EXHIBIT 1.1
CORSAIR COMMUNICATIONS, INC.
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2,250,000 SHARES
PLUS AN OPTION TO PURCHASE FROM CORSAIR COMMUNICATIONS, INC.
UP TO 337,500 ADDITIONAL SHARES TO COVER OVER-ALLOTMENTS
COMMON STOCK
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UNDERWRITING AGREEMENT
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_____________, 1997
DEUTSCHE XXXXXX XXXXXXXX INC.
XXXXXXXXX & XXXXX LLC
XXXXXXX, XXXXXX & XXXXXXXXX, L.L.C.
As Representatives of the several Underwriters
c/o Deutsche Xxxxxx Xxxxxxxx Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Corsair Communications, Inc., a Delaware corporation (the "Company"),
hereby confirms its agreement with the several underwriters named in Schedule 1
hereto (the "Underwriters"), for whom you have been duly authorized to act as
representatives (in such capacity, the "Representatives"), as set forth below.
If you are the only Underwriters, all references herein to the Representatives
shall be deemed to be references to the Underwriters.
Section 1. Underwriting. Subject to the terms and conditions contained herein:
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(a) The Company proposes to issue and sell 2,250,000 shares of common
stock, par value $0.001 per share (the "Common Stock"), of the Company (the
"Firm Shares") to the several Underwriters. The Company also proposes to issue
and sell to the several Underwriters not more than 337,500 additional shares of
Common Stock (the "Option Shares" and, together with the Firm Shares, the
"Shares") if requested by the Representatives as provided in Section 2(b)
hereof.
(b) Upon your authorization of the release of the Firm Shares, the
Underwriters propose to make a public offering (the "Offering") of the Firm
Shares upon the terms set forth in the Prospectus (as defined below) as soon
after the Registration Statement (as defined below) and this Agreement have
become effective as in the Representatives' sole
judgment is advisable. As used in this Agreement, the term "Original
Registration Statement" means the registration statement (File No. 333-28519)
initially filed with the Securities and Exchange Commission (the "Commission")
relating to the Shares, as amended at the time when it was or is declared
effective, including all financial schedules and exhibits thereto and including
any information omitted therefrom pursuant to Rule 430A under the Securities Act
of 1933, as amended (the "Securities Act"), and included in the Prospectus; the
term "Rule 462(b) Registration Statement" means any registration statement filed
with the Commission pursuant to Rule 462(b) under the Securities Act (including
the Registration Statement and any Preliminary Prospectus (as defined below) or
Prospectus incorporated therein at the time such Registration Statement becomes
effective); the term "Registration Statement" includes both the Original
Registration Statement and any Rule 462(b) Registration Statement; the term
"Preliminary Prospectus" means each prospectus subject to completion filed with
the Original Registration Statement or any amendment thereto (including the
prospectus subject to completion, if any, included in the Original Registration
Statement or any amendment thereto at the time it was or is declared effective);
the term "Prospectus" means:
(i) if the Company relies on Rule 434 under the Securities Act,
the Term Sheet (as defined below) relating to the Shares that is
first filed pursuant to Rule 424(b)(7) under the Securities Act,
together with the Preliminary Prospectus identified therein that
such Term Sheet supplements;
(ii) if the Company does not rely on Rule 434 under the
Securities Act, the prospectus first filed with the Commission
pursuant to Rule 424(b) under the Securities Act;
(iii) if the Company does not rely on Rule 434 under the
Securities Act and if no prospectus is required to be filed
pursuant to Rule 424(b) under the Securities Act, the prospectus
included in the Registration Statement; or
(iv) for purposes of the representations and warranties in
Section 5 hereof, if the Prospectus is not in existence, the most
recent Preliminary Prospectus;
and the term "Term Sheet" means any term sheet that satisfies the
requirements of Rule 434 under the Securities Act. Any reference herein to
the "date" of a Prospectus that includes a Term Sheet shall mean the date
of such Term Sheet.
Section 2. Purchase and Closing.
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(a) On the basis of the representations, warranties, agreements and
covenants herein contained and subject to the terms and conditions herein set
forth, the Company agrees to issue and sell to each of the Underwriters, and
each of the Underwriters, severally and not jointly, agrees to purchase from the
Company, at a purchase price of $___ per Share (the "Purchase
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Price"), the number of Firm Shares set forth opposite the name of such
Underwriter in Schedule 1 hereto. Firm Shares shall be registered by Bank of
Boston, N.A. in the name of the nominee of the Depository Trust Company ("DTC"),
Cede & Co. ("Cede & Co."), and credited to the accounts of such of its
participants as the Representatives shall request, upon notice to the Company at
least 48 hours prior to the First Closing Date (as defined below), with any
transfer taxes payable in connection with the transfer of the Firm Shares to the
Underwriters duly paid, against payment by or on behalf of the Underwriters to
the account of the Company of the aggregate Purchase Price therefor by wire
transfer in immediately available funds. The Company will make the certificate
or certificates for the Firm Shares available for checking and packaging by the
Representatives at the offices in New York, New York of the Company's transfer
agent or registrar or of the Representatives at least 24 hours prior to the
First Closing Date. Delivery or registry of and payment for the Firm Shares
shall be made at the offices of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, 0000 Xxxx Xxxx,
Xxxx Xxxx, Xxxxxxxxxx 00000 at 9:30 A.M., New York City time, on the fourth full
business day following the date of this Agreement, or at such other place, time
or date as the Representatives and the Company may agree upon. Such time and
date of delivery against payment are herein referred to as the "First Closing
Date," and the implementation of all the actions described in this Section 2(a)
is herein referred to as the "First Closing."
(b) For the purpose of covering any overallotments in connection with
the distribution and sale of the Firm Shares as contemplated by the Prospectus,
the Company hereby grants to the several Underwriters an option to purchase,
severally and not jointly, the Option Shares. The purchase price to be paid for
any Option Shares shall be the same as the Purchase Price for the Firm Shares
set forth above in Section 2(a). The option granted hereby may be exercised as
to all or any part of the Option Shares from time to time within thirty days
after the date of the Prospectus (or, if such 30th day shall be a Saturday or
Sunday or a holiday, on the next business day thereafter when the New York Stock
Exchange and the Nasdaq Stock Market's National Market (the "Nasdaq National
Market") are open for trading). The Underwriters shall not be under any
obligation to purchase any of the Option Shares prior to the exercise of such
option. The Representatives may from time to time exercise the option granted
hereby by giving notice in writing or by telephone (confirmed in writing) to the
Company setting forth the aggregate number of Option Shares as to which the
several Underwriters are then exercising the option and the date and time for
delivery or registry of and payment for such Option Shares. Any such date of
delivery or registry shall be determined by the Representatives but shall not be
earlier than two business days or later than five business days after such
exercise of the option and, in any event, shall not be earlier than the First
Closing Date. The time and date set forth in such notice, or such other time or
date as the Representatives and the Company may agree upon or as the
Representatives may determine pursuant to Section 2(a) hereof, is herein called
an "Option Closing Date" with respect to such Option Shares, and the
implementation of all the actions described in this Section 2(b) is herein
referred to as the "Option Closing." As used in this Agreement, the term
"Closing Date" means either the First Closing Date or any Option Closing Date,
as applicable, and the term "Closing" means either the First Closing or any
Option Closing, as applicable. If the option is exercised as to all or any
portion of the Option Shares, then either one or more certificates in definitive
form for such Option Shares shall be delivered
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or, if such Option Shares are to be held through DTC, such Option Shares shall
be registered and credited, on the related Option Closing Date in the same
manner, and upon the same terms and conditions, set forth above in Section 2(a),
except that reference therein to the Firm Shares and the First Closing Date
shall be deemed, for purposes of this Section 2(b), to refer to such Option
Shares and Option Closing Date, respectively. Upon exercise of the option as
provided herein, the Company shall become obligated to sell to each of the
several Underwriters, and, on the basis of the representations, warranties,
agreements and covenants herein contained and subject to the terms and
conditions herein set forth, each of the Underwriters (severally and not
jointly) shall become obligated to purchase from the Company, the same
percentage of the total number of the Option Shares as to which the several
Underwriters are then exercising the option as such Underwriter is obligated to
purchase of the aggregate number of Firm Shares, as adjusted by the
Representatives in such manner as they deem advisable to avoid fractional
shares.
(c) The Company hereby acknowledges that the payment of monies
pursuant to Section 2(a) or Section 2(b) hereof (a "Payment") by or on behalf of
the Underwriters of the aggregate Purchase Price for any Shares does not
constitute closing of a purchase and sale of the Shares. Only execution and
delivery, by facsimile or otherwise, of a receipt for Shares by Deutsche Xxxxxx
Xxxxxxxx Inc., on behalf of the Underwriters, indicates completion of the
closing of a purchase of the Shares from the Company. Furthermore, in the event
that the Underwriters make a Payment to the Company prior to the completion of
the closing of a purchase of Shares, the Company hereby acknowledges that until
Deutsche Xxxxxx Xxxxxxxx Inc., on behalf of the Underwriters, executes and
delivers such receipt for the Shares the Company will not be entitled to the
Payment and shall return the Payment to the Underwriters as soon as practicable
(by wire transfer of same-day funds) upon demand. In the event that the closing
of a purchase of Shares is not completed and the Payment is not returned by the
Company to the Underwriters on the same day the Payment was received by the
Company, the Company agrees to pay to the Underwriters in respect of each day
the Payment is not returned by it, in same-day funds, interest on the amount of
such Payment in an amount representing the Underwriters' cost of financing as
reasonably determined by the Representatives. The failure of Deutsche Xxxxxx
Xxxxxxxx Inc. to execute and deliver a receipt for the Shares shall in no way
affect the obligations of the Underwriters to the Company hereunder except as
specifically set forth herein.
