Exhibit 1.1
DIGITAL MICROWAVE CORPORATION
UNDERWRITING AGREEMENT
[Date]
To the Representatives named in Schedule I hereto
of the Underwriters named in Schedule II hereto
Dear Sirs:
Digital Microwave Corporation, a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and
sell to the Underwriters named in Schedule II hereto (the "Underwriters"),
the principal amount set forth in Schedule II hereto of its debt securities
identified on Schedule I hereto (the "Securities"), to be issued under an
indenture, dated as of , as amended or supplemented from time to
time (the "Indenture") between the Company and , as Trustee (the
"Trustee"), less the principal amount of Securities covered by Delayed
Delivery Contracts (as defined in Section 3 hereof), if any, as provided in
Section 3 hereof and as may be specified in Schedule II hereto (any
Securities to be covered by Delayed Delivery Contracts being herein sometimes
referred to as "Contract Securities" and the Securities to be purchased by
the Underwriters (after giving effect to the deduction, if any, for Contract
Securities) being herein sometimes referred to as "Underwriters'
Securities"). If the firm or firms listed in Schedule II hereto include only
the firm or firms listed in Schedule I hereto, then the terms "Underwriters"
and "Representatives" as used herein shall each be deemed to refer to such
firm or firms.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a "shelf" registration statement on Form S-3, including a
prospectus, relating (among other securities) to the Securities, which
registration statement has become effective, and will promptly file with the
Commission a prospectus supplement specifically relating to the Securities
pursuant to Rule 424 under the Securities Act of 1933, as amended (the
"Act"). As used in this Agreement, the term "Registration Statement" means
such registration statement, including exhibits, financial statements,
schedules and documents incorporated by reference therein, as amended to the
date hereof. The term "Basic Prospectus" means the prospectus included in
the Registration Statement. The term "Prospectus" means the Basic Prospectus
together with the prospectus supplement specifically relating to the
Securities as filed with the Commission pursuant to such Rule 424. The term
"preliminary prospectus" means any preliminary prospectus supplement
specifically relating to the Securities together with the Basic Prospectus.
Any reference herein to any preliminary prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by reference
therein as of the date of such preliminary prospectus or the Prospectus, as
the case may be.
1. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) The Registration Statement has become effective; no stop order suspending
the effectiveness of the Registration Statement is in effect; and no
proceedings for such purpose are pending before or threatened by the
Commission.
(b) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Delaware, has the
corporate power and authority to own its property and to conduct its business
as described in the Prospectus and is duly qualified to transact business and
is in good standing in each jurisdiction in which the conduct of its business
or its ownership or leasing of property requires such
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qualification, except to the extent that the failure to be so qualified or be
in good standing would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(c) The authorized capital stock of the Company and the Securities materially
conform as to legal matters to the descriptions thereof contained in the
Prospectus.
(d) This Agreement has been duly authorized, executed and delivered by the
Company.
(e) There has not been any material adverse change, or any development
involving a prospective material adverse change, in the condition, financial
or otherwise, or in the earnings, business or operations of the Company and
its subsidiaries, taken as a whole, from that set forth in the Prospectus.
(f) There are no legal or governmental proceedings pending or threatened to
which the Company or to which any of the properties of the Company is subject
that are required to be described in the Registration Statement or the
Prospectus and are not so described or any statutes, regulations, contracts
or other documents that are required to be described in the Registration
Statement or the Prospectus or to be filed as an exhibit to the Registration
Statement that are not described or filed as required.
(g) The Company has all necessary consents, authorizations, approvals,
orders, certificates and permits of and from, and has made all declarations
and filings with, all federal, state, local and other governmental
authorities, all self-regulatory organizations and all courts and other
tribunals, to own, lease, license and use its properties and assets and to
conduct its business in the manner described in the Prospectus, except to the
extent that the failure to obtain or file would not have a material adverse
effect on the Company.
(h) (i) Each document, if any, filed or to be filed pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in the Prospectus complied or will comply when so
filed in all material respects with the Exchange Act and the applicable rules
and regulations of the Commission thereunder, (ii) each part of the
Registration Statement, when such part became effective, did not contain and
each such part, as amended or supplemented, if applicable, will not contain,
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, (iii) the Registration Statement and the Prospectus comply and,
as amended or supplemented, if applicable, will comply in all material
respects with the Act and the Trust Indenture Act of 1939 (the "Trust
Indenture Act") and the applicable rules and regulations of the Commission
thereunder and (iv) the Prospectus does not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except that the representations and warranties set
forth in this paragraph (m) do not apply to statements or omissions in the
Registration Statement or the Prospectus based upon information concerning
any Underwriter furnished to the Company in writing by such Underwriter
through you expressly for use therein.
