EXHIBIT 1.1
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U.S. WIRELESS CORPORATION
(a Delaware corporation)
PURCHASE AGREEMENT FOR
COMMON STOCK, WARRANTS TO PURCHASE COMMON STOCK,
PREFERRED STOCK, WARRANTS TO PURCHASE PREFERRED STOCK,
DEPOSITARY SHARES,
DEBT SECURITIES AND WARRANTS TO PURCHASE DEBT SECURITIES,
UNITS
Dated:
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Table of Contents
Page
SECTION 1. Representations and Warranties..........................................................4
(a) Representations and Warranties by the Company...................................................4
(1) Compliance with Registration Requirements...............................................4
(2) Incorporated Documents..................................................................5
(3) Independent Accountants.................................................................5
(4) Financial Statements....................................................................5
(5) No Material Adverse Change in Business..................................................6
(6) Good Standing of the Company............................................................6
(7) Good Standing of Subsidiaries...........................................................6
(8) Capitalization..........................................................................7
(9) Authorization of this Purchase Agreement and Terms Agreement............................7
(10) Authorization of Common Stock...........................................................7
(11) Authorization of Preferred Stock and/or Depositary Shares...............................7
(12) Authorization of Deposit Agreement......................................................8
(13) Authorization of Senior Debt Securities and/or Subordinated Debt Securities.............8
(14) Authorization of the Indentures.........................................................8
(15) Authorization of Warrants...............................................................9
(16) Authorization of Warrant Agreement......................................................9
(17) Authorization of Underlying Securities..................................................9
(18) Descriptions of the Underwritten Securities, Underlying Securities, Indentures, Deposit
Agreement and Warrant Agreement........................................................10
(19) Absence of Defaults and Conflicts......................................................10
(20) Absence of Proceedings.................................................................11
(21) Accuracy of Exhibits...................................................................12
(22) Absence of Further Requirements........................................................12
(23) Possession of Intellectual Property....................................................12
(24) Title to Property......................................................................12
(25) Investment Company Act.................................................................13
(26) Environmental Laws.....................................................................13
(b) Officers' Certificates.........................................................................13
SECTION 2. Sale and Delivery to Underwriters; Closing.............................................13
(a) Underwritten Securities........................................................................13
(b) Option Underwritten Securities.................................................................13
(c) Payment........................................................................................14
(d) Denominations; Registration....................................................................15
SECTION 3. Covenants of the Company...............................................................15
(a) Compliance with Securities Regulations and Commission Requests.................................15
(b) Filing of Amendments...........................................................................15
(c) Delivery of Registration Statements............................................................16
(d) Delivery of Prospectuses.......................................................................16
(e) Continued Compliance with Securities Laws......................................................16
(f) Blue Sky Qualifications........................................................................17
(g) Earnings Statement.............................................................................17
(h) Reservation of Securities......................................................................17
(i) Use of Proceeds................................................................................17
(j) Listing........................................................................................17
(k) Restriction on Sale of Securities..............................................................17
(l) Reporting Requirements.........................................................................18
SECTION 4. Payment of Expenses....................................................................18
(a) Expenses.......................................................................................18
(b) Termination of Agreement.......................................................................18
SECTION 5. Conditions of Underwriters' Obligations................................................19
(a) Effectiveness of Registration Statement........................................................19
(b) Opinion of Counsel for Company.................................................................19
(c) Opinion of Counsel for Underwriters............................................................19
(d) Officers' Certificate..........................................................................19
(e) Accountant's Comfort Letter....................................................................20
(f) Bring-down Comfort Letter......................................................................20
(g) Ratings........................................................................................20
(h) Approval of Listing............................................................................20
(i) No Objection...................................................................................21
(j) Lock-up Agreements.............................................................................21
(k) Over-Allotment Option..........................................................................21
(l) Additional Documents...........................................................................22
(m) Termination of Terms Agreement.................................................................22
SECTION 6. Indemnification........................................................................22
(a) Indemnification of Underwriters................................................................22
(b) Indemnification of Company, Directors and Officers.............................................23
(c) Actions against Parties; Notification..........................................................23
(d) Settlement without Consent if Failure to Reimburse.............................................24
SECTION 7. Contribution...........................................................................24
SECTION 8. Representations, Warranties, Agreements and Indemnities to Survive ..............Delivery 26
SECTION 9. Termination............................................................................26
(a) Terms Agreement................................................................................26
(b) Liabilities....................................................................................27
SECTION 10. Default by One or More of the Underwriters.............................................27
SECTION 11. Notices................................................................................27
SECTION 12. Parties................................................................................28
SECTION 13. GOVERNING LAW AND TIME.................................................................28
SECTION 14. Effect of Headings.....................................................................28
U.S. WIRELESS CORPORATION
(a Delaware corporation)
Common Stock, Warrants to Purchase Common Stock,
Preferred Stock, Warrants to Purchase Preferred Stock,
Depositary Shares,
Debt Securities and Warrants to Purchase Debt Securities,
Units
PURCHASE AGREEMENT
_______, 2000
[Name of Underwriter]
[Address of Underwriter]
Ladies and Gentlemen:
U.S. Wireless Corporation, a Delaware corporation (the "Company"),
proposes to issue and sell up to $450,000,000 aggregate public offering price of
its (i) shares of common stock, par value $.01 per share (the "Common Stock"),
(ii) warrants to purchase shares of Common Stock (the "Common Stock Warrants"),
(iii) shares of preferred stock, par value $.01 per share (the "Preferred
Stock"), (iv) warrants to purchase shares of Preferred Stock (the "Preferred
Stock Warrants"), (v) senior or subordinated debt securities (the "Debt
Securities"), (vi) warrants to purchase Debt Securities (the "Debt Security
Warrants") or (vii) units consisting of two or more of the foregoing securities
(the "Units"), or any combination thereof, from time to time, in or pursuant to
one or more offerings on terms to be determined at the time of sale and set
forth in a terms agreement in the form of Exhibit A (the "Terms Agreement").
The Preferred Stock will be issued in one or more series and each
series of Preferred Stock may vary, as applicable, as to the title, specific
number of shares, rank, stated value, liquidation preference, dividend rate or
rates (or method of calculation), dividend payment dates, redemption provisions,
sinking fund requirements, conversion provisions (and terms of the related
Underlying Securities (as defined below)) and any other variable terms as set
forth in the applicable charter amendment, board resolution or certificate of
designations (each, the "Certificate of Designations") or the applicable Terms
Agreement relating to such series of Preferred Stock. A series of Preferred
Stock may be represented by depositary shares (the "Depositary Shares") that are
evidenced by depositary receipts (the "Depositary Receipts") issued pursuant to
a deposit agreement (each, a "Deposit Agreement") among the Company, the
depositary identified therein (the "Depositary") and the registered holders of
the Depositary Receipts issued thereunder.
