1
3,000,000 Shares
ALPHA INDUSTRIES, INC.
Common Stock
UNDERWRITING AGREEMENT
______________, 1999
CIBC World Markets Corp.
Prudential Securities Incorporated
U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc.
c/o CIBC World Markets Corp.
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
On behalf of the Several
Underwriters named on
Schedule I attached hereto.
Ladies and Gentlemen:
Alpha Industries, Inc., a Delaware corporation (the
"Company"), proposes to sell to you and the other underwriters named on Schedule
I to this Agreement (the "Underwriters"), for whom you are acting as
Representatives, an aggregate of 3,000,000 shares (the "Firm Shares") of the
Company's Common Stock, $0.25 par value (the "Common Stock"). In addition, the
Company proposes to grant to the Underwriters an option to purchase up to an
additional 450,000 shares (the "Option Shares") of Common Stock from it for the
purpose of covering over-allotments in connection with the sale of the Firm
Shares. The Firm Shares and the Option Shares are together called the "Shares."
1. Sale and Purchase of the Shares.
On the basis of the representations, warranties and
agreements contained in, and subject to the terms and conditions of, this
Agreement:
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(a) The Company agrees to sell to each of the
Underwriters, and each of the Underwriters agrees, severally and
not jointly, to purchase from the Company, at $_____ per share (the
"Initial Price"), the number of Firm Shares set forth opposite the
name of such Underwriter on Schedule I to this Agreement.
(b) The Company grants to the several Underwriters an
option to purchase, severally and not jointly, all or any part of
the Option Shares at the Initial Price. The number of Option Shares
to be purchased by each Underwriter shall be the same percentage
(adjusted by the Representatives to eliminate fractions) of the
total number of Option Shares to be purchased by the Underwriters
as such Underwriter is purchasing of the Firm Shares. Such option
may be exercised only to cover over-allotments in the sales of the
Firm Shares by the Underwriters and may be exercised in whole or in
part at any time on or before 12:00 noon, New York City time, on
the business day before the Firm Shares Closing Date (as defined
below), and only once thereafter within 30 days after the date of
this Agreement, in each case upon written or telegraphic notice, or
verbal or telephonic notice confirmed by written or telegraphic
notice, by the Representatives to the Company no later than 12:00
noon, New York City time, on the business day before the Firm
Shares Closing Date or at least two business days before the Option
Shares Closing Date (as defined below), as the case may be, setting
forth the number of Option Shares to be purchased and the time and
date (if other than the Firm Shares Closing Date) of such purchase.
2. Delivery and Payment. Delivery by the Company of the
Firm Shares to the Representatives for the respective accounts of the
Underwriters, and payment of the purchase price by wire transfer or certified or
official bank check or checks payable in New York Clearing House (next day)
funds to the Company, shall take place at the offices of CIBC World Markets
Corp., at ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
at 10:00 a.m., New York City time, on the third business day following the date
of this Agreement, or at such time on such other date, not later than 10
business days after the date of this Agreement, as shall be agreed upon by the
Company and the Representatives (such time and date of delivery and payment are
called the "Firm Shares Closing Date").
In the event the option with respect to the Option Shares
is exercised, delivery by the Company of the Option Shares to the
Representatives for the respective accounts of the Underwriters and payment of
the purchase price by wire transfer or certified or official bank check or
checks payable in New York Clearing House (next day) funds to the Company shall
take place at the offices of CIBC World Markets Corp. specified above at the
time and on the date (which may be the same date as, but in no event shall be
earlier than, the Firm Shares Closing Date) specified in the notice referred to
in Section 1(b) (such time and date of delivery and payment are called the
"Option Shares Closing Date"). The Firm Shares Closing Date and the Option
Shares Closing Date are called, individually, a "Closing Date" and, together,
the "Closing Dates."
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Certificates evidencing the Shares shall be registered in
such names and shall be in such denominations as the Representatives shall
request at least two full business days before the Firm Shares Closing Date or,
in the case of Option Shares, on the day of notice of exercise of the option as
described in Section l(b) and shall be made available to the Representatives for
checking and packaging, at such place as is designated by the Representatives,
on the full business day before the Firm Shares Closing Date (or the Option
Shares Closing Date in the case of the Option Shares).
3. Registration Statement and Prospectus; Public Offering.
(a) A registration statement (No. 333-_____) relating to
the Shares, including a form of prospectus, has been filed with the Securities
and Exchange Commission ("Commission") and either (A) has been declared
effective under the Securities Act of 1933 (the "Securities Act") and is not
proposed to be amended or (B) is proposed to be amended by amendment or
post-effective amendment. If such registration statement (the "initial
registration statement") has been declared effective, (A) an additional
registration statement (the "additional registration statement") relating to the
Shares may have been filed with the Commission pursuant to Rule 462(b) ("Rule
462(b)") under the Securities Act and, if so filed, has become effective upon
filing pursuant to such Rule and the Shares all have been duly registered under
the Securities Act pursuant to the initial registration statement and, if
applicable, the additional registration statement or (B) such an additional
registration statement may be proposed to be filed with the Commission pursuant
to Rule 462(b) in which case it will become effective upon filing pursuant to
such Rule and upon such filing the Shares will all have been duly registered
under the Securities Act pursuant to the initial registration statement and such
additional registration statement. If the Company does not propose to amend the
initial registration statement or if an additional registration statement has
been filed and the Company does not propose to amend it, and if any
post-effective amendment to either such registration statement has been filed
with the Commission prior to the execution and delivery of this Agreement, the
most recent amendment (if any) to each such registration statement has been
declared effective by the Commission or has become effective upon filing
pursuant to Rule 462(c) ("Rule 462(c)") under the Securities Act or, in the case
of an additional registration statement, Rule 462(b). For purposes of this
Agreement, "Effective Time" with respect to each of the initial registration
statement and, if filed prior to the execution and delivery of this Agreement,
the additional registration statement means (A) if the Company has advised the
Representatives that it does not propose to amend such registration statement,
the date and time as of which such registration statement, or the most recent
post-effective amendment thereto (if any) filed prior to the execution and
delivery of this Agreement, was declared effective by the Commission or has
become effective upon filing pursuant to Rule 462(c), or (B) if the Company has
advised the Representatives that it proposes to file an amendment or
post-effective amendment to such registration statement, the date and time as of
which such registration statement, as amended by such amendment or
post-effective amendment, as the case may be, is declared effective by the
Commission. If an additional registration statement has not been filed prior to
the execution and delivery of this Agreement but the Company has advised the
Representatives that it proposes to file one, "Effective Time"
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with respect to such additional registration statement means the date and time
as of which such registration statement is filed and becomes effective pursuant
to Rule 462(b). "Effective Date" with respect to the initial registration
statement and the additional registration statement (if any) means the date of
the Effective Time thereof. The initial registration statement, as amended at
its Effective Time, including all material incorporated by reference therein,
including all information contained in the additional registration statement (if
any) and deemed to be a part of the initial registration statement as of the
Effective Time of the additional registration statement pursuant to the General
Instructions of the Form on which it is filed and including all information (if
any) deemed to be a part of the initial registration statement as of its
Effective Time pursuant to Rule 430A(b) ("Rule 430A(b)") under the Securities
Act, is hereinafter referred to as the "Initial Registration Statement". The
additional registration statement, as amended at its Effective Time, including
the contents of the initial registration statement incorporated by reference
therein and including all information (if any) deemed to be a part of the
additional registration statement as of its Effective Time pursuant to Rule
430A(b), is hereinafter referred to as the "Additional Registration Statement".