(d) It is understood that any of you, individually and not as one of
the Representatives, may (but shall not be obligated to) make Payment on behalf
of any Underwriter or Underwriters for any of the Shares to be purchased by such
Underwriter or Underwriters. No such Payment shall relieve such Underwriter or
Underwriters from any of its or their obligations hereunder.
Section 3. Covenants of the Company. The Company covenants and agrees with the
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several Underwriters that:
(a) The Company will:
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(i) use its best efforts to cause the Registration Statement, if
not effective at the time of execution of this Agreement, and any
amendments thereto to become effective as promptly as possible.
If required, the Company will file the Prospectus or any Term
Sheet that constitutes a part thereof and any amendment or
supplement thereto with the Commission in the manner and within
the time period required by Rules 434 and 424(b) under the
Securities Act. During any time when a prospectus relating to
the Shares is required to be delivered under the Securities Act,
the Company (x) will comply with all requirements imposed upon it
by the Securities Act and the rules and regulations of the
Commission thereunder to the extent necessary to permit the
continuance of sales of or dealings in the Shares in accordance
with the provisions hereof and of the Prospectus, as then amended
or supplemented, and (y) will not file with the Commission the
Prospectus, Term Sheet, any amendment or supplement to such
Prospectus or Term Sheet, any amendment to the Registration
Statement (including the amendment referred to in the second
sentence of Section 5(a)(i)) or any Rule 462(b) Registration
Statement unless the Representatives previously have been advised
of, and furnished with a copy within a reasonable period of time
prior to, the proposed filing and the Representatives shall not
have reasonably objected in writing to such filing. The Company
will prepare and file with the Commission, in accordance with the
rules and regulations of the Commission, promptly upon request by
the Representatives or counsel for the Underwriters, any
amendments to the Registration Statement or amendments or
supplements to the Prospectus that may be necessary in the
opinion of counsel to the Underwriters in connection with the
distribution of the Shares by the several Underwriters. The
Company will advise the Representatives, promptly after receiving
notice thereof, of the time when the Registration Statement or
any amendment thereto has been filed or declared effective or the
Prospectus or Term Sheet or any amendment or supplement thereto
has been filed and will provide evidence satisfactory to the
Representatives of each such filing or effectiveness.
(ii) without charge, provide (x) to each of the Representatives
and to counsel for the Underwriters, an executed and a conformed
copy of the Original Registration Statement and each amendment
thereto or any Rule 462(b) Registration Statement (in each case
including exhibits thereto), (y) to each other Underwriter, a
conformed copy of the Original Registration Statement and each
amendment thereto or any Rule 462(b) Registration Statement (in
each case without exhibits thereto), and (z) so long as a
prospectus relating to the Shares is required to be delivered
under the Securities Act, as many copies of each Preliminary
Prospectus or the Prospectus or any amendment or supplement
thereto as the Representatives may reasonably request. Without
limiting the application
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of clause (z) of the preceding sentence, the Company, not later
than (I) 9:00 A.M., New York City time, on the business day
following the date of determination of the public offering price,
if such determination occurred at or prior to 12:00 noon, New
York City time, on such date or (II) 9:00 A.M., New York City
time, on the second business day following the date of
determination of the public offering price, if such determination
occurred after 12:00 noon, New York City time, on such date, will
deliver to the Underwriters, without charge, as many copies of
the Prospectus and any amendment or supplement thereto as the
Representatives may reasonably request for purposes of confirming
orders that are expected to settle on the First Closing Date. The
Company will provide or cause to be provided to each of the
Representatives, and to each Underwriter that so requests in
writing, a copy of each report on Form SR filed by the Company as
required by Rule 463 under the Securities Act.
(iii) advise the Representatives, promptly after receiving
notice or obtaining knowledge thereof, of (w) the issuance by the
Commission of any stop order suspending the effectiveness of the
Original Registration Statement or any amendment thereto or any
Rule 462(b) Registration Statement or any order preventing or
suspending the use of any Preliminary Prospectus or the
Prospectus or any amendment or supplement thereto, (x) the
suspension of the qualification of the Shares for offering or
sale in any jurisdiction, (y) the institution, threatening or
contemplation of any proceeding for any such purpose, or (z) any
request made by the Commission for amending the Original
Registration Statement or any Rule 462(b) Registration Statement,
for amending or supplementing the Prospectus or for additional
information. The Company will use all reasonable efforts to
prevent the issuance of any such stop order and, if any such stop
order is issued, to obtain the withdrawal thereof as promptly as
possible.
(b) The Company will arrange for the qualification of the Shares for
offering and sale in each jurisdiction as the Representatives shall reasonably
designate including, but not limited to, pursuant to applicable state securities
("Blue Sky") laws of certain states of the United States of America or other
U.S. jurisdictions, and the Company shall maintain such qualifications in effect
for so long as may be necessary in order to complete the placement of the
Shares; provided, however, that the Company shall not be obliged to file any
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general consent to service of process or to qualify as a foreign corporation or
as a securities dealer in any jurisdiction or to subject itself to taxation in
respect of doing business in any jurisdiction in which it is not otherwise so
subject.
(c) If, at any time prior to the final date when a prospectus relating
to the Shares is required to be delivered under the Securities Act, any event
occurs as a result of which the Prospectus, as then amended or supplemented,
would include any untrue statement of a
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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, or if for any other reason it shall be necessary at any
time to amend or supplement the Registration Statement or the Prospectus to
comply with the Securities Act or the rules or regulations of the Commission
thereunder or applicable law, the Company will promptly notify the
Representatives thereof and will promptly, at its own expense, but subject to
the second full sentence of Section 3(a)(i) hereof: (x) prepare and file with
the Commission an amendment or supplement to the Registration Statement or
Prospectus which will correct such statement or omission or effect such
compliance; and (y) supply any amended or supplemented Prospectus to the
Underwriters in such quantities as the Underwriters may reasonably request.
(d) The Company will make generally available to the Company's
securityholders and to the Representatives as soon as practicable an earnings
statement that satisfies the provisions of Section 11(a) of the Securities Act,
including Rule 158 thereunder.
(e) The Company will apply the net proceeds from the sale of the
Shares as set forth under "Use of Proceeds" in the Prospectus.
(f) The Company will not, and will not allow any subsidiary to,
publicly announce any intention to, and will not itself, and will not allow any
subsidiary to, without the prior written consent of Deutsche Xxxxxx Xxxxxxxx
Inc., on behalf of the Underwriters, (i) offer, pledge, sell, offer to sell,
contract to sell, sell any option or contract to purchase, purchase any option
to sell, grant any option, right or warrant to purchase, or otherwise transfer
or dispose of, directly or indirectly, any shares of Common Stock or any
securities convertible into, or exercisable or exchangeable for, Common Stock,
or (ii) enter into any swap or other agreement that transfers, in whole or in
part, any of the economic consequences of ownership of the shares of Common
Stock or securities convertible into, or exercisable or exchangeable for, shares
of Common Stock (whether any such transaction described in clause (i) or (ii)
above is to be settled by delivery of shares of Common Stock or such other
securities, in cash or otherwise), for a period beginning from the date hereof
and continuing to and including the date 180 days after the date hereof, except
pursuant to this Agreement and other than with respect to (x) shares of Common
Stock to be issued upon the exercise of warrants to purchase shares of Common
Stock, or upon conversion or exchange of securities convertible or exchangeable
into shares of Common Stock, in each case, which are outstanding on the date
hereof and disclosed in the Prospectus, and (y) shares of Common Stock (or any
securities convertible into, exercisable for or exchangeable for shares of
Common Stock) issued or issuable pursuant to any employee benefit plans,
qualified stock option plans or other employee compensation plans which are
disclosed in the Prospectus.
(g) For a period beginning from the date hereof and continuing to and
including the date 180 days after the date hereof, neither the Company nor any
of its affiliates, nor any person acting on behalf of any of them will, directly
or indirectly, (i) take any action designed to cause or to result in, or that
has constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of the Company to
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facilitate the sale or resale of the Shares or (ii) (x) sell, bid for, purchase,
or pay anyone any compensation for soliciting purchases of, the Shares or (y)
pay or agree to pay to any person any compensation for soliciting another to
purchase any other securities of the Company.
(h) The Company will obtain the agreements described in Section 7(f)
hereof prior to the First Closing Date.
(i) If at any time during the 25-day period after the Registration
Statement becomes effective or during the period prior to any Closing Date, any
rumor, publication or event relating to or affecting the Company shall occur as
a result of which in the Representatives' sole judgment the market price of the
Shares has been or is likely to be materially affected (regardless of whether
such rumor, publication or event necessitates a supplement to or amendment of
the Prospectus), the Company will, after notice from the Representatives
advising the Company to the effect set forth above, forthwith prepare, consult
with the Representatives concerning the substance of, and disseminate a press
release or other public statement reasonably satisfactory to the Representatives
responding to or commenting on such rumor, publication or event.