The Debt Securities will be issued in one or more series as senior
indebtedness (the "Senior Debt Securities") under an indenture (the "Senior
Indenture"), between the Company and the trustee identified therein (the "Senior
Trustee"), or as subordinated indebtedness (the "Subordinated Debt Securities")
under an indenture (the "Subordinated Indenture," and collectively with the
Senior Indenture, the "Indentures," and each, an "Indenture"), between the
Company and the trustee identified therein (the "Subordinated Trustee," and
collectively with the Senior Trustee, the "Trustees," and each, a "Trustee").
Each series of Debt Securities may vary, as applicable, as to title, aggregate
principal amount, rank, interest rate or formula and timing of payments thereof,
if any, stated maturity date, redemption and/or repayment provisions, if any,
sinking fund requirements, if any, conversion provisions (and terms of the
related Underlying Securities) and any other variable terms established by or
pursuant to the applicable Indenture.
Each issue of Common Stock Warrants, Preferred Stock Warrants and Debt
Security Warrants (collectively, the "Warrants") will be issued pursuant to a
separate warrant agreement (each, a "Warrant Agreement") between the Company and
the warrant agent identified therein (each, a "Warrant Agent"). The Warrants may
vary, as applicable, as to, among other terms, title, type, specific number,
exercise dates or periods, exercise price(s), expiration date(s), terms of the
related Underlying Securities and any other variable terms set forth in the
applicable Terms Agreement related thereto.
As used herein, "Securities" shall mean the Common Stock, Common Stock
Warrants, Preferred Stock, Preferred Stock Warrants, Depositary Shares, Senior
Debt Securities, Subordinated Debt Securities or Units, or any combination
thereof, initially issuable by the Company and "Underlying Securities" shall
mean the Common Stock, Preferred Stock, Depositary Shares, Senior Debt
Securities or Subordinated Debt Securities issuable upon exercise of the
Warrants, as applicable, or upon conversion of the Preferred Stock, Depositary
Shares, Senior Debt Securities or Subordinated Debt Securities or Units, as
applicable.
Whenever the Company determines to make an offering of Securities, the
Company will enter into a Terms Agreement providing for the sale of such
Securities to, and the purchase and offering thereof by, such underwriter or
syndicate underwriters, if any, selected by the Company (the "Underwriters,"
which term shall include any Underwriter substituted pursuant to Section 10
hereof). The Terms Agreement relating to the offering of Securities shall
specify the number or aggregate principal amount, as the case may be, of
Securities to be initially issued (the "Initial Underwritten Securities"), the
name of each Underwriter participating in such offering (subject to substitution
as provided in Section 10 hereof) and the name of any Underwriter acting as
manager or co-manager in connection with such offering, the number or aggregate
principal amount, as the case may be, of Initial Underwritten Securities which
each such Underwriter severally agrees to purchase, whether such offering is on
a fixed or variable price basis and, if on a fixed price basis, the initial
offering price, the price at which the Initial Underwritten Securities are to be
purchased by the Underwriters, the form, time, date and place of delivery and
payment of the Initial Underwritten Securities and any other material variable
terms of the Initial Underwritten Securities, as well as the material variable
terms of any related Underlying Securities. In addition, if applicable, such
Terms Agreement shall specify whether the Company has agreed to grant to the
Underwriters an option to purchase additional Securities to cover
over-allotments, if any, and the number or aggregate principal amount, as the
case may be, of Securities subject to such option (the "Option Underwritten
Securities"). As used herein, the term "Underwritten Securities" shall include
the Initial Underwritten Securities and all or any portion of any Option
Underwritten Securities. The Terms Agreement may take the form of an exchange of
any standard form of written telecommunication between the Company and the
managing underwriter, acting for itself and, if applicable, as representative of
any other Underwriters. Each offering of Underwritten Securities will be
governed by this Purchase Agreement, as supplemented by the applicable Terms
Agreement and this Agreement and such Terms Agreement shall inure to the benefit
of and be binding upon the Company and each Underwriter participating in the
offering of such Underwritten Securities except as set forth in Section 12
hereof.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-_______), including
a prospectus, for the registration of the Securities and the Underlying
Securities under the Securities Act of 1933, as amended (the "1933 Act"), and
the offering thereof from time to time in accordance with Rule 415 of the rules
and regulations of the Commission under the 1933 Act (the "1933 Act
Regulations"). Such registration statement has been declared effective by the
Commission and each Indenture has been duly qualified under the Trust Indenture
Act of 1939, as amended (the "1939 Act"), and the Company has filed such
post-effective amendments thereto as may be required prior to the execution of
the applicable Terms Agreement and each such post-effective amendment has been
declared effective by the Commission. Such registration statement (as so
amended, if applicable), including the information, if any, deemed to be a part
thereof pursuant to Rule 430A(b) of the 1933 Act Regulations (the "Rule 430A
Information") or Rule 434(d) of the 1933 Act Regulations (the "Rule 434
Information"), is referred to herein as the "Registration Statement"; and the
final prospectus and the final prospectus supplement relating to the offering of
the Underwritten Securities, in the form first furnished to the Underwriters by
the Company for use in connection with the offering of the Underwritten
Securities, are collectively referred to herein as the "Prospectus"; provided,
however, that all references to the "Registration Statement" and the
"Prospectus" shall also be deemed to include all documents incorporated therein
by reference pursuant to the Securities Exchange Act of 1934, as amended (the
"1934 Act"), prior to the execution of the applicable Terms Agreement; provided,
further, that if the Company files a registration statement with the Commission
pursuant to Rule 462(b) of the 1933 Act Regulations (the "Rule 462(b)
Registration Statement"), then, after such filing, all references to
"Registration Statement" shall also be deemed to include the Rule 462
Registration Statement; and provided, further, that if the Company elects to
rely upon Rule 434 of the 1933 Act Regulations, then all references to
"Prospectus" shall also be deemed to include the final or preliminary prospectus
and the applicable term sheet or abbreviated term sheet (the "Term Sheet"), as
the case may be, in the form first furnished to the Underwriters by the Company
in reliance upon Rule 434 of the 1933 Act Regulations, and all references in
this Purchase Agreement to the date of the Prospectus shall mean the date of the
Term Sheet. A "preliminary prospectus" shall be deemed to refer to any
prospectus used before the Registration Statement became effective and any
prospectus that omitted, as applicable, the Rule 430A Information, the Rule 434
Information or other information to be included upon pricing in a form of
prospectus filed with the Commission pursuant to Rule 424(b) of the 1933 Act
Regulations and was used after such effectiveness and prior to the execution and
delivery of the applicable Terms Agreement. For purposes of this Purchase
Agreement, all references to the Registration Statement, Prospectus, Term Sheet
or preliminary prospectus or to any amendment or supplement to any of the
foregoing shall be deemed to include any copy filed with the Commission pursuant
to its Electronic Data Gathering, Analysis and Retrieval system ("▇▇▇▇▇").
