Ciena Corporation
Exhibit 1.01
Ciena Corporation
0.250% Convertible Senior Notes Due 2013
April 4, 2006
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Ciena Corporation, a Delaware corporation (the “Company”), proposes, subject to the terms and
conditions stated herein, to issue and sell to Xxxxxxx, Xxxxx & Co. (the “Underwriter”) an
aggregate of $300,000,000 principal amount of the 0.250% Convertible Senior Notes Due 2013,
convertible into shares of common stock, $0.01 par value per share (“Stock”), of the Company,
specified above (the “Firm Securities”) and, at the election of the Underwriter, up to an aggregate
of $45,000,000 additional principal amount (the “Optional Securities”) (the Firm Securities and the
Optional Securities which the Underwriter elects to purchase pursuant to Section 2 hereof are
herein collectively called the “Securities”).
1. The Company represents and warrants to, and agrees with, the Underwriter that:
(a) An “automatic shelf registration statement” as defined under Rule 405
under the Securities Act of 1933, as amended (the “Act”), on Form S-3 (File No. 333-132952)
in respect of the Firm Securities and Optional Securities and shares of Stock issuable upon
conversion thereof has been filed with the Securities and Exchange Commission (the
“Commission”) not earlier than three years prior to the date hereof; such registration
statement, and any post-effective amendment thereto, became effective on filing; and no
stop order suspending the effectiveness of such registration statement or any part thereof
has been issued and no proceeding for that purpose has been initiated or threatened by the
Commission, and no notice of objection of the Commission to the use of such registration
statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act
has been received by the
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Company (the base prospectus filed as part of such registration statement, in the form
in which it has most recently been filed with the Commission on or prior to the date of
this Agreement, is hereinafter called the “Basic Prospectus”; any preliminary prospectus
(including any preliminary prospectus supplement) relating to the Securities filed with the
Commission pursuant to Rule 424(b) under the Act is hereinafter called a “Preliminary
Prospectus”; the various parts of such registration statement, including all exhibits
thereto but excluding Form T-1 and including any prospectus supplement relating to the
Securities that is filed with the Commission and deemed by virtue of Rule 430B to be part
of such registration statement, each as amended at the time such part of the registration
statement became effective, are hereinafter collectively called the “Registration
Statement”; the Basic Prospectus, as amended and supplemented immediately prior to the
Applicable Time (as defined in Section 1(c) hereof), is hereinafter called the “Pricing
Prospectus”; the form of the final prospectus relating to the Securities filed with the
Commission pursuant to Rule 424(b) under the Act in accordance with Section 5(a) hereof is
hereinafter called the “Prospectus”; any reference herein to the Basic Prospectus, the
Pricing Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein pursuant to Item 12 of Form
S-3 under the Act, as of the date of such prospectus; any reference to any amendment or
supplement to the Basic Prospectus, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any post-effective amendment to the Registration Statement,
any prospectus supplement relating to the Securities filed with the Commission pursuant to
Rule 424(b) under the Act and any documents filed under the Securities Exchange Act of
1934, as amended (the “Exchange Act”), and incorporated therein, in each case after the
date of the Basic Prospectus, such Preliminary Prospectus, or the Prospectus, as the case
may be; any reference to any amendment to the Registration Statement shall be deemed to
refer to and include any annual report of the Company filed pursuant to Section 13(a) or
15(d) of the Exchange Act after the effective date of the Registration Statement that is
incorporated by reference in the Registration Statement; and any “issuer free writing
prospectus” as defined in Rule 433 under the Act relating to the Securities is hereinafter
called an “Issuer Free Writing Prospectus”);
(b) No order preventing or suspending the use of the Basic Prospectus, any
Preliminary Prospectus or any Issuer Free Writing Prospectus has been issued by the
Commission, and the Basic Prospectus and each Preliminary Prospectus, at the time of filing
thereof, conformed in all material respects to the requirements of the Act and the Trust
Indenture Act of 1939, as amended (the “Trust Indenture Act”) and the rules and regulations
of the Commission thereunder, and did not
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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 light of
the circumstances under which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company by the
Underwriter expressly for use therein;
(c) For the purposes of this Agreement, the “Applicable Time” is 5:00 pm
(Eastern time) on the date of this Agreement; the Pricing Prospectus together with the
final term sheet prepared and filed by the Company pursuant to Section 5(a) hereof (and
constituting an Issuer Free Writing Prospectus), taken together (collectively, the “Pricing
Disclosure Package”) as of the Applicable Time, did not include any 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, not misleading; each
Issuer Free Writing Prospectus listed on Schedule I(a) hereto does not conflict with the
information contained in the Registration Statement, the Pricing Prospectus or the
Prospectus; and each Issuer Free Writing Prospectus listed on Schedule I(a), other than the
final term sheet referred to above, as supplemented by and taken together with the Pricing
Disclosure Package as of the Applicable Time, did not include any 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, not misleading;
provided, however, that the representations and warranties in this paragraph shall not
apply to statements or omissions made in the Pricing Disclosure Package or any listed
Issuer Free Writing Prospectus in reliance upon and in conformity with information
furnished in writing to the Company by the Underwriter expressly for use therein;
(d) The documents incorporated by reference in the Pricing Prospectus and
the Prospectus, when they became effective or were filed with the Commission, as the case
may be, conformed in all material respects to the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission thereunder, and none of
such documents contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading; any further
documents so filed and incorporated by reference in the Prospectus or any further amendment