(e) Since the respective dates as of which information is given in the
Registration Statement and in the Prospectus, there have not been, and prior
to the Time of Delivery (as defined in Section 4 hereof) there will not be,
any changes in the capital stock (other than issuances of Common Stock upon
exercises of options and stock appreciation rights, upon earn-outs of
performance shares and upon conversions of convertible preferred stock) or
any increases in the long-term debt (excluding capital leases) of the Company
or any material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs, management,
financial position, shareholders' investment or results of operations of the
Company and its subsidiaries, otherwise than as set forth or contemplated in
the Prospectus;
(f) The Company have good and marketable title in fee simple to all real
property and good and marketable title to all personal property owned by it,
free and clear of all liens, encumbrances and defects except such as are
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described in the Prospectus or such as do not materially affect the value of
such property and do not interfere with the use made and proposed to be made
of such property by the Company; and any real property and buildings held
under lease by the Company are held by it under valid, subsisting and
enforceable leases with such exceptions as are not material and do not
interfere with the use made and proposed to be made of such property and
buildings by the Company;
(g) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company have
been duly and validly authorized and issued and are fully paid and
non-assessable;
(h) The Securities have been duly authorized, and, when issued and
delivered pursuant to this Agreement, and, in the case of any Contract
Securities, pursuant to Delayed Delivery Contracts (as defined in Section 3
hereof) with respect to such Contract Securities, will have been duly
executed, authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Company entitled to the benefits provided
by the Indenture; the Indenture has been duly authorized, executed and
delivered and constitutes a valid and legally binding instrument, enforceable
in accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability relating
to or affecting creditors' rights and to general equity principles; and the
Securities and the Indenture will conform to the description thereof in the
Prospectus; and in the event any of the Securities are purchased pursuant to
Delayed Delivery Contracts, each of such Delayed Delivery Contracts has been
duly authorized by the Company and, when executed and delivered by the
Company and the purchaser named therein, will constitute a valid and legally
binding agreement of the Company enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting creditors'
rights and to general equity principles; and any Delayed Delivery Contract
will conform to the description thereof in the Prospectus; and
(i) The issue and sale of the Securities and the compliance by the Company
with all of the provisions of the Securities, the Indenture, each of the
Delayed Delivery Contracts, if any, and this Agreement and the consummation
of the transactions herein and therein contemplated will not conflict with or
result in a breach of any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition of any lien, charge or
encumbrance upon any of the property or assets of the Company pursuant to the
terms of, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company is a party or by which the
Company is bound or to which any of the property or assets of the Company is
subject, nor will such action result in any violation of the provisions of
the Amended and Restated Certificate of Incorporation or the Bylaws of the
Company or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company; and no
consent, approval authorization, order, registration or qualification of or
with any court or governmental agency or body is required for the issue and
sale of the Securities or the consummation of the other transactions
contemplated by this Agreement or any Delayed Delivery Contract or the
Indenture, except such as have been obtained, or will have been obtained at
the Time of Delivery, under the Act and the Trust Indenture Act and such
consents, approvals, authorizations, registrations or qualifications as may
be required under state securities or Blue Sky laws in connection with the
purchase and/or distribution of the Securities by the Underwriters.
2. 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
agrees, severally and not jointly, to purchase from the Company, at a
purchase price set forth in Schedule I hereto the principal amount of
Securities set forth opposite the name of such Underwriter in Schedule II
hereto, which principal amount shall be subject to reduction pursuant to
Section 3 hereof.
3. Upon the authorization by you of the release of the Securities, the
several Underwriters propose to offer the Securities for sale upon the terms
and conditions set forth in the Prospectus. The Company may specify in
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Schedule I hereto that the Underwriters are authorized to solicit offers to
purchase Securities from the Company pursuant to delayed delivery contracts
(herein called "Delayed Delivery Contracts"), substantially in the form of
Schedule IV attached hereto, but with such changes therein as the
Underwriters and the Company may authorize or approve. If so specified, the
Underwriters will endeavor to make such arrangements, and as compensation
therefor the Company will pay to the Underwriters, for their respective
accounts, at the time specified in Section 4 hereof, such commission, if any,
as may be set forth in Schedule I. Delayed Delivery Contracts, if any, are to
be with the investors of the types described in the Prospectus and subject to
other conditions therein set forth. The Underwriters will not have any
responsibility in respect of the validity or performance of any Delayed
Delivery Contracts.
The principal amount of Contract Securities to be deducted from the principal
amount of Securities to be purchased by each Underwriter as set forth in
Schedule II hereto shall be, in each case, the principal amount of Contract
Securities which the Company has been advised by the Underwriters have been
attributed to such Underwriter, PROVIDED that, if the Company has not been so
advised, the amount of Contract Securities to be so deducted shall be, in
each case, that proportion of Contract Securities which the principal amount
of Securities set forth opposite the name of such Underwriter in Schedule II
hereto bears to the total principal amount of the Securities set forth in
Schedule II hereto (rounded as the Underwriters may determine). The total
principal amount of Underwriters' Securities to be purchased by all the
Underwriters hereunder shall be the total principal amount of Securities set
forth in Schedule II hereto less the principal amount of the Contract
Securities. The Company will deliver to the Underwriters not later than 3:30
p.m., New York City time, on the third business day preceding the Time of
Delivery (or such other time and date as the Underwriters and the Company may
agree upon in writing) a written notice setting forth the principal amount of
Contract Securities.