(j) If the Company elects to rely on Rule 462(b), the Company shall
both file the Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) and pay the applicable fees in accordance with Rule
111 promulgated under the Securities Act by the earlier of (i) 10:00 P.M. New
York City time on the date of this Agreement and (ii) the time confirmations are
sent or given, as specified by Rule 462(b)(2) under the Securities Act.
(k) The Company will cause the Shares to be duly included for
quotation on the Nasdaq National Market prior to the First Closing Date. The
Company will use all reasonable efforts to ensure that the Shares remain
included for quotation on the Nasdaq National Market following the First Closing
Date.
Section 4. Expenses. The Company shall bear and pay all costs and expenses
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incurred incident to the performance of its obligations under this Agreement,
whether or not the transactions contemplated herein are consummated or this
Agreement is terminated pursuant to Section 9 hereof, including: (i) fees and
expenses of preparation, issuance and delivery of this Agreement to the
Underwriters; (ii) the fees and expenses of its counsel, accountants and any
other experts or advisors retained by the Company; (iii) fees and expenses
incurred in connection with the registration of the Shares under the Securities
Act and the preparation and filing of the Registration Statement, the Prospectus
and all amendments and supplements thereto; (iv) the printing and distribution
of the Prospectus and any Preliminary Prospectus and the printing and production
of all other documents connected with the Offering (including this Agreement and
any other related agreements); (v) expenses related to the qualification of the
Shares under the state securities or Blue Sky laws, including filing fees and
the reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation of any Blue Sky
memoranda; (vi) the filing fees and expenses, if any, incurred with respect to
any filing with the National Association of Securities Dealers, Inc., including
the reasonable fees and disbursements of counsel for the Underwriters in
connection therewith; (vii) all expenses arising from the quoting of the Shares
on the Nasdaq National Market; (viii) all arrangements relating to
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the preparation, issuance and delivery to the Underwriters of any certificates
evidencing the Shares, including transfers agent's and registrar's fees; (ix)
the costs and expenses of the "roadshow" and any other meetings with prospective
investors in the Shares (other than as shall have been specifically approved by
the Representatives to be paid for by the Underwriters); and (x) the costs and
expenses of advertising relating to the Offering (other than as shall have been
specifically approved by the Representatives to be paid for by the
Underwriters).
Section 5. Representations And Warranties.
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(a) As a condition of the obligation of the Underwriters to underwrite
and purchase the Shares, the Company represents and warrants to, and agrees
with, each of the several Underwriters as follows:
Registration Statement and Prospectus
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(i) The Original Registration Statement, including the
Preliminary Prospectus, has been filed by the Company with the
Commission under the Securities Act, and one or more amendments to
such Registration Statement may have been so filed. After the
execution of this Agreement, the Company will file with the Commission
either (x) if such Registration Statement, as it may have been
amended, has been declared by the Commission to be effective under the
Securities Act, either (I) if the Company relies on Rule 434 under the
Securities Act, a Term Sheet relating to the Shares that shall
identify the Preliminary Prospectus that it supplements containing
such information as is required or permitted by Rules 434, 430A and
424(b) under the Securities Act or (II) if the Company does not rely
on Rule 434 under the Securities Act, a prospectus in the form most
recently included in an amendment to such Registration Statement (or,
if no such amendment shall have been filed, in such Registration
Statement), with such changes or insertions as are required by Rule
430A under the Securities Act or permitted by Rule 424(b) under the
Securities Act, and in the case of either clause (I) or (II) of this
sentence, as have been provided to and not objected to by the
Representatives prior to the execution of this Agreement, or (y) if
such Registration Statement, as it may have been amended, has not been
declared by the Commission to be effective under the Securities Act,
an amendment to such Registration Statement, including a form of
prospectus, a copy of which amendment has been furnished to and
approved by the Representatives prior to the execution of this
Agreement. The Company may also file a Rule 462(b) Registration
Statement with the Commission for the purpose of registering certain
additional Shares, which registration shall be effective upon filing
with the Commission.
(ii) The Commission has not issued any order preventing or
suspending the use of any Preliminary Prospectus. When any
Preliminary Prospectus was filed with the Commission, it (x) contained
all statements required to be stated therein in accordance with, and
complied in all material respects with
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the requirements of, the Securities Act and the rules and regulations
of the Commission thereunder and (y) with regard to the Registration
Statement, did not include any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading; and,
with regard to the Prospectus, did not include any untrue statement of
a material fact or omit to state any material fact necessary in order
to make the statements, in the light of the circumstances under which
they were made, not misleading. When the Registration Statement or any
amendment thereto was or is declared effective, it (I) contained or
will contain all statements required to be stated therein in
accordance with, and complied or will comply in all material respects
with the requirements of, the Securities Act and the rules and
regulations of the Commission thereunder and (II) did not or will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading. When the Prospectus or any Term
Sheet that is a part thereof or any amendment or supplement to the
Prospectus is filed with the Commission pursuant to Rule 424(b) (or,
if the Prospectus or such amendment or supplement is not required to
be so filed, when the Registration Statement or the amendment thereto
containing the Prospectus or such amendment or supplement to the
Prospectus was or is declared effective) and on the Closing Date, the
Prospectus, as amended or supplemented at any such time, (A) contained
or will contain all statements required to be stated therein in
accordance with, and complied or will comply in all material respects
with the requirements of, the Securities Act and the rules and
regulations of the Commission thereunder and (B) did not or will 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. The foregoing provisions of this paragraph (ii) do not
apply to (x) statements or omissions made in any Preliminary
Prospectus, the Registration Statement or any amendment thereto or the
Prospectus or any amendment or supplement thereto in reliance upon and
in conformity with written information furnished to the Company by any
Underwriter through the Representatives specifically for use therein
and (y) statements or omissions made in any Preliminary Prospectus,
the Registration Statement or any amendment thereto that is corrected
in the Prospectus (or any amendment or supplement thereto) where
delivery of the Prospectus (as amended or supplemented) was required
by the Securities Act.
(iii) If the Company has elected to rely on Rule 462(b) and the
Rule 462(b) Registration Statement is not effective, (x) the Company
will file a Rule 462(b) Registration Statement in compliance with, and
that is effective upon filing pursuant to, Rule 462(b) and (y) the
Company has given irrevocable instructions for transmission of the
applicable filing fee in connection with the filing of the Rule 462(b)
Registration Statement, in compliance with Rule 111 under the
Securities Act, or the Commission has received payment of such filing
fee.
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(iv) If the Company has elected to rely on Rule 434 under the
Securities Act, the Prospectus is not "materially different", as such
term is used in Rule 434, from the prospectus included in the
Registration Statement at the time of its effectiveness or an
effective post-effective amendment thereto (including such information
that is permitted to be omitted pursuant to Rule 430A under the
Securities Act);
(v) The Company has not distributed and, prior to the later of
(x) any Closing Date and (y) the completion of the distribution of the
Shares, will not distribute any offering material in connection with
the Offering other than the Registration Statement or any amendment
thereto, any Preliminary Prospectus or the Prospectus or any amendment
or supplement thereto.
(vi) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus (x) the
Company has not incurred any material liability or obligation, direct
or contingent, nor entered into any material transaction not in the
ordinary course of business; (y) the Company has not purchased any of
its outstanding capital stock (other than the repurchase of Common
Stock approved by Deutsche Xxxxxx Xxxxxxxx Inc. pursuant to repurchase
rights contained in certain Restricted Stock Purchase Agreements to
which the Company is a party), nor declared, paid or otherwise made
any dividend or distribution of any kind on its capital stock; and (z)
there has not been any material change in the capital stock, short-
term or long-term debt of the Company, except in each case as
described in or contemplated by the Prospectus.
The Shares
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(vii) The Company has an authorized, issued and outstanding
capitalization as set forth in the Prospectus. All of the issued
shares of capital stock of the Company have been duly authorized and
validly issued and are fully paid and nonassessable, have been issued
in compliance with all applicable federal and state securities laws
and were not issued in violation of or subject to any preemptive
rights or other rights (which have not been waived) to subscribe for
or purchase such securities. The Shares have been duly authorized by
all necessary corporate action of the Company and, after payment
therefor in accordance herewith, will be validly issued, fully paid
and nonassessable at the Closing Date. The Common Stock of the
Company conforms in all material respects to the description thereof
in the Registration Statement and the Prospectus. The issuance of the
Shares is not subject to any preemptive rights or similar contractual
rights (which have not been waived) to purchase securities in
connection with any issuance thereof by the Company. No holder of
securities of the Company has any right which has not been fully
exercised or waived to require the Company to register the offer or
sale of any securities owned by such holder under the Securities Act
in the Offering contemplated by this Agreement.
-11-
(viii) Except as disclosed in the Prospectus, there are no
outstanding (x) securities or obligations of the Company convertible
into or exchangeable for any capital stock of the Company, (y)
warrants, rights or options to subscribe for or purchase from the
Company any such capital stock or any such convertible or exchangeable
securities or obligations, or (z) obligations of the Company to issue
any shares of capital stock, any such convertible or exchangeable
securities or obligations, or any such warrants, rights or options.
(ix) The Company does not own any shares of stock or any other
equity securities of any corporation or have any equity interest in
any firm, partnership, association or other entity, except for all of
the outstanding capital stock of Corsair Communications Mexico, S.A.