All references in this Purchase Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated" (or
other references of like import) in the Registration Statement, Prospectus or
preliminary prospectus shall be deemed to mean and include all such financial
statements and schedules and other information which is incorporated by
reference in the Registration Statement, Prospectus or preliminary prospectus,
as the case may be, prior to the execution of the applicable Terms Agreement;
and all references in this Purchase Agreement to amendments or supplements to
the Registration Statement, Prospectus or preliminary prospectus shall be deemed
to mean and include the filing of any document under the 1934 Act which is
incorporated by reference in the Registration Statement, Prospectus or
preliminary prospectus, as the case may be, after the execution of the
applicable Terms Agreement.
SECTION 1.........Representations and Warranties.
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(a) Representations and Warranties by the Company. The Company represents and
warrants to [Managing Underwriter], as of the date hereof, and to each
Underwriter named in the applicable Terms Agreement, as of the date thereof, as
of the Closing Time (as defined in Section 2) and, if applicable, as of each
Date of Delivery (as defined in Section 2) (in each case, a "Representation
Date"), as follows:
(1) Compliance with Registration Requirements. The Company meets the
requirements for use of Form S-3 under the 1933 Act. The Registration
Statement (including any Rule 462(b) Registration Statement) has become
effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement (or such Rule 462(b)
Registration Statement) has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Company, are contemplated by the Commission, and
any request on the part of the Commission for additional information
has been complied with. In addition, each Indenture has been duly
qualified under the 1939 Act.
At the respective times the Registration Statement (including
any Rule 462(b) Registration Statement) and any post-effective
amendments thereto (including the filing of the Company's most recent
Annual Report on Form 10-K with the Commission (the "Annual Report on
Form 10-K")) became effective and at each Representation Date, the
Registration Statement (including any Rule 462(b) Registration
Statement) and any amendments thereto complied and will comply in all
material respects with the requirements of the 1933 Act and the 1933
Act Regulations and the 1939 Act and the rules and regulations of the
Commission under the 1939 Act (the "1939 Act Regulations") and did not
and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading. At the date of the
Prospectus, at the Closing Time and at each Date of Delivery, if any,
neither the Prospectus nor any amendments and supplements thereto
included or will include an untrue statement of a material fact or
omitted or will omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading. If the Company elects to rely
upon Rule 434 of the 1933 Act Regulations, the Company will comply with
the requirements of Rule 434. Notwithstanding the foregoing, the
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or the
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by any Underwriter through
[Managing Underwriter] expressly for use in the Registration Statement
or the Prospectus.
Each preliminary prospectus and prospectus filed as part of
the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the 1933 Act
Regulations and each preliminary prospectus and the Prospectus
delivered to the Underwriters for use in connection with any offering
of Underwritten Securities will, at the time of such delivery, be
identical to any electronically transmitted copies thereof filed with
the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by
Regulation S-T.
(2) Incorporated Documents. The documents incorporated or deemed to be
incorporated by reference in the Registration Statement and the
Prospectus, when they became effective or at the time they were or
hereafter are filed with the Commission, complied and will comply in
all material respects with the requirements of the 1934 Act and the
rules and regulations of the Commission thereunder (the "1934 Act
Regulations") and, when read together with the other information in the
Prospectus, at the date of the Prospectus, at the Closing Time and at
each Date of Delivery, if any, did not and will not include an untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(3) Independent Accountants. The accountants who certified the financial
statements and any supporting schedules thereto included in the
Registration Statement and the Prospectus are independent public
accountants as required by the 1933 Act and the 1933 Act Regulations.
(4) Financial Statements. The financial statements of the Company included
in the Registration Statement and the Prospectus, together with the
related schedules and notes, as well as those financial statements,
schedules and notes of any other entity included therein, present
fairly the financial position of the Company and its consolidated
subsidiaries, or such other entity, as the case may be, at the dates
indicated and the statement of operations, stockholders' equity and
cash flows of the Company and its consolidated subsidiaries, or such
other entity, as the case may be, for the periods specified. Such
financial statements have been prepared in conformity with generally
accepted accounting principles ("GAAP") applied on a consistent basis
throughout the periods involved. The supporting schedules, if any,
included in the Registration Statement and the Prospectus present
fairly in accordance with GAAP the information required to be stated
therein. The selected financial data included in the Prospectus present
fairly the information shown therein and have been compiled on a basis
consistent with that of the audited financial statements included in
the Registration Statement and the Prospectus.
(5) No Material Adverse Change in Business. Since the respective dates as
of which information is given in the Registration Statement and the
Prospectus, except as otherwise stated therein, (A) there has been no
material adverse change in the financial condition, earnings or
business affairs, or any development involving a prospective material
adverse change in the financial condition, earnings or business
affairs, of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business
(a "Material Adverse Effect"), (B) there have been no transactions
entered into by the Company or any of its subsidiaries, other than
those arising in the ordinary course of business, which are material
with respect to the Company and its subsidiaries considered as one
enterprise and (C) there has been no dividend or distribution of any
kind declared, paid or made by the Company on any class of its capital
stock.
(6) Good Standing of the Company. 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 has corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the Prospectus and to enter into and perform its
obligations under, or as contemplated under, this Purchase Agreement
and the applicable Terms Agreement. The Company is duly qualified as a
foreign corporation to transact business and is in good standing in
each other jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify or be in
good standing would not result in a Material Adverse Effect.
(7) Good Standing of Subsidiaries. Each "significant subsidiary" of the
Company (as such term is defined in Rule 1-02 of Regulation S-X
promulgated under the ▇▇▇▇ ▇▇▇) (each, a "Subsidiary" and,
collectively, the "Subsidiaries"), if any, has been duly organized and
is validly existing as a corporation, limited partnership or other
entity in good standing under the laws of the jurisdiction of its
incorporation, has the requisite power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and is duly qualified to transact business and is in good
standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify or be in
good standing would not result in a Material Adverse Effect. Except as
otherwise stated in the Registration Statement and the Prospectus, all
of the issued and outstanding capital stock or partnership interests of
each Subsidiary has been duly authorized and is validly issued, fully
paid and non-assessable and is owned by the Company, directly or
through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity. None of the
outstanding shares of capital stock or partnership interest of any
Subsidiary was issued in violation of preemptive or other similar
rights of any securityholder of such Subsidiary.