4. Underwriters' Securities to be purchased by each Underwriter hereunder
shall be delivered by or on behalf of the Company to you for the account of
such Underwriter, against payment by such Underwriter or on its behalf of the
purchase price therefor in same-day funds, at the office of
, at 9:30 a.m., New York City time, on [CLOSING DATE], or at
such other time and date as you and the Company may agree upon in writing,
such time and date being herein called the "Time of Delivery". The
Underwriters' Securities will be delivered by the Company to you in the form
of global Securities, representing all of the Securities, which will be
deposited by you on behalf of the Underwriters, with The Depository Trust
Company, or its nominee, for credit to the respective accounts of the
Underwriters.
Concurrently with the delivery of any Contract Securities to the purchasers
thereof pursuant to Delayed Delivery Contracts, the Company will deliver to
the Underwriters for their respective accounts a check payable to the order
of [LEAD UNDERWRITER] in the amount of any compensation payable by the
Company to the Underwriters in respect of any Delayed Delivery Contracts as
provided in Section 3 hereof and in Schedule I hereto.
5. The Company agrees with each of the Underwriters:
(a) To make no further amendment or supplement to the Registration
Statement or to the Prospectus prior to the Time of Delivery to which you
reasonably object promptly after reasonable notice thereof; to advise you
promptly of any such amendment or supplement after the Time of Delivery and
furnish you with copies thereof and to file promptly all reports and
definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act subsequent to the date of the Prospectus and for so
long as the delivery of a prospectus is required in connection with the
offering or sale of the Securities; to advise you, promptly after it
receives notice thereof, of the time when any amendment to the Registration
Statement has become effective or any supplement to the Prospectus or any
amended Prospectus has been filed, of the issuance by the Commission of any
stop order or of any order preventing or suspending the use of any
Preliminary
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Prospectus or the Prospectus, of the suspension of the qualification of
the Securities for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose, or of
any request by the Commission for the amending or supplementing of the
Registration Statement or of the Prospectus or for additional
information; and in the event of the issuance of any stop order
preventing or suspending the use of any Preliminary Prospectus or the
Prospectus or suspending any such qualification, to use promptly its
best efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as you may reasonably
request to qualify the Securities for offering and sale under the
securities laws of such jurisdictions as you may request and to comply with
such laws so as to permit the continuance of sales and dealings therein in
such jurisdictions for as long as may be necessary to complete the
distribution, PROVIDED that in connection therewith the Company shall not
be required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction;
(c) To furnish the Underwriters with copies of the Prospectus in such
quantities as you may from time to time reasonably request, and if the
delivery of a prospectus is required at any time prior to the expiration of
nine months after the time of issue of the Prospectus and if at such time
any event shall have occurred as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made when such Prospectus is delivered, not misleading, or, if for any
other reason it shall be necessary to amend or supplement the Prospectus or
to file under the Exchange Act any document incorporated by reference in
the Prospectus in order to comply with the Act, the Exchange Act or the
Trust Indenture Act, to notify you and upon your request to file such
document and to prepare and furnish without charge to each Underwriter and
to any dealer in securities as many copies as you may from time to time
reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect such
compliance; and in case any Underwriter is required to deliver a prospectus
in connection with sales of any of the Securities at any time nine months
or more after the time of issue of the Prospectus, upon your request but at
the expense of such Underwriter, to prepare and deliver to such Underwriter
as many copies as you may request of an amended or supplemented Prospectus
complying with Section 10(a)(3) of the Act;
(d) To make generally available to its security holders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement, an earnings statement of the
Company and its subsidiaries (which need not be audited) complying with
Section 11(a) of the Act; and
(e) During the period beginning from the date hereof and continuing to
and including the later of the Time of Delivery or such earlier time as you
may notify the Company, not to offer, sell, contract to sell or otherwise
dispose of, except as provided hereunder, any securities of the Company
that are substantially similar to the Securities.
6. The Company covenants and agrees with the several Underwriters that the
Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities under the Act and all
other expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
(except as otherwise expressly provided in Section 5(c) hereof) amendments
and supplements thereto and the mailing and delivering of copies thereof to
the Underwriters and dealers; (ii) the cost of printing this Agreement, the
Indenture, any Delayed Delivery Contracts, and the Blue Sky and Legal
Investment Memoranda; (iii) all expenses in connection with the qualification
of the Securities for offering and sale under state securities laws as
provided in Section 5(b) hereof, including the fees and disbursements of
counsel for the Underwriters in connection with such qualification and in
connection with the Blue Sky and legal investment surveys; (iv) any fees
charged by securities rating services for rating the Securities; (v) the cost
of preparing the
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Securities; (vi) the fees and expenses of the Trustees and any agent of the
Trustee and the fees and disbursements of counsel for the Trustee and any
such agent in connection with the Indenture and the Securities; and (vii) all
of the other costs and expenses incident to the performance of its
obligations hereunder and under any Delayed Delivery Contracts which are not
otherwise specifically provided for in this Section. It is understood,
however, that, except as provided in this Section, Section 8 and Section 11
hereof, the Underwriters will pay all of their own costs and expenses,
including the fees of their counsel, transfer taxes on resale of any of the
Securities by them, and any advertising expenses connected with any offers
they may make.
