equity,
results of operations, business or prospects of the Company,
and its subsidiaries; and to the best of the Company's
knowledge, no such proceedings are threatened or contemplated
by governmental authorities or threatened by others.
(s) There are no contracts or other documents which are
required by the Rules and Regulations to be described in each
Prospectus Supplement or filed as exhibits to the Registration
Statement by the Securities Act or by the Rules and
Regulations which have not been described in such Prospectus
Supplement or filed as exhibits to the Registration Statement.
(t) No relationship, direct or indirect, exists between
or among the Issuers or the Company. as applicable, on the one
hand, and the directors, officers, stockholders, customers or
suppliers of the Issuers or the Company. as applicable, on the
other hand, which is required by the Rules and Regulations to
be described in each Prospectus Supplement which is not so
described.
(u) No labor disturbance by the employees of the Issuers
or the Company, as applicable, exists or, to the knowledge of
the Issuers or the Company, as applicable, is imminent which
would reasonably be expected to have a material adverse effect
on the consolidated financial position, stockholders' equity,
results of operations, business or prospects of the Company
and its subsidiaries.
(v) The Issuers or the Company, as applicable, have
filed all federal, state and local income and franchise tax
returns required to be filed through the date hereof and has
paid all taxes due thereon, and no tax deficiency has been
determined adversely to the Issuers or the Company, as
applicable, or any of their subsidiaries which has had (nor do
the Issuers or the Company, as applicable, have any knowledge
of any tax deficiency which, if determined adversely to the
Issuers or the Company, as applicable, or any of their
subsidiaries, would reasonably be expected to have a material
adverse effect on the consolidated financial position,
stockholders' equity, results of operations, business or
prospects of the Company and its subsidiaries.
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(w) Since the date as of which information is given in
each Prospectus Supplement through the date hereof, and except
as may otherwise be disclosed in each Prospectus Supplement,
the Issuers or the Company, as applicable, have not (i) issued
or granted any securities other than options or rights granted
in the ordinary course of business under any existing option
plans or stock purchase plans or stock issued upon the
exercise or conversion of outstanding options, rights or
warrants, (ii) incurred any liability or obligation, direct or
contingent, other than liabilities and obligations which were
incurred in the ordinary course of business, (iii) entered
into any transaction not in the ordinary course of business or
(iv) declared or paid any dividend on its capital stock, other
than dividends paid on the Company's Series A1 and A2
Preferred Stock.
(x) The Issuers or the Company, as applicable, (i) make
and keep accurate books and records and (ii) maintain internal
accounting controls which provide reasonable assurance that
(A) transactions are executed in accordance with management's
authorization, (B) transactions are recorded as necessary to
permit preparation of its financial statements and to maintain
accountability for its assets, (C) access to its assets is
permitted only in accordance with management's authorization
and (D) the reported accountability for its assets is compared
with existing assets at reasonable intervals.
(y) None of the Issuers or the Company, as applicable,
(i) is in violation of its charter or by-laws, (ii) is in
default, and no event has occurred which, with notice or lapse
of time or both, would constitute such a default, in the due
performance or observance of any term, covenant or condition
contained in any material indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which it is
a party or by which it is bound or to which any of its
properties or assets is subject, except where such a default
would not have a material adverse effect on the business,
financial condition or results of operations of the Issuers,
or (iii) is in violation of any law, ordinance, governmental
rule, regulation or court decree to which it or its property
or assets may be subject or has failed to obtain any material
license, permit, certificate, franchise or other governmental
authorization or permit necessary to the ownership of its
property or to the conduct of its business, except where such
a violation would not have a material adverse effect on the
business, financial condition or results of operations of the
Issuers.
(z) None of the Issuers or the Company, as applicable,
nor to the best knowledge of the Issuers or the Company, as
applicable, any of their subsidiaries, nor any director,
officer, agent, employee or other person associated with or
acting on behalf of the Issuers or the Company, as applicable,
has used any corporate funds for any unlawful contribution,
gift, entertainment or other unlawful expense relating to
political activity, made any direct or indirect unlawful
payment to any foreign or domestic government official or
employee from corporate funds; violated or is in
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violation of any provision of the Foreign Corrupt Practices
Act of 1977, or made any bribe, rebate, payoff, influence
payment, kickback or other unlawful payment.
(aa) None of the Issuers or the Company, as applicable,
nor any of their subsidiaries, or will be after the offering
and use of proceeds therefrom, an "investment company" within
the meaning of such term under the Investment Company Act of
1940 and the rules and regulations of the Commission
thereunder.
(bb) If the Offered Securities include Debt Securities,
such Debt Securities shall, on the date of the Terms Agreement
relating to such Offered Securities, be duly authorized for
issuance and sale pursuant to this Agreement and, when such
Debt Securities are duly executed, authenticated and delivered
pursuant to the provisions of this Agreement and the
applicable Indenture against payment of the consideration
therefor in accordance with this Agreement and the applicable
Terms Agreement, such Debt Securities will be valid and
legally binding obligations of the Issuers or the Company, as
applicable, enforceable in accordance with their terms, except
as enforceability thereof may be limited by bankruptcy,
insolvency or other laws relating to or affecting enforcement
of creditors' rights or by general equity principles and will
be entitled to the benefits of the applicable Indenture; and
the Indentures conform in all material respects to all
statements relating thereto contained in each Prospectus
Supplement; and, if the Offered Securities include
Subordinated Notes that are convertible into shares of Common
Stock ("Convertible Debt Securities"), then such Debt
Securities shall be convertible into shares of Common Stock in
accordance with their terms and the terms of a Convertible
Debt Securities Prospectus Supplement (a "Convertible
Prospectus Supplement").
(cc) If the Offered Securities include Debt Securities,
the applicable Indenture and any supplement thereto has been
duly authorized by the Issuers or the Company, as applicable,
and, when duly executed and delivered by the Issuers or the
Company, as applicable, and the Trustee, will constitute a
valid and binding obligation of the Issuers or the Company, as
applicable, enforceable against the Issuers or the Company, as
applicable, in accordance with its terms, except as
enforceability thereof may be limited by bankruptcy,
insolvency or other laws relating to or affecting enforcement
of creditors' rights or by general equity principles; and the
summary descriptions of the applicable Indenture set forth in
each Prospectus Supplement relating to such Debt Securities
conforms in all material respects to the provisions contained
in the applicable Indenture.
(dd) If the Offered Securities include Warrants, the
applicable Warrant Agreement and any supplement thereto has
been duly authorized by the Company and, when duly executed
and delivered by the Company and the Warrant Agent, will
constitute a valid and binding obligation of the Company
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enforceable against the Company in accordance with its terms,
except as enforceability thereof may be limited by bankruptcy,
insolvency or other laws relating to or affecting enforcement
of creditors' rights or by general equity principles; and the
summary descriptions of the applicable Warrant Agreement set
forth in each Prospectus Supplement relating to such Warrants
conforms in all material respects to the provisions contained
in the applicable Warrant Agreement.
(ee) Except for such matters as would not have a
material adverse effect on the Company: (i) no written notice,
request for information, order, complaint or penalty has been
received by the Company relating to any Environmental Law, and
there are no judicial, administrative or other actions, suits
or proceedings pending, nor to the knowledge of the Company,
threatened against the Company which allege a violation of any
Environmental Law; (ii) (a) the company and each of its
subsidiaries have all environmental permits necessary for
their operations to comply with all applicable Environmental
Laws in all material respects and are in substantial
compliance with the terms of such permits and (b) there are no
legal proceedings pending, nor to the knowledge of the
Company, threatened to revoke such environmental permits; and
(iii) there has been no written environmental audit conducted
within the past five years by the Company or any of its
subsidiaries of any property currently owned or leased by the
Company or any of its subsidiaries.
