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EXHIBIT 1.1
DEUTSCHE ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ INC.
EQUITY CAPITAL MARKETS WSGR DRAFT DATED 03/13/98
DATED _________, 1998
COM21, INC.
_________ shares
Common Stock
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UNDERWRITING
AGREEMENT
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COM21, INC.
_______ SHARES
PLUS AN OPTION TO PURCHASE UP TO
_______ ADDITIONAL SHARES TO COVER OVER-ALLOTMENTS
COMMON STOCK
UNDERWRITING AGREEMENT
____________, 1998
DEUTSCHE ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ INC.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, L.L.C.
As Representatives of the several Underwriters
c/o Deutsche ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
Com21, Inc., a Delaware corporation (the "Company"), hereby confirms
its agreement with the several underwriters named in Schedule 1 hereto (the
"Underwriters"), for whom you have been duly authorized to act as
representatives (the one or more firms acting in such capacities, the
"Representatives"), as set forth below. If you are the only Underwriters, all
references herein to the Representatives shall be deemed to be references to
the Underwriters.
Section 1. Underwriting. Subject to the terms and conditions contained
herein:
(a) The Company proposes to issue and sell [_____] shares of
common stock, par value $0.001 per share (the "Common Stock") (said shares to
be issued and sold by the Company the "Firm Shares"), to the several
Underwriters. The Company also proposes to issue and sell not more than[_____]
additional shares of Common Stock (the "Option Shares" and, together with the
Firm Shares, the "Shares") to the several Underwriters if requested by the
Representatives as provided in Section 2(b) hereof.
(b) Upon your authorization of the release of the Firm Shares, the
Underwriters propose to make a public offering (the "Offering") of the Firm
Shares upon the terms set forth in the Prospectus (as defined below) as soon
after the Registration Statement (as defined below) and this Agreement have
become effective as in the Representatives' sole judgment is advisable. As used
in this Agreement, the term "Original Registration Statement" means the
registration statement (File No. 333-____) initially filed with the Securities
and Exchange Commission (the "Commission") relating to the Shares, as amended
at the time when it was or is declared effective, including all financial
schedules and exhibits thereto and including any information omitted therefrom
pursuant to Rule 430A under the Securities Act of 1933, as amended (the
"Securities Act"), and included in the Prospectus; the term "Rule 462(b)
Registration Statement" means any registration statement filed with the
Commission pursuant to Rule 462(b) under the Securities Act (including the
Registration Statement and any Preliminary Prospectus (as defined below) or
Prospectus incorporated therein at the time such Registration Statement becomes
effective); the term "Registration Statement" includes both the Original
Registration Statement and any Rule 462(b) Registration Statement; the term
"Preliminary Prospectus" means each prospectus subject to completion filed with
the Original Registration Statement or any amendment thereto (including the
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prospectus subject to completion, if any, included in the Original Registration
Statement or any amendment thereto at the time it was or is declared
effective); the term "Prospectus" means:
(i) if the Company relies on Rule 434 under the
Securities Act, the Term Sheet (as defined below) relating to the Shares that
is first filed pursuant to Rule 424(b)(7) under the Securities Act, together
with the Preliminary Prospectus identified therein that such Term Sheet
supplements;
(ii) if the Company does not rely on Rule 434 under the
Securities Act, the prospectus first filed with the Commission pursuant to Rule
424(b) under the Securities Act;
(iii) if the Company does not rely on Rule 434 under the
Securities Act and if no prospectus is required to be filed pursuant to Rule
424(b) under the Securities Act, the prospectus included in the Registration
Statement; or
(iv) for purposes of the representations and warranties
contained in Section 5 hereof, if the prospectus is not in existence, the most
recent Preliminary Prospectus; and the term "Term Sheet" means any term sheet
that satisfies the requirements of Rule 434 under the Securities Act. Any
reference herein to the "date" of a Prospectus that includes a Term Sheet shall
mean the date of such Term Sheet.
Section 2. Purchase and Closing.
(a) On the basis of the representations, warranties, agreements
and covenants herein contained and subject to the terms and conditions herein
set forth, the Company agrees to issue and sell to each of the Underwriters,
and each of the Underwriters, severally and not jointly, agrees to purchase
from the Company, at a purchase price of $___ per Share (the "Purchase Price"),
the number of Firm Shares set forth opposite the name of such Underwriter in
Schedule 1 hereto. [Firm Shares shall be registered by [ChaseMellon
Shareholder Services, Inc.] in the name of the nominee of the Depository Trust
Company ("DTC"), Cede & Co. ("Cede & Co."), and credited to the accounts of
such of its participants as the Representatives shall request, upon notice to
the Company at least 48 hours prior to the First Closing Date (as defined
below)], with any transfer taxes payable in connection with the transfer of the
Firm Shares to the Underwriters duly paid, against payment by or on behalf of
the Underwriters to the account of the Company of the aggregate Purchase Price
therefor by wire transfer in immediately available funds. The Company will
make the certificate or certificates for the Firm Shares available for checking
and packaging by the Representatives at the offices in New York, New York of
the Company's transfer agent or registrar or of the Representatives at least 24
hours prior to the First Closing Date. Delivery or registry of and payment for
the Firm Shares shall be made at the offices of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP,
Two Embarcadero Place, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ at 9:30 A.M., New
York City time, on [_________, ____], or at such other place, time or date as
the Representatives and the Company may agree upon. Such time and date of
delivery against payment are herein referred to as the "First Closing Date,"
and the implementation of all the actions described in this Section 2(a) is
herein referred to as the "First Closing."
(b) For the purpose of covering any over-allotments in connection
with the distribution and sale of the Firm Shares as contemplated by the
Prospectus, the Company hereby grants to the several Underwriters an option to
purchase, severally and not jointly, the Option Shares. The purchase price to
be paid for any Option Shares shall be the same as the Purchase Price for the
Firm Shares set forth above in paragraph (a) of this Section 2. The option
granted hereby may be exercised as to all or any part of the Option Shares from
time to time within thirty days after the date of the Prospectus (or, if such
30th day shall be a Saturday or Sunday or a holiday, on the next business day
thereafter when the New York Stock Exchange and the Nasdaq Stock Market's
National Market (the "Nasdaq National Market") is open for trading). The
Underwriters shall not be under any obligation to purchase any of the Option
Shares prior to the exercise of such option. The Representatives may from time
to time exercise the option granted hereby by giving notice in writing or by
telephone (confirmed in
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writing) to the Company setting forth the aggregate number of Option Shares as
to which the several Underwriters are then exercising the option and the date
and time for delivery or registry of and payment for such Option Shares. Any
such date of delivery or registry shall be determined by the Representatives
but shall not be earlier than two business days or later than five business
days after such exercise of the option and, in any event, shall not be earlier
than the First Closing Date. The time and date set forth in such notice, or
such other time or date as the Representatives and the Company may agree upon
or as the Representatives may determine pursuant to Section 2(a) hereof, is
herein called an "Option Closing Date" with respect to such Option Shares, and
the implementation of all the actions described in this Section 2(b) is herein
referred to as the "Option Closing." As used in this Agreement, the term
"Closing Date" means either the First Closing Date or any Option Closing Date,
as applicable, and the term "Closing" means either the First Closing or any
Option Closing, as applicable. If the option is exercised as to all or any
portion of the Option Shares, then either one or more certificates in
definitive form for such Option Shares shall be delivered or, if such Option
Shares are to be held through DTC, such Option Shares shall be registered and
credited, on the related Option Closing Date in the same manner, and upon the
same terms and conditions, set forth in paragraph (a) of this Section 2, except
that reference therein to the Firm Shares and the First Closing Date shall be
deemed, for purposes of this paragraph (b), to refer to such Option Shares and
Option Closing Date, respectively. Upon exercise of the option as provided
herein, the Company shall become obligated to sell to each of the several
Underwriters, and, on the basis of the representations, warranties, agreements
and covenants herein contained and subject to the terms and conditions herein
set forth, each of the Underwriters (severally and not jointly) shall become
obligated to purchase from the Company the same percentage of the total number
of the Option Shares as to which the several Underwriters are then exercising
the option as such Underwriter is obligated to purchase of the aggregate number
of Firm Shares, as adjusted by the Representatives in such manner as they deem
advisable to avoid fractional shares.
(c) The Company hereby acknowledges that the payment of monies
pursuant to Section 2(a) hereof (a "Payment") by or on behalf of the
Underwriters of the aggregate Purchase Price for any Shares does not constitute
closing of a purchase and sale of the Shares. Only execution and delivery, by
facsimile or otherwise, of a receipt for Shares by the Underwriters indicates
completion of the closing of a purchase of the Shares from the Company.