7. The obligations of the Underwriters hereunder shall be subject, in their
discretion, to the condition that all representations and warranties and
other statements of the Company herein are, at and as of the Time of
Delivery, materially true and correct, the condition that the Company shall
have performed all of its material obligations hereunder theretofore to be
performed, and the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been complied
with to your reasonable satisfaction;
(b) , counsel for the Underwriters, shall have furnished to you
such opinion or opinions, dated the Time of Delivery, with respect to the
incorporation of the Company, the validity of the Indenture, the Securities,
the Delayed Delivery Contracts, if any, the Registration Statement, the
Prospectus, and other related matters as you may reasonably request, and such
counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(c) You shall have received on the Closing Date an opinion of Xxxxxxxx &
Xxxxxxxx LLP, dated the Closing Date, to the effect that
(i) the Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Delaware, has the
corporate power and authority to own its property and to conduct its business
as described in the Prospectus and is duly qualified to transact business and
is in good standing in each jurisdiction in which the conduct of its business
or its ownership or leasing of property requires such qualification, except
to the extent that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and its subsidiaries
taken as a whole;
(ii) the authorized capital stock of the Company and the Securities
materially conform as to legal matters to the descriptions thereof contained
in the Prospectus;
(iii) this Agreement has been duly authorized, executed and delivered by the
Company;
(iv) such counsel does not know of any legal or governmental proceeding
pending or threatened to which the Company is a party or to which any of the
properties of the Company is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or of any
statutes, regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not described or filed as
required; and
(v) This Agreement has been duly authorized, executed and delivered by the
Company; and in the event any of the Securities are to be purchased pursuant
to Delayed Delivery Contracts, each of the Delayed Delivery Contracts has
been duly authorized, executed and delivered by the Company and, assuming
such contract has been duly executed and delivered by the purchaser named
therein, constitutes a valid and legally binding agreement of the Company
enforceable in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to
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general equity principles; and any Delayed Delivery Contracts conform to the
description thereof in the Prospectus;
(vi) The Securities have been duly authorized; the Underwriters' Securities
have been duly executed, authenticated, issued and delivered and constitute
valid and legally binding obligations of the Company entitled to the benefits
provided by the Indenture; the Contract Securities, if any, when executed,
authenticated, issued and delivered pursuant to the Indenture and the Delayed
Delivery Contracts, if any, will constitute valid and legally binding
obligations of the Company entitled to the benefits provided by the
Indenture; and the Securities and the Indenture conform to the descriptions
thereof in the Prospectus;
(vii) The Indenture has been duly authorized, executed and delivered by the
parties thereto and constitutes a valid and legally binding instrument,
enforceable in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general
equity principles; and the Indenture has been duly qualified under the Trust
Indenture Act;
(viii) The issue and sale of the Securities and the compliance by the
Company with all of the provisions of the Securities, the Indenture, each of
the Delayed Delivery Contracts and this Agreement and the consummation of the
transactions herein and therein contemplated will not conflict with or result
in a material breach of any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition of any lien, charge or
encumbrance upon any of the property or assets of the Company or any of its
subsidiaries pursuant to the terms of, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument known to such counsel
to which the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the property
or assets of the Company or any of its subsidiaries is subject, nor will such
action result in any violation of the provisions of the Amended and Restated
Certificate of Incorporation or the Bylaws of the Company or any statute or
any order, rule or regulation applicable to the Company and known to such
counsel of any court or governmental agency or body having jurisdiction over
the Company or any of its properties; and no consent, approval,
authorization, order, registration or qualification of or with any court or
governmental agency or body is required for the issue and sale of the
Securities or the consummation of the other transactions contemplated by this
Agreement or the Indenture or any of the Delayed Delivery Contracts, except
such as have been obtained under the Act and the Trust Indenture Act and such
consents, approvals, authorizations, registrations or qualifications as may
be required under state securities or Blue Sky laws in connection with the
purchase and/or distribution of the Securities by the Underwriters;
(ix) The documents incorporated by reference in the Prospectus (other than
the financial statements and related schedules therein, as to which such
counsel need express no opinion), when they were filed with the Commission,
complied as to form in all material respects with the requirements of the
Exchange Act and the rules and regulations of the Commission thereunder; and
such counsel have no reason to believe that any of such documents, when they
were so filed, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which
they were made when such documents were so filed, not misleading; and
(x) The Registration Statement and the Prospectus and any further amendments
and supplements thereto made by the Company prior to the Time of Delivery
(other than the financial statements therein, as to which such counsel need
express no opinion) comply as to form in all material respects with the
requirements of the Act and the Trust Indenture Act and the rules and
regulations thereunder; such counsel have no reason to believe that the
Registration Statement contained as of its effective date or that the
Prospectus contained as of the date of the supplement comprising a part
thereof, or that either the Registration Statement or the Prospectus contains
as of the Time of Delivery (or that any further amendment or supplement
thereto made by the Company prior to the Time of Delivery contained as of its
date or contains as of the Time of Delivery) an untrue statement of material
fact or that the Registration Statement omitted as of such effective date, or
that the Prospectus omits as of the Time of Delivery to state a material fact
required to be stated therein or necessary to make the statements
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therein not misleading; and such counsel does not know of any contracts or
other documents of a character required to be filed as an exhibit to the
Registration Statement or required to be incorporated by reference into the
Prospectus or required to be described in the Registration Statement or in
the Prospectus which are not filed or incorporated by reference or described
as required.