DE C.V. (the "Subsidiary").
Listing
-------
(x) All of the Shares have been duly authorized and accepted for
quotation on the Nasdaq National Market, subject to official notice of
issuance.
Market manipulation
-------------------
(xi) Neither the Company nor any of its affiliates, nor any
person acting on behalf of any of them has, directly or indirectly,
(x) taken any action designed to cause or to result in, or that has
constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares, or (y) since
the filing of the Original Registration Statement (I) sold, bid for,
purchased, or paid anyone any compensation for soliciting purchases
of, the Shares or (II) paid or agreed to pay to any person any
compensation for soliciting another to purchase any other securities
of the Company.
Corporate power and authority
-----------------------------
(xii) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the law of its
jurisdiction of incorporation with full power and authority to own,
lease and operate its properties and assets and conduct its business
as described in the Prospectus, is duly qualified to transact business
and is in good standing in each jurisdiction in which its ownership,
leasing or operation of its properties or assets or the conduct of its
business requires such qualification, except where the failure to be
so qualified does not amount to a material liability or disability to
the Company and has full power and authority to execute and perform
its obligations under this Agreement;.
(xiii) The execution and delivery of this Agreement and the
issuance and sale of the Shares have been duly authorized by all
necessary corporate action of the Company, and this Agreement has been
duly executed and delivered by
-12-
the Company and is the valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms.
(xiv) The Company is not in violation of its charter documents
or by-laws. The issuance, offering and sale of the Shares to the
Underwriters by the Company pursuant to this Agreement, the compliance
by the Company with the other provisions of this Agreement and the
consummation of the other transactions herein contemplated do not (x)
require the consent, approval, authorization, registration or
qualification of or with any governmental authority, except such as
have been obtained or made or such as may be required by the state
securities or Blue Sky laws of the various states of the United States
of America or other U.S. jurisdictions in connection with the offer
and sale of the Shares by the Underwriters, or (y) conflict with or
result in a breach or violation of any of the material terms and
provisions of, or constitute a default under, any material indenture,
mortgage, deed of trust, lease or other agreement or instrument to
which the Company is a party or by which the Company or any of its
properties are bound, or the charter documents or by-laws of the
Company, or any statute or any judgment, decree, order, rule or
regulation of any court or other governmental authority or any
arbitrator applicable to the Company.
(xv) The Company is not, and will conduct its operations in a
manner so that it continues not to be, an "investment company" and,
after giving effect to the Offering and the application of the
proceeds therefrom, will not be an "investment company", as such term
is defined in the Investment Company Act of 1940, as amended (the
"1940 Act").
Title, licenses and consents
----------------------------
(xvi) The Company has good and marketable title in fee simple to
all items of real property and marketable title to all personal
property owned by it, in each case free and clear of any security
interests, liens, encumbrances, equities, claims and other defects,
except such as do not materially and adversely affect the value of
such property and do not interfere with the use made or proposed to be
made of such property by the Company and any real property and
buildings held under lease by the Company are held under valid,
subsisting and enforceable leases, with such exceptions as are not
material and do not interfere with the use made or proposed to be made
of such property and buildings by the Company, in each case except as
described in or contemplated by the Prospectus; and no claim has been
asserted by anyone adverse to the Company's rights as lessee under any
of such leases, or affecting or questioning the Company's right to the
continued possession of the leased premises.
(xvii) The Company owns or possesses sufficient rights in, or
can acquire on reasonable terms, all material patents, patent
applications, trademarks, service marks, trade names, licenses, know-
how, copyrights, trade secrets and
-13-
proprietary or other confidential information necessary to operate the
business now operated by it, and the Company has not received any
notice of, and has no knowledge of, any infringement of or conflict
with rights of any third party with respect to any of the foregoing
which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would have a materially adverse effect on
or constitute a materially adverse change in, or constitute a
development involving a prospective materially adverse effect on or
change in, the condition (financial or otherwise), earnings,
properties, business affairs or business prospects, stockholders'
equity, net worth or results of operations of the Company, except as
described in or contemplated by the Prospectus.
(xviii) The Company possesses all consents, licenses,
certificates, authorizations and permits issued by the appropriate
federal, state or foreign regulatory authorities necessary to conduct
its business as now conducted and as proposed to be conducted in the
Prospectus, and the Company has not received any notice of proceedings
relating to the revocation or modification of any such certificate,
authorization or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would have a
materially adverse effect on or constitute a materially adverse change
in, or constitute a development involving a prospective materially
adverse effect on or change in, the condition (financial or
otherwise), earnings, properties, business affairs or business
prospects, net worth or results of operations of the Company, except
as described in or contemplated by the Prospectus.
Financial statements
--------------------
(xix) KPMG Peat Marwick LLP who have certified certain financial
statements of the Company and delivered their report with respect to
the audited financial statements and schedules included in the
Registration Statement and the Prospectus, are independent public
accountants as required by the Securities Act and the applicable rules
and regulations thereunder.
(xx) The financial statements and schedules of the Company
included in the Registration Statement and the Prospectus were
prepared in accordance with generally accepted accounting principles
("GAAP") consistently applied throughout the periods involved (except
as otherwise noted therein) and they present fairly the financial
condition of the Company as of the dates at which they were prepared
and the results of operations of the Company in respect of the periods
for which they were prepared.
Internal Accounting Controls
----------------------------
(xxi) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurance that (w)
transactions are executed in accordance with management's general or
specific authorizations; (x) transactions
-14-
are recorded as necessary to permit preparation of financial
statements in conformity with GAAP and to maintain asset
accountability; (y) access to assets is permitted only in accordance
with management's general or specific authorization; and (z) the
recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences.
Litigation; Disclosure
----------------------
(xxii) No legal or governmental proceedings are pending or
threatened to which the Company is a party or to which the property of
the Company is subject that are required to be described in the
Registration Statement or the Prospectus and are not described
therein; and there are no statutes, regulations, contracts or other
documents that are required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not described therein or filed as
required.
Dividends and Distributions
---------------------------
(xxiii) The Company is not currently prohibited, directly or
indirectly, from paying any dividends, making any other distribution
on its capital stock, in each case except as described in or
contemplated by the Prospectus.
Taxes
-----
(xxiv) The Company has filed all foreign, federal, state and
local tax returns that are required to be filed or has requested
extensions of the time for filing thereof (except in any case in which
the failure so to file would not have a materially adverse effect on
the Company) and has paid all taxes required to be paid by it and any
other assessment, fine or penalty levied against it, to the extent
that any of the foregoing is due and payable, except for any such
assessment, fine or penalty that is currently being contested in good
faith or as described in or contemplated by the Prospectus.
Insurance
---------
(xxv) The Company is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as
are prudent and customary in the businesses in which it is engaged;
the Company has not been refused any insurance coverage sought or
applied for; and the Company has no reason to believe that it will not
be able to renew its existing insurance coverage as and when such
coverage expires or to obtain similar coverage from similar insurers
as may be necessary to continue its business at a cost that would not
materially and adversely affect the condition (financial or
otherwise), earnings, properties, business affairs or business
prospects, net worth or results of
-15-
operations of the Company, except as described in or contemplated by
the Prospectus.
Pension and Labor
-----------------
(xxvi) The Company is in compliance in all material respects
with all presently applicable provisions of the Employee Retirement
Income Security Act of 1974, as amended, including the regulations and
published interpretations thereunder ("ERISA"); no "reportable event"
(as defined in ERISA) has occurred with respect to any "pension plan"
(as defined in ERISA) for which the Company would have any liability;
the Company has not incurred and does not expect to incur liability
under (i) Title IV of ERISA with respect to termination of, or
withdrawal from, any "pension plan" or (ii) Sections 412 or 4971 of
the Internal Revenue Code of 1986, as amended, including the
regulations and published interpretations thereunder (the "Code"); and
each "pension plan" for which the Company would have any liability
that is intended to be qualified under Section 401(a) of the Code is
so qualified in all material respects and nothing has occurred,
whether by action or by failure to act, which would cause the loss of
such qualification.
(xxvii) No labor dispute with the employees of the Company
exists or is threatened or imminent that could have a materially
adverse effect on or constitute a materially adverse change in, or
constitute a development involving a prospective materially adverse
effect on or change in, the condition (financial or otherwise),
properties, management, earnings, business affairs or business
prospects, net worth or results of operations of the Company, except
as described in or contemplated by the Prospectus.
Environmental
-------------
(xxviii) The Company is not in violation of any federal or state
law or regulation relating to occupational safety and health or to the
storage, handling or transportation of hazardous or toxic materials
and the Company has received all permits, licenses or other approvals
required of it under applicable federal and state occupational safety
and health and environmental laws and regulations to conduct its
business, and the Company is in compliance with all terms and
conditions of any such permit, license or approval, except any such
violation of law or regulation, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and
conditions of such permits, licenses or approvals which would not,
singly or in the aggregate, have a materially adverse effect on or
constitute a materially adverse change in, or constitute a development
involving a prospective materially adverse effect on or change in, the
condition (financial or otherwise), earnings, properties, business
affairs or business prospects, net worth or results of operations of
the Company, except as described in or contemplated by the Prospectus.
-16-
Other Agreements
----------------
(xxix) No default by the Company exists, and no event has
occurred which, with notice or lapse of time or both, would constitute
a default by the Company in the due performance and observance of any
material term, covenant or condition of any material indenture,
mortgage, deed of trust, lease or other agreement or instrument to
which the Company is a party or by which the Company or any of its
properties is bound.