"ENVIRONMENTAL LAW" means any material federal, state or
local (including common law), statute, code, ordinance, rule
or regulation, relating to the environment, natural resources,
or the effect of the environment on public or employee health
and safety and includes, but is not limited to, the
Comprehensive Environmental Response, Compensation and
Liability Act ("CERCLA"), 42 U.S.C. Section 9601 et seq., the
Hazardous Materials Transportation Act, 49 U.S.C. Section 1801
et seq., the Resource Conservation and Recovery Act ("RCRA"),
42 U.S.C. Section 6901 et seq., the Clean Water Act, 33 U.S.C.
Section 1251 et seq., the Clean Air Act, 33 U.S.C. Section
2601 et seq., the Toxic Substances Control Act, 15 U.S.C.
Section 2601 et seq., the Federal Insecticide, Fungicide, and
Rodenticide Act, 7 U.S.C. Section 136 et seq., the Oil
Pollution Act of 1990, 33 U.S.C.Section 2701 et seq., as such
laws have been amended or supplemented on or prior to the
effective date of the Registration Statement, and the
regulations promulgated pursuant thereto on or prior to the
Registration Statement, and all analogous state or local
statutes.
2. Purchase of the Offered Securities by the Underwriters. The
several commitments of the Underwriters to purchase Offered Securities pursuant
to any Terms Agreement shall be deemed to have been made on the basis of the
representations and warranties herein contained and shall be subject to the
terms and conditions set forth herein.
In addition, on the basis of the representations and warranties
herein and subject to the terms and contained herein set forth, the Issuers or
the Company, as applicable
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may grant, if so provided in the Terms Agreement applicable to any Offered
Securities, an option to the Underwriters named in such Terms Agreement,
severally and not jointly, to purchase up to the amount of Option Securities set
forth therein at the same price per security as is applicable to the Offered
Securities. Such option, if granted, may be exercised in whole or in part from
time to time for the purpose of covering over-allotments as provided in Section
4 hereof. Option Securities shall be purchased severally for the account of the
Underwriters in proportion to the number of shares of Offered Securities set
opposite the name of such Underwriters in the Terms Agreement applicable to the
Offered Securities. The respective purchase obligations of each Underwriter with
respect to any Option Securities that are Common Stock shall be adjusted by the
Underwriters so that no Underwriter shall be obligated to purchase such Common
Stock other than in 100 share amounts.
Neither the Issuers nor the Company, as applicable, shall be
obligated to deliver any of the Offered Securities to be delivered on any
Delivery Date (as hereinafter defined), as the case may be, except upon payment
for all the Offered Securities to be purchased on such Delivery Date as provided
herein.
3. Delivery of and Payment for the Securities. (a) Delivery of
and payment for the Offered Securities shall be made at the office of Weil,
Gotshal & Xxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 A.M.,
New York City time, on the third full business day (unless postponed in
accordance with the provisions of this Agreement) following the date of the
Terms Agreement or at such other date or place as shall be agreed upon by you
and the Issuers or the Company, as applicable, in the applicable Terms
Agreement. This date and time are sometimes referred to as the "First Delivery
Date." On the Delivery Date, the Issuers or the Company, as applicable, shall
deliver or cause to be delivered certificates representing the Offered
Securities to the Underwriters for the account of each Underwriter named in the
Terms Agreement applicable to the Offered Securities against payment to or upon
the order of the Issuers or the Company, as applicable, of the purchase price by
wire transfer in immediately available funds. Time shall be of the essence, and
delivery at the time and place specified pursuant to the applicable Terms
Agreement is a further condition of the obligation of each Underwriter
thereunder. Upon delivery, the Offered Securities shall be registered in such
names and in such denominations as the Underwriters shall request in writing not
less than two full business days prior to the First Delivery Date.
(b) Any option granted in Section 2 will expire 30 days after the
date of the applicable Terms Agreement and may be exercised in whole or in part
from time to time by written notice being given to the Issuers, or the Company,
as applicable, by the Underwriters. Such notice shall set forth the aggregate
number of Option Securities as to which the option is being exercised, the names
in which the Option Securities are to be registered, the denominations in which
the Option Securities are to be issued and the date and time, as determined by
the Underwriters, when the Option Securities are to be delivered; provided,
however, that this date and time shall not be earlier than the First Delivery
Date nor earlier than the second business day after the date on which the option
shall have been exercised nor later than the fifth business day after the date
on which the option shall have been exercised. The date and time the Option
Securities are delivered are sometimes referred to as a "Second
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Delivery Date" and the First Delivery Date and any Second Delivery Date are
sometimes each referred to as a "Delivery Date."
(c) If applicable, delivery of and payment for the Option Securities
shall be made at the place specified in the first sentence of Section 3(a) (or
at such other place as shall be determined by agreement between the Underwriters
and the Issuers or the Company, as applicable) at 10:00 A.M., New York City
time, on such Second Delivery Date. On such Second Delivery Date, the Issuers or
the Company, as applicable, shall deliver or cause to be delivered the
certificates representing the Option Securities to the Underwriters for the
account of each Underwriter against payment to or upon the order of the Issuers
or the Company, as applicable, of the purchase price by wire transfer in
immediately available funds. Time shall be of the essence, and delivery at the
time and place specified pursuant to the applicable Terms Agreement shall be a
further condition of the obligation of each Underwriter thereunder. Upon
delivery, the Option Securities shall be registered in such names and in such
denominations as the Underwriters shall request in the aforesaid written notice.
4. Further Agreements of the Issuers. The Issuers or the Company,
as applicable, agree:
(a) To prepare a Prospectus Supplement in a form approved by
the Underwriters and, not later than the Commission's close of
business on the second business day following the execution and
delivery of each Terms Agreement or, if applicable, such earlier
time as may be required by Rule 430A(a)(3) under the Securities Act,
to file a Prospectus Supplement pursuant to Rule 424(b) under the
Securities Act; to make no further amendment to the Registration
Statement (including any post-effective amendment) or any amendment
or supplement to the Prospectus except as permitted herein and by
the applicable Terms Agreement; to advise the Underwriters ,
promptly after receiving notice thereof, of the time when any
supplement to each Prospectus Supplement has been filed and to
furnish such Underwriters with copies thereof; to advise such
Underwriters, promptly after receiving notice thereof, of the
issuance by the Commission of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus
Supplement or any Prospectus Supplement, of the suspension of the
qualification of the Offered Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the
amending or supplementing of the Registration Statement or any
Prospectus Supplement or for additional information; and, in the
event of the issuance of any stop order or of any order preventing
or suspending the use of any Preliminary Prospectus Supplement or
any Prospectus Supplement or suspending any such qualification, to
use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Underwriters and to
counsel for the Underwriters a signed copy of the Registration
Statement as originally
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filed with the Commission, and each amendment thereto filed with the
Commission, including all consents and exhibits filed therewith;
(c) To deliver promptly to the Underwriters such number of the
following documents as the Underwriters shall reasonably request:
(i) conformed copies of the Registration Statement as originally
filed with the Commission and each amendment thereto (in each case
excluding exhibits other than this Agreement and the computation of
per share earnings) and (ii) each Preliminary Prospectus Supplement,
each Prospectus Supplement and any supplemented Prospectus
Supplement and, if the delivery of a Prospectus Supplement is
required at any time after the Effective Time in connection with the
offering or sale of the Offered Securities or any other securities
relating thereto and if at such time any events shall have occurred
as a result of which any Prospectus Supplement as then supplemented
would include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, when such Prospectus Supplement is delivered, not misleading,
or, if for any other reason it shall be necessary to supplement any
Prospectus Supplement in order to comply with the Securities Act, to
notify the Underwriters and, upon their request, to prepare and
furnish without charge to each Underwriter and to any dealer in
securities as many copies as the Underwriters may from time to time
reasonably request of a supplemented Prospectus Supplement which
will correct such statement or omission or effect such compliance.