Furthermore, in the event that the Underwriters make a Payment to the Company
prior to the completion of the closing of a purchase of Shares, the Company
hereby acknowledges that until the Underwriters execute and deliver such
receipt for the Shares, the Company will not be entitled to the Payment and
shall return the Payment to the Underwriters as soon as practicable (by wire
transfer of same-day funds) upon demand. In the event that the closing of a
purchase of Shares is not completed and the Payment is not returned by the
Company to the Underwriters on the same day the Payment was received by the
Company, the Company agrees to pay to the Underwriters in respect of each day
the Payment is not returned by the Company, in same-day funds, interest on the
amount of such Payment in an amount representing the Underwriters' cost of
financing as reasonably determined by the Representatives.
It is understood that any of you, individually and not as one of the
Representatives, may (but shall not be obligated to) make Payment on behalf of
any Underwriter or Underwriters for any of the Shares to be purchased by such
Underwriter or Underwriters. No such Payment shall relieve such Underwriter or
Underwriters from any of its or their obligations hereunder.
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Section 3. Covenants.
(a) The Company will:
(i) use its best efforts to cause the Registration
Statement, if not effective at the time of execution of this Agreement, and any
amendments thereto to become effective as promptly as possible. If required,
the Company will file the Prospectus or any Term Sheet that constitutes a part
thereof and any amendment or supplement thereto with the Commission in the
manner and within the time period required by Rules 434 and 424(b) under the
Securities Act. During any time when a prospectus relating to the Shares is
required to be delivered under the Securities Act, the Company (x) will comply
with all requirements imposed upon it by the Securities Act and the rules and
regulations of the Commission thereunder to the extent necessary to permit the
continuance of sales of or dealings in the Shares in accordance with the
provisions hereof and of the Prospectus, as then amended or supplemented, and
(y) will not file with the Commission the Prospectus, Term Sheet, any amendment
or supplement to such Prospectus or Term Sheet, any amendment to the
Registration Statement (including the amendment referred to in the second
sentence of Section 5(a)(i) hereof) or any Rule 462(b) Registration Statement
unless the Representatives previously have been advised of, and furnished with
a copy within a reasonable period of time prior to, the proposed filing and the
Representatives shall have given their consent to such filing. The Company
will prepare and file with the Commission, in accordance with the rules and
regulations of the Commission, promptly upon request by the Representatives or
counsel for the Underwriters, any amendments to the Registration Statement or
amendments or supplements to the Prospectus that may be necessary or advisable
in connection with the distribution of the Shares by the several Underwriters.
The Company will advise the Representatives, promptly after receiving notice
thereof, of the time when the Registration Statement or any amendment thereto
has been filed or declared effective or the Prospectus or Term Sheet or any
amendment or supplement thereto has been filed and will provide evidence
satisfactory to the Representatives of each such filing or effectiveness.
(ii) without charge, provide (x) to the Representatives
and to counsel for the Underwriters, an executed and a conformed copy of the
Original Registration Statement and each amendment thereto or any Rule 462(b)
Registration Statement (in each case including exhibits thereto), (y) to each
other Underwriter, a conformed copy of the Original Registration Statement and
each amendment thereto or any Rule 462(b) Registration Statement (in each case
without exhibits thereto), and (z) so long as a prospectus relating to the
Shares is required to be delivered under the Securities Act, as many copies of
each Preliminary Prospectus or the Prospectus or any amendment or supplement
thereto as the Representatives may reasonably request. Without limiting the
application of clause (z) of the preceding sentence, the Company, not later
than (I) 9:00 A.M., New York City time, on the business day following the date
of determination of the public offering price, if such determination occurred
at or prior to 12:00 noon, New York City time, on such date or (II) 6:00 P.M.,
New York City time, on the business day following the date of determination of
the public offering price, if such determination occurred after 12:00 noon, New
York City time, on such date, will deliver to the Underwriters, without charge,
as many copies of the Prospectus and any amendment or supplement thereto as the
Representatives may reasonably request for purposes of confirming orders that
are expected to settle on the First Closing Date.
(iii) advise the Representatives, promptly after receiving
notice or obtaining knowledge thereof, of (w) the issuance by the Commission of
any stop order suspending the effectiveness of the Original Registration
Statement or any amendment thereto or any Rule 462(b) Registration Statement or
any order preventing or suspending the use of any Preliminary Prospectus or the
Prospectus or any amendment or supplement thereto, (x) the suspension of the
qualification of the Shares for offering or sale in any jurisdiction, (y) the
institution, threatening or contemplation of any proceeding for any purpose
identified in the preceding clause (w) or (x), or (z) any request made by the
Commission for amending the Original Registration Statement or any Rule 462(b)
Registration Statement, for amending or supplementing the Prospectus or for
additional
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information. The Company will use its best efforts to prevent the issuance of
any such stop order and, if any such stop order is issued, to obtain the
withdrawal thereof as promptly as possible.
(b) The Company will arrange for the qualification of the Shares
for offering and sale in each jurisdiction as the Representatives shall
designate including, but not limited to, pursuant to applicable state
securities ("Blue Sky") laws of certain states of the United States of America
or other U.S. jurisdictions, and the Company shall maintain such qualifications
in effect for so long as may be necessary in order to complete the placement of
the Shares; provided, however, that the Company shall not be obliged to file
any general consent to service of process or to qualify as a foreign
corporation or as a securities dealer in any jurisdiction or to subject itself
to taxation in respect of doing business in any jurisdiction in which it is not
otherwise so subject.
(c) If, at any time prior to the final date when a prospectus
relating to the Shares is required to be delivered under the Securities Act,
any event occurs as a result of which the Prospectus, as then amended or
supplemented, would include any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading, or
if for any other reason it shall be necessary at any time to amend the
Registration Statement or amend or supplement the Prospectus to comply with the
Securities Act or the rules or regulations of the Commission thereunder or
applicable law, the Company will promptly notify the Representatives thereof
and will promptly, at its own expense, but subject to the second sentence of
Section 3(a)(i) hereof: (x) prepare and file with the Commission an amendment
to the Registration Statement or amendment or supplement to the Prospectus
which will correct such statement or omission or effect such compliance; and
(y) supply any amended Registration Statement or amended or supplemented
Prospectus to the Underwriters in such quantities as the Underwriters may
reasonably request.
(d) The Company will make generally available to the Company's
securityholders and to the Representatives as soon as practicable an earnings
statement that satisfies the provisions of Section 11(a) of the Securities Act,
including Rule 158 thereunder.
(e) The Company will apply the net proceeds from the sale of the
Shares as set forth under "Use of Proceeds" in the Prospectus.
(f) The Company will not publicly announce any intention to, and
will not, without the prior written consent of the Representatives, on behalf
of the Underwriters, (i) offer, pledge, sell, offer to sell, contract to sell,
sell any option or contract to purchase, purchase any option to sell, grant any
option, right or warrant to purchase, or otherwise transfer or dispose of,
directly or indirectly, any shares of Common Stock or any securities
convertible into, or exercisable or exchangeable for, Common Stock, (ii) enter
into any swap or other agreement that transfers, in whole or in part, any of
the economic consequences of ownership of the shares of Common Stock or
securities convertible into, or exercisable or exchangeable for, shares of
Common Stock (whether any such transaction described in clause (i) or (ii)
above is to be settled by delivery of shares of Common Stock or such other
securities, in cash or otherwise) or (iii) release any officer, director or
other stockholder from any provision whereby such officer, director or other
stockholder agreed not to sell, make any short sale of, loan, grant any option
for the purchase of or otherwise transfer or dispose of any securities of the
Company without the prior written consent of Deutsche ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc., for
a period beginning from the date hereof and continuing to and including the
date 180 days after the date hereof, except pursuant to this Agreement and
other than with respect to (x) shares of Common Stock to be issued upon the
exercise of warrants to purchase shares of Common Stock, or upon conversion or
exchange of securities convertible or exchangeable into shares of Common Stock,
in each case, which are outstanding on the date hereof and disclosed in the
Prospectus, and (y) shares of Common Stock (or any securities convertible into
or exchangeable for shares of Common Stock) issued pursuant to any employee
benefit plans, qualified stock option plans or other employee compensation
plans which are disclosed in the Prospectus.
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(g) Neither the Company nor any of its affiliates, nor any person
acting on behalf of any of them will, directly or indirectly, (i) take any
action designed to cause or to result in, or that has constituted or which
might reasonably be expected to constitute, the stabilization or manipulation
of the price of any security of the Company to facilitate the sale or resale of
the Shares or (ii) (x) sell, bid for, purchase, or pay anyone any compensation
for soliciting purchases of, the Shares or (y) pay or agree to pay to any
person any compensation for soliciting another to purchase any other securities
of the Company.
(h) The Company will obtain the agreements described in Section
7(f) hereof prior to the First Closing Date.