or supplement thereto, when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material respects to the requirements
of the Act or the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder and will not
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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 light of the
circumstances under which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company by the
Underwriter expressly for use therein; and no such documents were filed with the Commission
since the Commission’s close of business on the business day immediately prior to the date
of this Agreement and prior to the execution of this Agreement, except as set forth on
Schedule I(b) hereto;
(e) The Registration Statement conforms, and the Prospectus and any further
amendments or supplements to the Registration Statement and the Prospectus will conform, in
all material respects to the requirements of the Act and the Trust Indenture Act and the
rules and regulations of the Commission thereunder and do not and will not, as of the
applicable effective date as to each part of the Registration Statement and as of the
applicable filing date as to the Prospectus and any amendment or 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 not misleading; provided,
however, that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information furnished in writing to
the Company by the Underwriter expressly for use therein;
(f) Neither the Company nor any of its subsidiaries that are “significant
subsidiaries” as defined in Rule 1-02 of Regulation S-X of the Act or listed on Exhibit
21.1 to the Company’s Annual Report on Form 10-K for the fiscal year ended October 31, 2005
(the “Subsidiaries”) has sustained since the date of the latest audited financial
statements included or incorporated by reference in the Pricing Prospectus any material
loss or interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated in the Pricing
Prospectus; and, since the respective dates as of which information is given in the
Registration Statement and the Pricing Prospectus, there has not been any change in the
capital stock or long term debt of the Company or any of its Subsidiaries or any material
adverse change, or any development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position, stockholders’ equity or
results of operations of the Company and its Subsidiaries, otherwise than as set forth or
contemplated in the Pricing Prospectus;
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(g) The Company and its 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 except where failure to have good and marketable title would not have a
material adverse effect on the Company and its subsidiaries, taken as a whole, and in each
case free and clear of all liens, encumbrances and defects except such as are described in
the Pricing Prospectus or such as do not materially affect the value of such property and
do not interfere with the use made and proposed to be made of such property by the Company
and its Subsidiaries; and any real property and buildings held under lease by the Company
and its 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 Company and its Subsidiaries, except as would
not have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(h) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with power and
authority (corporate and other) to own its properties and conduct its business as described
in the Pricing Prospectus, and has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each other jurisdiction
in which it owns or leases properties or conducts any business so as to require such
qualification, or is subject to no material liability or disability by reason of the
failure to be so qualified in any such jurisdiction; and each subsidiary of the Company has
been duly incorporated and is validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation;
(i) The Company has an authorized capitalization as set forth in the Pricing
Prospectus and all of the issued shares of capital stock of the Company have been duly and
validly authorized and issued and are fully paid and non-assessable; the shares of Stock
initially issuable upon conversion of the Securities have been duly and validly authorized
and reserved for issuance and, when issued and delivered in accordance with the provisions
of the Securities and the Indenture referred to below, will be duly and validly issued,
fully paid and non-assessable and will conform to the description of the Stock contained in
the Pricing Disclosure Package and the Prospectus; and all of the issued shares of capital
stock of each Subsidiary of the Company have been duly and validly authorized and issued,
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;
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(j) The Firm Securities and Optional Securities have been duly authorized
and, when issued and delivered pursuant to this Agreement, will have been duly executed,
authenticated, issued and delivered and will constitute valid and legally binding
obligations of the Company entitled to the benefits provided by the indenture (the
“Indenture”) between the Company and The Bank of New York, as Trustee (the “Trustee”),
under which they are to be issued, which shall be substantially in the form filed as an
exhibit to the Registration Statement; the Indenture has been duly authorized and duly
qualified under the Trust Indenture Act and, when executed and delivered by the Company and
the Trustee, will constitute a valid and legally binding instrument, enforceable in
accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or affecting creditors’
rights and to general equity principles; and the Securities and the Indenture will conform
to the descriptions thereof in the Pricing Disclosure Package and the Prospectus;
(k) The issue and sale of the Securities and the compliance by the Company with all of
the provisions of the Securities, the Indenture and this Agreement and the consummation of
the transactions herein and therein contemplated 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 Company or any of its Subsidiaries is a party or by which the Company or any of
its Subsidiaries is bound or to which any of the property or assets of the Company or any
of its Subsidiaries is subject, nor will such action result in any violation of the
provisions of the Certificate of Incorporation or By-laws of the Company or any statute or
any order, rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its Subsidiaries or any of their properties; and no
consent, approval, authorization, order, registration or qualification of or with any such
court or governmental agency or body is required for the issue and sale of the Securities
or the consummation by the Company of the transactions contemplated by this Agreement or