(d) To file promptly with the Commission any amendment to the
Registration Statement or any supplement to each Prospectus
Supplement that may, in the reasonable judgment of the Issuers or
the Company, as applicable, or the Underwriters, be required by the
Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the
Registration Statement or supplement to each Prospectus Supplement
or any Prospectus Supplement pursuant to Rule 424 of the Rules and
Regulations, to furnish a copy thereof to the Underwriters and
counsel for the Underwriters and obtain the consent of the
Underwriters to the filing;
(f) As soon as practicable (it being understood that the
Issuers or the Company, as applicable, shall have until at least 410
or, if the fourth quarter following the fiscal quarter that includes
the applicable effective date is the last fiscal quarter of the
fiscal year, 455 days after the end of the current fiscal quarter),
to make generally available to the Company's security holders, as
applicable, and to deliver to the Underwriters, an earnings
statement of the Issuers or the Company, as applicable, and their
subsidiaries (which need not be audited) complying with Section
11(a) of the Securities Act and the Rules and Regulations
(including, at the option of the Issuers or the Company, as
applicable, Rule 158);
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(g) For a period of five years following the Effective Date,
to furnish to the Underwriters copies of all materials furnished by
the Issuers or the Company, as applicable, to its securityholders
and all public reports and all reports and financial statements
furnished by the Company to the Nasdaq Stock Market or the principal
national securities exchange upon which the Common Stock may be
listed pursuant to requirements of or agreements with Nasdaq or such
exchange or to the Commission pursuant to the Exchange Act or any
rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the
Underwriters may reasonably request to qualify the Offered
Securities for offering and sale under the securities laws of such
jurisdictions as the Underwriters may request and to comply with
such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to
complete the distribution of the Offered Securities; provided that
in connection therewith the Issuers or the Company, as applicable,
shall not be required to qualify as a foreign corporation or to file
a general consent to service of process in any jurisdiction;
(i) For a period specified in the applicable Terms Agreement
under the caption "Lock-up Provisions," commencing on the date of
such Terms Agreement, not to, directly or indirectly, (1) offer for
sale, sell, contract to sell, pledge, hedge or otherwise dispose,
directly or indirectly, of any shares of Common Stock, Debt
Securities or securities convertible into or exchangeable for Common
Stock (other than the Offered Securities and shares issued pursuant
to employee benefit plans, qualified stock option plans or other
employee, director or consultant compensation plans existing on the
date hereof or pursuant to currently outstanding options, warrants
or rights), or sell or grant options, rights or warrants with
respect to any shares of Common Stock, Debt Securities or securities
convertible into or exchangeable for Common Stock (other than the
grant of options or rights pursuant to option plans or stock
purchase plans existing on the date hereof), or (2) enter into any
swap or other derivatives transaction that transfers to another, in
whole or in part, any of the economic benefits or risks of ownership
of such shares of Common Stock or Debt Securities, whether any such
transaction described in clause (1) or (2) above is to be settled by
delivery of Common Stock, Debt Securities or other securities, in
cash or otherwise, or (3) publicly disclose an intention to make any
such offer, sale, pledge, hedge, swap or other transaction, in each
case without the prior written consent of the Underwriters named in
the applicable Terms Agreement; and to cause each officer and
director of the Issuers or the Company, as applicable, to furnish to
the Underwriters, prior to the First Delivery Date, a letter or
letters, in form and substance satisfactory to counsel for the
Underwriters, pursuant to which each such person shall agree not to,
directly or indirectly, (1) offer for sale, sell, pledge or
otherwise dispose of (or enter into any transaction or device which
is designed to, or could be expected to, result in the disposition
by any person at any time in the future of) any shares of Common
Stock (including, without
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limitation, shares of Common Stock that may be deemed to be
beneficially owned by such party in accordance with the Rules and
Regulations and shares of Common Stock that may be issued upon
exercise of any option or warrant) or securities convertible into or
exchangeable for Common Stock (other than any shares of Common Stock
contemplated by a Terms Agreement) owned by such party on the date
the letter is completed and the date of the applicable Terms
Agreement, or (2) enter into any swap or other derivatives
transaction that transfers to another, in whole or in part, any of
the economic benefits or risks of ownership of such shares of Common
Stock, whether any such transaction described in clause (1) or (2)
above is to be settled by delivery of Common Stock or other
securities, in cash or otherwise, in each case for a period
specified in the applicable Terms Agreement, commencing on the date
of such Terms Agreement, without the prior written consent of the
Underwriters named in the applicable Terms Agreement;
(j) If and to the extent specified in the applicable Terms
Agreement, to apply for the inclusion of the Offered Securities in
the National Market System of the Nasdaq Stock Market and to use its
best efforts to complete that listing, subject only to official
notice of issuance and evidence of satisfactory distribution, prior
to the First Delivery Date;
(k) To take such steps as shall be necessary to ensure that
none of the Issuers or the Company, as applicable, or any of their
subsidiaries shall become an "investment company" within the meaning
of such term under the Investment Company Act of 1940 and the rules
and regulations of the Commission thereunder.
5. Expenses. The Issuers or the Company, as applicable, agree to
pay all expenses incident to the performance of its obligations under this
Agreement and any applicable Terms Agreement, including (a) the costs incident
to the authorization, issuance, sale and delivery of the Offered Securities and
any taxes payable in that connection; (b) the costs incident to the preparation,
printing and filing under the Securities Act of the Registration Statement and
any amendments and exhibits thereto; (c) the costs of distributing the
Registration Statement as originally filed and each amendment thereto and any
post-effective amendments thereof (including, in each case, exhibits), any
Preliminary Prospectus Supplement, each Prospectus Supplement and any supplement
to any Prospectus Supplement, all as provided in this Agreement; (d) the costs
of producing and distributing this Agreement and any other related documents in
connection with the offering, purchase, sale and delivery of the stock; (e) any
applicable listing or other fees; (f) the fees and expenses of qualifying the
Offered Securities under the securities laws of the several jurisdictions as
provided in Section 4 (h) and of preparing, printing and distributing a Blue Sky
Memorandum (including related reasonable fees and expenses of counsel to the
Underwriters); (g) one-half of the air transportation expenses related to the
roadshow, with the Company and the Underwriters otherwise responsible for any
other costs or expenses associated with the roadshow; and (h) all other costs
and expenses incident to the performance of the obligations of the Issuers or
the Company, as applicable, under this Agreement; provided that, except as
provided in this Section 5 and in Section 10 the
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Underwriters shall pay their own costs and expenses, including the costs and
expenses of their counsel, any transfer taxes on the Offered Securities which
they may sell and the expenses of advertising any offering of the Offered
Securities made by the Underwriters.