The Initial Registration Statement and the Additional Registration Statement, if
any, are hereinafter referred to collectively as the "Registration Statements"
and individually as a "Registration Statement". The form of prospectus relating
to the Shares, as first filed with the Commission pursuant to and in accordance
with Rule 424(b) ("Rule 424(b)") under the Securities Act or (if no such filing
is required) as included in a Registration Statement, including all material
incorporated by reference in such prospectus, is hereinafter referred to as the
"Prospectus". No document has been or will be prepared or distributed in
reliance on Rule 434 under the Securities Act.
(b) The Company understands that the Underwriters propose
to make a public offering of the Shares, as set forth in and pursuant to the
Prospectus, as soon after the Effective Time and the date of this Agreement as
the Representatives deem advisable. The Company hereby confirms that the
Underwriters and dealers have been authorized to distribute or cause to be
distributed each preliminary prospectus and are authorized to distribute the
Prospectus (as from time to time amended or supplemented if the Company
furnishes amendments or supplements thereto to the Underwriters).
4. Representations and Warranties of the Company. The
Company hereby represents and warrants to each Underwriter as follows:
(a) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement:
(i) on the Effective Date of the Initial Registration Statement,
the Initial Registration Statement conformed in all material
respects to the requirements of the Securities Act and the rules
and regulations of the Commission (the "Rules") and did not include
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, (ii) on the Effective Date
of the Additional Registration Statement (if any), each
Registration Statement conformed or will conform, in all material
respects to the requirements of the Securities Act and the
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Rules and did not include, or will not include, any untrue
statement of a material fact and did not omit, or will not omit, to
state any material fact required to be stated therein or necessary
to make the statements therein not misleading, and (iii) on the
date of this Agreement, the Initial Registration Statement and, if
the Effective Time of the Additional Registration Statement is
prior to the execution and delivery of this Agreement, the
Additional Registration Statement each conforms, and at the time of
filing of the Prospectus pursuant to Rule 424(b) or (if no such
filing is required) at the Effective Date of the Additional
Registration Statement in which the Prospectus is included, each
Registration Statement and the Prospectus will conform, in all
material respects to the requirements of the Securities Act and the
Rules, and neither of such documents includes, or will include, any
untrue statement of a material fact or omits, or will omit, to
state any material fact required to be stated therein or necessary
to make the statements therein not misleading. If the Effective
Time of the Initial Registration Statement is subsequent to the
execution and delivery of this Agreement: on the Effective Date of
the Initial Registration Statement, the Initial Registration
Statement and the Prospectus will conform in all material respects
to the requirements of the Act and the Rules, neither of such
documents will include any untrue statement of a material fact or
will omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and no
Additional Registration Statement has been or will be filed.
Notwithstanding the foregoing, the Company makes no representation
or warranty as to the statements contained under the caption
"Underwriting" (except for the _________, ______ and ______
paragraphs therein) in the Prospectus. The Company acknowledges
that the statements referred to in the previous sentence constitute
the only information furnished in writing by the Representatives on
behalf of the several Underwriters specifically for inclusion in
the Registration Statements, any preliminary prospectus or the
Prospectus. The Company and the transactions contemplated by this
Agreement meet the requirements for using Form S-3 under the
Securities Act.
(b) All contracts and other documents required to be filed
as exhibits to the Registration Statements have been filed with the
Commission as exhibits to the Registration Statements.
(c) The consolidated financial statements of the Company
(including all notes and schedules thereto) included or
incorporated by reference in the Registration Statements and
Prospectus present fairly the financial position, the results of
operations and cash flows and the shareholders' equity and the
other information purported to be shown therein of the Company at
the respective dates and for the respective periods to which they
apply; and such financial statements have been prepared in
conformity with generally accepted accounting principles,
consistently applied throughout the periods involved, and all
adjustments necessary for a fair presentation of the results for
such periods have been made.
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(d) KPMG Peat Marwick LLP, whose reports are filed with
the Commission as a part of the Registration Statements, are and,
during the periods covered by their reports, were independent
public accountants as required by the Securities Act and the Rules.
(e) The Company and its "Significant Subsidiaries" as such
term is defined in Rule 1-02 of Regulation S-X under the Securities
Act (hereinafter, "Significant Subsidiaries") have each been duly
incorporated and are validly existing as corporations in good
standing under the laws of the jurisdiction of its incorporation.
Each of the Company and its Significant Subsidiaries is duly
qualified and in good standing as a foreign corporation in each
jurisdiction in which the character or location of its assets or
properties (owned, leased or licensed) or the nature of its
business makes such qualification necessary except for such
jurisdictions where the failure to so qualify would not have a
material adverse effect on the assets or properties, business,
results of operations or financial condition of the Company and its
subsidiaries taken as a whole. Each of the Company and its
Significant Subsidiaries has all requisite corporate power and
authority, and all necessary authorizations, approvals, consents,
orders, licenses, certificates and permits of and from all
governmental or regulatory bodies or any other person or entity, to
own, lease and license its assets and properties and conduct its
businesses as now being conducted and as described in the
Registration Statements and the Prospectus except for such
authorizations, approvals, consents, orders, material licenses,
certificates and permits the failure to so obtain would not have a
material adverse effect upon the assets or properties, business,
results of operations, prospects or condition (financial or
otherwise) of the Company and its subsidiaries taken as a whole; no
such authorization, approval, consent, order, license, certificate
or permit contains a materially burdensome restriction which is
required to be disclosed in the Registration Statements and the
Prospectus and is not disclosed in the Registration Statements and
the Prospectus; and the Company has all such corporate power and
authority, and such authorizations, approvals, consents, orders,
licenses, certificates and permits to enter into, deliver and
perform this Agreement and to issue and sell the Shares.
(f) Each of the Company and its Significant Subsidiaries
owns or possesses adequate and enforceable rights to use all
trademarks, trademark applications, trade names, service marks,
copyrights, copyright applications, licenses, know-how and other
similar rights and proprietary knowledge (collectively,
"Intangibles") necessary for the conduct of its business as
described in the Registration Statements and the Prospectus.