the Indenture except such as have been obtained under the Act and the Trust Indenture Act
and such consents, approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriter;
(l) Neither the Company nor any of its Subsidiaries is (1) in violation of its
Certificate of Incorporation or By-laws or (2) in default in the performance or observance
of any material obligation, covenant or condition contained in any indenture, mortgage,
deed of trust, loan agreement, lease or other agreement or instrument to which it is a
party or
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by which it or any of its properties may be bound, except with respect to (2), where such
default would not have a material adverse effect on the Company and its subsidiaries, taken
as a whole;
(m) The statements set forth in the Pricing Prospectus and the Prospectus under the
caption “Description of Notes” and “Description of Common Stock”, insofar as they purport
to constitute a summary of the terms of the Securities and the Stock, under the caption
“Important United States Federal Income Tax Matters”, and under the caption “Underwriting”,
insofar as they purport to describe the provisions of the laws and documents referred to
therein, are accurate, complete and fair;
(n) Other than as set forth in the Pricing Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its Subsidiaries is a party
or of which any property of the Company or any of its Subsidiaries is the subject which, if
determined adversely to the Company or any of its Subsidiaries, would individually or in
the aggregate have a material adverse effect on the current or future consolidated
financial position, stockholders’ equity or results of operations 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;
(o) The Company is not and, after giving effect to the offering and sale of the
Securities and the application of the proceeds thereof, will not be an “investment
company”, as such term is defined in the Investment Company Act of 1940, as amended (the
“Investment Company Act”);
(p) (A) (i) At the time of filing the Registration Statement, (ii) at the time of the
most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the
Act (whether such amendment was by post-effective amendment, incorporated report filed
pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), and (iii) at
the time the Company or any person acting on its behalf (within the meaning, for this
clause only, of Rule 163(c) under the Act) made any offer relating to the Securities in
reliance on the exemption of Rule 163 under the Act, the Company was a “well-known seasoned
issuer” as defined in Rule 405 under the Act; and (B) at the earliest time after the filing
of the Registration Statement that the Company or another offering participant made a bona
fide offer (within the meaning of Rule 164(h)(2) under the Act) of the Securities, the
Company was not an “ineligible issuer” as defined in Rule 405 under the Act;
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(q) PricewaterhouseCoopers LLP, who have certified certain financial statements of the
Company and its subsidiaries, and have audited the Company’s internal control over
financial reporting and management’s assessment thereof are independent public accountants
as required by the Act and the rules and regulations of the Commission thereunder;
(r) The Company maintains a system of internal control over financial reporting (as
such term is defined in Rule 13a-15(f) under the Exchange Act) that complies with the
requirements of the Exchange Act and has been designed by the Company’s principal executive
officer and principal financial officer, or under their supervision, to provide reasonable
assurance regarding the reliability of financial reporting and the preparation of financial
statements for external purposes in accordance with generally accepted accounting
principles. The Company’s internal control over financial reporting is effective and the
Company is not aware of any material weaknesses in its internal control over financial
reporting;
(s) Since the date of the latest audited financial statements included or incorporated
by reference in the Pricing Prospectus, there has been no change in the Company’s internal
control over financial reporting that has materially affected, or is reasonably likely to
materially affect, the Company’s internal control over financial reporting;
(t) The Company maintains disclosure controls and procedures (as such term is defined
in Rule 13a-15(e) under the Exchange Act) that comply with the requirements of the Exchange
Act; such disclosure controls and procedures have been designed to ensure that material
information relating to the Company and its subsidiaries is made known to the Company’s
principal executive officer and principal financial officer by others within those
entities; and such disclosure controls and procedures are effective; and
(u) The Company satisfies the eligibility requirements in existence prior to October
21, 1992 for the use of a registration statement on Form S-3 for the offering of the
Securities.
2. Subject to the terms and conditions herein set forth, (a) the Company agrees to
issue and sell to the Underwriter, and the Underwriter agrees to purchase from the Company, at a
purchase price of 97.5% of the principal amount thereof, the Securities, and (b) in the event and
to the extent that the Underwriter shall exercise the election to purchase Optional Securities as
provided below, the Company agrees to issue and sell to the Underwriter, and the Underwriter agrees
to purchase from the Company, at the same purchase price set forth in clause (a) of this Section 2,
that portion of the aggregate principal amount of the Optional Securities as to which such election shall have been
exercised.
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The Company hereby grants to the Underwriter the right to purchase at its election up to
$45,000,000 aggregate principal amount of Optional Securities, at the same purchase price set forth
in clause (a) of the first paragraph of this Section 2, for the sole purpose of covering sales of
securities in excess of the aggregate principal amount of Firm Securities. Any such election to
purchase Optional Securities may be exercised by written notice from you to the Company, given
within a period of 13 calendar days after the date of this Agreement, setting forth the aggregate
principal amount of Optional Securities to be purchased and the date on which such Optional
Securities are to be delivered, as determined by you but in no event earlier than the First Time of
Delivery (as defined in Section 4 hereof) or, unless you and the Company otherwise agree in
writing, earlier than two or later than ten business days after the date of such notice.