(i) If at any time during the 25-day period after the Registration
Statement becomes effective or during the period prior to any Closing Date, any
rumor, publication or event relating to or affecting the Company shall occur as
a result of which in the Representatives' sole judgment the market price of the
Shares has been or is likely to be materially affected (regardless of whether
such rumor, publication or event necessitates a supplement to or amendment of
the Prospectus), the Company will, after notice from the Representatives
advising the Company to the effect set forth above, forthwith prepare, consult
with the Representatives concerning the substance of, and disseminate a press
release or other public statement reasonably satisfactory to the
Representatives, responding to or commenting on such rumor, publication or
event.
(j) If the Company elects to rely on Rule 462(b), the Company
shall both file the Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) and pay the applicable fees in accordance with Rule
111 promulgated under the Securities Act by the earlier of (x) 10:00 P.M. New
York City time on the date of this Agreement and (y) the time confirmations are
sent or given, as specified by Rule 462(b)(2) under the Securities Act.
(k) The Company will cause the Shares to be duly included for
quotation on the Nasdaq National Market prior to the First Closing Date. The
Company will ensure that the Shares remain included for quotation on the Nasdaq
National Market following the First Closing Date.
Section 4. Expenses.
(a) The Company shall bear and pay all costs and expenses incurred
incident to the performance of its obligations under this Agreement, whether or
not the transactions contemplated herein are consummated or this Agreement is
terminated pursuant to Section 9 hereof, including: (i) the fees and expenses
of its counsel, accountants and any other experts or advisors retained by the
Company; (ii) fees and expenses incurred in connection with the registration of
the Shares under the Securities Act and the preparation and filing of the
Registration Statement, the Prospectus and all amendments and supplements
thereto; (iii) the printing and distribution of the Prospectus and any
Preliminary Prospectus and the printing and production of all other documents
connected with the Offering (including this Agreement and any other related
agreements); (iv) expenses related to the qualification of the Shares under the
state securities or Blue Sky laws, including filing fees and the fees and
disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of any Blue Sky memoranda; (v) the filing fees
and expenses, if any, incurred with respect to any filing with the National
Association of Securities Dealers, Inc., including the fees and disbursements
of counsel for the Underwriters in connection therewith; (vi) all expenses
arising from the quoting of the Shares on the Nasdaq National Market; (vii) all
arrangements relating to the preparation, issuance and delivery to the
Underwriters of any certificates evidencing the Shares, including transfer
agent's and registrar's fees; and (viii) the costs and expenses of the
"roadshow" and any other meetings with prospective investors in the Shares
(other than as shall have been specifically approved by the Representatives to
be paid for by the Underwriters).
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Section 5. Representations and Warranties.
(a) As a condition of the obligation of the Underwriters to
underwrite and pay for the Shares, the Company represents and warrants to, and
agrees with, each of the several Underwriters as follows:
REGISTRATION STATEMENT AND PROSPECTUS
(i) The Original Registration Statement, including the
Preliminary Prospectus, has been filed by the Company with the Commission under
the Securities Act, and one or more amendments to such Registration Statement
may have been so filed. After the execution of this Agreement, the Company
will file with the Commission either (x) if such Registration Statement, as it
may have been amended, has been declared by the Commission to be effective
under the Securities Act, either (I) if the Company relies on Rule 434 under
the Securities Act, a Term Sheet relating to the Shares that shall identify the
Preliminary Prospectus that it supplements containing such information as is
required or permitted by Rules 434, 430A and 424(b) under the Securities Act or
(II) if the Company does not rely on Rule 434 under the Securities Act, a
prospectus in the form most recently included in an amendment to such
Registration Statement (or, if no such amendment shall have been filed, in such
Registration Statement), with such changes or insertions as are required by
Rule 430A under the Securities Act or permitted by Rule 424(b) under the
Securities Act, and in the case of either clause (I) or (II) of this sentence,
as have been provided to and approved by the Representatives prior to the
execution of this Agreement, or (y) if such Registration Statement, as it may
have been amended, has not been declared by the Commission to be effective
under the Securities Act, an amendment to such Registration Statement,
including a form of prospectus, a copy of which amendment has been furnished to
and approved by the Representatives prior to the execution of this Agreement.
The Company may also file a Rule 462(b) Registration Statement with the
Commission for the purpose of registering certain additional Shares, which
registration shall be effective upon filing with the Commission.
(ii) The Commission has not issued any order preventing or
suspending the use of any Preliminary Prospectus. When any Preliminary
Prospectus was filed with the Commission, it (x) contained all statements
required to be stated therein in accordance with, and complied in all material
respects with the requirements of, the Securities Act and the rules and
regulations of the Commission thereunder and (y) did not include any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. When the Registration Statement or any
amendment thereto was or is declared effective, it (I) contained or will
contain all statements required to be stated therein in accordance with, and
complied or will comply in all material respects with the requirements of, the
Securities Act and the rules and regulations of the Commission thereunder and
(II) did not or will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading. When the Prospectus or any Term
Sheet that is a part thereof or any amendment or supplement to the Prospectus
is filed with the Commission pursuant to Rule 424(b) (or, if the Prospectus or
such amendment or supplement is not required to be so filed, when the
Registration Statement or the amendment thereto containing the Prospectus or
such amendment or supplement to the Prospectus was or is declared effective)
and on the Closing Date, the Prospectus, as amended or supplemented at any such
time, (A) contained or will contain all statements required to be stated
therein in accordance with, and complied or will comply in all material
respects with the requirements of, the Securities Act and the rules and
regulations of the Commission thereunder and (B) did not or will not include
any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The foregoing
provisions of this paragraph (ii) do not apply to statements or omissions made
in any Preliminary Prospectus, the Registration Statement or any amendment
thereto or the Prospectus or any amendment or supplement thereto in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through the Representatives specifically for use therein.
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(iii) If the Company has elected to rely on Rule 462(b) and
the Rule 462(b) Registration Statement is not effective, (x) the Company will
file a Rule 462(b) Registration Statement in compliance with, and that is
effective upon filing pursuant to, Rule 462(b) and (y) the Company has given
irrevocable instructions for transmission of the applicable filing fee in
connection with the filing of the Rule 462(b) Registration Statement, in
compliance with Rule 111 under the Securities Act, or the Commission has
received payment of such filing fee.
(iv) If the Company has elected to rely on Rule 434 under
the Securities Act, the Prospectus is not "materially different", as such term
is used in Rule 434, from the prospectus included in the Registration Statement
at the time of its effectiveness or an effective post-effective amendment
thereto (including such information that is permitted to be omitted pursuant to
Rule 430A under the Securities Act);
(v) The Company has not distributed and, prior to the
later of (x) any Closing Date and (y) the completion of the distribution of the
Shares, will not distribute any offering material in connection with the
Offering other than the Registration Statement or any amendment thereto, any
Preliminary Prospectus or the Prospectus or any amendment or supplement
thereto.
(vi) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus, (x) the
Company has not incurred any material liability or obligation, direct or
contingent, nor entered into any material transaction not in the ordinary
course of business; (y) the Company has not purchased any of its outstanding
capital stock, nor declared, paid or otherwise made any dividend or
distribution of any kind on its capital stock; and (z) there has not been any
material change in the capital stock, short-term or long-term debt of the
Company taken as a whole, except in each case as described in or contemplated
by the Prospectus.
THE SHARES
(vii) The Company has an authorized, issued and outstanding
capitalization as set forth in the Prospectus. All of the issued shares of
capital stock of the Company have been duly authorized and validly issued and
are fully paid and nonassessable, have been issued in compliance with all
applicable federal and state securities laws and were not issued in violation
of or subject to any preemptive rights or other rights to subscribe for or
purchase such securities. The Shares have been duly authorized by all
necessary corporate action of the Company and, after payment therefor in
accordance herewith, will be validly issued, fully paid and nonassessable at
the Closing Date. No holders of outstanding shares of capital stock of the
Company are entitled as such to any preemptive or other rights to subscribe for
any of the Shares, and no holder of securities of the Company has any right
which has not been fully exercised or waived to require the Company to register
the offer or sale of any securities owned by such holder under the Securities
Act in the Offering contemplated by this Agreement.
(viii) Except as disclosed in the Prospectus, there are no
outstanding (x) securities or obligations of the Company convertible into or
exchangeable for any capital stock of the Company, (y) warrants, rights or
options to subscribe for or purchase from the Company any such capital stock or
any such convertible or exchangeable securities or obligations, or (z)
obligations of the Company to issue any shares of capital stock, any such
convertible or exchangeable securities or obligations, or any such warrants,
rights or options.
(ix) The Company has no subsidiaries and does not own any
shares of stock or any other equity securities of any corporation or have any
equity interest in any firm, partnership, association or other entity.
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LISTING
(x) All of the Shares have been duly authorized and
accepted for quotation on the Nasdaq National Market, subject to official
notice of issuance.