(8) Capitalization. If the Prospectus contains a "Capitalization" section,
the authorized, issued and outstanding shares of capital stock of the
Company is as set forth in the column entitled "Actual" under such
section (except for (A) subsequent issuances thereof, if any,
contemplated under this Purchase Agreement, (B) pursuant to
reservations, agreements or employee benefit plans referred to or
incorporated by reference in the Prospectus, and (C) up to _______
shares of capital stock issuable under the Company's [Stock Option
Plan] and up to _______ shares of capital stock issuable under the
Company's [Director Compensation Plan] or (D) pursuant to the exercise
of convertible securities or options referred to or incorporated by
reference in the Prospectus). Such shares of capital stock have been
duly authorized and validly issued by the Company and are fully paid
and non-assessable, and none of such shares of capital stock was issued
in violation of preemptive or other similar rights of any
securityholder of the Company.
(9) Authorization of this Purchase Agreement and Terms Agreement. This
Purchase Agreement has been, and the applicable Terms Agreement as of
the date thereof will have been, duly authorized, executed and
delivered by the Company.
(10) Authorization of Common Stock. If the Underwritten Securities being
sold pursuant to the applicable Terms Agreement include Common Stock,
such Underwritten Securities have been, or as of the date of such Terms
Agreement will have been, duly authorized by the Company for issuance
and sale pursuant to this Purchase Agreement and such Terms Agreement.
Such Underwritten Securities, when issued and delivered by the Company
pursuant to this Purchase Agreement and such Terms Agreement against
payment of the consideration therefor specified in such Terms
Agreement, will be validly issued, fully paid and non-assessable and
will not be subject to preemptive or other similar rights of any
securityholder of the Company. No holder of such Underwritten
Securities is or will be subject to personal liability by reason of
being such a holder.
(11) Authorization of Preferred Stock and/or Depositary Shares. If the
Underwritten Securities being sold pursuant to the applicable Terms
Agreement include Preferred Stock and/or Depositary Shares, such
Underwritten Securities have been, or as of the date of such Terms
Agreement will have been, duly authorized by the Company for issuance
and sale pursuant to this Purchase Agreement and such Terms Agreement.
The applicable Preferred Stock, when issued and delivered by the
Company pursuant to this Purchase Agreement and such Terms Agreement
against payment of the consideration therefor, or for the related
Depositary Shares, as the case may be, specified in such Terms
Agreement, will be validly issued, fully paid and non-assessable and
will not be subject to preemptive or other similar rights of any
securityholder of the Company. In addition, upon deposit by the Company
of any Preferred Stock represented by Depositary Shares with the
applicable Depositary and the execution and delivery by such Depositary
of the Depositary Receipts evidencing such Depositary Shares, in each
case pursuant to the applicable Deposit Agreement, such Depositary
Shares will represent legal and valid interests in such Preferred
Stock. No holder of such Preferred Stock or Depositary Receipts
evidencing Depositary Shares is or will be subject to personal
liability by reason of being such a holder. The applicable Certificate
of Designations will be in full force and effect prior to the Closing
Time.
(12) Authorization of Deposit Agreement. If the Underwritten Securities
being sold pursuant to the applicable Terms Agreement include
Depositary Shares or if Debt Securities are convertible into Depositary
Shares represented by Preferred Stock, the applicable Deposit Agreement
has been, or prior to the issuance of such Depositary Shares will have
been, duly authorized, executed and delivered by the Company and, upon
such authorization, execution and delivery, will constitute a valid and
binding agreement of the Company, enforceable against the Company in
accordance with its terms, except as enforcement thereof may be limited
by bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights generally
or by general equitable principles (regardless of whether enforcement
is considered in a proceeding in equity or at law). Each registered
holder of a Depositary Receipt under the applicable Deposit Agreement
will be entitled to the proportional rights, preferences and
limitations of the Preferred Stock represented by the Depositary Shares
evidenced by such Depositary Receipt and to such other rights as are
granted to such registered holder in such Deposit Agreement.
(13) Authorization of Senior Debt Securities and/or Subordinated Debt
Securities. If the Underwritten Securities being sold pursuant to the
applicable Terms Agreement include Senior Debt Securities and/or
Subordinated Debt Securities, such Underwritten Securities have been,
or as of the date of such Terms Agreement will have been, duly
authorized by the Company for issuance and sale pursuant to this
Purchase Agreement and such Terms Agreement. Such Underwritten
Securities, when issued and authenticated in the manner provided for in
the applicable Indenture and delivered against payment of the
consideration therefor specified in such Terms Agreement, will
constitute valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or other similar laws affecting
the enforcement of creditors' rights generally or by general equitable
principles (regardless of whether enforcement is considered in a
proceeding in equity or at law), and except further as enforcement
thereof may be limited by requirements that a claim with respect to any
Debt Securities payable in a foreign or composite currency (or a
foreign or composite currency judgment in respect of such claim) be
converted into U.S. dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or by governmental authority to
limit, delay or prohibit the making of payments outside the United
States. Such Underwritten Securities will be in the form contemplated
by, and each registered holder thereof is entitled to the benefits of,
the applicable Indenture.
(14) Authorization of the Indentures. If the Underwritten Securities being
sold pursuant to the applicable Terms Agreement include Senior Debt
Securities and/or Subordinated Debt Securities or if Preferred Stock
is, or Depositary Shares represented by Preferred Stock are or Units
are, convertible into Debt Securities, each applicable Indenture and
any supplement thereto has been, or prior to the issuance of the Debt
Securities thereunder will have been, duly authorized, executed and
delivered by the Company and, upon such authorization, execution and
delivery, and upon execution and delivery by the Trustee thereunder,
will constitute a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as
the enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or other similar laws affecting
the enforcement of creditors' rights generally or by general equitable
principles (regardless of whether enforcement is considered in a
proceeding in equity or at law).
(15) Authorization of Warrants. If the Underwritten Securities being sold
pursuant to the applicable Terms Agreement include Warrants, such
Underwritten Securities have been, or as of the date of such Terms
Agreement will have been, duly authorized by the Company for issuance
and sale pursuant to this Purchase Agreement and such Terms Agreement.