3. Upon the authorization by you of the release of the Firm Securities, the
Underwriter proposes to offer the Firm Securities for sale upon the terms and conditions set forth
in the Prospectus.
4. (a) The Securities to be purchased by the Underwriter hereunder will be
represented by one or more definitive global Securities in book-entry form which will be deposited
by or on behalf of the Company with The Depository Trust Company (“DTC”) or its designated
custodian. The Company will deliver the Securities to the Underwriter against payment by or on
behalf of the Underwriter of the purchase price therefor by wire transfer of Federal (same-day)
funds to the account specified by the Company to Xxxxxxx, Xxxxx & Co. at least forty-eight hours in
advance, by causing DTC to credit the Securities to the account of Xxxxxxx, Xxxxx & Co. at DTC.
The Company will cause the certificates representing the Securities to be made available to
Xxxxxxx, Xxxxx & Co. for checking at least twenty-four hours prior to the Time of Delivery (as
defined below) at the office of DTC or its designated custodian (the “Designated Office”). The
time and date of such delivery and payment shall be, with respect to the Firm Securities, 9:30
a.m., New York City time, on April 10, 2006, or at such other time and date as Xxxxxxx, Xxxxx & Co.
and the Company may agree upon in writing, and, with respect to the Optional Securities, 9:30 a.m.,
New York City time, on the date specified by you in the written notice given by you of the
Underwriter’s election to purchase the Optional Securities, or at such other time and date as
Xxxxxxx, Xxxxx & Co. and the Company may agree upon in writing. Such time and date for delivery of
the Firm Securities is herein called the “First Time of Delivery”, such time and date for delivery
of the Optional Securities, if not the First Time of Delivery, is herein called the “Second Time of
Delivery”, and each such time and date for delivery is herein called a “Time of Delivery”.
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(b) The documents to be delivered at the Time of Delivery by or on behalf of the
parties hereto pursuant to Section 8 hereof, including the cross-receipt for the Securities and any
additional documents requested by the Underwriter pursuant to Section 8(j) hereof, will be
delivered at the offices of Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, 0000 X Xxxxxx XX,
Xxxxxxxxxx, XX 00000 (the “Closing Location”), and the Securities will be delivered at the
Designated Office, all at the Time of Delivery. A meeting will be held at the Closing Location at
3:00 p.m., New York City time, on the New York Business Day next preceding the Time of Delivery, at
which meeting the final drafts of the documents to be delivered pursuant to the preceding sentence
will be available for review by the parties hereto. For the purposes of this Section 4, “New York
Business Day” shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in New York City are generally authorized or obligated by law or
executive order to close.
5. The Company agrees with the Underwriter:
(a) To prepare the Prospectus in a form approved by you and to file such Prospectus
pursuant to Rule 424(b) under the Act not later than the Commission’s close of business on the
second business day following the date of this Agreement; to make no further amendment or any
supplement to the Registration Statement, the Basic Prospectus or the Prospectus prior to the Time
of Delivery which shall be disapproved by you promptly after reasonable notice thereof; to advise
you, promptly after it receives notice thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any amendment or supplement to the Prospectus has
been filed and to furnish you with copies thereof; to prepare a final term sheet, containing solely
a description of the final terms of the Securities, in a form approved by you and to file such term
sheet pursuant to Rule 433(d) under the Act within the time required by such Rule; to file promptly
all other material required to be filed by the Company with the Commission pursuant to Rule 433(d)
under the Act; to file promptly all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery
of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is
required in connection with the offering or sale of the Securities; to advise you, promptly after
it receives notice thereof, of the issuance by the Commission of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or other prospectus in respect of
the Securities, of any notice of objection of the Commission to the use of the Registration
Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act, of the
suspension of the qualification of the Securities or the shares of Stock issuable upon conversion
of the 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
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supplementing of the Registration Statement or the Prospectus or for additional information;
and, in the event of the issuance of any stop order or of any order preventing or suspending the
use of any Preliminary Prospectus or other prospectus or suspending any such qualification, to
promptly use its best efforts to obtain the withdrawal of such order; and in the event of any such
issuance of a notice of objection, promptly to take such steps including, without limitation,
amending the Registration Statement or filing a new registration statement, at its own expense, as
may be necessary to permit offers and sales of the Securities by the Underwriter (references herein
to the Registration Statement shall include any such amendment or new registration statement);
(b) If required by Rule 430B(h) under the Act, to prepare a form of prospectus in a
form approved by you and to file such form of prospectus pursuant to Rule 424(b) under the Act not
later than may be required by Rule 424(b) under the Act; and to make no further amendment or
supplement to such form of prospectus which shall be disapproved by you promptly after reasonable
notice thereof;
(c) If by the third anniversary (the “Renewal Deadline”) of the initial effective
date of the Registration Statement, any of the Securities remain unsold by the Underwriter, the
Company will file, if it has not already done so and is eligible to do so, a new automatic shelf
registration statement relating to the Securities, in a form satisfactory to you. If at the
Renewal Deadline the Company is no longer eligible to file an automatic shelf registration
statement, the Company will, if it has not already done so, file a new shelf registration statement
relating to the Securities, in a form satisfactory to you and will use its best efforts to cause
such registration statement to be declared effective within 180 days after the Renewal Deadline.