MARKET MANIPULATION
(xi) Neither the Company nor any of its affiliates, nor
any person acting on behalf of any of them, has, directly or indirectly, (x)
taken any action designed to cause or to result in, or that has constituted or
which might reasonably be expected to constitute, the stabilization or
manipulation of the price of any security of the Company to facilitate the sale
or resale of the Shares, or (y) since the filing of the Original Registration
Statement (I) sold, bid for, purchased, or paid anyone any compensation for
soliciting purchases of, the Shares or (II) paid or agreed to pay to any person
any compensation for soliciting another to purchase any other securities of the
Company.
CORPORATE POWER AND AUTHORITY
(xii) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the law of its jurisdiction of
incorporation with full power and authority to own, lease and operate its
properties and assets and conduct its business as described in the Prospectus,
is duly qualified to transact business and is in good standing in each
jurisdiction in which its ownership, leasing or operation of its properties or
assets or the conduct of its business requires such qualification, except where
the failure to be so qualified does not amount to a material liability or
disability to the Company and has full power and authority to execute and
perform its obligations under this Agreement.
(xiii) The execution and delivery of this Agreement and the
issuance and sale of the Shares have been duly authorized by all necessary
corporate action of the Company, and this Agreement has been duly executed and
delivered by the Company and is the valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except (x) as
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors' rights generally
and (y) 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.
(xiv) The issuance, offering and sale of the Shares to the
Underwriters by the Company pursuant to this Agreement, the compliance by the
Company with the other provisions of this Agreement and the consummation of the
other transactions herein contemplated do not (x) require the consent,
approval, authorization, registration or qualification of or with any
governmental authority, except such as have been obtained or made or such as
may be required by the state securities or Blue Sky laws of the various states
of the United States of America or other U.S. jurisdictions in connection with
the offer and sale of the Shares by the Underwriters, or (y) conflict with or
result in a breach or violation of any of the terms and provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, lease or
other agreement or instrument to which the Company is a party or by which the
Company or any of its properties is bound, or the certificate of incorporation
or by-laws of the Company, or any statute or any judgment, decree, order, rule
or regulation of any court or other governmental authority or any arbitrator
applicable to the Company, except for such conflicts breaches or defaults as
would not, individually or in the aggregate have a material adverse effect on
or constitute a materially adverse change in, or constitute a development
involving a materially adverse effect on or change in the condition (financial
or otherwise) earnings, properties, business affairs or business prospects,
stockholders' equity net worth or results to operations of the Company.
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(xv) The Company is not, and will conduct its operations
in a manner so that it continues not to be, an "investment company" and, after
giving effect to the Offering and the application of the proceeds therefrom,
will not be an "investment company," as such term is defined in the Investment
Company Act of 1940, as amended (the "1940 Act").
TITLE, LICENSES AND CONSENTS
(xvi) The Company has good and marketable title in fee
simple to all items of real property and marketable title to all personal
property owned by it, in each case free and clear of any security interests,
liens, encumbrances, equities, claims and other defects, except such as do not
materially and adversely affect the value of such property and do not interfere
with the use made or proposed to be made of such property by the Company and
any real property and buildings held under lease by the Company is held under
valid, subsisting and enforceable leases, with such exceptions as are not
material and do not interfere with the use made or proposed to be made of such
property and buildings by the Company, in each case except as described in or
contemplated by the Prospectus.
(xvii) The Company owns or possesses, or can acquire on
reasonable terms, all material patents, patent applications, trademarks,
service marks, trade names, licenses, know-how, copyrights, trade secrets and
proprietary or other confidential information necessary to operate the business
now operated by it, and the Company has not received any notice of infringement
of or conflict with asserted rights of any third party with respect to any of
the foregoing which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would have a materially adverse effect
on or constitute a materially adverse change in, or constitute a development
involving a prospective materially adverse effect on or change in, the
condition (financial or otherwise), earnings, properties, business affairs or
business prospects, stockholders' equity, net worth or results of operations of
the Company, except as described in or contemplated by the Prospectus.
(xviii) The Company possesses all consents, licenses,
certificates, authorizations and permits issued by the appropriate federal,
state or foreign regulatory authorities necessary to conduct its business, and
the Company has not received any notice of proceedings relating to the
revocation or modification of any such certificate, authorization or permit
which, singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would have a materially adverse effect on or constitute a
materially adverse change in, or constitute a development involving a
prospective materially adverse effect on or change in, the condition (financial
or otherwise), earnings, properties, business affairs or business prospects,
net worth or results of operations of the Company, except as described in or
contemplated by the Prospectus.
FINANCIAL STATEMENTS
(xix) Deloitte & Touche LLP, who have certified certain
financial statements of the Company and delivered their report with respect to
the audited financial statements and schedules included in the Registration
Statement and the Prospectus, are independent public accountants as required by
the Securities Act and the applicable rules and regulations thereunder.
(xx) The financial statements and schedules of the Company
included in the Registration Statement and the Prospectus were prepared in
accordance with generally accepted accounting principles ("GAAP") consistently
applied throughout the periods involved (except as otherwise noted therein) and
they present fairly the financial condition of the Company as at the dates at
which they were prepared and the results of operations of the Company in
respect of the periods for which they were prepared.
INTERNAL ACCOUNTING CONTROLS
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(xxi) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurance that (w) transactions are
executed in accordance with management's general or specific authorizations;
(x) transactions are recorded as necessary to permit preparation of financial
statements in conformity with GAAP and to maintain asset accountability; (y)
access to assets is permitted only in accordance with management's general or
specific authorization; and (z) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
LITIGATION
(xxii) No legal or governmental proceedings are pending or
threatened to which the Company is a party or to which the property of the
Company is subject that are required to be described in the Registration
Statement or the Prospectus and are not described therein; and no statutes,
regulations, contracts or other documents that are required to be described in
the Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not described therein or filed as required.
DIVIDENDS AND DISTRIBUTIONS
(xxiii) The Company is not currently prohibited, directly or
indirectly, from paying any dividends or making any other distribution on its
capital stock, in each case except as described in or contemplated by the
Prospectus.
TAXES
(xxiv) The Company has filed all foreign, federal, state and
local tax returns that are required to be filed or has requested extensions
thereof (except in any case in which the failure so to file would not have a
materially adverse effect on the Company) and has paid all taxes required to be
paid by it and any other assessment, fine or penalty levied against it, to the
extent that any of the foregoing is due and payable, except for any such
assessment, fine or penalty that is currently being contested in good faith or
as described in or contemplated by the Prospectus.
INSURANCE
(xxv) The Company is insured by insurers of recognized
financial responsibility against such losses and risks and in such amounts as
are prudent and customary in the businesses in which it is engaged; the Company
has not been refused any insurance coverage sought or applied for; and the
Company has no reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its
business at a cost that would not materially and adversely affect the condition
(financial or otherwise), earnings, properties, business affairs or business
prospects, net worth or results of operations of the Company except as
described in or contemplated by the Prospectus.
PENSION AND LABOR
(xxvi) The Company is in compliance in all material respects
with all presently applicable provisions of the Employee Retirement Income
Security Act of 1974, as amended, including the regulations and published
interpretations thereunder ("ERISA"); no "reportable event" (as defined in
ERISA) has occurred with respect to any "pension plan" (as defined in ERISA)
for which the Company would have any liability; the Company has not incurred
and does not expect to incur liability under (x) Title IV of ERISA with respect
to termination of, or withdrawal from, any "pension plan" or (y) Sections 412
or 4971 of the Internal Revenue Code of 1986, as amended, including the
regulations and published interpretations thereunder (the "Code"); and each
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"pension plan" for which the Company would have any liability that is intended
to be qualified under Section 401(a) of the Code is so qualified in all
material respects and nothing has occurred, whether by action or by failure to
act, which would cause the loss of such qualification.
(xxvii) No labor dispute with the employees of the Company
exists or is threatened or imminent that could have a materially adverse effect
on or constitute a materially adverse change in, or constitute a development
involving a prospective materially adverse effect on or change in, the
condition (financial or otherwise), properties, management, earnings, business
affairs or business prospects, net worth or results of operations of the
Company except as described in or contemplated by the Prospectus.
ENVIRONMENTAL
(xxviii) The Company is not in violation of any federal or
state law or regulation relating to occupational safety and health or to the
storage, handling or transportation of hazardous or toxic materials and the
Company has received all permits, licenses or other approvals required of it
under applicable federal and state occupational safety and health and
environmental laws and regulations to conduct its business, and the Company is
in compliance with all terms and conditions of any such permit, license or
approval, except any such violation of law or regulation, failure to receive
required permits, licenses or other approvals or failure to comply with the
terms and conditions of such permits, licenses or approvals which would not,
singly or in the aggregate, have a materially adverse effect on or constitute a
materially adverse change in, or constitute a development involving a
prospective materially adverse effect on or change in, the condition (financial
or otherwise), earnings, properties, business affairs or business prospects,
net worth or results of operations of the Company except as described in or
contemplated by the Prospectus.