Neither the Company nor any of its subsidiaries has received any
notice of, or to its best knowledge is aware of, any infringement
of or conflict with asserted rights of others with respect to any
Intangibles which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would have a material
adverse effect upon the assets or properties, business, results of
operations, prospects or condition (financial or otherwise) of the
Company.
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(g) Each of the Company and its subsidiaries has good
title to each of the items of personal property which are reflected
in the financial statements referred to in Section 4(c) or are
referred to in the Registration Statements and the Prospectus as
being owned by it and valid and enforceable leasehold interests in
each of the items of real and personal property which are referred
to in the Registration Statements and the Prospectus as being
leased by it, in each case free and clear of all liens,
encumbrances, claims, security interests and defects, other than
those described in the Registration Statements and the Prospectus
and those which do not and will not have a material adverse effect
upon the assets or properties, business, results of operations or
financial condition of the Company and its subsidiaries taken as a
whole.
(h) There is no litigation or governmental or other
proceeding or investigation before any court or before or by any
public body or board pending or, to the Company's best knowledge,
threatened against, or involving the assets, properties or business
of, the Company or any of its subsidiaries which would materially
adversely affect the value or the operation of any such assets or
properties or the business, results of operations, prospects or
condition (financial or otherwise) of the Company and its
subsidiaries taken as a whole.
(i) Subsequent to the respective dates as of which
information is given in the Registration Statements and the
Prospectus, except as described therein, (i) there has not been any
material adverse change in the assets or properties, business,
results of operations, prospects or condition (financial or
otherwise), of the Company or any of its subsidiaries, whether or
not arising from transactions in the ordinary course of business;
(ii) neither the Company nor any of its Significant Subsidiaries
has sustained any material loss or interference with its assets,
businesses or properties (whether owned or leased) from fire,
explosion, earthquake, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or any court or
legislative or other governmental action, order or decree; and
(iii) since the date of the latest balance sheet included in the
Registration Statements and the Prospectus, except as reflected
therein, neither the Company nor any of its subsidiaries has (A)
issued any securities or incurred any liability or obligation,
direct or contingent, for borrowed money, except such securities
issued upon exercise of stock options under the Company's stock
option plans, and liabilities or obligations incurred in the
ordinary course of business, (B) entered into any transaction not
in the ordinary course of business or (C) declared or paid any
dividend or made any distribution on any shares of its stock or
redeemed, purchased or otherwise acquired or agreed to redeem,
purchase or otherwise acquire any shares of its stock.
(j) There is no document or contract of a character
required to be described in the Registration Statements or
Prospectus or to be filed as an exhibit to the Registration
Statements which is not described or filed as required. Each
agreement
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listed in the Exhibits to the Registration Statements or
incorporated by reference therein is in full force and effect and
is valid and enforceable by and against the Company in accordance
with its terms, assuming the due authorization, execution and
delivery thereof by each of the other parties thereto. Neither the
Company, nor to the best of the Company's knowledge, any other
party is in default in the observance or performance of any term or
obligation to be performed by it under any such agreement, and no
event has occurred which with notice or lapse of time or both would
constitute such a default, in any such case which default or event
would have a material adverse effect on the assets or properties,
business, results of operations, prospects or condition (financial
or otherwise) of the Company and its subsidiaries taken as a whole.
No default exists, and no event has occurred which with notice or
lapse of time or both would constitute a default, in the due
performance and observance of any term, covenant or condition, by
the Company or any of its subsidiaries of any other agreement or
instrument to which the Company or any such subsidiary is a party
or by which it or its properties or business may be bound or
affected which default or event would have a material adverse
effect on the assets or properties, business, results of
operations, prospects or condition (financial or otherwise) of the
Company and its subsidiaries taken as a whole.
(k) Neither the Company nor any of its subsidiaries is in
violation of any term or provision of its charter or by-laws or of
any franchise, license, permit, judgment, decree, order, statute,
rule or regulation, where the consequences of such violation would
have a material adverse effect on the assets or properties,
business, results of operations, prospects or condition (financial
or otherwise) of the Company and its subsidiaries taken as a whole.
(l) Neither the execution, delivery and performance of
this Agreement by the Company nor the consummation of any of the
transactions contemplated hereby (including, without limitation,
the issuance and sale by the Company of the Shares) will give rise
to a right to terminate or accelerate the due date of any payment
due under, or conflict with or result in the breach of any term or
provision of, or constitute a default (or an event which with
notice or lapse of time or both would constitute a default) under,
or require any consent or waiver under, or result in the execution
or imposition of any lien, charge or encumbrance upon any
properties or assets of the Company or any of its Significant
Subsidiaries pursuant to the terms of, any indenture, mortgage,
deed of trust or other agreement or instrument to which the Company
or any of its Significant Subsidiaries is a party or by which it or
any of its properties or businesses is bound, or any franchise,
license, permit, judgment, decree, order, statute, rule or
regulation applicable to the Company or any of its Significant
Subsidiaries or violate any provision of the charter or by-laws of
the Company or any of its Significant Subsidiaries, except for such
consents or waivers which have already been obtained and are in
full force and effect.
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(m) The Company has an authorized and outstanding capital
stock as set forth under the caption "Capitalization" in the
Prospectus. All of the outstanding shares of Common Stock have been
duly and validly issued and are fully paid and nonassessable and
none of them was issued in violation of any preemptive or other
similar right. The Shares, when issued and sold pursuant to this
Agreement, will be duly and validly issued, fully paid and
nonassessable and none of them will be issued in violation of any
preemptive or other similar right. Except as disclosed in the
Registration Statements and the Prospectus, there is no outstanding
option, warrant or other right calling for the issuance of, and
there is no commitment, plan or arrangement to issue, any share of
stock of the Company or any security convertible into, or
exercisable or exchangeable for, such stock. The Common Stock and
the Shares conform in all material respects to all statements in
relation thereto contained or incorporated by reference in the
Registration Statements and the Prospectus.
(n) No holder of any security of the Company has the right
to have any security owned by such holder included in the
Registration Statements or to demand registration of any security
owned by such holder during the period ending 90 days after the
date of this Agreement, except any such rights as may have been
duly waived. Each director and executive officer of the Company has
delivered to the Representatives his enforceable written agreement
that he will not, for a period of 90 days after the date of this
Agreement, without the prior written consent of CIBC World Markets
Corp., offer for sale, sell, distribute, grant any option for the
sale of, or otherwise dispose of, directly or indirectly any shares
of Common Stock (or any securities convertible into, exercisable
for, or exchangeable for any shares of Common Stock) owned by him.