The Company will take all other action necessary or appropriate to permit the public offering and
sale of the Securities to continue as contemplated in the expired registration statement relating
to the Securities. References herein to the Registration Statement shall include such new
automatic shelf registration statement or such new shelf registration statement, as the case may
be;
(d) Promptly from time to time to take such action as you may reasonably request to
qualify the Securities and the shares of Stock issuable upon conversion of the Securities for
offering and sale under the securities laws of such jurisdictions as you 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 Securities, provided that in
connection therewith the Company shall not be required to qualify as a foreign corporation or to
file a general consent to service of process in any jurisdiction;
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(e) Prior to 10:00 a.m., New York City time, on the New York Business Day next
succeeding the date of this Agreement and from time to time, to furnish the Underwriter with
written and electronic copies of the Prospectus in New York City in such quantities as you may
reasonably request, and, if the delivery of a prospectus (or in lieu thereof, the notice referred
to in Rule 173(a) under the Act) is required at any time prior to the expiration of nine months
after the time of issue of the Prospectus in connection with the offering or sale of the Securities
and the shares of Stock issuable upon conversion of the Securities and if at such time any event
shall have occurred as a result of which the Prospectus as then amended or 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 (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is
delivered, not misleading, or, if for any other reason it shall be necessary during such same
period to amend or supplement the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with the Act, the Exchange Act or
the Trust Indenture Act, to notify you and upon your request to file such document and to prepare
and furnish without charge to the Underwriter and to any dealer in securities as many written and
electronic copies as you may from time to time reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such statement or omission or effect such
compliance; and in case the Underwriter is required to deliver a prospectus (or in lieu thereof,
the notice referred to in Rule 173(a) under the Act) in connection with sales of any of the
Securities and the shares of Stock issuable upon conversion of the Securities at any time nine
months or more after the time of issue of the Prospectus, upon your request but at the expense of
the Underwriter, to prepare and deliver to the Underwriter as many written and electronic copies as
you may request of an amended or supplemented Prospectus complying with Section 10(a)(3) of the
Act;
(f) To make generally available to its securityholders as soon as practicable, but
in any event not later than sixteen months after the effective date of the Registration Statement
(as defined in Rule 158(c) under the Act), an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a) of the Act and the rules and
regulations of the Commission thereunder (including, at the option of the Company, Rule 158);
(g) During the period beginning from the date hereof and continuing to and including
the date 60 days after the date of the Prospectus, without your prior written consent, not to
offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or
otherwise dispose, except as provided hereunder of, any securities of the Company that are
substantially similar to the Securities or the Stock, including but not limited to any options or
warrants to purchase shares of Stock or any securities that are convertible into or
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exchangeable for, or that represent the right to receive, Stock or any such substantially
similar securities (other than pursuant to employee or director equity benefit plans existing on
the date of this Agreement, or upon the conversion or exchange of convertible or exchangeable
securities outstanding as of the date of this Agreement, or pursuant to any shareholder rights plan
in effect as of the date of this Agreement);
(h) To pay the required Commission filing fees relating to the Securities within the
time required by Rule 456(b)(1) under the Act without regard to the proviso therein and otherwise
in accordance with Rules 456(b) and 457(r) under the Act;
(i) To use the net proceeds received by it from the sale of the Securities pursuant
to this Agreement in the manner specified in the Pricing Prospectus under the caption “Use of
Proceeds”;
(j) To reserve and keep available at all times, free of preemptive rights, shares of Stock for
the purpose of enabling the Company to satisfy any obligation to issue shares of its Stock upon
conversion of the Securities; and
(k) To use its reasonable best efforts to list the shares of Stock issuable upon conversion of
the Securities on the Nasdaq Stock Market Inc.’s National Market (“NASDAQ”), the New York Stock
Exchange or another U.S. national securities exchange or established automated over-the-counter
trading market in the United States.