Absence of Materially Adverse Change
------------------------------------
(xxx) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus: (A) the
Company has not incurred any material liabilities or obligations,
direct or contingent, not in the ordinary course of business, nor has
it entered into any material transaction not in the ordinary course of
business; (B) no legal or governmental proceeding affecting the
Company has been instituted or threatened which is materially adverse
to the condition (financial or otherwise), management, earnings,
property, business affairs or business prospects, stockholders'
equity, net worth or results of operations of the Company; (C) the
Company has not sustained any material loss or interference with its
business or properties from fire, flood, hurricane, accident or other
calamity, whether or not covered by insurance, or from any labor
dispute or any legal or governmental proceeding; and (D) there has
been no materially adverse change (including, without limitation, a
change in management or control), or development involving a
prospective materially adverse change, in the condition (financial or
otherwise), management, earnings, property, business affairs or
business prospects, stockholders' equity, net worth or results of
operations of the Company, other than as described in or contemplated
by the Prospectus (exclusive of any amendments or supplements
thereto).
(xxxi) No receiver or liquidator (or similar person) has been
appointed in respect of the Company or in respect of any part of the
assets of the Company; no resolution, order of any court, regulatory
body, governmental body or otherwise, or petition or application for
an order, has been passed, made or presented for the winding up of the
Company or for the protection of the Company from its creditors; and
the Company has not stopped or suspended payments of its debts, become
unable to pay its debts or otherwise become insolvent. The Company
has complied with all provisions of Section 517.075, Florida statutes
relating to doing business with the Government of Cuba or with any
person or affiliate located in Cuba.
The Subsidiary
--------------
(xxxii) All of the issued shares of capital stock of the
Subsidiary have been duly authorized and validly issued and are fully
paid and nonassessable,
-17-
have been issued in compliance with all applicable securities laws and
were not issued in violation of or subject to any preemptive rights or
other rights to subscribe for or purchase such securities. There are
no outstanding (x) securities or obligations of the Subsidiary
convertible into or exchangeable for any capital stock of the
Subsidiary, (y) warrants, rights or options to subscribe for or
purchase from the Subsidiary any such capital stock or any such
convertible or exchangeable securities or obligations, or (z)
obligations of the Subsidiary to issue any shares of capital stock,
any such convertible or exchangeable securities or obligations, or any
such warrants, rights or options. The Subsidiary does not conduct any
business, own, lease or operate any properties or assets, which in the
aggregate are material with respect to the Company.
(b) The above representations and warranties shall be deemed to be
repeated at each Closing, and all references therein to the Shares and the
Closing Date shall be deemed to refer to the Firm Shares or the Option Shares
and the First Closing Date or the applicable Option Closing Date, each as
applicable.
Section 6. Indemnity.
---------
(a) The Company agrees to indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter within the meaning of
Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), against any and all losses, claims,
damages or liabilities, joint or several, to which such Underwriter or such
controlling person may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement made by the
Company in Section 5 hereof,
(ii) any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement or any
amendment thereto, any Preliminary Prospectus or the Prospectus
or any amendment or supplement thereto, or
(iii) the omission or alleged omission to state in the
Registration Statement or any amendment thereto a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or the omission or alleged omission to
state in any Preliminary Prospectus or the Prospectus or any
amendment or supplement thereto a material fact required to be
stated therein or necessary to make the statements therein, in
the light of the circumstances in which they were made, not
misleading,
and will reimburse, as incurred, each Underwriter and each such controlling
person for any legal or other costs or expenses reasonably incurred by such
Underwriter or such controlling person in
-18-
connection with investigating, defending against or appearing as a third-party
witness in connection with any such loss, claim, damage, liability or action;
provided, however, that the Company will 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 any untrue statement or alleged untrue statement or omission or alleged
omission made in the Registration Statement or any amendment thereto, any
Preliminary Prospectus, the Prospectus or any amendment or supplement thereto in
reliance upon and in conformity with written information furnished to the
Company by such Underwriter through the Representatives specifically for use
therein; and provided further, that the Company will not be liable to any
----------------
Underwriter or any person controlling such Underwriter with respect to any such
untrue statement or alleged untrue statement, or omission or alleged omission
made in any Preliminary Prospectus that is corrected in the Prospectus (or any
amendment or supplement thereto) if the person asserting any such loss, claim,
damage or liability purchased Shares from such Underwriter but was not sent or
given a copy of the Prospectus (as amended or supplemented) in any case where
such delivery of the Prospectus (as amended or supplemented) was required by the
Securities Act, unless such failure to deliver the Prospectus (as amended or
supplemented) was a result of noncompliance by the Company with Section 3
hereof. The indemnity provided for in this Section 6 shall be in addition to any
liability which the Company may otherwise have. The Company will not, without
the prior written consent of the Representatives, settle or compromise or
consent to the entry of any judgment in any pending or threatened claim, action,
suit or proceeding in respect of which indemnification may be sought hereunder
(whether or not any such Representatives or any person who controls any such
Representatives is a party to such claim, action, suit or proceeding), unless
such settlement, compromise or consent includes an unconditional release of all
of the Underwriters and such controlling persons from all liability arising out
of such claim, action, suit or proceeding.
(b) Each Underwriter, severally and not jointly, will indemnify and
hold harmless the Company, each of its directors, each of its officers who
signed the Registration Statement and each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act against any losses, claims, damages or liabilities to which the
Company or any such director, officer or controlling person may become subject
under the Securities Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
(i) any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement or any amendment thereto, any
Preliminary Prospectus or the Prospectus or any amendment or supplement thereto
or (ii) the omission or the alleged omission to state therein a material fact
required to be stated in the Registration Statement or any amendment thereto,
any Preliminary Prospectus or the Prospectus or any amendment or supplement
thereto 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 reliance upon and
in conformity with written information furnished to the Company by such
Underwriter through the Representatives specifically for use therein, and,
subject to the limitation set forth immediately preceding this clause, will
reimburse, as incurred, any legal or other expenses reasonably incurred by the
Company or any such director, officer or controlling person in connection with
investigating or defending any such loss, claim, damage, liability or
-19-
any action in respect thereof. The remedies provided for in this Section 6 are
not exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to paragraph (a) or (b) of this Section 6, such person (for
purposes of this paragraph (c), the "indemnified party") shall, promptly after
receipt by such party of notice of the commencement of such action, notify the
person against whom such indemnity may be sought (for purposes of this paragraph
(c), the "indemnifying party"), but the omission so to notify the indemnifying
party will not relieve it from any liability which it may have to any
indemnified party otherwise than under this Section 6 (or, to the extent of
prejudice, under this Section 6). In case any such action is brought against
any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party; provided, however, that if the
-----------------
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be one or more legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnifying party shall not have the right to
direct the defense of such action on behalf of such indemnified party or parties
and such indemnified party or parties shall have the right to select separate
counsel to defend such action on behalf of such indemnified party or parties.
After notice from the indemnifying party to such indemnified party of its
election so to assume the defense of any such action and approval (subject to
the reasonableness standard) by such indemnified party of counsel appointed to
defend such action, the indemnifying party will not be liable to such
indemnified party under this Section 6 for any legal or other expenses, other
than reasonable costs of investigation, subsequently incurred by such
indemnified party in connection with the defense thereof, unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the next preceding sentence (it being understood, however, that in
connection with such action the indemnifying party shall not be liable for the
expenses of more than one separate counsel (in addition to local counsel) in any
one action or separate but substantially similar actions in the same
jurisdiction arising out of the same general allegations or circumstances,
designated in writing by the Representatives in the case of paragraph (a) of
this Section 6, representing the indemnified parties under such paragraph (a)
who are parties to such action or actions), or (ii) the indemnifying party does
not promptly retain counsel satisfactory to the indemnified party, or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party. All fees and expenses
reimbursed pursuant to this paragraph (c) shall be reimbursed as they are
incurred. After such notice from the indemnifying party to such indemnified
party, the indemnifying party will not be liable for the costs and expenses of
any settlement of such action effected by such indemnified party without the
consent of the indemnifying party.
-20-
(d) In circumstances in which the indemnity agreement provided for in
the preceding paragraphs of this Section 6 is unavailable or insufficient, for
any reason, to hold harmless an indemnified party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof), each
indemnifying party, in order to provide for just and equitable contribution,
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 (i) the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party on the other from the Offering or (ii) if the allocation
provided by the foregoing clause (i) is not permitted by applicable law, not
only such relative benefits but also the relative fault of the indemnifying
party or parties on the one hand and the indemnified party on the other in
connection with the acts, statements or omissions or alleged acts, statements
or omissions that 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 Underwriters on the other shall be deemed to be in the same proportion
as the total proceeds from the Offering (before deducting expenses) received by
the Company bear to the total underwriting discounts and commissions received by
the Underwriters. The relative fault of the parties shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Underwriters, the parties'
relative intents, knowledge, access to information and opportunity to correct or
prevent such statement or omission, and any other equitable considerations
appropriate in the circumstances. The Company and the Underwriters agree that
it would not be equitable if the amount of such contribution were determined by
pro rata or per capita allocation (even if the Underwriters were treated as one
-------- ----------
entity for such purpose) or by any other method of allocation that does not take
into account the equitable considerations referred to above in this paragraph
(d). Notwithstanding any other provision of this paragraph (d), no Underwriter
shall be obligated to make contributions hereunder that in the aggregate exceed
the total public offering price of the Shares purchased by such Underwriter
under this Agreement, less the aggregate amount of any damages that such
Underwriter has otherwise been required to pay in respect of the same or any
substantially similar claim, and 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
hereunder are several in proportion to their respective underwriting obligations
and not joint, and contributions among Underwriters shall be governed by the
provisions of the Deutsche Xxxxxx Xxxxxxxx Inc. Master Agreement Among
Underwriters. For purposes of this paragraph (d), each person, if any, who
controls an Underwriter within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act shall have the same rights to contribution as
such Underwriter, and each director of the Company, each officer of the Company
who signed the Registration Statement and each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act, shall have the same rights to contribution as the Company.