OTHER AGREEMENTS
(xxix) 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 of any indenture,
mortgage, deed of trust, lease or other agreement or instrument to which the
Company is a party or by which the Company or any of its properties is bound.
ABSENCE OF MATERIALLY ADVERSE CHANGE
(xxx) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus, the
Company has not sustained any material loss or interference with its business
or property from fire, flood, hurricane, accident or other calamity, whether or
not covered by insurance, or from any labor dispute or any legal or
governmental proceeding, and there has been no materially adverse change
(including, without limitation, a change in management or control), or
development involving a prospective materially adverse change, in the condition
(financial or otherwise), management, earnings, property, business affairs or
business prospects, stockholders' equity, net worth or results of operations of
the Company other than as described in or contemplated by the Prospectus
(exclusive of any amendments or supplements thereto).
(xxxi) No receiver or liquidator (or similar person) has
been appointed in respect of the Company or in respect of any part of the
assets of the Company; no resolution, order of any court, regulatory body,
governmental body or otherwise, or petition or application for an order, has
been passed, made or presented for the winding up of the Company for the
protection of the Company from its creditors; and the Company has not stopped
or suspended payments of its debts, become unable to pay its debts or otherwise
become insolvent.
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(b) The above representations and warranties shall be deemed to be
repeated at each Closing, and all references therein to the Shares and the
Closing Date shall be deemed to refer to the Firm Shares or the Option Shares
and the First Closing Date or the applicable Option Closing Date, each as
applicable.
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Section 6. Indemnity.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Securities Act or Section 20 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), against any and all
losses, claims, damages or liabilities, joint or several, to which such
Underwriter or such controlling person may become subject under the Securities
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement made
by the Company in Section 5 hereof,
(ii) any untrue statement or alleged untrue statement of
any material fact contained in the Registration Statement or any amendment
thereto, any Preliminary Prospectus or the Prospectus or any amendment or
supplement thereto, or
(iii) the omission or alleged omission to state in the
Registration Statement or any amendment thereto, any Preliminary Prospectus or
the Prospectus or any amendment or supplement thereto a material fact required
to be stated therein or necessary to make the statements therein not
misleading,
and will reimburse, as incurred, each Underwriter and each such controlling
person for any legal or other costs or expenses reasonably incurred by such
Underwriter or such controlling person in connection with investigating,
defending against or appearing as a third-party witness in connection with any
such loss, claim, damage, liability or action; provided, however, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any untrue statement
or alleged untrue statement or omission or alleged omission made in the
Registration Statement or any amendment thereto, any Preliminary Prospectus,
the Prospectus or any amendment or supplement thereto in reliance upon and in
conformity with written information furnished to the Company by such
Underwriter through the Representatives specifically for use therein; and
provided, further, that the Company will not be liable to any Underwriter or
any person controlling such Underwriter with respect to any such untrue
statement or alleged untrue statement or omission or alleged omission made in
any Preliminary Prospectus that is corrected in the Prospectus (or any
amendment or supplement thereto) if the person asserting any such loss, claim,
damage or liability purchased Shares from such Underwriter but was not sent or
given a copy of the Prospectus (as amended or supplemented) in any case where
such delivery of the Prospectus (as amended or supplemented) was required by
the Securities Act, unless such failure to deliver the Prospectus (as amended
or supplemented) was a result of noncompliance by the Company with Section 3
hereof. The indemnity provided for in this Section 6 shall be in addition to
any liability which the Company may otherwise have. The Company will not,
without the prior written consent of the Representatives, settle or compromise
or consent to the entry of any judgment in any pending or threatened claim,
action, suit or proceeding in respect of which indemnification may be sought
hereunder (whether or not any such Representatives or any person who controls
any such Representatives is a party to such claim, action, suit or proceeding),
unless such settlement, compromise or consent includes an unconditional release
of all of the Underwriters and such controlling persons from all liability
arising out of such claim, action, suit or proceeding.
(b) Each Underwriter, severally and not jointly, will indemnify
and hold harmless the Company, each of its directors, each of its officers who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act against any losses, claims, damages or liabilities to which
the Company or any such director or officer of the Company, or any such
controlling person of the Company may become subject under the Securities Act
or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are
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based upon (i) any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement or any amendment thereto, any
Preliminary Prospectus or the Prospectus or any amendment or supplement thereto
or (ii) the omission or the alleged omission to state in the Registration
Statement or any amendment thereto, any Preliminary Prospectus or the
Prospectus or any amendment or supplement thereto a material fact required to
be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in
reliance upon and in conformity with written information furnished to the
Company by such Underwriter through the Representatives specifically for use
therein, and, subject to the limitation set forth immediately preceding this
clause, will reimburse, as incurred, any legal or other expenses reasonably
incurred by the Company or any such director, officer or controlling person in
connection with investigating, defending against or appearing as a third-party
witness in connection with any such loss, claim, damage, liability or any
action in respect thereof. The indemnity provided in this Section 6 will be in
addition to any liability which any Underwriter may otherwise have. The
remedies provided for in this Section 6 are not exclusive and shall not limit
any rights or remedies which may otherwise be available to any indemnified
party at law or in equity.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to paragraph (a) or (b) of this Section 6,
such person (for purposes of this paragraph (c), the "indemnified party")
shall, promptly after receipt by such party of notice of the commencement of
such action, notify the person against whom such indemnity may be sought (for
purposes of this paragraph (c), the "indemnifying party"), but the omission so
to notify the indemnifying party will not relieve it from any liability which
it may have to any indemnified party otherwise than under this Section 6. In
case any such action is brought against any indemnified party, and it notifies
the indemnifying party of the commencement thereof, the indemnifying party will
be entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party; provided,
however, that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have
reasonably concluded that there may be one or more legal defenses available to
it and/or other indemnified parties which are different from or additional to
those available to the indemnifying party, the indemnifying party shall not
have the right to direct the defense of such action on behalf of such
indemnified party or parties and such indemnified party or parties shall have
the right to select separate counsel to defend such action on behalf of such
indemnified party or parties. After notice from the indemnifying party to such
indemnified party of its election so to assume the defense of any such action
and approval by such indemnified party of counsel appointed to defend such
action, the indemnifying party will not be liable to such indemnified party
under this Section 6 for any legal or other expenses, other than reasonable
costs of investigation, subsequently incurred by such indemnified party in
connection with the defense thereof, unless (i) the indemnified party shall
have employed separate counsel in accordance with the proviso to the next
preceding sentence (it being understood, however, that in connection with such
action the indemnifying party shall not be liable for the expenses of more than
one separate counsel (in addition to local counsel) in any one action or
separate but substantially similar actions in the same jurisdiction arising out
of the same general allegations or circumstances, designated in writing by the
Representatives in the case of paragraph (a) of this Section 6, representing
the indemnified parties under such paragraph (a) who are Underwriters or
persons controlling any Underwriter and who are parties to such action or
actions), or (ii) the indemnifying party does not promptly retain counsel
satisfactory to the indemnified party, or (iii) the indemnifying party has
authorized the employment of counsel for the indemnified party at the expense
of the indemnifying party. All fees and expenses reimbursed pursuant to this
paragraph (c) shall be reimbursed as they are incurred. After such notice from
the indemnifying party to such indemnified party, the indemnifying party will
not be liable for the costs and expenses of any settlement of such action
effected by such indemnified party without the consent of the indemnifying
party.
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(d) In circumstances in which the indemnity agreement provided for
in the preceding paragraphs of this Section 6 is unavailable or insufficient,
for any reason, to hold harmless an indemnified party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof), each
indemnifying party, in order to provide for just and equitable contribution,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect (i) the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party on the other from the Offering or (ii) if the allocation
provided by the foregoing clause (i) is not permitted by applicable law, not
only such relative benefits but also the relative fault of the indemnifying
party or parties on the one hand and the indemnified party on the other in
connection with the statements or omissions or alleged statements or omissions
that resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other shall be deemed to be in the same proportion as the total proceeds
from the Offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by the Underwriters.
The relative fault of the parties shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company or the Underwriters, the parties' relative
intents, knowledge, access to information and opportunity to correct or prevent
such statement or omission, and any other equitable considerations appropriate
in the circumstances. The Company and the Underwriters agree that it would not
be equitable if the amount of such contribution were determined by pro rata or
per capita allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation that does not take into
account the equitable considerations referred to above in this paragraph (d).
Notwithstanding any other provision of this paragraph (d), no Underwriter shall
be obligated to make contributions hereunder that in the aggregate exceed the
total public offering price of the Shares purchased by such Underwriter under
this Agreement, less the aggregate amount of any damages that such Underwriter
has otherwise been required to pay in respect of the same or any substantially
similar claim, and no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute hereunder are
several in proportion to their respective underwriting obligations and not
joint, and contributions among Underwriters shall be governed by the provisions
of the Deutsche ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc. Master Agreement Among Underwriters. For
purposes of this paragraph (d), each person, if any, who controls an
Underwriter within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act shall have the same rights to contribution as such
Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement and each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act, shall have the same rights to contribution as the Company.