6. Conditions of Underwriters' Obligations. The respective
obligations of the Underwriters hereunder are subject to the accuracy, when made
and on the applicable Delivery Date, of the representations and warranties of
the Issuers or the Company, as applicable, contained herein, to the performance
by the Issuers or the Company, as applicable, of their obligations hereunder,
and to each of the following additional terms and conditions:
(a) The Prospectus Supplement shall have been timely filed
with the Commission in accordance with Section 4(a); no stop order
suspending the effectiveness of the Registration Statement or any
part thereof shall have been issued and no proceeding for that
purpose shall have been initiated or threatened by the Commission;
and any request of the Commission for inclusion of additional
information in the Registration Statement or any Prospectus
Supplement or otherwise shall have been complied with.
(b) No Underwriter shall have discovered and disclosed to the
Company on or prior to such Delivery Date that the Registration
Statement or any Prospectus Supplement or any amendment or
supplement thereto contains an untrue statement of a fact which
shall not have been corrected on or prior to such Delivery Date in
an amendment or supplement thereto, and which, in the reasonable
opinion of Weil, Gotshal & Xxxxxx LLP, counsel for the Underwriters,
is material or omits to state a fact which, in the opinion of such
counsel, is material and is required to be stated therein or is
necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident
to the authorization, form and validity of this Agreement, the
applicable Terms Agreement, the Offered Securities, the Registration
Statement and each Prospectus Supplement, and all other legal
matters relating to this Agreement and the applicable Terms
Agreement and the transactions contemplated hereby and thereby shall
be reasonably satisfactory in all material respects to counsel for
the Underwriters, and the Issuers or the Company, as applicable,
shall have furnished to such counsel all documents and information
that they may reasonably request to enable them to pass upon such
matters.
(d) Xxxxxx Godward LLP shall have furnished to the
Underwriters their written opinion, as counsel to the Issuers or the
Company, as applicable, addressed to the Underwriters and dated such
Delivery Date, in form and substance reasonably satisfactory to the
Underwriters, to the effect that:
(i) The Issuers or the Company, as applicable, and each
of their subsidiaries have been duly incorporated and are
validly existing as corporations in good standing under the
laws of their respective
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jurisdictions of incorporation, are duly qualified to do
business and are in good standing as foreign corporations in
each jurisdiction in which their respective ownership or lease
of property or the conduct of their respective businesses
requires such qualification and have all power and authority
necessary to own or hold their respective properties and
conduct the businesses in which they are engaged;
(ii) The Issuers or the Company, as applicable, have an
authorized capitalization as set forth in the Prospectus and
Prospectus Supplement, and all of the issued shares of capital
stock of the Issuers or the Company, as applicable, (including
the Offered Securities being delivered on such Delivery Date)
have been duly and validly authorized and issued, are fully
paid and non-assessable and conform to the description thereof
contained in the Prospectus and Prospectus Supplement; and all
of the issued shares of capital stock of each subsidiary of
the Issuers or the Company, as applicable, have been duly and
validly authorized and issued and are fully paid,
non-assessable and are owned directly or indirectly by the
Issuers or the Company, as applicable, free and clear of all
liens, encumbrances, equities or claims;
(iii) There are no preemptive or other rights to
subscribe for or to purchase, nor any restriction upon the
voting or transfer of, any of the Offered Securities pursuant
to the Issuers' or the Company's, as applicable, charter or
by-laws or any agreement or other instrument known to such
counsel;
(iv) To the best of such counsel's knowledge, there are
no legal or governmental proceedings pending to which the
Issuers or the Company, as applicable, or any of their
subsidiaries is a party or of which any property or assets of
the Issuers or the Company, as applicable, or any of its
subsidiaries is the subject which, if determined adversely to
the Issuers or the Company, as applicable, or any of its
subsidiaries, might have a material adverse effect on the
consolidated financial position, stockholders' equity, results
of operations, business or prospects of the Company and its
subsidiaries; and, to the best of such counsel's knowledge, no
such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(v) The Registration Statement was declared effective
under the Securities Act as of the date and time specified in
such opinion, each Prospectus Supplement was filed with the
Commission pursuant to the subparagraph of Rule 424(b) of the
Rules and Regulations specified in such opinion on the date
specified therein and no stop order suspending the
effectiveness of the Registration Statement has been issued
and, to the knowledge of such counsel, no
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proceeding for that purpose is pending or threatened by the
Commission;
(vi) The Registration Statement and each Prospectus
Supplement and any further amendments or supplements thereto
made by the Issuers or the Company, as applicable, prior to
such Delivery Date (other than the financial statements and
related schedules therein, as to which such counsel need
express no opinion) comply as to form in all material respects
with the requirements of the Securities Act and the Rules and
Regulations;
(vii) To the best of such counsel's knowledge, there are
no contracts or other documents which are required to be
described in any Prospectus Supplement or filed as exhibits to
the Registration Statement by the Securities Act or by the
Rules and Regulations which have not been described or filed
as exhibits to the Registration Statement;
(viii) This Agreement and the applicable Terms Agreement
have been duly authorized, executed and delivered by the
Issuers or the Company, as applicable;
(ix) The issue and sale of the Offered Securities being
delivered on such Delivery Date by the Issuers or the Company,
as applicable, and the compliance by the Issuers or the
Company, as applicable, with all of the provisions of this
Agreement and the consummation of the transactions
contemplated hereby will not conflict with or result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument known
to such counsel to which the Issuers or the Company, as
applicable, or any of their subsidiaries is a party or by
which the Issuers or the Company, as applicable, or any of
their subsidiaries is bound or to which any of the property or
assets of the Issuers or the Company, as applicable, or any of
their subsidiaries is subject, nor will such actions result in
any violation of the provisions of the charter or by-laws of
the Issuers or the Company, as applicable, or any of their
subsidiaries or any statute or any order, rule or regulation
known to such counsel of any court or governmental agency or
body having jurisdiction over the Issuers or the Company, as
applicable, or any of its subsidiaries or any of their
properties or assets; and, except for the registration of the
Offered Securities under the Securities Act and such consents,
approvals, authorizations, registrations or qualifications as
may be required under the Exchange Act and applicable state or
foreign securities laws in connection with the purchase and
distribution of the Offered Securities by the Underwriters, no
consent, approval, authorization or order of, or filing or
registration with, any such court
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or governmental agency or body is required for the execution,
delivery and performance of this Agreement by the Issuers or
the Company, as applicable, and the consummation of the
transactions contemplated hereby;
(x) To the best of such counsel's knowledge, there are
no contracts, agreements or understandings between the Issuers
or the Company, as applicable, and any person granting such
person the right (other than rights which have been waived or
satisfied) to require the Issuers or the Company, as
applicable, to file a registration statement under the
Securities Act with respect to any securities of the Issuers
or the Company, as applicable, owned or to be owned by such
person or to require the Issuer or the Company, as applicable,
to include such securities in the securities registered
pursuant to the Registration Statement or in any securities
being registered pursuant to any other registration statement
filed by the Issuer or the Company, applicable, under the
Securities Act;
(xi) If the Offered Securities include Debt Securities,
the applicable Indenture and any supplement thereto has been
duly and validly authorized, executed and delivered by the
Issuers or the Company, as applicable, and constitutes the
valid and binding agreement of the Issuers or the Company, as
applicable, enforceable in accordance with its terms, except
as enforcement thereof may be limited by bankruptcy,
insolvency or other laws relating to or affecting enforcement
of creditors' rights or by general equity principles;
(xii) If the Offered Securities include Debt Securities,
such Debt Securities are in the form contemplated by the
applicable Indenture, and have been duly and validly
authorized by all necessary corporate action and, when
executed and authenticated as specified in the applicable
Indenture and delivered against payment pursuant to this
Agreement, as supplemented by the applicable Terms Agreement,
will be valid and binding obligations of the Issuers or the
Company, as applicable, enforceable in accordance with their
terms, except as enforcement thereof may be limited by
bankruptcy, insolvency or other laws relating to or affecting
enforcement of creditors' rights or by general equity
principles, and except further as enforcement thereof may be
limited by requirements that a claim (or a foreign currency
judgment in respect of such claim) be converted into United
States dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law, and will be entitled to
the benefits of the applicable Indenture;
(xiii) The Offered Securities and, if applicable, the
Indenture and the Common Stock, conform in all material
respects to the
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descriptions thereof in the Prospectus and the applicable
Prospectus Supplement;
(xiv) If the Offered Securities include Debt Securities,
the applicable Indenture is qualified under the 1939 Act; and
(xv) If the Offered Securities include Convertible Debt
Securities or Convertible Preferred Stock, the shares of
Common Stock issuable upon conversion of such Convertible Debt
Securities have been duly authorized and reserved for issuance
upon such conversion by all necessary corporate action and
such shares, when issued upon such conversion will be duly and
validly issued and will be fully paid and non-assessable, and
the issuance of such shares upon such conversion will not be
subject to preemptive rights.