Section 7. Conditions Precedent. The obligations of the several Underwriters
--------------------
to purchase and pay for the Shares shall be subject, in the sole discretion of
the Representatives (exercising
-21-
such discretion and acting on behalf of all the Underwriters), to the accuracy
of the representations and warranties of the Company contained herein as of the
date hereof and as of each Closing Date, as if made on and as of each Closing
Date, to the performance by the Company of its covenants and agreements
hereunder and to the following additional conditions:
(a) (i) If the Original Registration Statement or any amendment
thereto filed prior to the First Closing Date has not been declared effective as
of the time of execution hereof, the Original Registration Statement or such
amendment shall have been declared effective not later than 6:00 P.M. New York
City time on the date of determination of the public offering price, if such
determination occurred at or prior to 4:30 P.M. New York City time on such date,
or 12:00 Noon New York City time on the business day following the day on which
the public offering price was determined, if such determination occurred after
4:30 P.M. New York City time on such date, and (ii) if the Company has elected
to rely upon Rule 462(b), the Rule 462(b) Registration Statement shall have been
declared effective not later than the time confirmations are sent or given as
specified by Rule 462(b)(2), or such later time and date as shall have been
consented to by the Representatives; if required, the Prospectus or any Term
Sheet that constitutes a part thereof and any amendment or supplement thereto
shall have been filed with the Commission in the manner and within the time
period required by Rules 434 and 424(b) under the Securities Act; no stop order
suspending the effectiveness of the Registration Statement or any amendment
thereto shall have been issued, and no proceedings for that purpose shall have
been instituted or threatened or, to the knowledge of the Company or the
Representatives, shall be contemplated by the Commission; and the Company shall
have complied with any request of the Commission for additional information (to
be included in the Registration Statement or the Prospectus or otherwise).
(b) The Representatives shall have received a legal opinion from
Xxxxxxx Phleger & Xxxxxxxx LLP, counsel for the Company, dated the Closing Date,
to the effect that:
(i) the Registration Statement is effective under the Securities
Act; any required filing of the Prospectus, or any Term Sheet
that constitutes a part thereof, pursuant to Rules 434 and 424(b)
has been made in the manner and within the time period required
by Rules 434 and 424(b); and no stop order suspending the
effectiveness of the Registration Statement or any amendment
thereto has been issued and, to the best knowledge of such
counsel, no proceedings for that purpose are pending or
threatened by the Commission;
(ii) the Original Registration Statement and each amendment
thereto, any Rule 462(b) Registration Statement and the
Prospectus (in each case, other than the financial statements and
other financial information contained therein, as to which such
counsel need express no opinion) comply as to form in all
material respects with the applicable requirements of the
Securities Act and the rules and regulations of the Commission
thereunder;
-22-
(iii) nothing has come to the attention of such counsel which
has caused it to conclude that (in each case, other than the
financial statements and other financial information contained
therein, as to which such counsel need express no belief) (x) the
Registration Statement, as of its effective date, contained any
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading or (y) the Prospectus, as
of its date or the date of such opinion, included or includes any
untrue statement of a material fact or omitted or omits 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.
(iv) if the Company elects to rely on Rule 434 under the
Securities Act, the Prospectus is not "materially different", as
such term is used in Rule 434, from the prospectus included in
the Registration Statement at the time of its effectiveness or an
effective post-effective amendment thereto (including such
information that is permitted to be omitted pursuant to Rule 430A
under the Securities Act);
(v) the Company has an authorized, issued and outstanding
capitalization as set forth in the Prospectus; all of the issued
shares of capital stock of the Company have been duly authorized
and validly issued and are to our knowledge fully paid and
nonassessable, have been issued in compliance with all applicable
federal and state securities laws and were not issued in
violation of or subject to any preemptive rights or to our
knowledge other rights (which have not been waived) to subscribe
for or purchase securities; the Shares have been duly authorized
by all necessary corporate action of the Company and, when issued
and delivered to and paid for by the Underwriters pursuant to
this Agreement, will be validly issued, fully paid and
nonassessable; the Common Stock of the Company conforms in all
material respects to the description thereof in the Registration
Statement and the Prospectus; the issuance of the Shares is not
subject to any preemptive rights or similar contractual rights to
purchase securities in connection with any issuance thereof by
the Company; and no holder of securities of the Company to our
knowledge has any right which has not been fully exercised or
waived to require the Company to register the offer or sale of
any securities owned by such holder under the Securities Act in
the Offering contemplated by this Agreement;
(vi) the Company owns all of the outstanding shares of capital
stock of Subsidiary and to counsel's knowledge, the Company does
not own any equity or capital interests in any corporation,
partnership, joint venture, association or other entity.
-23-
(vii) all of the Shares have been duly authorized and accepted
for quotation on the Nasdaq National Market, subject to official
notice of issuance;
(viii) the Company has been duly organized and is validly
existing as a corporation in good standing under the laws of
Delaware and is duly qualified to transact business as a foreign
corporation and is in good standing under the laws of all other
jurisdictions where the ownership, leasing or operation of its
properties or assets or the conduct of its business requires such
qualification, except where the failure to be so qualified does
not amount to a material liability or disability to the Company;
the Company has full power and authority to own, lease and
operate its properties and assets and conduct its business as
described in the Prospectus, and the Company has corporate power
to enter into this Agreement and to carry out all the terms and
provisions hereof to be carried out by it;
(ix) the statements set forth under the headings "Description of
Capital Stock" and "Management - Benefit Plans" in the
Prospectus, insofar as such statements purport to summarize
certain provisions of the capital stock and employee benefit
plans of the Company, provide an accurate and fair summary of
such provisions; and the statements set forth under the headings
"Business - Legal Proceedings," "Shares Eligible for Future Sale"
and "Certain Transactions" in the Prospectus, insofar as such
statements constitute a summary of the legal matters, documents
or proceedings referred to therein, have been reviewed by such
counsel and accurately and fairly present the information called
for with respect to such legal matters, documents and proceedings
in all material respects as required by the Securities Act and
the rules and regulations thereunder;
(x) the execution and delivery of this Agreement and the issuance
and sale of the Shares have been duly authorized by all necessary
corporate action of the Company, and this Agreement has been
duly executed and delivered by the Company and is the valid and
binding agreement of the Company, enforceable against the Company
in accordance with its terms;
(xi) the Company is not in violation of its charter documents or
by-laws; the issuance, offering and sale of the Shares to the
Underwriters by the Company pursuant to this Agreement, the
compliance by the Company with the other provisions of this
Agreement and the consummation by the Company of the other
transactions herein contemplated do not (x) require the consent,
approval, authorization, registration or qualification of or with
any governmental authority, except such as have been obtained or
such as may be required by the securities or Blue Sky laws of the
various states of
-24-
the United States of America and other U.S. jurisdictions in
connection with the offer and sale of the Shares by the
Underwriters, or (y) conflict with or result in a breach or
violation of any of the terms and provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, lease or
other agreement or instrument, known to such counsel and filed as
an exhibit to the Registration Statement, to which the Company is
a party or by which the Company or any of its properties is
bound, or the charter documents or by-laws of the Company, or any
Federal, California or Delaware statute or any judgment, decree,
order, rule or regulation of any court or other governmental
authority or any arbitrator known to such counsel and applicable
to the Company;
(xii) the Company is not an "investment company" and, after
giving effect to the Offering and the application of the proceeds
therefrom, will not be an "investment company", as such term is
defined in the 1940 Act; and
(xiii) such counsel does not know of any legal or governmental
proceedings pending or threatened to which the Company is a party
or to which the property of the Company is subject that are
required to be described in the Registration Statement or the
Prospectus and are not described therein or any statutes,
regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to
be filed as exhibits to the Registration Statement that are not
described therein or filed as required.
In rendering any such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deems proper, on certificates of responsible
officers of the Company and public officials and, as to matters involving the
application of laws of any jurisdiction other than the States of California and
Delaware or the United States, on the opinion of other counsel.
References to the Registration Statement and the Prospectus in this
paragraph (b) shall include any amendment or supplement thereto at the date of
such opinion. The opinions of Company counsel described herein shall be
rendered to the Underwriters at the request of the Company and shall so state
therein.
(c) The Representatives shall have received a legal opinion from
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, counsel for the
Underwriters, dated the Closing Date, covering the issuance and sale of the
Shares, the Registration Statement and the Prospectus, and such other related
matters as the Representatives may reasonably require, and the Company shall
have furnished to such counsel such documents as they may reasonably request for
the purpose of enabling them to pass upon such matters.