Such Underwritten Securities, when issued and authenticated in the
manner provided for the applicable Warrant Agreement and delivered
against payment of the consideration therefor specified in such Terms
Agreement, will constitute valid and binding obligations of the
Company, entitled to the benefits provided by such Warrant Agreement
and enforceable against the Company in accordance with their terms,
except as enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or other similar laws affecting
the enforcement of creditors' rights generally or by general equitable
principles (regardless of whether enforcement is considered in a
proceeding in equity or at law).
(16) Authorization of Warrant Agreement. If the Underwritten Securities
being sold pursuant to the applicable Terms Agreement and any
supplement thereto include Warrants, each applicable Warrant Agreement
and any settlement thereto has been, or prior to the issuance of such
Underwritten Securities will have been, duly authorized, executed and
delivered by the Company and, upon such authorization, execution and
delivery, and upon execution and delivery by the Warrant Agent
thereunder, will constitute a valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or other similar laws affecting
the enforcement of creditors' rights generally or by general equitable
principles (regardless of whether enforcement is considered in a
proceeding in equity or at law).
(17) Authorization of Underlying Securities. If the Underlying Securities
related to the Underwritten Securities being sold pursuant to the
applicable Terms Agreement include Common Stock, Preferred Stock or
Depositary Shares, such Underlying Securities have been, or as of the
date of such Terms Agreement will have been, duly authorized and
reserved for issuance by the Company upon exercise of the Common Stock
Warrants or Preferred Stock Warrants, as applicable, or upon conversion
of the related Preferred Stock, Depositary Shares, Senior Debt
Securities or Subordinated Debt Securities or Units, as applicable. If
the Underlying Securities include Common Stock or Preferred Stock, such
Underlying Securities, when issued upon such exercise or conversion, as
applicable, will be validly issued, fully paid and non-assessable and
will not be subject to preemptive or other similar rights of any
securityholder of the Company. If the Underlying Securities include
Depositary Shares, such Underlying Securities, upon deposit by the
Company of the Preferred Stock represented thereby with the applicable
Depositary and the execution and delivery by such Depositary of the
Depositary Receipts evidencing such Depositary Shares, in each case
pursuant to the applicable Deposit Agreement, will represent legal and
valid interests in such Preferred Stock. No holder of such Common
Stock, Preferred Stock or Depositary Receipts evidencing Depository
Shares is or will be subject to personal liability by reason of being
such a holder. If the Underlying Securities related to the Underwritten
Securities being sold pursuant to the applicable Terms Agreement
include Senior Debt Securities and/or Subordinated Debt Securities,
such Underlying Securities have been, or as of the date of such Terms
Agreement will have been, duly authorized for issuance by the Company
upon the exercise of the Debt Security Warrants or upon conversion of
the related Preferred Stock or Depositary Shares, as applicable. Such
Underlying Securities, when issued and authenticated in the manner
provided for in the applicable Indenture and delivered in accordance
with the terms of the Debt Security Warrants or the related Preferred
Stock or Depositary Shares, as applicable, will constitute valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights
generally or by general equitable principles (regardless of whether
enforcement is considered in a proceeding in equity or at law), and
except further as enforcement thereof may be limited by requirements
that a claim with respect to any Debt Securities payable in a foreign
or composite currency (or a foreign or composite currency judgment in
respect of such claim) be converted into U.S. dollars at a rate of
exchange prevailing on a date determined pursuant to applicable law or
by governmental authority to limit, delay or prohibit the making of
payments outside the United States.
(18) Descriptions of the Underwritten Securities, Underlying Securities,
Indentures, Deposit Agreement and Warrant Agreement. The Underwritten
Securities being sold pursuant to the applicable Terms Agreement and
each applicable Indenture, Deposit Agreement and Warrant Agreement, as
of each Representation Date, and any Underlying Securities, when issued
and delivered in accordance with the terms of the related Underwritten
Securities, will conform in all material respects to the statements
relating thereto contained in the Prospectus and will be in
substantially the form filed or incorporated by reference, as the case
may be, as an exhibit to the Registration Statement.
(19) Absence of Defaults and Conflicts. Neither the Company nor any of its
Subsidiaries is in violation of its charter or by-laws or in default in
the performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or other agreement or
instrument to which the Company or any of its Subsidiaries is a party
or by which it or any of them may be bound, or to which any of the
assets, properties or operations of the Company or any of its
Subsidiaries is subject (collectively, "Agreements and Instruments"),
except for such defaults that would not result in a Material Adverse
Effect. The execution, delivery and performance of this Purchase
Agreement, the applicable Terms Agreement and each applicable
Indenture, Warrant Agreement and Deposit Agreement and any other
agreement or instrument entered into or issued or to be entered into or
issued by the Company in connection with the transactions contemplated
hereby or thereby or in the Registration Statement and the Prospectus
and the consummation of the transactions contemplated herein and in the
Registration Statement and the Prospectus (including the issuance and
sale of the Underwritten Securities and the use of the proceeds from
the sale of the Underwritten Securities as described under the caption
"Use of Proceeds" as well as the issuance of any Underlying Securities)
and compliance by the Company with its obligations hereunder and
thereunder have been duly authorized by all necessary corporate action
and do not and will not, whether with or without the giving of notice
or passage of time or both, (i) conflict with or constitute a breach
of, or default or Repayment Event (as defined below) under, or (ii)
result in the creation or imposition of any lien, charge or encumbrance
upon any assets, properties or operations of the Company or any of its
Subsidiaries pursuant to, any Agreements and Instruments, or (iii)
result in any violation of the provisions of the charter or by-laws of
the Company or any of its Subsidiaries or (iv) result in any violation
of any applicable law, statute, rule, regulation, judgment, order, writ
or decree of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over the Company or any of its
Subsidiaries or any of their assets, properties or operations. As used
herein, a "Repayment Event" means any event or condition which gives
the holder of any note, debenture or other evidence of indebtedness (or
any person acting on such holder's behalf) the right to require the
repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company or any of its subsidiaries.
(20) Absence of Proceedings. There is no action, suit, proceeding, inquiry
or investigation before or brought by any court or governmental agency
or body, domestic or foreign, now pending, or to the knowledge of the
Company threatened, against or affecting the Company or any of its
subsidiaries which is required to be disclosed in the Registration
Statement and the Prospectus (other than as stated therein), or which
might reasonably be expected to result in a Material Adverse Effect, or
which might reasonably be expected to materially and adversely affect
the assets, properties or operations thereof or the consummation of the
transactions contemplated under the Prospectus, this Purchase
Agreement, the applicable Terms Agreement or any applicable Indenture,
Warrant Agreement or Deposit Agreement or the performance by the
Company of its obligations hereunder and thereunder. The aggregate of
all pending legal or governmental proceedings to which the Company or
any of its subsidiaries is a party or of which any of their respective
assets, properties or operations is the subject which are not described
in the Registration Statement and the Prospectus, including ordinary
routine litigation incidental to the business, could not reasonably be
expected to result in a Material Adverse Effect.