(o) All necessary corporate action has been duly and
validly taken by the Company to authorize the execution, delivery
and performance of this Agreement and the issuance and sale of the
Shares by the Company. This Agreement has been duly and validly
authorized, executed and delivered by the Company and constitutes
the legal, valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, except (A) as the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and by general equitable
principles and (B) to the extent that rights to indemnity or
contribution under this Agreement may be limited by Federal and
state securities laws or the public policy underlying such laws.
(p) Neither the Company nor any of its subsidiaries is
involved in any labor dispute nor, to the knowledge of the Company,
is any such dispute threatened, which dispute would have a material
adverse effect on the assets or properties, business, results of
operations, prospects or condition (financial or otherwise) of the
Company and its subsidiaries taken as a whole.
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(q) No transaction has occurred between or among the
Company or any of its subsidiaries and any of its officers or
directors or any affiliate or affiliates of any such officer or
director that is required to be described in and is not described
in the Registration Statements and the Prospectus.
(r) The Company has not taken, nor will it take, directly
or indirectly, any action designed to or which might reasonably be
expected to cause or result in, or which has constituted or which
might reasonably be expected to constitute, the stabilization or
manipulation of the price of the Common Stock to facilitate the
sale or resale of any of the Shares.
(s) The Company has filed all Federal, state, local and
foreign tax returns which are required to be filed through the date
hereof, or has received extensions thereof, and has paid all taxes
shown on such returns and all assessments received by it to the
extent that the same are material and have become due.
(t) The Shares have been duly authorized for quotation on
the National Association of Securities Dealers Automated Quotation
("Nasdaq") National Market System.
(u) The Company has complied with all of the requirements
and filed the required forms as specified in Florida Statutes
Section 517.075.
(v) The Company is not and, after giving effect to the
offering and sale of the Shares and the application of the net
proceeds therefrom as described in the Prospectus, will not be, an
"investment company" as defined in the Investment Company Act of
1940.
5. Conditions of the Underwriters' Obligations. The
obligations of the Underwriters under this Agreement are several and not joint.
The respective obligations of the Underwriters to purchase the Shares on each
Closing Date are subject to each of the following terms and conditions:
(a) The Prospectus shall have been timely filed with the
Commission in accordance with Section 6(A)(a) of this Agreement.
(b) No order preventing or suspending the use of any
preliminary prospectus or the Prospectus shall have been or shall
be in effect and no order suspending the effectiveness of the
Registration Statement shall be in effect and no proceedings for
such purpose shall be pending before or threatened by the
Commission, and any requests for additional information on the part
of the Commission (to be included in the Registration Statement or
the Prospectus or otherwise) shall have been complied with to the
satisfaction of the Representatives.
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(c) The representations and warranties of the Company
contained in this Agreement and in the certificates delivered
pursuant to Section 5(d) shall be true and correct when made and on
and as of each Closing Date as if made on such date and the Company
shall have performed all covenants and agreements and satisfied all
the conditions contained in this Agreement required to be performed
or satisfied by it at or before such Closing Date.
(d) The Representatives shall have received on each
Closing Date a certificate, addressed to the Representatives and
dated such Closing Date, of the chief executive or chief operating
officer and the chief financial officer or chief accounting officer
of the Company to the effect that the signers of such certificate
have carefully examined the Registration Statement, the Prospectus
and this Agreement and that the representations and warranties of
the Company in this Agreement are true and correct on and as of
such Closing Date with the same effect as if made on such Closing
Date and the Company has performed all covenants and agreements and
satisfied all conditions contained in this Agreement required to be
performed or satisfied by it at or prior to such Closing Date.
(e) The Representatives shall have received on the
Effective Time, at the time this Agreement is executed and on each
Closing Date a signed letter from KPMG Peat Marwick LLP addressed
to the Representatives and dated, respectively, the Effective Time,
the date of this Agreement and each such Closing Date, in form and
substance reasonably satisfactory to the Representatives,
confirming that they are independent accountants within the meaning
of the Securities Act and the Rules and stating in effect that:
(A) in their opinion the audited financial statements and financial
statement schedules examined by them and included in the Registration Statements
and the Prospectus and reported on by them comply as to form in all material
respects with the applicable accounting requirements of the Securities Act and
the Rules;
(B) on the basis of the review referred to in clause (A) above, a
reading of the latest available audited financial statements of the Company,
inquiries of officials of the Company who have responsibility for financial and
accounting matters and other specified procedures, nothing came to their
attention that caused them to believe that with respect to the Company, there
were, at a specified date not more than five business days prior to the date of
the letter, any increases in the current liabilities and long term liabilities
of the Company or any decreases in net income or in working capital or the
stockholders' equity in the Company, as compared with the amounts shown on the
Company's audited balance sheet for the fiscal year ended March 28, 1999
included in the Registration Statement; and
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(C) they have performed certain other procedures as a result of which
they determined that certain information of an accounting, financial or
statistical nature (which is limited to accounting, financial or statistical
information derived from the general accounting records of the Company) set
forth in the Registration Statements and the Prospectus and reasonably specified
by the Representatives agrees with the accounting records of the Company.
For purposes of this subsection, (i) if the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery of this
Agreement, "Registration Statements" shall mean the initial registration
statement as proposed to be amended by the amendment or post-effective amendment
to be filed shortly prior to its Effective Time, (ii) if the Effective Time of
the Initial Registration Statement is prior to the execution and delivery of
this Agreement but the Effective Time of the Additional Registration Statement
is subsequent to such execution and delivery, "Registration Statements" shall
mean the Initial Registration Statement and the additional registration
statement as proposed to be filed or as proposed to be amended by the
post-effective amendment to be filed shortly prior to its Effective Time, and
(iii) "Prospectus" shall mean the prospectus included in the Registration
Statements. All financial statements and schedules included in material
incorporated by reference into the Prospectus shall be deemed included in the
Registration Statements for purposes of this subsection.
(f) The Representatives shall have received on each
Closing Date from ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Gesmer, counsel for the
Company, an opinion, addressed to the Representatives and dated
such Closing Date, and stating in effect that:
(i) Each of the Company and its Significant
Subsidiaries has been duly incorporated and is validly
existing as a corporation in good standing under the laws
of the jurisdiction in which it is incorporated. Each of
the Company and its Significant Subsidiaries is duly
qualified and in good standing as a foreign corporation in
each of _________, _____________ and _________.
(ii) Each of the Company and its Significant
Subsidiaries has all requisite corporate power and
authority to own, lease and license its assets and
properties and conduct its business as now being conducted
and as described in the Registration Statements and the
Prospectus; and the Company has all requisite corporate
power and authority and all necessary authorizations,
approvals, consents, orders, licenses, certificates and
permits to enter into, deliver and perform this Agreement
and to issue and sell the Shares.