In rendering such opinion, such counsel may state that their opinion
is limited to matters governed by the Federal laws of the United
States of America and the General Corporation Law of the State of
Delaware. Such counsel shall also have furnished to the Underwriters
a written statement, addressed to the Underwriters and dated such
Delivery Date, in form and substance satisfactory to the
Underwriters, to the effect that (x) such counsel has acted as
counsel to the Issuers or the Company, as applicable, in connection
with previous financing transactions and has acted as counsel to the
Company in connection with the preparation of the Registration
Statement, and (y) based on the foregoing, no facts have come to the
attention of such counsel which lead them to believe that the
Registration Statement, as of the Effective Date, contained any
untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the
statements therein not misleading, or that any Prospectus Supplement
contains any untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under
which they were made, not misleading. The foregoing opinion and
statement may be qualified by a statement to the effect that such
counsel does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement or any Prospectus Supplement except for the
statements made in each Prospectus Supplement under the identified
in Section 8(d)(viii) and (ix).
(e) The Underwriters shall have received from Xxxx Xxxxxxx &
Xxxxxx LLP, counsel for the Underwriters, such opinion or opinions,
dated such Delivery Date, with respect to the issuance and sale of
the Offered Securities, the Registration Statement, each Prospectus
Supplement and other related matters as the Underwriters may
reasonably require, and the Company shall have furnished to such
counsel such documents as they reasonably request for the purpose of
enabling them to pass upon such matters.
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(f) At the time of execution of this Agreement, the
Underwriters shall have received from Xxxxxx Xxxxxxxx LLP a letter,
in form and substance satisfactory to the Underwriters, addressed to
the Underwriters and dated the date hereof (i) confirming that they
are independent public accountants within the meaning of the
Securities Act and are in compliance with the applicable
requirements relating to the qualification of accountants under Rule
2-01 of Regulation S-X of the Commission, (ii) stating, as of the
date hereof (or, with respect to matters involving changes or
developments since the respective dates as of which specified
financial information is given in each Prospectus Supplement, as of
a date not more than five days prior to the date hereof), the
conclusions and findings of such firm with respect to the financial
information and other matters ordinarily covered by accountants'
"comfort letters" to underwriters in connection with registered
public offerings.
(g) With respect to the letter of Xxxxxx Xxxxxxxx LLP referred
to in the preceding paragraph and delivered to the Underwriters
concurrently with the execution of this Agreement (the "initial
letter"), the Issuers or the Company, as applicable, shall have
furnished to the Underwriters a letter (the "bring-down letter") of
such accountants, addressed to the Underwriters and dated such
Delivery Date (i) confirming that they are independent public
accountants within the meaning of the Securities Act and are in
compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X of
the Commission, (ii) stating, as of the date of the bring-down
letter (or, with respect to matters involving changes or
developments since the respective dates as of which specified
financial information is given in each Prospectus Supplement, as of
a date not more than five days prior to the date of the bring-down
letter), the conclusions and findings of such firm with respect to
the financial information and other matters covered by the initial
letter and (iii) confirming in all material respects the conclusions
and findings set forth in the initial letter.
(h) The Issuers or the Company, as applicable, shall have
furnished to the Underwriters a certificate, dated such Delivery
Date, of its Chairman of the Board, its President or a Vice
President and its chief financial officer stating that:
(i) The representations, warranties and agreements
of the Company in Section 1 are true and correct as of
such Delivery Date; the Issuers or the Company, as
applicable, have complied in all material respects with
all their agreements contained herein; and the
conditions set forth in Subsections (a) and (i) of this
Section 7 have been fulfilled; and
(ii) They have carefully examined the Registration
Statement and each Prospectus Supplement and, in their
opinion (A) as of the Effective Date, the Registration
Statement and, as of the Delivery Date, the Prospectus
Supplement did not include any untrue
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statement of a material fact and did not omit to state a
material fact required to be stated therein or necessary
to make the statements therein not misleading, and (B)
since the Effective Date, no event has occurred which
should have been set forth in a supplement or amendment
to the Registration Statement or any Prospectus
Supplement.
(i) (i) None of the Issuers or the Company, as
applicable, or any of their subsidiaries shall have sustained
since the date of the latest financial statements included or
incorporated by reference in each Prospectus Supplement any
loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated
in each Prospectus Supplement or (ii) since such date there
shall not have been any change in the capital stock or
long-term debt of the Issuers or the Issuers or the Company,
as applicable, or any of their subsidiaries or any change, or
any development involving a prospective change, in or
affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Issuers
or the Company, as applicable, and their subsidiaries,
otherwise than as set forth or contemplated in each Prospectus
Supplement, the effect of which, in any such case described in
clause (i) or (ii), is, in the reasonable judgment of the
Underwriters, so material and adverse as to make it
impracticable or inadvisable to proceed with the public
offering or the delivery of the Offered Securities being
delivered on such Delivery Date on the terms and in the manner
contemplated in any Prospectus Supplement.
(j) Subsequent to the execution and delivery of this
Agreement there shall not have occurred any of the following:
(i) trading in securities generally on the New York Stock
Exchange or the American Stock Exchange or in the
over-the-counter market, or trading in any securities of the
Issuers or the Company, as applicable, on any exchange or in
the over-the-counter market, shall have been suspended or
minimum prices shall have been established on any such
exchange or such market by the Commission, by such exchange or
by any other regulatory body or governmental authority having
jurisdiction, (ii) a banking moratorium shall have been
declared by Federal or state authorities, (iii) the United
States shall have become engaged in hostilities, there shall
have been an escalation in hostilities involving the United
States or there shall have been a declaration of a national
emergency or war by the United States or (iv) there shall have
occurred such a material adverse change in general economic,
political or financial conditions (or the effect of
international conditions on the financial markets in the
United States shall be such) as to make it, in the judgment of
the Underwriters impracticable or inadvisable to proceed with
the public offering or delivery of the Offered Securities
being delivered on such Delivery Date on the terms and in the
manner contemplated in any Prospectus Supplement.