(21) Accuracy of Exhibits. There are no contracts or documents which are
required by the 1933 Act or the 1933 Act Regulations to be described in
the Registration Statement, the Prospectus or the documents
incorporated by reference therein or to be filed as exhibits thereto
which have not been so described and filed as required.
(22) Absence of Further Requirements. No filing with, or authorization,
approval, consent, license, order, registration, qualification or
decree of, any court or governmental authority or agency, domestic or
foreign, is necessary or required for the due authorization, execution
and delivery by the Company of this Purchase Agreement or the
applicable Terms Agreement or for the performance by the Company of the
transactions contemplated under the Prospectus, this Purchase
Agreement, such Terms Agreement or any applicable Indenture, Warrant
Agreement or Deposit Agreement, except such as have been already made,
obtained or rendered, as applicable.
(23) Possession of Intellectual Property. The Company and its subsidiaries
own or possess, or can acquire on reasonable terms, adequate patents,
patent rights, licenses, inventions, copyrights, know how (including,
without limitation, trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks, trade names or other
intellectual property (collectively, "Intellectual Property") necessary
to carry on the business now operated by them, and neither the Company
nor any of its subsidiaries has received any written notice or is
otherwise aware of any infringement of or conflict with asserted rights
of others with respect to any Intellectual Property or of any facts or
circumstances which would render any Intellectual Property invalid or
inadequate to protect the interest of the Company or any of its
subsidiaries therein, and which infringement or conflict (if the
subject of any unfavorable decision, ruling or finding) or invalidity
or inadequacy would, singly or in the aggregate, result in a Material
Adverse Effect.
(24) Title to Property. The Company and its subsidiaries have good and
marketable title to all real property owned by the Company and its
subsidiaries and good title to all other properties owned by them, in
each case, free and clear of all mortgages, pledges, liens, security
interests, claims, restrictions or encumbrances of any kind, except (A)
as otherwise stated in the Registration Statement and the Prospectus or
(B) those which do not, singly or in the aggregate, materially affect
the value of such property and do not interfere with the use made and
proposed to be made of such property by the Company or any of its
subsidiaries. All of the leases and subleases material to the business
of the Company and its subsidiaries considered as one enterprise, and
under which the Company or any of its subsidiaries holds properties
described in the Prospectus, are in full force and effect, and neither
the Company nor any of its subsidiaries has received any written notice
of any claim of any sort that has been asserted by anyone adverse to
the rights of the Company or any of its subsidiaries under any of the
leases or subleases mentioned above, or affecting or questioning the
rights of the Company or such subsidiary of the continued possession of
the leased or subleased premises under any such lease or sublease where
such claim or claims, individually or in the aggregate, would result in
a Material Adverse Effect.
(25) Investment Company Act. None of the Company or any of its subsidiaries
is, and upon the issuance and sale of the Underwritten Securities as
herein contemplated and the application of the net proceeds therefrom
as described in the Prospectus will be, an "investment company" within
the meaning of the Investment Company Act of 1940, as amended (the
"1940 Act") and the rules and regulations of the Commission thereunder.
(26) Environmental Laws. Except as otherwise stated in the Registration
Statement and the Prospectus and except as would not, singly or in the
aggregate, result in a Material Adverse Effect, (A) neither the Company
nor any of its subsidiaries is in violation of any federal, state,
local or foreign statute, law, rule, regulation, ordinance, code,
policy or rule of common law or any judicial or administrative
interpretation thereof including any judicial or administrative order,
consent, decree or judgment, relating to pollution or protection of
human health, the environment (including, without limitation, ambient
air, surface water, groundwater, land surface or subsurface strata) or
wildlife, including, without limitation, laws and regulations relating
to the release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances, petroleum
or petroleum products (collectively, "Hazardous Materials") or to the
manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials (collectively,
"Environmental Laws"), (B) the Company and its subsidiaries have all
permits, authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements,
(C) there are no pending or, to the Company's knowledge, threatened,
administrative, regulatory or judicial actions, suits, demands, demand
letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against
the Company or any of its subsidiaries and (D) there are no events or
circumstances that might reasonably be expected to form the basis of an
order for clean-up or remediation, or an action, suit or proceeding by
any private party or governmental body or agency, against or affecting
the Company or any of its subsidiaries relating to Hazardous Materials
or any Environmental Laws.
(b) Officers' Certificates. Any certificate signed by any officer of the Company
or any of its subsidiaries and delivered to any Underwriter or to counsel for
the Underwriters in connection with the offering of the Underwritten Securities
and dated a Representation Date shall be deemed a representation and warranty by
the Company to each Underwriter as to the matters covered thereby on such
Representation Date.
SECTION 2. Sale and Delivery to Underwriters; Closing.
------------------------------------------
(a) Underwritten Securities. The several commitments of the Underwriters to
purchase the Underwritten Securities pursuant to the applicable Terms Agreement
shall be deemed to have been made on the basis of the representations,
warranties and agreements herein contained and shall be subject to the terms and
conditions herein set forth.
(b) Option Underwritten Securities. On the basis of the representations,
warranties and agreements herein contained and subject to the terms and
conditions herein set forth, the Company may grant, if so provided in the
applicable Terms Agreement, an option to the Underwriters named in such Terms
Agreement, severally and not jointly, to purchase up to the number or aggregate
principal amount, as the case may be, of the Option Underwritten Securities set
forth therein at a price per Option Underwritten Security equal to the price per
Initial Underwritten Security, less an amount equal to any dividends or
distributions declared by the Company and paid or payable on the Initial
Underwritten Securities but not payable on the Option Underwritten Securities.