(iii) The Company has authorized and issued
capital stock as set forth in the Registration Statements
and the Prospectus; the certificates evidencing the Shares
are in due and proper legal form and have been duly
authorized for issuance by the Company; all of the
outstanding shares of Common Stock of the Company have
been duly and validly authorized and have been duly and
validly issued and are fully paid and nonassessable and
none of them was issued in violation of any preemptive or
other similar right under the Delaware General Corporation
Law or the Company's Certificate of Incorporation or
bylaws. The Shares when issued and sold pursuant to this
Agreement, will be
- 12 -
13
duly and validly issued, outstanding, fully paid and
nonassessable and none of them will have been issued in
violation of any preemptive or other similar right under
the Delaware General Corporation Law or the Company's
Certificate of Incorporation or bylaws. The Common Stock
and the Shares conform in all material respects to the
descriptions thereof contained in the Registration
Statements and the Prospectus.
(iv) All necessary corporate action has been duly
and validly taken by the Company to authorize the
execution, delivery and performance of this Agreement and
the issuance and sale of the Shares. This Agreement has
been duly and validly authorized, executed and delivered
by the Company and constitutes the legal, valid and
binding obligation of the Company except (A) as such
enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights
generally and by general equitable principles and (B) to
the extent that rights to indemnity or contribution under
this Agreement may be limited by Federal or state
securities laws or the public policy underlying such laws.
(v) Neither the execution, delivery and
performance of this Agreement by the Company nor the
consummation of any of the transactions contemplated
hereby (including, without limitation, the issuance and
sale by the Company of the Shares) will give rise to a
right to terminate or accelerate the due date of any
payment due under, or conflict with or result in the
breach of any term or provision of, or constitute a
default (or any event which with notice or lapse of time,
or both, would constitute a default) under, or require any
consent or waiver under, or result in the execution or
imposition of any lien, charge or encumbrance upon any
properties or assets of the Company or any of its
subsidiaries pursuant to the terms of any indenture,
mortgage, deed of trust, note or other agreement or
instrument filed as an Exhibit to the Registration
Statement or incorporated by reference therein or any
franchise, license, permit, judgment, decree of or with
any United States Federal or Massachusetts court or
governmental agency or body or any Delaware court or
governmental agency or body acting pursuant to the
Delaware General Corporation Law or violate any United
States federal or Massachusetts statute, rule or
regulation or the Delaware General Corporation Law (other
than applicable antitrust provisions of United States
Federal securities laws and related state securities laws,
as to which such counsel need express no opinion except as
otherwise set forth herein) or violate any provision of
the charter or by-laws of the Company or any of its
Significant Subsidiaries.
(vi) No consent, approval, authorization or order
of or with any United States Federal or Massachusetts
court or governmental agency or body or any Delaware court
or governmental agency or body acting pursuant to the
Delaware General Corporation Law is required for the
performance of this Agreement by the Company or the
consummation of the transactions
- 13 -
14
contemplated hereby or thereby, except such as have been
obtained under the Securities Act, and such as may be
required by the National Association of Securities
Dealers, Inc., under state securities or Blue Sky laws in
connection with the purchase and distribution of the
Shares by the several Underwriters.
(vii) To such counsel's knowledge, there is no
litigation or governmental or other proceeding or
investigation, before any court or before or by any public
body or board pending or threatened against, or involving
the assets, properties or businesses of, the Company or
any of its subsidiaries which would have a material
adverse effect upon the assets or properties, business,
results of operations or financial condition of the
Company and its subsidiaries taken as a whole.
(viii) The statements in the Prospectus under the
captions "Capitalization" (as to authorized shares of
Capital Stock), "Certain Transactions" and in Item 15 of
the Registration Statement, insofar as such statements
constitute a summary of documents referred to therein or
matters of law, are accurate summaries of such documents
and matters in all material respects and accurately
present the information called for with respect to such
documents and matters. All contracts and other documents
required to be filed as exhibits to, or described in, each
Registration Statement have been so filed with the
Commission or are fairly described in such Registration
Statement, as the case may be.
(ix) Each Registration Statement, all preliminary
prospectuses and the Prospectus and each amendment or
supplement thereto (except for the financial statements
and schedules and other financial and statistical data
included therein, as to which such counsel expresses no
opinion) comply as to form in all material respects with
the requirements of the Securities Act and the Rules.
(x) Each Registration Statement has become
effective under the Securities Act, and to such counsel's
knowledge no stop order suspending the effectiveness of
the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are
threatened, pending or contemplated.
To the extent deemed advisable by such counsel, they may
rely as to matters of fact on certificates of responsible officers of the
Company and public officials and on the opinions of other counsel satisfactory
to the Representatives as to matters which are governed by laws other than the
laws of the Commonwealth of Massachusetts, the Delaware General Corporation Law
and the Federal laws of the United States; provided that such counsel shall
state that in their opinion the Underwriters and they are justified in relying
on such other opinions. Copies of such certificates and other opinions shall be
furnished to the Representatives and counsel for the Underwriters.
- 14 -
15
In addition, such counsel shall state that such counsel
has participated in conferences with officers and other representatives of the
Company, representatives of the Representatives and representatives of the
independent certified public accountants of the Company, at which conferences
the contents of the Registration Statement and the Prospectus and related
matters were discussed and, although such counsel is not passing upon and does
not assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement and the Prospectus (except as
specified in the foregoing opinion), on the basis of the foregoing, no facts
have come to the attention of such counsel which lead such counsel to believe
that any Registration Statement at the time it became effective (except with
respect to the financial statements and notes and schedules thereto and other
financial and statistical data, as to which such counsel need express no belief)
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 that the Prospectus as amended or supplemented (except with
respect to the financial statements and notes and schedules thereto and other
financial and statistical data, as to which such counsel need express no belief)
on the date thereof contained any untrue statement of a material fact or omitted
to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
(g) All proceedings taken in connection with the sale of
the Firm Shares and the Option Shares as herein contemplated shall
be reasonably satisfactory in form and substance to the
Representatives and their counsel and the Underwriters shall have
received from ▇▇▇▇ and ▇▇▇▇ LLP a favorable opinion, addressed to
the Representatives and dated such Closing Date, with respect to
the Shares, the Registration Statement and the Prospectus, and such
other related matters, as the Representatives may reasonably
request, and the Company shall have furnished to ▇▇▇▇ and ▇▇▇▇ LLP
such documents as they may reasonably request for the purpose of
enabling them to pass upon such matters.