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(k) The Nasdaq Stock Market or such other exchange as
may be specified in the applicable Terms Agreement shall have
approved the Offered Securities for inclusion in the National
Market System, subject only to official notice of issuance and
evidence of satisfactory distribution.
All opinions, letters, evidence and certificates mentioned
above or elsewhere in this Agreement shall be deemed to be in compliance with
the provisions hereof only if they are in form and substance reasonably
satisfactory to counsel for the Underwriters.
7. Indemnification and Contribution.
(a) The Issuers or the Company, as applicable, shall
indemnify and hold harmless each Underwriter, its officers and
employees and each person, if any, who controls any
Underwriter within the meaning of the Securities Act, from and
against any loss, claim, damage or liability, joint or
several, or any action in respect thereof (including, but not
limited to, any loss, claim, damage, liability or action
relating to purchases and sales of Offered Securities), to
which that Underwriter, officer, employee or controlling
person may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement of a material fact
contained in the Prospectus, any Preliminary Prospectus
Supplement, the Registration Statement or any Prospectus
Supplement or in any amendment or supplement thereto (ii) the
omission or alleged omission to state in the Prospectus, any
Preliminary Prospectus Supplement, the Registration Statement
or any Prospectus Supplement, or in any amendment or
supplement thereto, or in any Blue Sky Application any
material fact required to be stated therein or necessary to
make the statements therein not misleading or (iii) any act or
failure to act or any alleged act or failure to act by any
Underwriter in connection with, or relating in any manner to,
the Offered Securities or the offering contemplated hereby,
and which is included as part of or referred to in any loss,
claim, damage, liability or action arising out of or based
upon matters covered by clause (i) or (ii) above (provided
that neither the Issuers nor the Company, as applicable, shall
be liable under this clause (iii) to the extent that it is
determined in a final judgment by a court of competent
jurisdiction that such loss, claim, damage, liability or
action resulted directly from any such acts or failures to act
undertaken or omitted to be taken by such Underwriter through
its gross negligence or willful misconduct), and shall
reimburse each Underwriter and each such officer, employee or
controlling person promptly upon demand for any legal or other
expenses reasonably incurred by that Underwriter, officer,
employee or controlling person in connection with
investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses
are incurred; provided, however, that (A) neither the Issuers
nor the Company, as applicable, shall be liable in any such
case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any
untrue statement or alleged untrue statement or omission or
alleged omission made in
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the Prospectus, any Preliminary Prospectus Supplement, the
Registration Statement or any Prospectus Supplement, or in any
such amendment or supplement, in reliance upon and in
conformity with written information concerning such
Underwriter furnished to the Issuers or the Company, as
applicable, through the Underwriters by or on behalf of any
Underwriter specifically for inclusion therein which
information will consist solely of the information specified
in the Terms Agreement or in writing between the Issuers or
the Company, as applicable, and the Underwriters, and (B) the
indemnification provided for in this Section 7(a) with respect
to any preliminary prospectus (or the Prospectus) shall not
inure to the benefit of any Underwriter from whom the person
asserting any such loss, claim, damage, liability or action
purchased the Offered Securities which are the subject thereof
(or to the benefit of any person controlling such Underwriter)
if at or prior to the written confirmation of the sale of such
Offered Securities a copy of the Prospectus (or the Prospectus
as amended or supplemented) was not sent or delivered to such
person and the untrue statement or omission of a material fact
contained in such preliminary prospectus (or the Prospectus)
was corrected in the Prospectus (or the Prospectus as amended
or supplemented) and delivery of such Prospectus (or
Prospectus as amended or supplemented) would have eliminated
any such loss, claim, damage, liability or action unless the
failure is the result of non-compliance by the Issuers or the
Company, as applicable, with Section 4(c) hereof. The
foregoing indemnity agreement is in addition to any liability
which the Issuers or the Company, as applicable, may otherwise
have to any Underwriter or to any officer, employee or
controlling person of that Underwriter.
(b) Each Underwriter, severally and not jointly, shall
indemnify and hold harmless the Issuers or the Company, as
applicable, their respective officers and employees, each of
their respective directors and each person, if any, who
controls the Issuers or Company, as applicable, within the
meaning of the Securities Act, from and against any loss,
claim, damage or liability, joint or several, or any action in
respect thereof, to which the Issuers or the Company, as
applicable, or any such director, officer or controlling
person may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement of a material fact
contained (A) in the Prospectus, any Preliminary Prospectus
Supplement, the Registration Statement or any Prospectus
Supplement or in any amendment or supplement thereto, or (B)
in any Blue Sky Application or (ii) the omission or alleged
omission to state in the Prospectus, any Preliminary
Prospectus Supplement, the Registration Statement or any
Prospectus Supplement, or in any amendment or supplement
thereto, or in any Blue Sky Application any material fact
required to be stated therein or necessary to make the
statements therein not misleading, but in each case only to
the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance
upon and in conformity with written information concerning
such Underwriter furnished to the Issuers or the Company, as
applicable,
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through the Underwriters by or on behalf of that Underwriter
specifically for inclusion therein, and shall reimburse the
Issuers or the Company, as applicable, and any such director,
officer or controlling person for any legal or other expenses
reasonably incurred by the Issuers or the Company, as
applicable, or any such director, officer or controlling
person promptly upon demand in connection with investigating
or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are
incurred. The foregoing indemnity agreement is in addition to
any liability which any Underwriter may otherwise have to the
Issuers or the Company, as applicable, or any such director,
officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party under
this Section 7 of notice of any claim or the commencement of
any action, the indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under
this Section 7, notify the indemnifying party in writing of
the claim or the commencement of that action; provided,
however, that the failure to notify the indemnifying party
shall not relieve it from any liability which it may have
under this Section 7 except to the extent it has been
materially prejudiced by such failure and, provided further,
that the failure to notify the indemnifying party shall not
relieve it from any liability which it may have to an
indemnified party otherwise than under this Section 7. If any
such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein
and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense
thereof with counsel reasonably satisfactory to the
indemnified party. After notice from the indemnifying party to
the indemnified party of its election to assume the defense of
such claim or action, the indemnifying party shall not be
liable to the indemnified party under this Section 7 for any
legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other
than reasonable costs of investigation; provided, however,
that the Underwriters shall have the right to employ counsel
to represent jointly the Underwriters and their respective
officers, employees and controlling persons who may be subject
to liability arising out of any claim in respect of which
indemnity may be sought by the Underwriters against the
Issuers or the Company, as applicable, under this Section 7
if, in the reasonable judgment of the Underwriters, it is
advisable for the Underwriters and those officers, employees
and controlling persons to be jointly represented by separate
counsel, and in that event the fees and expenses of such
separate counsel shall be paid by the Issuers or the Company,
as applicable. No indemnifying party shall (i) without the
prior written consent of the indemnified parties (which
consent shall not be unreasonably withheld), settle or
compromise or consent to the entry of any judgment with
respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified
parties are actual or potential parties to such claim or
action) unless such settlement, compromise or consent includes
an unconditional release of each indemnified party from
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all liability arising out of such claim, action, suit or
proceeding, or (ii) be liable for any settlement of any such
action effected without its written consent (which consent
shall not be unreasonably withheld), but if settled with the
consent of the indemnifying party or if there be a final
judgment of the plaintiff in any such action, the indemnifying
party agrees to indemnify and hold harmless any indemnified
party from and against any loss or liability by reason of such
settlement or judgment.