With respect to subparagraphs (ix) and (x) of paragraph (c) above, Xxxxxxxx &
Xxxxxxxx LLP may state that its opinion and belief are based on its
participation in the preparation of the Registration Statement and the
Prospectus and any amendments or supplements thereto and documents
incorporated therein by reference and review and discussion of the contents
thereof, but are without independent check or verification, except as
specified.
(d) At the Time of Delivery, Ernst & Young LLP shall have furnished to you
a letter or letters, dated the Time of Delivery, in form and substance
satisfactory to you, to the effect set forth in Schedule III hereto;
(e) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included
or incorporated by reference in the Prospectus any material loss or
interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, other than as set forth or contemplated
in the Prospectus; and (ii) since the respective dates as of which
information is given in the Prospectus there shall not have been any decrease
in the capital stock or any increase in the long-term debt (excluding capital
leases) of the Company or any of its subsidiaries or a change, or any
development involving a prospective change, in or affecting the general
affairs, management, financial position, shareholders' investment or results
of operations of the Company and its subsidiaries, otherwise than as set
forth or contemplated in the Prospectus, the effect of which, in any such
case described in clause (i) or (ii), is in your judgment so material and
adverse as to make it impracticable or inadvisable to proceed with the public
offering or the delivery of the Securities on the terms and in the manner
contemplated in the Prospectus;
(g) On or after the date of this Agreement, there shall not have occurred
any of the following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (ii) a general
moratorium on commercial banking activities in New York declared by either
Federal or New York State authorities; or (iii) an outbreak or escalation of
hostilities involving the United States or the declaration by the United
States of a national emergency or war, the effect of any such event specified
in this clause (iii) in your judgment makes it impractical or inadvisable to
proceed with the public offering or the delivery of the Underwriters'
Securities on the terms and in the manner contemplated by the Prospectus; and
(h) On or after the date of this Agreement (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities by any
"nationally recognized statistical rating organization", as that term is
defined by the Commission for purposes of Rule 436(g)(2) under the Act, and
(ii) no such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of
any of the Company's debt securities the effect of which, in any event
specified in clause (i) or (ii), in your judgment makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Securities on the terms and in the manner contemplated in the Prospectus; and
(i) The Company shall have furnished or caused to be furnished to you at
the Time of Delivery certificates of officers of the Company satisfactory to
you as to the accuracy of the representations and warranties of the Company
herein at and as of the Time of Delivery and as to the performance by the
Company of all of its obligations hereunder to be performed at or prior to
the Time of Delivery and the Company also shall have furnished to you a
certificate of officers of the Company satisfactory to you as to the matters
set forth in subsections (a), (f) and (h) of this Section.
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8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to
which such Underwriter may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement in the form in which it was initially declared
effective, or the Prospectus, or any amendment or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse each Underwriter
for any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such action or claim;
PROVIDED, HOWEVER, that the Company shall not be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration
Statement or such Prospectus or any such amendment or supplement in reliance
upon and in conformity with written information furnished to the Company by
any Underwriter through you expressly for use therein.
(b) Each Underwriter will indemnify and hold harmless the Company against
any losses, claims, damages or liabilities to which the Company may become
subject, under the Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
an untrue statement or alleged untrue statement of a material fact contained
in any Preliminary Prospectus, the Registration Statement in the form in
which it was initially declared effective, or the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in any
Preliminary Prospectus, the Registration Statement or such Prospectus or any
such amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through you
expressly for use therein; and will reimburse the Company for any legal or
other expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party
shall not relieve it from any liability which it may have to any indemnified
party otherwise than under such subsection. In case any such action shall be
brought against any indemnified party and it shall notify the indemnifying
party of the commencement thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it shall wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation.