6. Covenants of the Company.
(A) The Company covenants and agrees as follows:
(a) The Company shall prepare the Prospectus in a form
approved by the Representatives and file such Prospectus pursuant
to Rule 424(b) under the Securities Act not later than the
Commission's close of business on the second business day following
the execution and delivery of this Agreement, or, if applicable,
such earlier time as may be required by Rule 430A(a)(3) under the
Securities Act, and shall promptly advise the Representatives (i)
when any amendment to the Registration Statement shall have become
effective, (ii) of any request by the Commission for any amendment
of the Registration Statement or the Prospectus or for any
additional information, (iii) of the prevention or suspension of
the use of any preliminary prospectus or the Prospectus or of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (iv) of the
receipt by the Company of any notification with respect to the
suspension of the qualification of the Shares for
- 15 -
16
sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose. The Company shall not file any
amendment of the Registration Statement or supplement to the
Prospectus unless the Company has furnished the Representatives a
copy for its review prior to filing and shall not file any such
proposed amendment or supplement to which the Representatives
reasonably object. The Company shall use its best efforts to
prevent the issuance of any such stop order and, if issued, to
obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Shares is required to be delivered under the Securities Act and the
Rules, any event occurs as a result of which the Prospectus as then
amended or supplemented would include any untrue statement of a
material fact or omit to state any material fact necessary to make
the statements therein in the light of the circumstances under
which they were made not misleading, or if it shall be necessary to
amend or supplement the Prospectus to comply with the Securities
Act or the Rules, the Company promptly shall prepare and file with
the Commission, subject to the second sentence of paragraph (a) of
this Section 6(A), an amendment or supplement which shall correct
such statement or omission or an amendment which shall effect such
compliance.
(c) The Company shall make generally available to its
security holders and to the Representatives as soon as practicable,
but not later than 45 days after the end of the 12-month period
beginning at the end of the fiscal quarter of the Company during
which the Effective Time occurs (or 90 days if such 12-month period
coincides with the Company's fiscal year), an earnings statement
(which need not be audited) of the Company, covering such 12-month
period, which shall satisfy the provisions of Section 11(a) of the
Securities Act.
(d) The Company shall furnish to the Representatives and
counsel for the Underwriters, without charge, signed copies of the
Registration Statements (including all exhibits thereto and
amendments thereof) and to each other Underwriter a copy of the
Registration Statements (without exhibits thereto) and all
amendments thereof and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Securities Act or the
Rules, as many copies of any preliminary prospectus and the
Prospectus and any amendments thereof and supplements thereto as
the Representatives may reasonably request.
(e) The Company shall cooperate with the Representatives
and their counsel in endeavoring to qualify the Shares for offer
and sale under the laws of such jurisdictions as the
Representatives may designate and shall maintain such
qualifications in effect so long as required for the distribution
of the Shares; provided, however, that the Company shall not be
required in connection therewith, as a condition thereof, to
qualify as a foreign corporation or to execute a general consent to
service of process in any jurisdiction or subject itself to
taxation as doing business in any jurisdiction.
- 16 -
17
(f) For a period of five years after the date of this
Agreement, the Company shall supply to the Representatives, and to
each other Underwriter who may so request in writing, copies of
such financial statements and other periodic and special reports as
the Company may from time to time distribute generally to the
holders of any class of its capital stock and to furnish to the
Representatives a copy of each annual or other report it shall be
required to file with the Commission.
(g) Without the prior written consent of CIBC World
Markets Corp., on behalf of the Representatives, for a period of 90
days after the date of this Agreement, the Company shall not issue,
sell or register with the Commission (other than on Form S-8 or on
any successor form), or otherwise dispose of, directly or
indirectly, any equity securities of the Company (or any securities
convertible into or exercisable or exchangeable for equity
securities of the Company), except for the issuance of the Shares
pursuant to the Registration Statement and the issuance of shares
pursuant to the Company's existing stock option plans or bonus
plans.
(h) On or before completion of this offering, the Company
shall make all filings required under applicable securities laws
and by the Nasdaq National Market System (including any required
registration under the Exchange Act).
(B) The Company agrees to pay, or reimburse if paid by the
Representatives, whether or not the transactions contemplated hereby are
consummated or this Agreement is terminated, all costs and expenses incident to
the public offering of the Shares and the performance of the obligations of the
Company under this Agreement including those relating to: (i) the preparation,
printing, filing and distribution of the Registration Statements including all
exhibits thereto, each preliminary prospectus, the Prospectus, all amendments
and supplements to the Registration Statements and the Prospectus, and the
filing and distribution of this Agreement; (ii) the preparation and delivery of
certificates for the Shares to the Underwriters; (iii) the registration or
qualification of the Shares for offer and sale under the securities or Blue Sky
laws of the various jurisdictions referred to in Section 6(A)(e), including the
reasonable fees and disbursements of counsel for the Underwriters in connection
with such registration and qualification and the preparation, distribution and
shipment of preliminary and supplementary Blue Sky memoranda; (iv) the
furnishing (including costs of shipping and mailing) to the Representatives and
to the Underwriters of copies of each preliminary prospectus, the Prospectus and
all amendments or supplements to the Prospectus, and of the several documents
required by this Section to be so furnished, as may be reasonably requested for
use in connection with the offering and sale of the Shares by the Underwriters
or by dealers to whom Shares may be sold; (v) the filing fees of the National
Association of Securities Dealers, Inc. in connection with its review of the
terms of the public offering; (vi) the furnishing (including costs of shipping
and mailing) to the Representatives and to the Underwriters of copies of all
reports and information required by Section 6(A)(f); (vii) inclusion of the
Shares for quotation on the Nasdaq National Market System; and (viii) all
transfer taxes, if any, with respect to the sale and delivery of the Shares by
the Company to the Underwriters. Subject to the provisions of Section 9, the
Underwriters agree to pay, whether or not the transactions contemplated hereby
are consummated or this Agreement is terminated, all costs and expenses incident
to the performance of the obligations of the Underwriters under this Agreement
not payable by the Company pursuant to
- 17 -
18
the preceding sentence, including, without limitation, the fees and
disbursements of counsel for the Underwriters.