6. (a) (i) The Company represents and agrees that, other than the final term sheet prepared
and filed pursuant to Section 5(a) hereof, without the prior consent of Xxxxxxx, Xxxxx & Co., it
has not made and will not make any offer relating to the Securities that would constitute a “free
writing prospectus” as defined in Rule 405 under the Act;
(ii) the Underwriter represents and agrees that, without the prior consent of the Company,
other than (x) one or more free writing prospectuses as defined in Rule 405 under the Act to the
extent it or they contain(s) the terms of the Securities or the offering that do not reflect the
final terms of the Securities or the offering and (y) one or more term sheets relating to the
Securities that does not contain substantive changes from or additions to the Issuer Free Writing
Prospectus filed as a final term sheet pursuant to Section 5(a) hereof, it has not made and will
not make any offer relating to the Securities that would constitute a “free writing prospectus” as
defined in Rule 405 under the Act; and
-13-
(iii) any free writing prospectus the use of which has been consented to by the Company and
Xxxxxxx, Xxxxx & Co. is listed on Schedule I(a) hereto;
(b) The Company has complied and will comply with the requirements of Rule 433 under
the Act applicable to any Issuer Free Writing Prospectus, including timely filing with the
Commission or retention where required and legending; and
(c) The Company agrees that if at any time following issuance of an Issuer Free
Writing Prospectus any event occurred or occurs as a result of which such Issuer Free Writing
Prospectus would conflict with the information in the Registration Statement, the Pricing
Prospectus or the Prospectus or 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 then prevailing, not misleading, the Company will give prompt notice thereof to
Xxxxxxx, Xxxxx & Co. and, if requested by Xxxxxxx, Xxxxx & Co., will prepare and furnish without
charge to the Underwriter an Issuer Free Writing Prospectus or other document which will correct
such conflict, statement or omission; provided, however, that this representation and warranty
shall not apply to any statements or omissions in an Issuer Free Writing Prospectus made in
reliance upon and in conformity with information furnished in writing to the Company by the
Underwriter expressly for use therein.
7. The Company covenants and agrees with the Underwriter that the Company will pay
or cause to be paid the following: (i) the fees, disbursements and expenses of the Company’s
counsel and accountants in connection with the registration of the Securities and the shares of
Stock issuable upon conversion of the Securities under the Act and all other expenses in connection
with the preparation, printing, reproduction and filing of the Registration Statement, the Basic
Prospectus, any Preliminary Prospectus, any Issuer Free Writing Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies thereof to the
Underwriter and dealers; (ii) the cost of printing or producing this Agreement, the Indenture, the
Blue Sky Memorandum, closing documents (including any compilations thereof) and any other documents
in connection with the offering, purchase, sale and delivery of the Securities; (iii) all expenses
in connection with the qualification of the Securities and the shares of Stock issuable upon
conversion of the Securities for offering and sale under state securities laws as provided in
Section 5(d) hereof, including the fees and disbursements of counsel for the Underwriter in
connection with such qualification and in connection with the Blue Sky survey; (iv) any fees
charged by securities rating services for rating the Securities; (v) the filing fees incident to,
and the fees and disbursements of counsel for the Underwriter in connection with, any required
review by the National Association of Securities Dealers, Inc. of the terms of the sale of the
Securities; (vi) all fees
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and expenses in connection with listing the Securities or the shares of Stock issuable upon
conversion of the Securities on NASDAQ; (vii) the cost of preparing the Securities; (viii) the fees
and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel
for the Trustee in connection with the Indenture and the Securities; and (ix) all other costs and
expenses incident to the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section. It is understood, however, that, except as provided in
this Section, and Sections 9 and 11 hereof, the Underwriter will pay all of its own costs and
expenses, including the fees of its counsel, transfer taxes on resale of any of the Securities by
the Underwriter, and any advertising expenses connected with any offers the Underwriter may make.
8. The obligations of the Underwriter hereunder shall be subject, in its discretion,
to the condition that all representations and warranties and other statements of the Company herein
are, at and as of such Time of Delivery, true and correct, the condition that the Company shall
have performed all of its obligations hereunder theretofore to be performed, and the following
additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b)
under the Act within the applicable time period prescribed for such filing by the rules and
regulations under the Act and in accordance with Section 5(a) hereof; the final term sheet
contemplated by Section 5(a) hereof, and any other material required to be filed by the Company
pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the
applicable time periods prescribed for such filings by Rule 433; 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 no notice
of objection of the Commission to the use of the Registration Statement or any post-effective
amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order
suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have
been initiated or threatened by the Commission; and all requests for additional information on the
part of the Commission shall have been complied with to your reasonable satisfaction;
(b) Xxxxxx Xxxxxx Xxxxxxxxx
Xxxx and Xxxx LLP, counsel for the Underwriter, shall
have furnished to you such written opinion or opinions, dated such Time of Delivery, with respect to such matters as you may
reasonably request, and such counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(c) Xxxxx & Xxxxxxx LLP,
counsel for the Company, shall have furnished to you their
written opinion (a form of such letter is attached as Xxxxx XX(b) hereto) and letter,
dated such Time of Delivery, in form and substance satisfactory to you;
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(d) The General Counsel
of the Company shall have furnished to you his written
opinion dated such Time of Delivery, in
form and substance satisfactory to you;
(e) On the date hereof at a time prior to the execution of this Agreement, at 9:30
a.m., New York City time, on the effective date of any post effective amendment to the Registration
Statement filed subsequent to the date of this Agreement and also at each Time of Delivery,
PricewaterhouseCoopers LLP shall have furnished to you a letter or letters, dated the respective
dates of delivery thereof, in form and substance satisfactory to you;
(f) (i) Neither the Company nor any of its Subsidiaries shall have sustained since
the date of the latest audited financial statements included or incorporated by reference in the
Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and
(ii) since the respective dates as of which information is given in the Pricing Prospectus there
shall not have been any change in the capital stock or long term debt of the Company or any of its
Subsidiaries or any change, or any development involving a prospective change, in or affecting the
general affairs, management, financial position, stockholders’ equity or results of operations of
the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing
Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in your
judgment so material and adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Securities being issued at such Time of Delivery on the