(d) If the indemnification provided for in this Section 8 is unavailable to
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or
actions in respect thereof) referred to therein, then each indemnifying party
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other from the offering of the Securities. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law or if the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to
9
such amount paid or payable by such indemnified party in such proportion as
is appropriate to reflect not only such relative benefits but also the
relative fault of the Company on the one hand and the Underwriters on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as
well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on the other
shall be deemed to be in the same proportion as the total net proceeds from
the offering (before deducting expenses) received by the Company bear to the
total underwriting discounts and commissions received by the Underwriters, in
each case as set forth in the table on the cover page of the Prospectus. The
relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Underwriters and the parties' relative intent,
knowledge, access o information and opportunity to correct or prevent such
statement or omission. The Company and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this subsection (d)
were determined by pro rata allocation (even if the Underwriters were treated
as one entity for such purpose) or by any other method of allocation which
does not take account of the equitable considerations referred to above in
this subsection (d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this subsection (d) shall be deemed to include
any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), no Underwriter shall
be required to contribute any amount in excess of the amount by which the
total price at which the Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (d) to contribute are several in proportion to their
respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations
of the Underwriters under this Section 8 shall be in addition to any
liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director of
the Company and to each person, if any, who controls the Company within the
meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Underwriters' Securities which it has agreed to purchase hereunder, you
may in your discretion arrange for you or another party or other parties to
purchase such Underwriters' Securities on the terms contained herein. If
within thirty-six hours after such default by any Underwriter you do not
arrange for the purchase of such Underwriters' Securities, then the Company
shall be entitled to a further period of thirty-six hours within which to
procure another party or other parties satisfactory to you to purchase such
Underwriters' Securities on such terms. In the event that, within the
respective prescribed periods, you notify the Company that you have so
arranged for the purchase of such Underwriters' Securities, or the Company
notifies you that it has so arranged for the purchase of such Underwriters'
Securities, you or the Company shall have the right to postpone the Time of
Delivery for a period of not more than seven days, in order to effect
whatever changes may thereby be made necessary in the Registration Statement
or the Prospectus, or in any other documents or arrangements, and the Company
agrees to file promptly any amendments to the Registration Statement or the
Prospectus which in your opinion may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under the Section with like effect as if such person had originally been a
party to this Agreement with respect to such Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Underwriters' Securities of a defaulting Underwriter or Underwriters by you
and the Company as provided in subsection (a) above, the aggregate
10
principal amount of such Underwriters' Securities which remains unpurchased
does not exceed one-tenth of the aggregate principal amount of all the
Securities, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of Underwriters'
Securities which such Underwriter agreed to purchase hereunder and, in
addition, to require each non-defaulting Underwriter to purchase its pro rata
share (based on the principal amount of Securities which such Underwriter
agreed to purchase hereunder) of the Underwriters' Securities of such
defaulting Underwriter or Underwriters for which such arrangements have not
been made; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If after giving effect to any arrangements for the purchase of the
Underwriters' Securities of a defaulting Underwriter or Underwriters by you
and the Company as provided in subsection (a) above the aggregate principal
amount of Underwriters' Securities which remains unpurchased exceeds
one-tenth of the aggregate principal amount of all the Securities, or if the
Company shall not exercise the right described in subsection (b) above to
require non-defaulting Underwriters to purchase Underwriters' Securities of a
defaulting Underwriter or Underwriters, then this Agreement shall thereupon
terminate, without liability on the part of any non-defaulting Underwriter or
the Company, except for the expenses to be borne by the Company and the
Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve
a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties and
other statements of the Company and the several Underwriters, as set 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 any
investigation (or any statement as to the results thereof) made by or on
behalf of any Underwriter or any controlling person of any Underwriter, or
the Company, or any officer or director or controlling person of the Company,
and shall survive delivery of and payment for the Securities.
11. If this Agreement shall be terminated pursuant to Section 9 hereof, the
Company shall not then be under any liability to any Underwriter except as
provided in Section 6 and Section 8 hereof; but if for any other reason the
Underwriters' Securities are not delivered by or on behalf of the Company as
provided herein, the Company will reimburse the Underwriters through you for
all out-of-pocket expenses approved in writing by you, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of the Securities, but the
Company shall then be under no further liability to any Underwriter except as
provided in Section 6 and Section 8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the Company 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 or by [LEAD UNDERWRITER] on behalf of you as the
Representatives and may assume that such statement, request, notice or
agreement has been duly authorized by such Underwriter.
All statements, requests, notices and agreements hereunder shall be in
writing or by telegram if promptly confirmed in writing, and if to the
Underwriters, shall be sufficient in all respects if delivered or sent by
registered mail to you as the Representatives in care of
[NAME AND ADDRESS OF LEAD UNDERWRITER], Attention: __________________; and if
to the Company, shall be sufficient in all respects if delivered or sent by
registered mail to Digital Microwave Corporation, 000 Xxxx Xxxxxxx Xxx, Xxx
Xxxx, Xxxxxxxxxx 00000, Attention: Chief Financial Officer; PROVIDED,
HOWEVER, that any notice to an Underwriter pursuant to Section 8(c) hereof
shall be delivered or sent by registered mail to such Underwriter at its
address set forth in its Underwriters' Questionnaire or telex constituting
such Questionnaire delivered to the Company.
13. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company and, to the extent provided in Sections 8
and 10 hereof, the officers and directors of the Company and each person who
controls the Company or any Underwriter, and their respective heirs,
executors, administrators,
11
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement. No purchaser of any of the Securities
from any Underwriter shall be deemed a successor or assign by reason merely
of such purchase.
14. Time shall be of the essence of this Agreement.
15. This Agreement shall be construed in accordance with the laws of the
State of California, without regard to conflict of laws principles.
16. This Agreement may be executed by any one or more of the parties hereto
in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the
same instrument.
If the foregoing is in accordance with your understanding, please sign and
return to us two 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 between 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 a form of a telex,
copies of which, to the extent practicable and upon request, shall be
submitted to the Company for examination, but without warranty on your part
as to the authority of the senders thereof.