-25-
(d) The Representatives shall have received from KPMG Peat Marwick LLP
a letter or letters dated, respectively, the date hereof and the Closing Date,
in form and substance satisfactory to the Representatives, to the effect that
(i) they are independent accountants with respect to the Company
within the meaning of the Securities Act and the applicable rules
and regulations thereunder;
(ii) in their opinion, the audited financial statements and
schedules examined by them and included in the Registration
Statement and the Prospectus comply in form in all material
respects with the applicable accounting requirements of the
Securities Act and the related published rules and regulations
and Staff Accounting Bulletins with respect to registration
statements on Form S-1;
(iii) on the basis of a reading of the latest available interim
unaudited condensed financial statements of the Company and of
the unaudited financial statements of the Company, carrying out
certain specified procedures (which do not constitute an
examination made in accordance with generally accepted auditing
standards) that would not necessarily reveal matters of
significance with respect to the comments set forth in this
paragraph (iii), a reading of the minute books of the
stockholders, the board of directors and any committees thereof
of the Company, and inquiries of certain officials of the Company
who have responsibility for financial and accounting matters,
nothing came to their attention that caused them to believe that:
(x) the unaudited financial statements of the Company
included in the Registration Statement and the Prospectus do
not comply in form in all material respects with the
applicable accounting requirements of the Securities Act and
the related published rules and regulations thereunder or
are not in conformity with GAAP applied on a basis
substantially consistent with that of the audited financial
statements included in the Registration Statement and the
Prospectus;
(y) the unaudited amounts for revenues and total and per
share amounts of net loss included in the Registration
Statement and the Prospectus do not agree with the amounts
set forth in any unaudited financial statements for those
same periods or are not in conformity with GAAP accounting
principles applied; and
(z) at a specific date not more than five business days
prior to the date of such letter, there were any changes in
the capital stock or long-term debt of the Company or any
decreases in net current
-26-
assets or stockholders' equity of the Company, in each case
compared with amounts shown on the June 30, 1997 unaudited
balance sheet included in the Registration Statement and the
Prospectus, or for the period from July 1, 1997 to July __,
1997, there were any decreases, as compared with April 1,
1997 to April __, 1997, in sales, revenues, net loss or
total or per share amounts of net loss of the Company,
except in all instances for changes, decreases or increases
set forth in such letter.
(iv) they have carried out certain specified procedures, not
constituting an audit, with respect to certain amounts,
percentages and financial information that are derived from the
general accounting records of the Company and are included in the
Registration Statement and the Prospectus and in Exhibit 11 to
the Registration Statement, and have compared such amounts,
percentages and financial information with such records of the
Company and with information derived from such records and have
found them to be in agreement, excluding any questions of legal
interpretation.
In the event that the letters referred to above set forth any such
changes, decreases or increases, it shall be a further condition to the
obligations of the Underwriters that (I) such letters shall be accompanied by a
written explanation of the Company as to the significance thereof, unless the
Representatives deem such explanation unnecessary, and (II) such changes,
decreases or increases do not, in the sole judgment of the Representatives, make
it impractical or inadvisable to proceed with the purchase and delivery of the
Shares as contemplated by the Registration Statement, as amended as of the date
hereof. References to the Registration Statement and the Prospectus in this
paragraph (d) with respect to either letter referred to above shall include any
amendment or supplement thereto at the date of such letter.
(e) The Company shall have furnished or caused to be furnished to the
Underwriters at the Closing a certificate of its Chairman of the Board, its
President or its Chief Executive Officer and its Chief Financial Officer
satisfactory to the Underwriters to the effect that:
(i) the representations and warranties of the Company in this
Agreement are true and correct as if made on and as of the
Closing Date; the Registration Statement, as amended as of the
Closing Date, does not include any untrue statement of a material
fact or omit to state any material fact necessary to make the
statements therein not misleading, and the Prospectus, as amended
or supplemented as of the Closing Date, does 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; and the Company has performed all covenants and
agreements and satisfied all
-27-
conditions on its part to be performed or satisfied at or prior
to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement or any amendment thereto has been issued,
and no proceedings for that purpose have been instituted or
threatened or, to the best of the Company's knowledge, are
contemplated by the Commission; and
(iii) subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus: (A)
the Company has not incurred any material liabilities or
obligations, direct or contingent, not in the ordinary course of
business, nor has it entered into any material transaction not in
the ordinary course of business; (B) no legal or governmental
proceeding affecting the Company has been instituted or
threatened which is materially adverse to the condition
(financial or otherwise), management, earnings, property,
business affairs or business prospects, stockholders' equity, net
worth or results of operations of the Company; (C) the Company
has not sustained any material loss or interference with its
business or properties from fire, flood, hurricane, accident or
other calamity, whether or not covered by insurance, or from any
labor dispute or any legal or governmental proceeding; and (D)
there has not been any materially adverse change (including,
without limitation, a change in management or control), or
development involving a prospective materially adverse change, in
the condition (financial or otherwise), management, earnings,
properties, business affairs or business prospects, stockholders'
equity, net worth or results of operations of the Company, except
in each case as described in or contemplated by the Prospectus
(exclusive of any amendment or supplement thereto).
(f) The Representatives shall have received from each person who is a
director or officer of the Company and holders of at least one percent of the
outstanding shares of Common Stock an agreement dated on or before the date of
this Agreement to the effect that such person will not publicly announce any
intention to and will not, without the prior written consent of Deutsche Xxxxxx
Xxxxxxxx Inc. on behalf of the Underwriters, (i) offer, pledge, sell, offer to
sell, contract to sell, sell any option or contract to purchase, purchase any
option to sell, grant any option right or warrant to purchase, or otherwise
transfer or dispose of, directly or indirectly, any of the shares of Common
Stock or any securities convertible into, or exercisable or exchangeable for,
Common Stock, or (ii) enter into any swap or other arrangement that transfers,
in whole or in part, any of the economic consequences of ownership of the shares
of Common Stock or any securities convertible into, or exercisable or
exchangeable for, shares of Common Stock (whether any such transaction described
in clause (i) or (ii) above is to be settled by delivery of (A) shares of Common
Stock, (B) securities convertible into, or exercisable or exchangeable for,
Common Stock, (C) in cash or (D) otherwise), in each case, beneficially owned
(within the meaning of Rule 13d-3 under the Exchange Act) or otherwise
controlled by
-28-
such person on the date of the Prospectus or thereafter acquired, for a period
beginning from the date of the Prospectus and continuing to and including the
date 180 days after the date of the Prospectus; provided, however, that such
-----------------
person may, without the prior written consent of Deutsche Xxxxxx Xxxxxxxx Inc.
on behalf of the Underwriters, transfer shares of Common Stock or such other
securities to members of such person's immediate family or to trusts for the
benefit of members of such person's immediate family or in connection with bona
----
fide gifts, provided that any transferee agrees to the transfer restrictions
---- --------
described above.
(g) Prior to the commencement of the Offering, the Company shall have
made an application for the quotation of the Shares on the Nasdaq National
Market and the Shares shall have been included for trading on the Nasdaq
National Market, subject to official notice of issuance.
(h) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, there shall not have occurred any downgrading, nor
shall any notice have been given of any intended or potential downgrading or of
any review for a possible change that does not indicate the direction of the
possible change, in the rating accorded any of the Company's securities by any
"nationally recognized statistical rating organization", as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act.
(i) On or before the Closing Date, the Representatives and counsel for
the Underwriters shall have received such further certificates, documents or
other information as they may have reasonably requested from the Company.
All opinions, certificates, letters and documents delivered pursuant
to this Agreement will comply with the provisions hereof only if they are
satisfactory in all material respects to the Representatives and counsel for the
Underwriters. The Company shall furnish to the Representatives such conformed
copies of such opinions, certificates, letters and documents in such quantities
as the Representatives and counsel for the Underwriters shall reasonably
request.
The respective obligations of the several Underwriters to purchase and
pay for any Shares shall be subject, in their discretion, to each of the
foregoing conditions to purchase the Shares, except that all references therein
to the Shares and the Closing Date shall be deemed to refer to the Firm Shares
or the Option Shares and the First Closing Date or the related Option Closing
Date, each as applicable.
Section 8. Default of Underwriters. If, at any Closing, any one or more of the
-----------------------
Underwriters shall fail or refuse to purchase Shares that it has or they have
agreed to purchase hereunder on such date, and the aggregate number of Shares
which such defaulting Underwriter or Underwriters agreed but failed or refused
to purchase is ten percent or less of the aggregate number of the Shares to be
purchased on such date, the other Underwriters may make arrangements
satisfactory to the Representatives for the purchase of such Shares by other
persons (who may include one or more of the non-defaulting Underwriters,
including the Representatives), but if no such arrangements are made by the
First Closing Date or the related
-29-
Option Closing Date, as the case may be, the other Underwriters shall be
obligated severally in the proportions that the number of Firm Shares set forth
opposite their respective names in Schedule 1 hereto bears to the aggregate
number of Firm Shares set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as the Representatives may specify,
to purchase the Shares which such defaulting Underwriter or Underwriters agreed
but failed or refused to purchase on such date. If, at the First Closing, any
Underwriter or Underwriters shall fail or refuse to purchase Firm Shares and the
aggregate number of Firm Shares with respect to which such default occurs is
more than ten per cent of the aggregate number of Firm Shares to be purchased,
and arrangements satisfactory to the Representatives and the Company for the
purchase of such Firm Shares are not made within 36 hours after such default,
this Agreement shall terminate without liability on the part of any non-
defaulting Underwriter or the Company. In any such case either the
Representatives or the Company shall have the right to postpone the Closing, but
in no event for longer than seven days, in order that the required changes, if
any, in the Registration Statement and in the Prospectus or in any other
documents or arrangements may be effected. If, at any Option Closing, any
Underwriter or Underwriters shall fail or refuse to purchase Option Shares, the
non-defaulting Underwriters shall have the option to (i) terminate their
obligation hereunder to purchase Option Shares or (ii) purchase not less than
the number of Option Shares that such non-defaulting Underwriters would have
been obligated to purchase in the absence of such default. As used in this
Agreement, the term "Underwriter" includes any person substituted for an
Underwriter under this Section 8. Any action taken under this Section 8 shall
not relieve any defaulting Underwriter from liability in respect of any default
of such Underwriter under this Agreement.