Section 7. Conditions Precedent.
The obligations of the several Underwriters to purchase and pay for
the Shares shall be subject, in the Representatives' sole discretion, to the
accuracy of the representations and warranties of the Company contained herein
as of the date hereof and as of each Closing Date, as if made on and as of each
Closing Date, to the accuracy of the statements of the Company's officers and
made pursuant to the provisions hereof, to the performance by the Company of
its covenants and agreements hereunder and to the following additional
conditions:
(a) (i) If the Original Registration Statement or any amendment
thereto filed prior to the First Closing Date has not been declared effective
as of the time of execution hereof, the Original Registration Statement or such
amendment shall have been declared effective not later than 6:00 P.M. New York
City time on the date of determination of the public offering price, if such
determination occurred at or prior to 4:30 P.M. New York City time on such
date, or 12:00 noon New York City time on the business day following the day on
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which the public offering price was determined, if such determination occurred
after 4:30 P.M. New York City time on such date, and (ii) if the Company has
elected to rely upon Rule 462(b), the Rule 462(b) Registration Statement shall
have been declared effective not later than the time confirmations are sent or
given as specified by Rule 462(b)(2), or such later time and date as shall have
been consented to by the Representatives; if required, the Prospectus or any
Term Sheet that constitutes a part thereof and any amendment or supplement
thereto shall have been filed with the Commission in the manner and within the
time period required by Rules 434 and 424(b) under the Securities Act; no stop
order suspending the effectiveness of the Registration Statement or any
amendment thereto shall have been issued, and no proceedings for that purpose
shall have been instituted or threatened or, to the knowledge of the Company or
the Representatives, shall be contemplated by the Commission; and the Company
shall have complied with any request of the Commission for additional
information (to be included in the Registration Statement or the Prospectus or
otherwise).
(b) The Representatives shall have received a legal opinion from
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, dated the Closing
Date, to the effect that:
(i) the Registration Statement is effective under the
Securities Act; any required filing of the Prospectus, or any Term Sheet that
constitutes a part thereof, pursuant to Rules 434 and 424(b) has been made in
the manner and within the time period required by Rules 434 and 424(b); and no
stop order suspending the effectiveness of the Registration Statement or any
amendment thereto has been issued and, to the best knowledge of such counsel,
no proceedings for that purpose are pending or threatened by the Commission;
(ii) the Original Registration Statement and each
amendment thereto, any Rule 462(b) Registration Statement and the Prospectus
(in each case, other than the financial statements and other financial
information derived therefrom, as to which such counsel need express no
opinion) comply as to form in all material respects with the applicable
requirements of the Securities Act and the rules and regulations of the
Commission thereunder;
(iii) such counsel has no reason to believe that (in each
case, other than the financial statements and financial information derived
therefrom, as to which such counsel need express no opinion or belief) (x) the
Registration Statement, as of its effective date, contained any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading or
(y) the Prospectus, as of its date or the date of such opinion, included or
includes any untrue statement of a material fact or omitted or omits to state
any material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(iv) if the Company elects to rely on Rule 434 under the
Securities Act, the Prospectus is not "materially different," as such term is
used in Rule 434, from the prospectus included in the Registration Statement at
the time of its effectiveness or an effective post-effective amendment thereto
(including such information that is permitted to be omitted pursuant to Rule
430A under the Securities Act);
(v) the Company has an authorized, issued and outstanding
capitalization as set forth in the Prospectus; all of the issued shares of
capital stock of the Company have been duly authorized and validly issued and
are, to such counsel's knowledge, fully paid and nonassessable, to such
counsel's knowledge, have been issued in compliance with the registration and
qualification provisions of all applicable federal and state securities laws
and were not issued in violation of or subject to any preemptive rights or, to
such counsel's knowledge, other rights to subscribe for or purchase
securities; the Shares have been duly authorized by all necessary corporate
action of the Company and, when issued and delivered to and paid for by the
Underwriters pursuant to this Agreement, will be validly issued, fully paid and
nonassessable; no holders of outstanding shares of capital stock of the Company
are entitled as such to any preemptive or, to such counsel's knowledge, other
rights to subscribe for any of the Shares; and no holder of securities of the
Company has any right which has not
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been fully exercised or waived to require the Company to register the offer or
sale of any securities owned by such holder under the Securities Act in the
Offering contemplated by this Agreement;
(vi) all of the Shares have been duly authorized and
accepted for quotation on the Nasdaq National Markets, subject to official
notice of issuance;
(vii) the Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the State of
Delaware and is duly qualified to transact business as a foreign corporation
and is in good standing under the laws of all other jurisdictions where the
ownership, leasing or operation of its properties or assets or the conduct of
its business requires such qualification, except where the failure to be so
qualified does not amount to a material liability or disability to the Company;
the Company has full power and authority to own, lease and operate its
properties and assets and conduct business as described in the Registration
Statement and the Prospectus, and the Company has corporate power to enter into
this Agreement and to carry out all the terms and provisions hereof to be
carried out by it;
(viii) the statements set forth under the heading
"Description of Capital Stock" in the Prospectus, insofar as such statements
purport to summarize certain provisions of the capital stock of the Company,
provide a fair summary of such provisions; and the statements set forth under
the headings "Risk Factors--Control by Principal Stockholders; Certain
Anti-Takeover Provisions," "Risk Factors--Shares Eligible for Future Sale,"
"Management--Employment Agreements and Change of Control Arrangements,"
"Management--Limitation of Liability and Indemnification Matters," "Certain
Transactions" and "Shares Eligible for Future Sale" in the Prospectus, insofar
as such statements constitute a summary of the legal matters, documents or
proceedings referred to therein, have been reviewed by such counsel and fairly
present the information called for with respect to such legal matters,
documents and proceedings in all material respects as required by the
Securities Act and the rules and regulations thereunder;
(ix) the execution and delivery of this Agreement have
been duly authorized by all necessary corporate action of the Company and this
Agreement has been duly executed and delivered by the Company;
(x) the issuance, offering and sale of the Shares to the
Underwriters by the Company pursuant to this Agreement, the compliance by the
Company with the other provisions of this Agreement and the consummation of the
other transactions herein contemplated do not (x) require the consent,
approval, authorization, registration or qualification of or with any
governmental authority, except such as have been obtained or made (and
specified in such opinion) or such as may be required by the securities or Blue
Sky laws of the various states of the United States of America and other U.S.
jurisdictions in connection with the offer and sale of the Shares by the
Underwriters, or (y) conflict with or result in a breach or violation of any of
the terms and provisions of, or constitute a default under, any material
indenture, mortgage, deed of trust, lease or other agreement or instrument,
known to such counsel, to which the Company is a party or by which the Company
or any of its properties is bound, or the certificate of incorporation or
by-laws of the Company, or any statute or any judgment, decree, order, rule or
regulation of any court or other governmental authority or any arbitrator known
to such counsel and applicable to the Company;
(xi) the Company is not an "investment company" and, after
giving effect to the Offering and the application of the proceeds therefrom,
will not be an "investment company," as such term is defined in the 1940 Act;
(xii) such counsel does not know of any legal or
governmental proceedings pending or threatened to which the Company is a party
or to which the property of the Company is subject that are required to be
described in the Registration Statement or the Prospectus and are not described
therein or any statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the
-18-
20
Prospectus or to be filed as exhibits to the Registration Statement that are
not described therein or filed as required;
(xiii) such counsel is not aware of any written claim or any
challenge by any person to the rights of the Company with respect to its
business other than those identified in the Prospectus;
(xiv) such counsel is not aware of any legal actions,
claims or proceedings pending or threatened against the Company asserted in
writing and alleging that the Company is infringing or otherwise violating any
patents, trademarks, copyrights, mask work rights, trade secrets or other
intellectual property rights owned by others other than those identified in the
Prospectus;
(xv) such counsel has reviewed the descriptions of patents
and patent applications under the captions "Risk Factors--Proprietary Rights;
Patent Litigation" and "Business--Proprietary Rights; Patent Litigation" in the
Registration Statement and Prospectus, and, to the extent they constitute
matters of law or legal conclusions, these descriptions are accurate and fairly
and completely present the patent situation of the Company;
(xvi) after review of each patent and patent application of
the Company, and after review of the file history and patent of each of the
Hybrid patents (as defined in the Prospectus and including the claims set forth
in the reissue application of the '304 Patent) and the files of the Company's
patent attorney and each noninfringement or invalidity opinion received by the
Company with respect to each of the Hybrid patents and the patent litigation
(including all pleadings with respect thereto) described in the Prospectus,
such counsel is aware of nothing that causes such counsel to believe that, as
of the date of the Registration Statement became effective and as of the date
of such opinion, the description of patents, patent applications and patent
litigation under the captions "Risk Factors--Proprietary Rights; Patent
Litigation" and "Business--Proprietary Rights; Patent Litigation" in the
Registration Statement and Prospectus contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
made therein, in the light of the circumstances under which they were made, not
misleading; and
(xvii) [Additional opinions to follow pending due diligence
investigation.]