7. Indemnification.
(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 Exchange Act against any and all losses, claims, damages
and liabilities, joint or several (including any reasonable
investigation, legal and other expenses incurred in connection
with, and any amount paid in settlement of, any action, suit or
proceeding or any claim asserted), to which they, or any of them,
may become subject under the Securities Act, the Exchange Act or
other Federal or state law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities
arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in any preliminary
prospectus, any Registration Statement or the Prospectus or any
amendment thereof or supplement thereto, or arise out of or are
based upon any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make
the statements therein not misleading; provided, however, that such
indemnity shall not inure to the benefit of any Underwriter (or any
person controlling such Underwriter) on account of any losses,
claims, damages or liabilities arising from the sale of the Shares
to any person by such Underwriter if such untrue statement or
omission or alleged untrue statement or omission was made in such
preliminary prospectus, such Registration Statement or the
Prospectus, or such amendment or supplement, in reliance upon and
in conformity with information furnished in writing to the Company
by the Representatives on behalf of any Underwriter specifically
for use therein; and provided, further, that with respect to any
untrue statement or alleged untrue statement in or omission or
alleged omission from any preliminary prospectus, the foregoing
indemnity agreement contained in this subsection (a) shall not
inure to the benefit of any Underwriter from whom the person
asserting any losses, claims, damages or liabilities purchased the
Shares concerned, to the extent that a prospectus relating to such
Shares was required to be delivered by such Underwriter under the
Securities Act in connection with such purchase and any such loss,
claim, damage or liability of such Underwriter results from the
fact that there was not sent or given to such person, at or prior
to the written confirmation of the sale of such Shares to such
person, a copy of the Prospectus (exclusive of material
incorporated by reference) if the Company had previously furnished
or caused to be furnished copies thereof to such Underwriter. This
indemnity agreement will be in addition to any liability which the
Company may otherwise have.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, 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, each director of
the Company, and each officer of the Company who signs any
Registration Statement, to the same extent as the foregoing
indemnity from the Company to each
- 18 -
19
Underwriter, but only insofar as such losses, claims, damages or
liabilities arise out of or are based upon an untrue statement or
omission or alleged untrue statement or omission which was made in
any preliminary prospectus, such Registration Statement or the
Prospectus, or any amendment thereof or supplement thereto, and was
contained under the caption "Underwriting" in the Prospectus
(except for the________, ________ and ______ paragraphs therein);
provided, however, that the obligation of each Underwriter to
indemnify the Company (including any controlling person, director
or officer thereof) shall be limited to the net proceeds received
by the Company from such Underwriter.
(c) Any party that proposes to assert the right to be
indemnified under this Section will, promptly after receipt of
notice of commencement of any action, suit or proceeding against
such party in respect of which a claim is to be made against an
indemnifying party or parties under this Section, notify each such
indemnifying party of the commencement of such action, suit or
proceeding, enclosing a copy of all papers served. No
indemnification provided for in Section 7(a) or 7(b) shall be
available to any party who shall fail to give notice as provided in
this Section 7(c) if the party to whom notice was not given was
unaware of the proceeding to which such notice would have related
and was prejudiced by the failure to give such notice but the
omission so to notify such indemnifying party of any such action,
suit or proceeding shall not relieve it from any liability that it
may have to any indemnified party for contribution or otherwise
than under this Section. In case any such action, suit or
proceeding 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 in, and, to
the extent that it shall wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party, and
after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof and the approval
by the indemnified party of such counsel, the indemnifying party
shall not be liable to such indemnified party for any legal or
other expenses, except as provided below and except for the
reasonable costs of investigation subsequently incurred by such
indemnified party in connection with the defense thereof. The
indemnified party shall have the right to employ its counsel in any
such action, but the fees and expenses of such counsel shall be at
the expense of such indemnified party unless (i) the employment of
counsel by such indemnified party has been authorized in writing by
the indemnifying parties, (ii) the indemnified party shall have
reasonably concluded that there may be a conflict of interest
between the indemnifying parties and the indemnified party in the
conduct of the defense of such action (in which case the
indemnifying parties shall not have the right to direct the defense
of such action on behalf of the indemnified party) or (iii) the
indemnifying parties shall not have employed counsel to assume the
defense of such action within a reasonable time after notice of the
commencement thereof, in each of which cases the fees and expenses
of counsel shall be at the expense of the indemnifying parties. An
indemnifying party shall not be liable for any settlement of any
action, suit, proceeding or claim effected without its written
consent.
- 19 -
20
8. Contribution. In order to provide for just and
equitable contribution in circumstances in which the indemnification provided
for in Section 7(a) is due in accordance with its terms but for any reason is
held to be unavailable from the Company, the Company and the Underwriters shall
contribute to the aggregate losses, claims, damages and liabilities (including
any investigation, legal and other expenses reasonably incurred in connection
with, and any amount paid in settlement of, any action, suit or proceeding or
any claims asserted, but after deducting any contribution received by the
Company from persons other than the Underwriters, such as persons who control
the Company within the meaning of the Securities Act, officers of the Company
who signed any Registration Statement and directors of the Company, who may also
be liable for contribution) to which the Company and one or more of the
Underwriters may be subject 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 Shares or, if such allocation is not
permitted by applicable law or indemnification is not available as a result of
the indemnifying party not having received notice as provided in Section 7
hereof, in such proportion as is appropriate to reflect not only the relative
benefits referred to above 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, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
benefits received by the Company and the Underwriters shall be deemed to be in
the same proportion as (x) the total proceeds from the offering (net of
underwriting discounts but before deducting expenses) received by the Company,
as set forth in the table on the cover page of the Prospectus, bear to (y) the
underwriting discounts received by the Underwriters, as set forth in the table
on the cover page of the Prospectus. The relative fault of the Company or the
Underwriters shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or alleged omission to
state a material fact related to information supplied by the Company or the
Underwriters and the parties' relative intent, knowledge, access to 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 Section 8 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. Notwithstanding the provisions of this Section
8, (i) in no case shall any Underwriter (except as may be provided in the
Agreement Among Underwriters) be liable or responsible for any amount in excess
of the underwriting discount applicable to the Shares purchased by such
Underwriter hereunder, and (ii) the Company shall be liable and responsible for
any amount in excess of such underwriting discount; provided, however, that 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. For purposes of this
Section 8, each person, if any, who controls an Underwriter within the meaning
of Section 15 of the Securities Act or Section 20(a) of the Exchange Act shall
have the same rights to contribution as such Underwriter, and each person, if
any, who controls the Company within the meaning of Section 15 of the Securities
Act or Section 20(a) of the Exchange Act, each officer of the Company who shall
have signed any Registration Statement and each director of the Company shall
have the same rights to contribution as the Company, subject in each case to
clauses (i) and (ii) in the immediately preceding sentence of this Section 8.
Any party entitled to contribution will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such party in respect
- 20 -
21
of which a claim for contribution may be made against another party or parties
under this Section, notify such party or parties from whom contribution may be
sought, but the omission so to notify such party or parties from whom
contribution may be sought shall not relieve the party or parties from whom
contribution may be sought from any other obligation it or they may have
hereunder or otherwise than under this Section. No party shall be liable for
contribution with respect to any action, suit, proceeding or claim settled
without its written consent. The Underwriters' obligations to contribute
pursuant to this Section 8 are several in proportion to their respective
underwriting commitments and not joint.