Such option, if granted, will expire 30 days after the date of such Terms
Agreement, and may be exercised in whole or in part from time to time only for
the purpose of covering over-allotments which may be made in connection with the
offering and distribution of the Initial Underwritten Securities upon notice by
[Managing Underwriter] to the Company setting forth the number or aggregate
principal amount, as the case may be, of Option Underwritten Securities as to
which the several Underwriters are then exercising the option, the names in
which the Option Underwritten Securities are to be registered, the denominations
in which the Option Underwritten Securities are to be issued, and the time, date
and place of payment and delivery for such Option Underwritten Securities. Any
such time and date of payment and delivery (each, a "Date of Delivery") shall be
determined by [Managing Underwriter], but shall not be later than seven full
business days after the exercise of said option, nor in any event prior to the
Closing Time, unless otherwise agreed upon by [Managing Underwriter] and the
Company. If the option is exercised as to all or any portion of the Option
Underwritten Securities, each of the Underwriters, severally and not jointly,
will purchase that proportion of the total number or aggregate principal amount,
as the case may be, of Option Underwritten Securities then being purchased which
the number or aggregate principal amount, as the case may be, of Initial
Underwritten Securities each such Underwriter has severally agreed to purchase
as set forth in such Terms Agreement bears to the total number or aggregate
principal amount, as the case may be, of Initial Underwritten Securities,
subject to such adjustments as [Managing Underwriter] in its discretion shall
make to eliminate any sales or purchases of a fractional number or aggregate
principal amount, as the case may be, of Option Underwritten Securities.
(c) Payment. Payment of the purchase price for, and delivery of, the Initial
Underwritten Securities shall be made at the offices of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other place as shall be
agreed upon by [Managing Underwriter] and the Company, at 10:00 A.M. (New York
City time) on the third (fourth, if the pricing occurs after 4:30 P.M. (New York
City time) on any given day) full business day after the date of the applicable
Terms Agreement (unless postponed in accordance with the provisions of Section
10 hereof), or such other time not later than ten business days after such date
as shall be agreed upon by [Managing Underwriter] and the Company (such time and
date of payment and delivery being herein called "Closing Time"). In addition,
in the event that the Underwriters have exercised their option, if any, to
purchase any or all of the Option Underwritten Securities, payment of the
purchase price for, and delivery of such Option Underwritten Securities, shall
be made at the above-mentioned offices of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other place as shall be agreed upon by
[Managing Underwriter] and the Company, on the relevant Date of Delivery as
specified in the notice from [Managing Underwriter] to the Company.
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
[Managing Underwriter] for the respective accounts of the Underwriters of the
Underwritten Securities to be purchased by them. It is understood that each
Underwriter has authorized [Managing Underwriter], for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the
Underwritten Securities which it has severally agreed to purchase. [Managing
Underwriter], individually and not as representative of the Underwriters, may
(but shall not be obligated to) make payment of the purchase price for the
Underwritten Securities to be purchased by any Underwriter whose funds have not
been received by the Closing Time or the relevant Date of Delivery, as the case
may be, but such payment shall not relieve such Underwriter from its obligations
hereunder.
(d) Denominations; Registration. The Underwritten Securities, certificates for
the Underwritten Securities or Depositary Receipts evidencing the Depositary
Shares, as applicable, shall be in such denominations and registered in such
names as [Managing Underwriter] may request in writing at least one full
business day prior to the Closing Time or the relevant Date of Delivery, as the
case may be. The Underwritten Securities, certificates for the Underwritten
Securities or Depositary Receipts evidencing the Depositary Shares, as
applicable, will be made available for examination and packaging by [Managing
Underwriter] in The City of New York not later than 10:00 A.M. (New York City
time) on the business day prior to the Closing Time or the relevant Date of
Delivery, as the case may be.
SECTION 3. Covenants of the Company. The Company covenants with [Managing
Underwriter] and with each Underwriter participating in the offering of
Underwritten Securities, as follows:
(a) Compliance with Securities Regulations and Commission Requests. The Company,
subject to Section 3(b), will comply with the requirements of Rule 430A of the
1933 Act Regulations and/or Rule 434 of the 1933 Act Regulations, if and as
applicable, and will notify the [Managing Underwriter] immediately, and confirm
the notice in writing, of (i) the effectiveness of any post-effective amendment
to the Registration Statement or the filing of any supplement or amendment to
the Prospectus, (ii) the receipt of any comments from the Commission, (iii) any
request by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional information, and
(iv) the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus or preliminary prospectus
supplement, or of the suspension of the qualification of the Underwritten
Securities for offering or sale in any jurisdiction, or of the initiation or
threatening of any proceedings for any of such purposes. The Company will
promptly effect the filings necessary pursuant to Rule 424 of the 1933 Act
Regulations and will take such steps as it deems necessary to ascertain promptly
whether the Prospectus transmitted for filing under Rule 424 was received for
filing by the Commission and, in the event that it was not, it will promptly
file the Prospectus. The Company will make every reasonable effort to prevent
the issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Company will give [Managing Underwriter] notice of
its intention to file or prepare any amendment to the Registration Statement
(including any filing under Rule 462(b) of the 1933 Act Regulations), any Term
Sheet or any amendment, supplement or revision to either the prospectus included
in the Registration Statement at the time it became effective or to the
Prospectus, whether pursuant to the 1933 Act, the 1934 Act or otherwise, will
furnish [Managing Underwriter] with copies of any such documents a reasonable
amount of time prior to such proposed filing or use, as the case may be, and
will not file or use any such document to which [Managing Underwriter] or
counsel for the Underwriters shall object. To the extent the distribution of
Underwritten Securities has been completed, the Company will not be required to
provide [Managing Underwriter] with reports it is required to file with the
Commission under the 1934 Act.
(c) Delivery of Registration Statements. The Company has furnished or will
deliver to [Managing Underwriter] and counsel for the Underwriters, without
charge, signed copies of the Registration Statement as originally filed and of
each amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) and signed copies of all consents and certificates of
experts, and will also deliver to [Managing Underwriter], without charge, a
conformed copy of the Registration Statement as originally filed and of each
amendment thereto (without exhibits) for each of the Underwriters. The
Registration Statement and each amendment thereto furnished to the Underwriters
will be identical to any electronically transmitted copies thereof filed with
the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation
S-T.
(d) Delivery of Prospectuses. The Company will deliver to each Underwriter,
without charge, as many copies of each preliminary prospectus or preliminary
prospectus supplement as such Underwriter may reasonably request, and the
Company hereby consents to the use of such copies for purposes permitted by the
1933 Act. The Company will furnish to each Underwriter, without charge, during
the period when the Prospectus is required to be delivered under the 1933 Act or
the 1934 Act, such number of copies of the Prospectus as such Underwriter may
reasonably request. The Prospectus and any amendments or supplements thereto
furnished to the Underwriters will be identical to any electronically
transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except
to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will comply with the
1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act
Regulations so as to permit the completion of the distribution of the
Underwritten Securities as contemplated in this Purchase Agreement and the
applicable Terms Agreement and in the Registration Statement and the Prospectus.