(d) If the indemnification provided for in this Section
7 shall for any reason be unavailable to or insufficient to
hold harmless an indemnified party under Section 7(a) or 7(b)
in respect of any loss, claim, damage or liability, or any
action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by
such indemnified party as a result of such loss, claim, damage
or liability, or action in respect thereof, (i) in such
proportion as shall be appropriate to reflect the relative
benefits received by the Issuers or the Company, as
applicable, on the one hand and the Underwriters on the other
from the offering of the Offered Securities or (ii) if the
allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Issuers or the
Company, as applicable, on the one hand and the Underwriters
on the other with respect to the statements or omissions which
resulted in such loss, claim, damage or liability, or action
in respect thereof, as well as any other relevant equitable
considerations. The relative benefits received by the Issuers
or the Company, as applicable, on the one hand and the
Underwriters on the other with respect to such offering shall
be deemed to be in the same proportion as the total net
proceeds from the offering of the Offered Securities purchased
under this Agreement (before deducting expenses but after
deducting amounts with respect to any reserves for the payment
of interest in connection with Debt Securities) received by
the Issuers or the Company, as applicable, on the one hand,
and the total underwriting discounts and commissions received
by the Underwriters with respect to the Offered Securities
purchased under this Agreement, on the other hand, bear to the
total gross proceeds from the offering of the Offered
Securities under this Agreement, in each case as set forth in
the table on the cover page of each Prospectus Supplement. The
relative fault shall be determined by reference to whether the
untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates
to information supplied by the Issuers or the Company, as
applicable, or the Underwriters, the intent of the parties and
their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Issuers or Company, as applicable, agree that it would not
be just and equitable if contributions pursuant to this
Section were to be determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose)
or by any other method of allocation which does not take into
account the equitable considerations referred to herein. The
amount paid or payable by an indemnified party as a result of
the loss, claim,
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28
damage or liability, or action in respect thereof, referred to
above in this Section shall be deemed to include, for purposes
of this Section 7(d), any legal or other expenses reasonably
incurred by such indemnified party in connection with
investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7(d), no
Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the
Offered Securities underwritten by it and distributed to the
public was offered to the public exceeds the amount of any
damages which such Underwriter has otherwise paid or become
liable to pay by reason of any untrue or alleged untrue
statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute
as provided in this Section 7(d) are several in proportion to
their respective underwriting obligations and not joint.
8. Defaulting Underwriters.
If, on the applicable Delivery Date, any Underwriter defaults
in the performance of its obligations under this Agreement, the remaining
non-defaulting Underwriters participating in an offering of Offered Securities
shall be obligated to purchase the Offered Securities which the defaulting
Underwriter agreed but failed to purchase on such Delivery Date in the
respective proportions which the number of the Offered Securities set opposite
the name of each remaining non-defaulting Underwriter named in the applicable
Terms Agreement bears to the total number of the Offered Securities set opposite
the names of all the remaining non-defaulting Underwriters named in the
applicable Terms Agreement; provided, however, that the remaining non-defaulting
Underwriters shall not be obligated to purchase any of the Offered Securities on
such Delivery Date if the total number of the Offered Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase on such
date exceeds 9.09% of the total number of the Offered Securities to be purchased
on such Delivery Date, and any remaining non-defaulting Underwriter shall not be
obligated to purchase more than 110% of the number of the Offered Securities
which it agreed to purchase on such Delivery Date pursuant to the terms of
Section 3. If the foregoing maximums are exceeded, the remaining non-defaulting
Underwriters, or those other underwriters satisfactory to the Underwriters who
so agree, shall have the right, but shall not be obligated, to purchase, in such
proportion as may be agreed upon among them, all the Offered Securities to be
purchased on such Delivery Date. If the remaining Underwriters or other
underwriters satisfactory to the Underwriters do not elect to purchase the
shares which the defaulting Underwriter or Underwriters agreed but failed to
purchase on such Delivery Date, this Agreement (or, with respect to the Second
Delivery Date, the obligation of the Underwriters to purchase, and of the
Issuers and the Company, as applicable, to sell, the Option Securities) shall
terminate without liability on the part of any non-defaulting Underwriter or the
Issuers or the Company, as applicable, except that the Issuer or the Company, as
applicable, will continue to be liable for the payment of expenses to the extent
set forth in Sections 5 and 10.
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Nothing contained herein shall relieve a defaulting Underwriter
of any liability it may have to the Issuers or the Company, as applicable, for
damages caused by its default. If other underwriters are obligated or agree to
purchase the Offered Securities of a defaulting or withdrawing Underwriter,
either the Underwriters or the Issuers or the Company, as applicable, may
postpone the Delivery Date for up to seven full business days in order to effect
any changes that in the opinion of counsel for the Company or counsel for the
Underwriters may be necessary in the Registration Statement, any Prospectus
Supplement or in any other document or arrangement.
9. Termination. The obligations of the Underwriters
hereunder may be terminated by the Underwriters by notice given to and received
by the Issuers or the Company, as applicable, prior to delivery of and payment
for the Offered Securities if, prior to that time, any of the events described
in Sections 6(i) or 6(j), shall have occurred or if the Underwriters shall
decline to purchase the Offered Securities for any reason permitted under this
Agreement.
10. Reimbursement of Underwriters' Expenses. If (a) the
Issuers or the Company, as applicable, shall fail to tender the Offered
Securities for delivery to the Underwriters by reason of any failure, refusal or
inability on the part of the Issuers or the Company, as applicable, to perform
any agreement on its part to be performed, or because any other condition of the
Underwriters' obligations hereunder required to be fulfilled by the Company is
not fulfilled, the Issuers or the Company, as applicable, will reimburse the
Underwriters for all reasonable out-of-pocket expenses (including fees and
disbursements of counsel) incurred by the Underwriters in connection with this
Agreement and the proposed purchase of the Offered Securities, and upon demand
the Issuers or the Company, as applicable, shall pay the full amount thereof to
the Representative(s). If this Agreement is terminated pursuant to Section 9 by
reason of the default of one or more Underwriters, neither the Issuer nor the
Company, as applicable, shall be obligated to reimburse any defaulting
Underwriter on account of those expenses.
11. Notices, etc. All statements, requests, notices and
agreements hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent
by mail, telex or facsimile transmission to such persons as
are indicated in any Terms Agreement;
(b) if to the Issuer or the Company shall be delivered
or sent by mail, telex or facsimile transmission to the
address of the Company set forth in the Registration
Statement, Attention: Chief Financial Officer (Fax: (408)
399-8274), with a copy to Xxxxxxx X. Xxxxxxxx, Xxxxxx Godward
LLP, Xxx Xxxxxxxx Xxxxx, 00xx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx
00000 (Fax: (000) 000-0000;
provided, however, that any notice to an Underwriter pursuant to Section 7(c)
shall be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its acceptance telex to the
Underwriters, which address will be supplied to any
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30
other party hereto by the Underwriters upon request. Any such statements,
requests, notices or agreements shall take effect at the time of receipt
thereof. The Issuers or the Company, as applicable, shall be entitled to act and
rely upon any request, consent, notice or agreement given or made on by the
Underwriters.