In rendering any such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deems proper, on certificates of responsible
officers of the Company and public officials and, as to matters involving the
application of laws of any jurisdiction other than the States of California and
Delaware, or the United States, to the extent satisfactory in form and scope to
counsel for the Underwriters, upon the opinion of other counsel. The foregoing
opinion shall also state that the Underwriters are justified in relying upon
such opinion of such and, and copies of any such opinion shall be delivered to
the Representatives and counsel for the Underwriters.
References to the Registration Statement and the Prospectus in this
paragraph (b) shall include any amendment or supplement thereto at the date of
such opinion. The opinions of issuer's counsel described herein shall be
rendered to the Underwriters at the request of the Company and shall so state
therein.
(c) The Representatives shall have received a legal opinion from
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Professional Corporation, counsel for the
Underwriters, dated the Closing Date, covering the issuance and sale of the
Shares, the Registration Statement and the Prospectus, and such other related
matters as the Representatives may reasonably require, and the Company shall
have furnished to such counsel such documents as they may reasonably request
for the purpose of enabling them to pass upon such matters.
-19-
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(d) The Representatives shall have received from Deloitte & Touche
LLP a letter or letters dated, respectively, the date hereof and the Closing
Date, in form and substance satisfactory to the Representatives, to the effect
that:
(i) they are independent accountants with respect to the
Company and its within the meaning of the Securities Act and the applicable
rules and regulations thereunder;
(ii) in their opinion, the audited financial statements
and schedules examined by them and included in the Registration Statement and
the Prospectus comply in form in all material respects with the applicable
accounting requirements of the Securities Act and the related published rules
and regulations;
(iii) on the basis of a reading of the latest available
interim unaudited financial statements of the Company, carrying out certain
specified procedures (which do not constitute an examination made in accordance
with generally accepted auditing standards) that would not necessarily reveal
matters of significance with respect to the comments set forth in this
paragraph (iii), a reading of the minute books of the shareholders, the board
of directors and any committees thereof of the Company, and inquiries of
certain officials of the Company who have responsibility for financial and
accounting matters, nothing came to their attention that caused them to believe
that:
(x) the unaudited financial statements of the
Company included in the Registration Statement and the Prospectus do not comply
in form in all material respects with the applicable accounting requirements of
the Securities Act and the related published rules and regulations thereunder
or are not in conformity with GAAP applied on a basis substantially consistent
with that of the audited consolidated financial statements included in the
Registration Statement and the Prospectus; and
(y) at a specific date not more than five
business days prior to the date of such letter, there were any changes in the
capital stock or long-term debt of the Company or any decreases in net current
assets or stockholders' equity of the Company, compared with amounts shown on
March 31, 1998 unaudited balance sheet included in the Registration Statement
and the Prospectus, or for the period from April 1, 1998 to [__________ __,
1998] there were any decreases, as compared with [March 1, 1998 to March 31,
1998], in sales, net revenues, net income before income taxes or total or per
share amounts of net income of the Company except in all instances for changes,
decreases or increases set forth in such letter.
(iv) they have carried out certain specified procedures,
not constituting an audit, with respect to certain amounts, percentages and
financial information that are derived from the general accounting records of
the Company and are included in the Registration Statement and the Prospectus
and in [Exhibit 11] to the Registration Statement, and have compared such
amounts, percentages and financial information with such records of the Company
and with information derived from such records and have found them to be in
agreement, excluding any questions of legal interpretation.
In the event that the letters referred to above set forth any such
changes, decreases or increases, it shall be a further condition to the
obligations of the Underwriters that (I) such letters shall be accompanied by a
written explanation of the Company as to the significance thereof, unless the
Representatives deem such explanation unnecessary, and (II) such changes,
decreases or increases do not, in the sole judgment of the Representatives,
make it impractical or inadvisable to proceed with the purchase and delivery of
the Shares as contemplated by the Registration Statement, as amended as of the
date hereof. References to the Registration Statement and the Prospectus in
this paragraph (d) with respect to either letter referred to above shall
include any amendment or supplement thereto at the date of such letter.
-20-
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(e) The Company shall have furnished or caused to be furnished to
the Underwriters at the Closing a certificate of its Chairman of the Board, its
President or its Chief Executive Officer and its Chief Financial Officer
satisfactory to the Underwriters to the effect that:
(i) the representations and warranties of the Company in
this Agreement are true and correct as if made on and as of the Closing Date;
the Registration Statement, as amended as of the Closing Date, does not include
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading, and the Prospectus, as
amended or supplemented as of the Closing Date, does not include any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; and the Company has performed all
covenants and agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement or any amendment thereto has been issued, and no
proceedings for that purpose have been instituted or threatened or, to the best
of the Company's knowledge, are contemplated by the Commission; and
(iii) subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus, the
Company has not sustained any material loss or interference with its business
or properties from fire, flood, hurricane, accident or other calamity, whether
or not covered by insurance, or from any labor dispute or any legal or
governmental proceeding, and there has not been any materially adverse change
(including, without limitation, a change in management or control), or
development involving a prospective materially adverse change, in the condition
(financial or otherwise), management, earnings, properties, business affairs or
business prospects, stockholders' equity, net worth or results of operations of
the Company, except in each case as described in or contemplated by the
Prospectus (exclusive of any amendment or supplement thereto).
(f) The Representatives shall have received from each person who
is a director or officer and certain securityholders of the Company who own
more than 95% of the outstanding shares of Common Stock, an agreement dated on
or before the date of this Agreement to the effect that such person will not
publicly announce any intention to and will not, without the prior written
consent of the Representatives on behalf of the Underwriters, (i) offer,
pledge, sell, offer to sell, contract to sell, sell any option or contract to
purchase, purchase any option to sell, grant any option, right or warrant to
purchase, or otherwise transfer or dispose of, directly or indirectly, any of
the shares of Common Stock or any securities convertible into, or exercisable
or exchangeable for, Common Stock, or (ii) enter into any swap or other
agreement that transfers, in whole or in part, any of the economic consequences
of ownership of the shares of Common Stock or any securities convertible into,
or exercisable or exchangeable for, shares of Common Stock (whether any such
transaction described in clause (i) or (ii) above is to be settled by delivery
of shares of Common Stock or such other securities, in cash or otherwise), in
each case, beneficially owned (within the meaning of Rule 13d-3 under the
Exchange Act) or otherwise controlled by such person on the date hereof or
hereafter acquired, for a period beginning from the date hereof and continuing
to and including the date 180 days after the date hereof; provided, however,
that such person may, without the prior written consent of the Representatives
on behalf of the Underwriters, transfer shares of Common Stock or such other
securities to members of such person's immediate family or to trusts for the
benefit of members of such person's immediate family or in connection with bona
fide gifts, provided that any transferee agrees to the transfer restrictions
described above.
(g) Prior to the commencement of the Offering, the Company shall
have made an application for the quotation of the Shares on the Nasdaq National
Market and the Shares shall have been included for trading on the Nasdaq
National Market, subject to official notice of issuance.
-21-
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(h) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, there shall not have occurred any downgrading, nor
shall any notice have been given of any intended or potential downgrading or of
any review for a possible change that does not indicate the direction of the
possible change, in the rating accorded any of the Company's securities by any
"nationally recognized statistical rating organization," as such term is
defined for purposes of Rule 436(g)(2) under the Securities Act.
(i) On or before the Closing Date, the Representatives and counsel
for the Underwriters shall have received such further certificates, documents
or other information as they may have reasonably requested from the Company.
(j) All opinions, certificates, letters and documents delivered
pursuant to this Agreement will comply with the provisions hereof only if they
are satisfactory in all material respects to the Representatives and counsel
for the Underwriters. The Company shall furnish to the Representatives such
conformed copies of such opinions, certificates, letters and documents in such
quantities as the Representatives and counsel for the Underwriters shall
reasonably request.
The respective obligations of the several Underwriters to purchase and
pay for any Shares shall be subject, in their discretion, to each of the
foregoing conditions to purchase the Shares, except that all references therein
to the Shares and the Closing Date shall be deemed to refer to the Firm Shares
or the Option Shares and the First Closing Date or the related Option Closing
Date, each as applicable.
Section 8. Default of Underwriters.