Very truly yours,
DIGITAL MICROWAVE CORPORATION
By:
------------------------------
Name:
------------------------------
Its:
------------------------------
ACCEPTED AND AGREED TO BY:
[REPRESENTATIVE(S)]
By:
------------------------------
Name:
------------------------------
Its:
------------------------------
On behalf of each of the Underwriters
12
SCHEDULE I
Underwriting Agreement dated [PRICING DATE]
Registration Statement No.[____________]
Representatives:
Description of Securities:
Title:
Maturity:
Interest Rate:
Interest Payment Dates:
Aggregate principal amount and currency:
Purchase price and currency: $ plus accrued interest from
[INITIAL INTEREST ACCRUAL DATE]
Sinking fund provisions: [The Securities shall not be entitled to any
sinking fund.]
Redemption provisions: [The Securities are not redeemable prior to
maturity.]
Other provisions: [Defeasance provisions set forth in Articles Four and
Fifteen of the Indenture shall apply to the Securities]
Closing Date, Time and Location: [CLOSING DATE] at 9:30 a.m. at the office
of .
13
SCHEDULE II
PRINCIPAL AMOUNT OF
UNDERWRITER SECURITIES TO BE PURCHASED
14
SCHEDULE III
Pursuant to Section 7(d) of the Underwriting Agreement, the accountants shall
furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect to the
Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules examined by them and included or
incorporated by reference in the Registration Statement or Prospectus
comply as to form in all material respects with the applicable accounting
requirements of the Act or the Exchange Act, as applicable, and the related
published rules and regulations thereunder; and, if applicable, they have
made a review in accordance with standards established by the American
Institute of Certified Public Accountants of the consolidated interim
financial statements, selected financial data, pro forma financial
information and/or condensed financial statements derived from audited
financial statements of the Company for the periods specified in such
letter, as indicated in their reports thereon, copies of which have been
furnished to the Representatives;
(iii) In their opinion, the unaudited selected financial information with
respect to the consolidated results of operations and financial position of
the Company for the five most recent fiscal years included in the
Prospectus and included or incorporated by reference in Item 6 of the
Company's Annual Report on Form 10-K for the most recent fiscal year agrees
with the corresponding amounts (after restatement where applicable) in the
audited consolidated financial statements for such fiscal years which were
included or incorporated by reference in the Company's Annual Reports on
Form 10-K for such fiscal years;
(iv) On the basis of limited procedures, not constituting an examination
in accordance with generally accepted auditing standards, consisting of a
reading of the unaudited financial statements and other information
referred to below, a reading of the latest available interim financial
statements of the Company and its subsidiaries, inspection of the minute
books of the Company and its subsidiaries since the date of the latest
audited financial statements included or incorporated by reference in the
Prospectus, inquiries of officials of the Company and its subsidiaries
responsible for financial and accounting matters and such other inquiries
and procedures as may be specified in such letter, nothing came to their
attention that caused them to believe that:
(A) the unaudited condensed consolidated statements of income, consolidated
balance sheets and consolidated statements of changes in financial position
included or incorporated by reference in the Company's Quarterly Reports on
Form 10-Q incorporated by reference in the Prospectus do not comply as to
form in all material respects with the applicable accounting requirements
of the Exchange Act as its applies to Form 10-Q and the related published
rules and regulations thereunder or are not in conformity with generally
accepted accounting principles for interim financial statements applied on
a basis substantially consistent with the basis for the audited
consolidated statements of income, consolidated balance sheets and
consolidated statements of changes in financial position included or
incorporated by reference in the Company's Annual Report on Form 10-K for
the most recent fiscal year;
(B) any other unaudited income statement data and balance sheet items
included in the Prospectus do not agree with the corresponding items in the
unaudited consolidated financial statements from which such data and items
were derived, and any such unaudited data and items were not determined on
a
15
basis substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements included or
incorporated by reference in the Company's Annual Report on Form 10-K for
the most recent fiscal year;
(C) the unaudited financial statements which were not included in the
Prospectus but from which were derived the unaudited condensed financial
statements referred to in Clause (A) and any unaudited income statement
data and balance sheet items included in the Prospectus and referred to in
Clause (B) were not determined on a basis substantially consistent with the
basis for the audited financial statements included or incorporated by
reference in the Company's Annual Report on Form 10-K for the most recent
fiscal year;
(D) any unaudited pro forma consolidated condensed financial statements
included or incorporated by reference in the Prospectus do not comply as to
form in all material respects with the applicable accounting requirements
of the Act and the published rules and regulations thereunder;
(E) as of a specified date not more than five days prior to the date of
such letter, when compared with amounts shown in the latest balance sheet
included or incorporated by reference in the Prospectus, there have been
-- any changes in the consolidated capital stock (other than issuances
of capital stock upon the exercise of stock options, pursuant to
performance shares or restricted stock awards and upon the conversion
of convertible securities, in each case which were outstanding on the
date of the latest balance sheet included or incorporated by
reference in the Prospectus), or
-- any increase in the consolidated long-term debt (excluding capital