Section 9. Termination. This Agreement shall be subject to termination with
-----------
respect to the Shares to be purchased on a Closing Date in the sole discretion
of the Representatives by notice to the Company given prior to such Closing Date
in the event that the Company shall have failed, refused or been unable to
perform all obligations and satisfy all conditions on its part to be performed
or satisfied hereunder at or prior thereto or, if at or prior to any Closing
Date, (a) trading in securities generally on the New York Stock Exchange or the
Nasdaq National Market shall have been suspended or materially limited or
minimum or maximum prices (other than "circuit breakers") shall have been
established by or on, as the case may be, the Commission or the New York Stock
Exchange or the Nasdaq National Market; (b) trading of any securities of the
Company shall have been suspended on any exchange or in any over-the-counter
market; (c) a general moratorium on commercial banking activities shall have
been declared by either Federal or New York State authorities; (d) there shall
have occurred (i) an outbreak or escalation of hostilities between the United
States and any foreign power, (ii) an outbreak or escalation of any other
insurrection or armed conflict involving the United States, or (iii) any other
calamity or crisis or materially adverse change in general economic, political
or financial conditions having an effect on the U.S. financial markets that, in
the sole judgment of the Representatives, makes it impractical or inadvisable to
proceed with the public offering or the delivery of the Shares as contemplated
by the Registration Statement, as amended as of the date hereof; or (e) the
Company shall have, in the sole judgment of the Representatives, sustained any
material loss or interference with its business or properties from fire, flood,
hurricane, accident or other calamity, whether or not covered by insurance, or
from any labor dispute or any legal or governmental
-30-
proceeding, or there shall have been any materially adverse change (including,
without limitation, a change in management or control), or constitute a
development involving a prospective materially adverse change, in the condition
(financial or otherwise), management, earnings, properties, business affairs or
business prospects, stockholders' equity, net worth or results of operations of
the Company, except in each case as described in or contemplated by the
Prospectus (exclusive of any amendment or supplement thereto). Termination of
this Agreement pursuant to this Section 9 shall be without liability of any
party to any other party except for the liability of the Company in relation to
expenses as provided in Sections 4 and 10 hereof, the indemnity provided in
Section 6 hereof and any liability arising before or in relation to such
termination.
Section 10. Reimbursement of Expenses. If the sale of the Shares provided for
-------------------------
herein is not consummated because any condition to the obligations of the
Underwriters set forth in Section 7 hereof is not satisfied or because of any
termination pursuant to Section 9 hereof (other than by reason of a default by
any of the Underwriters), the Company shall reimburse the Underwriters,
severally upon demand, for all out-of-pocket expenses (including reasonable fees
and disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Shares.
Section 11. Information Supplied by Underwriters. The statements set forth in
------------------------------------
the last paragraph on the front cover page and under the heading "Underwriting"
in any Preliminary Prospectus or the Prospectus (to the extent such statements
relate to the Underwriters) constitute the only information furnished by any
Underwriter through the Representatives to the Company for the purposes of
Section 5(a)(ii) and Section 6 hereof. The Underwriters confirm that such
statements (to such extent) are correct.
Section 12. Notices. In all dealings hereunder, you shall act on behalf of
-------
each of the Underwriters, and the parties hereto shall be entitled to act and
rely upon any statement, request, notice or agreement on behalf of any
Underwriter made or given by you jointly by the Representatives. Any notice or
notification in any form to be given under this Agreement may be delivered in
person or sent by telefacsimile or telephone (subject in the case of a
communication by telephone to confirmation by telefacsimile) addressed to:
in the case of the Company:
--------------------------
Corsair Communications, Inc.
0000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Telefacsimile: (000) 000-0000
Telephone: (000) 000-0000
Attention: Xxxxxx X. Silver
-31-
in the case of the Underwriters, or any of them:
-----------------------------------------------
Deutsche Xxxxxx Xxxxxxxx Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telefacsimile: 415/000-0000
Telephone: 415/000-0000
Attention: Xxxxxxx X. Xxxxx
Any such notice shall take effect, in the case of delivery, at the time of
delivery and, in the case of telefacsimile, at the time of dispatch with
confirmed receipt.
Section 13. Miscellaneous.
----------- -------------
(a) Time shall be of the essence of this Agreement.
(b) 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.
(c) For purposes of this Agreement, (a) "business day" means any day
on which the New York Stock Exchange is open for trading, and (b) "subsidiary"
has the meaning set forth in Rule 405 under the Securities Act.
(d) This Agreement may be executed in any number of counterparts, all
of which, taken together, shall constitute one and the same Agreement and any
party may enter into this Agreement by executing a counterpart.
(e) This Agreement shall inure to the benefit of and shall be binding
upon the several Underwriters, the Company and their respective successors and
legal representatives, and nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any other person any legal or equitable
right, remedy or claim under or in respect of this Agreement, or any provisions
herein contained, this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of such persons and
for the benefit of no other person, except that (i) the indemnities of the
Company contained in Section 6 hereof shall also be for the benefit of any
person or persons who control any Underwriter within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act and (ii) the indemnities
of the Underwriters contained in Section 6 hereof shall also be for the benefit
of the directors of the Company, the officers of the Company who have signed the
Registration Statement and any person or persons who control the Company within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act. No purchaser of Shares from any Underwriter shall be deemed a successor
because of such purchase.
(f) The respective representations, warranties, agreements, covenants,
indemnities and other statements of the Company, its officers and the several
Underwriters set
-32-
forth in this Agreement or made by or on behalf of them, respectively, pursuant
to this Agreement shall remain in full force and effect, regardless of (i) any
investigation made by or on behalf of the Company, any of its officers or
directors, any Underwriter or any controlling person referred to in Section 6
hereof and (ii) delivery of and payment for the Shares. The respective
agreements, covenants, indemnities and other statements set forth in Sections 4,
6 and 10 hereof shall remain in full force and effect, regardless of any
termination or cancellation of this Agreement.
(g) This Agreement sets forth the entire understanding and supercedes
all prior and contemporaneous agreements and discussions between the parties
relating to the subject matter contained herein. This Agreement may not be
modified or amended except in a writing executed by duly authorized
representatives of Deutsche Xxxxxx Xxxxxxxx Inc. and the Company.
Section 14. Severability. It is the desire and intent of the parties that the
------------
provisions of this Agreement be enforced to the fullest extent permissible under
the law and public policies applied in each jurisdiction in which enforcement is
sought. Accordingly, in the event that any provision of this Agreement would be
held in any jurisdiction to be invalid, prohibited or unenforceable for any
reason, such provision, as to such jurisdiction, shall be ineffective, without
invalidating the remaining provisions of this Agreement or affecting the
validity or enforceability of such provision in any other jurisdiction.
Section 15. Governing Law. The validity and interpretation of this Agreement,
-------------
and the terms and conditions set forth herein, shall be governed by and
construed in accordance with the laws of the State of New York, without giving
effect to any provisions relating to conflicts of laws.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-33-
If the foregoing is in accordance with your understanding, please sign
and return to us six counterparts hereof, and upon the acceptance hereof by you,
on behalf of each of the Underwriters, this letter and such acceptance hereof
shall constitute a binding agreement among each of the Underwriters and the
Company. It is understood that your acceptance of this letter on behalf of each
of the Underwriters is pursuant to the authority set forth in the Deutsche
Xxxxxx Xxxxxxxx Inc. Master Agreement Among Underwriters, the form of which
shall be submitted to the Company for examination upon request, but without
warranty on your part as to the authority of the signers thereof.
Very truly yours,
Corsair Communications, Inc.
By ______________________________
Name: Xxxxxx X. Silver
Title: Chief Financial Officer
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
DEUTSCHE XXXXXX XXXXXXXX INC.
Xxxxxxxxx & Xxxxx LLC
Xxxxxxx, Xxxxxx & Xxxxxxxxx, L.L.C.
By: DEUTSCHE XXXXXX XXXXXXXX INC.
By ___________________________
Name:
Title:
By ___________________________
Name:
Title:
[For itself and on behalf of the Representatives.]
-34-
SCHEDULE 1
----------
The Underwriters
Underwriter Underwriting commitment
----------- -----------------------
[name]............................... [number of Firm Shares]
---- ---------------------
_____________________
Total................................ [aggregate number of Firm Shares]
-------------------------------
-35-