If, at the First Closing, any one or more of the Underwriters shall
fail or refuse to purchase Shares that it has or they have agreed to purchase
hereunder on such date, and the aggregate number of Shares which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
is ten percent or less of the aggregate number of the Shares to be purchased on
such date, the other Underwriters may make arrangements satisfactory to the
Representatives for the purchase of such Shares by other persons (who may
include one or more of the non- defaulting Underwriters, including the
Representatives), but if no such arrangements are made by the First Closing
Date, the other Underwriters shall be obligated severally in the proportions
that the number of Firm Shares set forth opposite their respective names in
Schedule 1 hereto bears to the aggregate number of Firm Shares set forth
opposite the names of all such non-defaulting Underwriters, or in such other
proportions as the Representatives may specify, to purchase the Shares which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase on such date. If, at the First Closing, any Underwriter or
Underwriters shall fail or refuse to purchase Firm Shares and the aggregate
number of Firm Shares with respect to which such default occurs is more than
ten per cent of the aggregate number of Firm Shares to be purchased, and
arrangements satisfactory to the Representatives, the Company for the purchase
of such Firm Shares are not made within 36 hours after such default, this
Agreement shall terminate without liability on the part of any non-defaulting
Underwriter or the Company. In any such case either the Representatives or the
Company shall have the right to postpone the Closing, but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. If, at any Option Closing, any Underwriter or
Underwriters shall fail or refuse to purchase Option Shares, the non-defaulting
Underwriters shall have the option to (i) terminate their obligation hereunder
to purchase Option Shares or (ii) purchase not less than the number of Option
Shares that such non-defaulting Underwriters would have been obligated to
purchase in the absence of such default. As used in this Agreement, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section 8. Any action taken under this Section 8 shall not relieve any
defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
-22-
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Section 9. Termination.
This Agreement shall be subject to termination in the sole discretion
of the Representatives by notice to the Company given prior to any Closing Date
in the event that the Company shall have failed, refused or been unable to
perform all obligations and satisfy all conditions on its part to be performed
or satisfied hereunder at or prior thereto or, if at or prior to any Closing
Date, (a) trading in securities generally on the New York Stock Exchange or the
Nasdaq National Market shall have been suspended or materially limited or
minimum or maximum prices shall have been established by or on, as the case may
be, the Commission or the New York Stock Exchange or the Nasdaq National
Market; (b) trading of any securities of the Company shall have been suspended
on any exchange or in any over-the-counter market; (c) a general moratorium on
commercial banking activities shall have been declared by either Federal or New
York State authorities; (d) there shall have occurred (i) an outbreak or
escalation of hostilities between the United States and any foreign power, (ii)
an outbreak or escalation of any other insurrection or armed conflict involving
the United States, or (iii) any other calamity or crisis or materially adverse
change in general economic, political or financial conditions having an effect
on the U.S. financial markets that, in the sole judgment of the
Representatives, makes it impractical or inadvisable to proceed with the public
offering or the delivery of the Shares as contemplated by the Registration
Statement, as amended as of the date hereof; or (e) the Company shall have, in
the sole judgment of the Representatives, sustained any material loss or
interference with its business or properties from fire, flood, hurricane,
accident or other calamity, whether or not covered by insurance, or from any
labor dispute or any legal or governmental proceeding, or there shall have been
any materially adverse change (including, without limitation, a change in
management or control), or constitute a development involving a prospective
materially adverse change, in the condition (financial or otherwise),
management, earnings, properties, business affairs or business prospects,
stockholders' equity, net worth or results of operations of the Company, except
in each case as described in or contemplated by the Prospectus (exclusive of
any amendment or supplement thereto). Termination of this Agreement pursuant
to this Section 9 shall be without liability of any party to any other party
except for the liability of the Company in relation to expenses as provided in
Sections 4 and 10 hereof, the indemnity provided in Section 6 hereof and any
liability arising before or in relation to such termination.
Section 10. Reimbursement of Expenses.
If the sale of the Shares provided for herein is not consummated
because any condition to the obligations of the Underwriters set forth in
Section 7 hereof is not satisfied or because of any termination pursuant to
Section 9(a), (c) or (d) hereof (other than by reason of a default by any of
the Underwriters), the Company shall reimburse the Underwriters, severally upon
demand, for all out-of-pocket expenses (including fees and disbursements of
counsel) that shall have been incurred by them in connection with the proposed
purchase and sale of the Shares.
Section 11. Information Supplied by Underwriters.
The statements set forth in the last paragraph on the front cover page
and under the heading "Underwriting" in any Preliminary Prospectus or the
Prospectus (to the extent such statements relate to the Underwriters)
constitute the only information furnished by any Underwriter through the
Representatives to the Company for the purposes of Section 5(a)(ii) and Section
6 hereof. The Underwriters confirm that such statements (to such extent) are
correct.
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Section 12. Notices.
In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by the Representatives. Any notice or notification in any form to be
given under this Agreement may be delivered in person or sent by telex,
facsimile or telephone (subject in the case of a communication by telephone to
confirmation by telex or facsimile) addressed to:
in the case of the Company:
Com21, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
in the case of the Underwriters:
Deutsche ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇
Any notice under this Section 12 shall take effect, in the case of
delivery, at the time of delivery and, in the case of telex or
facsimile, at the time of dispatch.
Section 13. Miscellaneous.
(a) Time shall be of the essence of this Agreement.
(b) The headings herein are inserted for convenience of reference
only and are not intended to be part of, or to affect, the meaning or
interpretation of this Agreement.
(c) For purposes of this Agreement, (a) "business day" means any
day on which the New York Stock Exchange is open for trading, and (b)
"subsidiary" has the meaning set forth in Rule 405 under the Securities Act.
(d) This Agreement may be executed in any number of counterparts,
all of which, taken together, shall constitute one and the same Agreement and
any party may enter into this Agreement by executing a counterpart.
(e) This Agreement shall inure to the benefit of and shall be
binding upon the several Underwriters, the Company and their respective
successors and legal representatives, and nothing expressed or mentioned in
this Agreement is intended or shall be construed to give any other person any
legal or equitable right, remedy or claim under or in respect of this
Agreement, or any provisions herein contained, this Agreement and all
conditions and provisions hereof being intended to be and being for the sole
and exclusive benefit of such persons and for the benefit of no other person,
except that (i) the indemnities of the Company contained in Section 6 hereof
shall also be for the benefit of any person or persons who control any
Underwriter within the
-24-
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meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
and (ii) the indemnities of the Underwriters contained in Section 6 hereof
shall also be for the benefit of the directors of the Company, the officers of
the Company who have signed the Registration Statement and any person or
persons who control the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act. No purchaser of Shares from
any Underwriter shall be deemed a successor because of such purchase.
(f) The respective representations, warranties, agreements,
covenants, indemnities and other statements of the Company, its officers and
the several Underwriters set forth in this Agreement or made by or on behalf of
them, respectively, pursuant to this Agreement shall remain in full force and
effect, regardless of (i) any investigation made by or on behalf of the
Company, any of its officers or directors, any Underwriter or any controlling
person referred to in Section 6 hereof and (ii) delivery of and payment for the
Shares. The respective agreements, covenants, indemnities and other statements
set forth in Sections 4, 6 and 10 hereof shall remain in full force and effect,
regardless of any termination or cancellation of this Agreement.
Section 14. Severability.
It is the desire and intent of the parties that the provisions of this
Agreement be enforced to the fullest extent permissible under the law and
public policies applied in each jurisdiction in which enforcement is sought.
Accordingly, in the event that any provision of this Agreement would be held in
any jurisdiction to be invalid, prohibited or unenforceable for any reason,
such provision, as to such jurisdiction, shall be ineffective, without
invalidating the remaining provisions of this Agreement or affecting the
validity or enforceability of such provision in any other jurisdiction.
Section 15. Governing Law.
The validity and interpretation of this Agreement, and the terms and
conditions set forth herein, shall be governed by and construed in accordance
with the laws of the State of New York, without giving effect to any provisions
relating to conflicts of laws.
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If the foregoing is in accordance with your understanding, please sign
and return to us eight (8) counterparts hereof, and upon the acceptance hereof
by you, on behalf of each of the Underwriters, this letter and such acceptance
hereof shall constitute a binding agreement among each of the Underwriters and
the Company. It is understood that your acceptance of this letter on behalf of
each of the Underwriters is pursuant to the authority set forth in the Deutsche
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc. Master Agreement Among Underwriters, the form of which
shall be submitted to the Company for examination upon request, but without
warranty on your part as to the authority of the signers thereof.
Very truly yours,
COM21 INC.
By: _______________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
President and Chief Executive Officer
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
DEUTSCHE ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ INC.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, L.L.C.
Acting severally on behalf of
themselves and the several Underwriters
named in Schedule 1 hereto
By: DEUTSCHE ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ INC.
By: _______________________________________
Name:______________________________________
Title:_____________________________________
-26-
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SCHEDULE 1
The Underwriters
Number of Firm Shares To be
Underwriter Purchased
--------------------------------------------------------------------------------
Deutsche ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, L.L.C.
[Others]
Total ---------------
===============
S-1