terms and in the manner contemplated in the Prospectus;
(g) On or after the Applicable Time (i) no downgrading shall have occurred in the
rating accorded the Company’s debt securities by any “nationally recognized statistical rating
organization”, as that term is defined by the Commission for purposes of Rule 436(g)(2) under the
Act, and (ii) no such organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any of the Company’s debt securities;
-16-
(h) On or after the Applicable Time there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in securities generally on the New
York Stock Exchange or on NASDAQ; (ii) a suspension or material limitation in trading in the
Company’s securities on NASDAQ; (iii) a general moratorium on commercial banking activities
declared by either Federal or New York or Washington, D.C. State authorities or a material
disruption in commercial banking or securities settlement or clearance services in the United
States; (iv) the outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war or (v) the occurrence of any other
calamity or crisis or any change in financial, political or economic conditions in the United
States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in your
judgment makes it impracticable or inadvisable to proceed with the public offering or the delivery
of the Securities being issued at such Time of Delivery on the terms and in the manner contemplated
in the Prospectus;
(i) The Company shall have complied with the provisions of Section 5(e) hereof with
respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of
this Agreement;
(j) The shares of Stock issuable upon conversion of the Securities shall have been
duly listed for quotation on NASDAQ; and
(k) The Company shall have furnished or caused to be furnished to you at such Time
of Delivery certificates of officers of the Company satisfactory to you as to the accuracy of the
representations and warranties of the Company herein at and as of such time, as to the performance
by the Company of all of its obligations hereunder to be performed at or prior to such time, as to
the matters set forth in subsections (a) and (f) of this Section and as to such other matters as
you may reasonably request.
9. (a) The Company will indemnify and hold harmless the Underwriter against any
losses, claims, damages or liabilities, joint or several, to which the Underwriter may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, the Basic Prospectus, any
Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement
thereto, any Issuer Free Writing Prospectus or any “issuer information” filed or required to be
filed pursuant to Rule 433(d) under the Act, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and will reimburse the Underwriter for any legal or
other expenses reasonably incurred by the Underwriter in connection with investigating or defending
any such action or claim as such expenses are
-17-
incurred; provided, however, that the Company shall not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in the Registration
Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the
Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, in
reliance upon and in conformity with written information furnished to the Company by the
Underwriter expressly for use therein.
(b) The Underwriter will indemnify and hold harmless the Company against any losses,
claims, damages or liabilities to which the Company may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of
or are based upon an untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing
Prospectus or the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing
Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in the Registration Statement,
the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus or any
such amendment or supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and
in conformity with written information furnished to the Company by the Underwriter expressly for
use therein; and will reimburse the Company for any legal or other expenses reasonably incurred by
the Company in connection with investigating or defending any such action or claim as such expenses
are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above
of notice of the commencement of any action, such indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under such subsection, notify the indemnifying
party in writing of the commencement thereof; but the omission so to notify the indemnifying party
shall not relieve it from any liability which it may have to any indemnified party otherwise than
under such subsection. In case any such action shall be brought against any indemnified party and
it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to
such indemnified party (who shall not, except with the consent of the indemnified party, be counsel
to the indemnifying party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall not be liable to
such indemnified party under such subsection for any legal expenses of other counsel or any other
-18-
expenses, in each case subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying party shall, without
the written consent of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or claim in respect of
which indemnification or contribution may be sought hereunder (whether or not the indemnified party
is an actual or potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all liability arising
out of such action or claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 9 is unavailable to or
insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of
any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein,
then each indemnifying party shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in
such proportion as is appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriter on the other from the offering of the Securities. If, however, the
allocation provided by the immediately preceding sentence is not permitted by applicable law or if
the indemnified party failed to give the notice required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid or payable by such indemnified party in
such proportion as is appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriter on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or liabilities (or actions
in respect thereof), as well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriter on the other shall be deemed to be in
the same proportion as the total net proceeds from the offering (before deducting expenses)
received by the Company bear to the total underwriting discounts and commissions received by the
Underwriter, in each case as set forth in the table on the cover page of the Prospectus. The
relative fault shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission to state a material
fact relates to information supplied by the Company on the one hand or the Underwriter on the other
and the parties’ relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the Underwriter agree that it would not be
just and equitable if contribution pursuant to this subsection (d) were determined by pro rata
allocation or by any other method of allocation which does not take account of the equitable
considerations referred to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this
-19-
subsection (d) shall be deemed to include 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 subsection (d), the Underwriter shall not be required to
contribute any amount in excess of the amount by which the total price at which the Securities were
offered to the public exceeds the amount of any damages which the Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) The obligations of the Company under this Section 9 shall be in addition to any
liability which the Company may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter within the meaning of the Act and
each broker-dealer affiliate of the Underwriter; and the obligations of the Underwriter under this
Section 9 shall be in addition to any liability which the Underwriter may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Act.