12. Persons Entitled to Benefit of Agreement. This Agreement
shall inure to the benefit of and be binding upon the Underwriters, the Issuers
or the Company, as applicable, and their respective successors. This Agreement
and the terms and provisions hereof are for the sole benefit of only those
persons, except that (A) the representations, warranties, indemnities and
agreements of the Issuers or the Company, as applicable, contained in this
Agreement shall also be deemed to be for the benefit of the person or persons,
if any, who control any Underwriter within the meaning of Section 15 of the
Securities Act and (B) the indemnity agreement of the Underwriters contained in
Section 7(b) of this Agreement shall be deemed to be for the benefit of the
respective directors of the Issuers, respective officers of the Issuers who have
signed the Registration Statement and any person controlling the Issuers or the
Company, as applicable, within the meaning of Section 13 of the Securities Act.
Nothing in this Agreement is intended or shall be construed to give any person,
other than the persons referred to in this Section 12, any legal or equitable
right, remedy or claim under or in respect of this Agreement or any provision
contained herein.
13. Survival. The respective indemnities, representations,
warranties and agreements of the Issuers or the Company, as applicable, and the
Underwriters contained in this Agreement and each Terms Agreement or made by or
on behalf on them, respectively, pursuant to this Agreement, shall survive the
delivery of and payment for the Offered Securities and shall remain in full
force and effect, regardless of any investigation made by or on behalf of any of
them or any person controlling any of them.
14. Definition of "Business Day" and "Subsidiary". For
purposes of this Agreement, (a) "business day" means each Monday, Tuesday,
Wednesday, Thursday or Friday which is not a day on which banking institutions
in New York are generally authorized or obligated by law or executive order to
close and (b) "subsidiary" has the meaning set forth in Rule 405 of the Rules
and Regulations.
15. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of New York.
16. Counterparts. This Agreement may be executed in one or
more counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
17. Headings. The headings herein are inserted for
convenience of reference only and are not intended to be part of, or to affect
the meaning or interpretation of, this Agreement.
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Very truly yours,
METRICOM, INC.
By
------------------------------------------
Name:
Title:
METRICOM FINANCE, INC.
By
------------------------------------------
Name:
Title:
Accepted:
For itself and as Representative of the
several Underwriters named above
By XXXXXX BROTHERS INC.
By
--------------------------------------
Xxxxx Xxxxxxxxxxx
Managing Director
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Exhibit A
[UNDERWRITERS]
[Title of Securities]
TERMS AGREEMENT
Dated: , 200_
TO: METRICOM, INC.
METRICOM FINANCE, INC.
RE: UNDERWRITING AGREEMENT DATED ________, 2000.
DEAR SIRS:
WE (THE "REPRESENTATIVE[S]") UNDERSTAND THAT METRICOM, INC., A DELAWARE
CORPORATION (THE "COMPANY") AND/OR METRICOM FINANCE, INC. ("FINANCE SUB" AND,
TOGETHER WITH THE COMPANY, THE "ISSUERS"), PROPOSE TO ISSUE AND SELL [[$
AGGREGATE PRINCIPAL AMOUNT] OF THEIR [SENIOR DEBT SECURITIES] [AND]
[SUBORDINATED [CONVERTIBLE DEBT SECURITIES] (THE "DEBT SECURITIES")] [AND]
[_________ SHARES OF THE COMPANY'S COMMON STOCK, PAR VALUE $.001 PER SHARE (THE
"COMMON STOCK")]. THIS AGREEMENT IS THE TERMS AGREEMENT REFERRED TO IN THE
UNDERWRITING AGREEMENT DATED _______________, 200_ (THE "UNDERWRITING
AGREEMENT"). SUBJECT TO THE TERMS AND CONDITIONS SET FORTH HEREIN OR
INCORPORATED BY REFERENCE HEREIN, THE UNDERWRITERS NAMED BELOW (THE
"UNDERWRITERS") OFFER TO PURCHASE, SEVERALLY AND NOT JOINTLY, THE RESPECTIVE
[AMOUNTS OF [DEBT SECURITIES] [AND] [COMMON STOCK]] SET FORTH BELOW.
PRINCIPAL AMOUNT OF PRINCIPAL AMOUNT OF
UNDERWRITER DEBT SECURITIES COMMON STOCK
------------------- -------------------
TOTAL $_________ $_________
DEBT SECURITIES
TITLE OF DEBT SECURITIES: PRINCIPAL AMOUNT TO BE ISSUED: $
SENIOR OR SUBORDINATED:
CURRENCY:
CURRENT RATINGS:
33
INTEREST RATE OR FORMULA: %
INTEREST PAYMENT DATES:
DATE OF MATURITY:
REDEMPTION PROVISIONS:
SINKING FUND REQUIREMENTS:
INITIAL PUBLIC OFFERING PRICE: % OF THE PRINCIPAL AMOUNT, PLUS ACCRUED
INTEREST, IF ANY, [OR AMORTIZED ORIGINAL ISSUE DISCOUNT, IF ANY,] FROM , 200_.
PURCHASE PRICE: % OF THE PRINCIPAL AMOUNT, PLUS ACCRUED INTEREST, IF
ANY, [OR AMORTIZED ORIGINAL ISSUE DISCOUNT, IF ANY,] FROM , 200_ (PAYABLE IN
NEXT DAY FUNDS).
LISTING REQUIREMENT: [NONE] [NASDAQ]
CONVERTIBLE:
CONVERSION PROVISIONS:
DELIVERY DATE AND LOCATION:
ADDITIONAL REPRESENTATIONS, IF ANY:
REDEMPTION PROVISIONS:
LOCK-UP PROVISIONS:
SINKING FUND REQUIREMENTS:
NUMBER OF OPTION SECURITIES, IF ANY:
OTHER TERMS AND CONDITIONS:
COMMON STOCK
TITLE OF COMMON STOCK:
NUMBER OF SHARES TO BE ISSUED:
CURRENCY:
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34
ANNUAL CASH DIVIDEND RATE: %
PAYABLE:
LIQUIDATION PREFERENCE PER SHARE:
INITIAL PUBLIC OFFERING PRICE: %, PLUS ACCRUED INTEREST OR AMORTIZED
ORIGINAL ISSUE DISCOUNT, IF ANY, FROM ____________, 200_
PURCHASE PRICE: % PLUS ACCRUED INTEREST OR AMORTIZED ORIGINAL ISSUE
DISCOUNT, IF ANY, FROM _____________, 200_ (PAYABLE IN NEXT DAY FUNDS).
LISTING REQUIREMENT: [NONE] [NASDAQ]
CONVERTIBLE:
INITIAL CONVERSION PRICE: $_____ PER SHARE OF [COMMON STOCK].
OTHER CONVERSION PROVISIONS:
DELIVERY DATE AND LOCATION:
ADDITIONAL REPRESENTATIONS, IF ANY:
REDEMPTION PROVISIONS:
LOCK-UP PROVISIONS:
SINKING FUND REQUIREMENTS:
NUMBER OF OPTION SECURITIES, IF ANY:
OTHER TERMS AND CONDITIONS:
2