leases) of the Company and its subsidiaries, or
-- any decrease in consolidated working capital greater than 1.5% of
the Company's most recent fiscal year-end total consolidated assets
(treating all commercial paper as a current liability), or
-- any decreases in consolidated shareholders' investment greater than
0.5% of the Company's most recent fiscal year-end total consolidated
assets (excluding decreases resulting from normally recurring
dividends), or
-- any decreases or increases in other items specified by the
Representatives
in each case except for changes, increases or decreases which the Prospectus
discloses have occurred or may occur or which are described in such letter;
and
(F) for the period from the date of the latest financial statements
included or incorporated by reference in the Prospectus to the specified
date referred to in Clause (E), when compared with the
16
comparable period of the preceding year and with any other period of
corresponding length specified by the Representatives, there were
-- any decreases in consolidated net sales or earnings before income
taxes and extraordinary charges, or
-- any decreases in the total or per share amounts of consolidated net
income or other items specified by the Representatives, or
-- any increases in any items specified by the Representatives
in each case except for increases or decreases which the Prospectus
discloses have occurred or may occur or which are described in such
letter; and
(v) In addition to the examination referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (iii) and (iv) above, they have carried out
certain specified procedures, not constituting an examination in accordance
with generally accepted auditing standards, with respect to certain
amounts, percentages and financial information specified by the
Representatives which are derived from the general accounting records of
the Company and its subsidiaries, which appear in the Prospectus (excluding
documents incorporated by reference), or in Part II of, or in exhibits and
schedules to, the Registration Statement specified by the Representatives
or in documents incorporated by reference in the Prospectus specified by
the Representatives, and have compared certain of such amounts, percentages
and financial information with the accounting records of the Company and
its subsidiaries and have found them to be in agreement.
17
SCHEDULE IV
DELAYED DELIVERY CONTRACT
Digital Microwave Corporation
C/O
ATTENTION:
Dear Sirs:
The undersigned hereby agrees to purchase from Digital Microwave Corporation
(hereinafter called the "Company"), and the Company agrees to sell to the
undersigned, $ principal amount of the Company's (hereinafter
called the "Securities"), offered by the Company's Prospectus dated
and Prospectus Supplement dated , receipt of a copy of which is hereby
acknowledged, at a purchase price of % of the principal amount thereof,
plus accrued interest from the date from which interest accrues as set forth
below, and on the further terms and conditions set forth in this contract.
The undersigned will purchase the Securities from the Company on ,
(the "Delivery Date") and interest on the Securities so purchased will accrue
from .
Payment for the Securities which the undersigned has agreed to purchase on
the Delivery Date shall be made to the Company or its order by certified or
official bank check in New York Clearing House funds at the office of
, or by wire transfer to a bank account specified
by the Company, on the Delivery Date upon delivery to the undersigned of the
Securities then to be purchased by the undersigned in definitive fully
registered form and in such denominations and registered in such names as the
undersigned may designate by written or telegraphic communication addressed
to the Company not less than five full business days prior to the Delivery
Date.
The obligation of the undersigned to take delivery of and make payment for
the Securities on the Delivery Date shall be subject to the condition that
the purchase of the Securities to be made by the undersigned shall not on the
Delivery Date be prohibited under the laws of the jurisdiction to which the
undersigned is subject. The obligation of the undersigned to take delivery
of and make payment for the Securities shall not be affected by the failure
of any purchaser to take delivery of and make payment for the Securities
pursuant to other contracts similar to this contract.
The undersigned understands that underwriters (the "Underwriters") are also
purchasing Securities from the Company, but that the obligations of the
undersigned hereunder are not contingent on such purchases.
[PROMPTLY AFTER COMPLETION OF THE SALE TO THE UNDERWRITERS THE COMPANY WILL
MAIL OR DELIVER TO THE UNDERSIGNED AT ITS ADDRESS SET FORTH BELOW NOTICE TO
SUCH EFFECT, ACCOMPANIED BY A COPY OF THE OPINION OF COUNSEL FOR THE COMPANY
DELIVERED TO THE UNDERWRITERS IN CONNECTION THEREWITH.]
The undersigned represents and warrants that, as of the date of this
contract, the undersigned is not prohibited from purchasing the Securities
hereby agreed to be purchased by it under the laws of the jurisdiction to
which the undersigned is subject.
This contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
18
This contract may be executed by either of the parties hereto in any number
of counterparts, each of which shall be deemed to be an original, but all
such counterparts shall together constitute one and the same instrument.
It is understood that the acceptance by the Company of any Delayed Delivery
Contract (including this contract) is in the Company's sole discretion and
that, without limiting the foregoing, acceptances of such contracts need not
be on a first-come, first-served basis. If this contract is acceptable to
the Company, it is requested that the Company sign the form of acceptance
below and mail or deliver one of the counterparts hereof to the undersigned
at its address set forth below. This will become a binding contract between
the Company and the undersigned when such counterpart is so mailed or
delivered by the Company.
Yours very truly,
By:
---------------
(Signature)
(Name and Title)
(Address)
Accepted: ,
DIGITAL MICROWAVE CORPORATION
By:
----------------------------
Name:
----------------------------
Its:
----------------------------
19