10. The respective indemnities, agreements, representations, warranties and other
statements of the Company and the Underwriter, as set forth in this Agreement or made by them,
respectively, pursuant to this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf of the Underwriter
or any controlling person of the Underwriter, or the Company, or any officer or director or
controlling person of the Company, and shall survive delivery of and payment for the Securities.
11. If, for any reason, any Securities are not delivered by or on behalf of the
Company as provided herein, the Company will reimburse the Underwriter for all out of pocket
expenses approved in writing by you, including fees and disbursements of counsel, reasonably
incurred by the Underwriter in making preparations for the purchase, sale and delivery of the
Securities, but the Company shall then be under no further liability to the Underwriter except as
provided in Sections 7 and 9 hereof.
12. All statements, requests, notices and agreements hereunder shall be in writing,
and if to the Underwriter shall be delivered or sent by mail, telex or facsimile transmission to
you at Xxx Xxx Xxxx Xxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Registration
Department; and if to 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:
Secretary. Any such statements, requests, notices or agreements shall take effect upon receipt thereof.
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13. This Agreement shall be binding upon, and inure solely to the benefit of, the
Underwriter, the Company and, to the extent provided in Sections 9 and 10 hereof, the officers and
directors of the Company and each person who controls the Company or the Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement. No purchaser of any of the
Securities from the Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
14. Time shall be of the essence of this Agreement. As used herein, the term
“business day” shall mean any day when the Commission’s office in Washington, D.C. is open for
business.
15. The Company acknowledges and agrees that (i) the purchase and sale of the
Securities pursuant to this Agreement is an arm’s-length commercial transaction between the
Company, on the one hand, and the Underwriter, on the other, (ii) in connection therewith and with
the process leading to such transaction the Underwriter is acting solely as a principal and not the
agent or fiduciary of the Company, (iii) the Underwriter has not assumed an advisory or fiduciary
responsibility in favor of the Company with respect to the offering contemplated hereby or the
process leading thereto (irrespective of whether the Underwriter has advised or is currently
advising the Company on other matters) or any other obligation to the Company except the
obligations expressly set forth in this Agreement and (iv) the Company has consulted its own legal
and financial advisors to the extent it deemed appropriate. The Company agrees that it will not
claim that the Underwriter has rendered advisory services of any nature or respect, or owes a
fiduciary or similar duty to the Company, in connection with the offering contemplated hereby or
the process leading thereto.
16. This Agreement supersedes all prior agreements and understandings (whether
written or oral) between the Company and the Underwriter with respect to the subject matter hereof.
17. This Agreement shall be governed by and construed in accordance with the laws of
the State of New York.
18. The Company and the Underwriter hereby irrevocably waive, to the fullest extent
permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out
of or relating to this Agreement or the transactions contemplated hereby.
19. This Agreement may be executed by any one or more of the parties hereto in any
number of counterparts, each of which shall be deemed to be an original, but all such respective counterparts shall together constitute one and the same
instrument.
-21-
20. Notwithstanding anything herein to the contrary, the Company is authorized to
disclose to any persons the U.S. federal and state income tax treatment and tax structure of the
potential transaction and all materials of any kind (including tax opinions and other tax analyses)
provided to the Company relating to that treatment and structure, without the Underwriter, imposing
any limitation of any kind. However, any information relating to the tax treatment and tax
structure shall remain confidential (and the foregoing sentence shall not apply) to the extent
necessary to enable any person to comply with securities laws. For this purpose, “tax structure” is
limited to any facts that may be relevant to that treatment.
-22-
If the foregoing is in accordance with your understanding, please sign and return to us four
counterparts hereof, and upon the acceptance hereof by you, this letter and such acceptance hereof
shall constitute a binding agreement between the Underwriter and the Company.
| Very truly yours, | ||||
| Ciena Corporation | ||||
| By: | /s/ Xxxxxx X. Xxxxxxxx | |||
| Name: Xxxxxx X. Xxxxxxxx | ||||
| Title: Senior Vice President, | ||||
| Finance and Chief Financial | ||||
| Officer | ||||
Accepted as of the date hereof:
Xxxxxxx, Xxxxx & Co.
By:
|
/s/ Xxxxxxx, Xxxxx & Co. | |||
| (Xxxxxxx, Xxxxx & Co.) |
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SCHEDULE I
(a) Issuer Free Writing Prospectuses:
Final Term Sheet dated April 4, 2006.
(b) Additional Documents Incorporated by Reference:
None.
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