9. Termination. This Agreement may be terminated with
respect to the Shares to be purchased on a Closing Date by the Representatives
by notifying the Company at any time
(a) in the absolute discretion of the Representatives at
or before any Closing Date: (i) if there shall have occurred any
change, or any development or event involving a prospective change,
in the condition (financial or other), business, properties or
results of operation of the Company or its subsidiaries which, in
the judgment of the Representatives, is material and adverse and
makes it impractical or inadvisable to proceed with completion of
the public offering or the sale of and payment for the Shares; (ii)
if on or prior to such date, any domestic or international event or
act or occurrence has materially disrupted, or in the opinion of
the Representatives will in the future materially disrupt, the
securities markets; (iii) if there has occurred any new outbreak or
material escalation of hostilities or other calamity or crisis the
effect of which on the financial markets of the United States is
such as to make it, in the judgment of the Representatives,
inadvisable to proceed with the offering; (iv) if there shall be
such a material adverse change in general financial, political or
economic conditions or the effect of international conditions on
the financial markets in the United States is such as to make it,
in the judgment of the Representatives, inadvisable or
impracticable to market the Shares; (v) if trading in the Shares
has been suspended by the Commission or trading generally on the
New York Stock Exchange, Inc. or on the Nasdaq American Stock
Market Exchange, Inc. has been suspended or limited, or minimum or
maximum ranges for prices for securities shall have been fixed, or
maximum ranges for prices for securities have been required, by
said exchanges or by order of the Commission, the National
Association of Securities Dealers, Inc., or any other governmental
or regulatory authority; or (vi) if a banking moratorium has been
declared by any state or Federal authority, or
(b) at or before any Closing Date, that any of the
conditions specified in Section 5 shall not have been fulfilled
when and as required by this Agreement.
If this Agreement is terminated pursuant to any of its
provisions, the Company shall not be under any liability to any Underwriter, and
no Underwriter shall be under any liability to the Company, except that (y) if
this Agreement is terminated by the Representatives or the Underwriters because
of any failure, refusal or inability on the part of the Company to comply with
the terms or to fulfill any of the conditions of this Agreement, the Company
will reimburse the Underwriters for all out-of-pocket expenses (including the
reasonable fees and
- 21 -
22
disbursements of their counsel) incurred by them in connection with the proposed
purchase and sale of the Shares or in contemplation of performing their
obligations hereunder and (z) no Underwriter who shall have failed or refused to
purchase the Shares agreed to be purchased by it under this Agreement, without
some reason sufficient hereunder to justify cancellation or termination of its
obligations under this Agreement, shall be relieved of liability to the Company
or to the other Underwriters for damages occasioned by its failure or refusal.
10. Substitution of Underwriters. If one or more of the
Underwriters shall fail (other than for a reason sufficient to justify the
cancellation or termination of this Agreement under Section 9) to purchase on
any Closing Date the Shares agreed to be purchased on such Closing Date by such
Underwriter or Underwriters, the Representatives may find one or more substitute
underwriters to purchase such Shares or make such other arrangements as the
Representatives may deem advisable or one or more of the remaining Underwriters
may agree to purchase such Shares in such proportions as may be approved by the
Representatives, in each case upon the terms set forth in this Agreement. If no
such arrangements have been made by the close of business on the business day
following such Closing Date,
(a) if the number of Shares to be purchased by the
defaulting Underwriters on such Closing Date shall not exceed 10%
of the Shares that all the Underwriters are obligated to purchase
on such Closing Date, then each of the nondefaulting Underwriters
shall be obligated to purchase such Shares on the terms herein set
forth in proportion to their respective obligations hereunder;
provided, that in no event shall the maximum number of Shares that
any Underwriter has agreed to purchase pursuant to Section 1 be
increased pursuant to this Section 10 by more than 10% of such
number of Shares without the written consent of such Underwriter,
or
(b) if the number of Shares to be purchased by the
defaulting Underwriters on such Closing Date shall exceed 10% of
the Shares that all the Underwriters are obligated to purchase on
such Closing Date, then the Company shall be entitled to an
additional business day within which it may, but is not obligated
to, find one or more substitute underwriters reasonably
satisfactory to the Representatives to purchase such Shares upon
the terms set forth in this Agreement.
In any such case, either the Representatives or the
Company shall have the right to postpone the applicable Closing Date for a
period of not more than five business days in order that necessary changes and
arrangements (including any necessary amendments or supplements to the
Registration Statements or Prospectus) may be effected by the Representatives
and the Company. If the number of Shares to be purchased on such Closing Date by
such defaulting Underwriter or Underwriters shall exceed 10% of the Shares that
all the Underwriters are obligated to purchase on such Closing Date, and none of
the nondefaulting Underwriters or the Company shall make arrangements pursuant
to this Section within the period stated for the purchase of the Shares that the
defaulting Underwriters agreed to purchase, this Agreement shall terminate with
respect to the Shares to be purchased on such Closing Date without liability on
the part of any nondefaulting Underwriter to the Company and without liability
on the part of the Company, except in both cases as provided in Sections 6(B),
7, 8 and 9. The provisions of this Section shall not in any way affect the
liability of any defaulting Underwriter to the
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Company or the nondefaulting Underwriters arising out of such default. A
substitute underwriter hereunder shall become an Underwriter for all purposes of
this Agreement.
11. Miscellaneous. The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officers and of the Underwriters set forth in or made pursuant to this
Agreement shall remain in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or the Company or any of the officers,
directors or controlling persons referred to in Sections 7 and 8 hereof, and
shall survive delivery of and payment for the Shares. The provisions of Sections
6(B), 7, 8 and 9 shall survive the termination or cancellation of this
Agreement.
This Agreement has been and is made for the benefit of the
Underwriters and the Company and their respective successors and assigns, and,
to the extent expressed herein, for the benefit of persons controlling any of
the Underwriters, or the Company, and directors and officers of the Company, and
their respective successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. The term "successors and
assigns" shall not include any purchaser of Shares from any Underwriter merely
because of such purchase.
All notices and communications hereunder shall be in
writing and mailed or delivered or by telephone or telegraph if subsequently
confirmed in writing, (a) if to the Representatives, c/o CIBC World Markets
Corp., ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, and (b) if to the Company, to its agent for service
as such agent's address appears on the cover page of the Initial Registration
Statement.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES
OF CONFLICT OF LAWS.
This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
Please confirm that the foregoing correctly sets forth the
agreement among us.
Very truly yours,
ALPHA INDUSTRIES, INC.
By
---------------------------------
Name:
Title:
Confirmed:
CIBC WORLD MARKETS CORP.
PRUDENTIAL SECURITIES INCORPORATED
U.S. BANCORP ▇▇▇▇▇ ▇▇▇▇▇▇▇ INC.
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Acting severally on behalf of itself
and as representative of the several
Underwriters named in Schedule I annexed hereto.
By CIBC WORLD MARKETS CORP.
By
--------------------------------
Title:
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25
SCHEDULE I
Number of
Firm Shares to
Name Be Purchased
---- ------------
CIBC World Markets Corp.
Prudential Securities Incorporated
U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc.
------------
Total
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