If at any time when the Prospectus is required by the 1933 Act or the 1934 Act
to be delivered in connection with sales of the Underwritten Securities, any
event shall occur or condition shall exist as a result of which it is necessary,
in the reasonable opinion of outside counsel for the Underwriters or for the
Company, to amend the Registration Statement in order that the Registration
Statement will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading or to amend or supplement the Prospectus in
order that the Prospectus will not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein not misleading in the light of the circumstances existing at the time it
is delivered to a purchaser, or if it shall be necessary, in the reasonable
opinion of such outside counsel, at any such time to amend the Registration
Statement or amend or supplement the Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, the Company will
promptly prepare and file with the Commission, subject to Section 3(b), such
amendment or supplement as may be necessary to correct such statement or
omission or to make the Registration Statement or the Prospectus comply with
such requirements, and the Company will furnish to the Underwriters, without
charge, such number of copies of such amendment or supplement as the
Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company will use its best efforts, in
cooperation with the Underwriters, to qualify the Underwritten Securities and
any related Underlying Securities for offering and sale under the applicable
securities laws of such states and other jurisdictions (domestic or foreign) as
[Managing Underwriter] may designate and to maintain such qualifications in
effect for so long as may be reasonably necessary to complete the distribution
of the Underwritten Securities; provided, however, that the Company shall not be
obligated to file any general consent to service of process or to qualify as a
foreign corporation or as a dealer in securities in any jurisdiction in which it
is not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject. In each
jurisdiction in which the Underwritten Securities or any related Underlying
Securities have been so qualified, the Company will file such statements and
reports as may be required by the laws of such jurisdiction to continue such
qualification in effect for so long as may be reasonably necessary to complete
the distribution of the Underwritten Securities.
(g) Earnings Statement. The Company will timely file such reports pursuant to
the 1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(h) Reservation of Securities. If the applicable Terms Agreement specifies that
any related Underlying Securities include Common Stock, Preferred Stock and/or
Depositary Shares, the Company will reserve and keep available at all times,
free of preemptive or other similar rights, a sufficient number of shares of
Common Stock and/or Preferred Stock, as applicable, for the purpose of enabling
the Company to satisfy any obligations to issue such Underlying Securities upon
exercise of the related Warrants, as applicable, or upon conversion of the
Preferred Stock, Depositary Shares, Senior Debt Securities or Subordinated Debt
Securities or Units, as applicable.
(i) Use of Proceeds. The Company will use the net proceeds received by it from
the sale of the Underwritten Securities in the manner specified in the
Prospectus under "Use of Proceeds".
(j) Listing. The Company will use its reasonable efforts to effect the listing
of the Underwritten Securities and any related Underlying Securities, prior to
the Closing Time, on any national securities exchange or quotation system if and
as specified in the applicable Terms Agreement.
(k) Restriction on Sale of Securities. Between the date of the applicable Terms
Agreement and the Closing Time or such other date specified in such Terms
Agreement, the Company will not, without the prior written consent of [Managing
Underwriter], directly or indirectly, issue, sell, offer or contract to sell,
grant any option for the sale of, or otherwise dispose of, the securities
specified in such Terms Agreement, except, in the case of an offering of
Underwritten Securities containing Common Stock or Equity Warrants or any
Underwritten Security convertible into Common Stock, the Company may issue
Common Stock pursuant to the exercise of any options granted by the Company
under any option plans described in the Prospectus or whose description is
incorporated by reference into the Prospectus.
(l) Reporting Requirements. The Company, during the period when the Prospectus
is required to be delivered under the 1933 Act or the 1934 Act, will file all
documents required to be filed with the Commission pursuant to the 1934 Act
within the time periods required by the 1934 Act and the 1934 Act Regulations.
SECTION 4. Payment of Expenses.
-------------------
(a) Expenses. The Company will pay all expenses incident to the performance of
its obligations under this Purchase Agreement or the applicable Terms Agreement,
including (i) the preparation, printing and filing of the Registration Statement
(including financial statements and exhibits) as originally filed and of each
amendment thereto, (ii) the preparation, issuance and delivery of the
Underwritten Securities and any related Underlying Securities, any certificates
for the Underwritten Securities or such Underlying Securities or Depositary
Receipts evidencing the Depositary Shares, as applicable, to the Underwriters,
including any transfer taxes and any stamp or other duties payable upon the
sale, issuance or delivery of the Underwritten Securities to the Underwriters,
(iii) the fees and disbursements of the Company's counsel, accountants and other
advisors or agents (including transfer agents and registrars), as well as the
fees and disbursements of the Trustees, any Depositary and any Warrant Agent,
and their respective counsel, (iv) the qualification of the Underwritten
Securities and any related Underlying Securities under state securities laws in
accordance with the provisions of Section 3(f) hereof, including filing fees and
the reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation, printing and
delivery of the Blue Sky Survey, and any amendment thereto, (v) the printing and
delivery to the Underwriters of copies of each preliminary prospectus,
preliminary prospectus supplement, any Term Sheet, and the Prospectus and any
amendments or supplements thereto, (vi) the fees charged by nationally
recognized statistical rating organizations for the rating of the Underwritten
Securities and any related Underlying Securities, if applicable, (vii) the fees
and expenses incurred with respect to the listing of the Underwritten Securities
and any related Underlying Securities, if applicable, (viii) the filing fees
incident to, and the reasonable fees and disbursements of counsel to the
Underwriters in connection with, the review, if any, by the National Association
of Securities Dealers, Inc. (the "NASD") of the terms of the sale of the
Underwritten Securities and any related Underlying Securities, and (ix) the fees
and expenses of any Underwriter acting in the capacity of a "qualified
independent underwriter" (as defined in Section 2(l) of Schedule E of the bylaws
of the NASD), if applicable. Except as set forth in clauses (iv) and (viii) of
this Section 4(a) or upon termination of this Agreement in accordance with the
provisions of Section 5 or 9(a), the Company shall not be obligated to pay any
fees or disbursements of counsel for the Underwriters.
(b) Termination of Agreement. If the applicable Terms Agreement is terminated by
[Managing Underwriter] in accordance with the provisions of Section 5 or Section
9(a) hereof, the Company shall reimburse the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of the
Underwriters to purchase and pay for the Underwritten Securities pursuant to the
applicable Terms Agreement are subject to the accuracy when made and on the
applicable Delivery Date of the representations and warranties of the Company
contained in Section 1 hereof or in certificates of any officer of the Company
or any of its subsidiaries delivered pursuant to the provisions hereof, to the
performance by the Company of its covenants and other obligations hereunder, and
to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration Statement,
including any Rule 462(b) Registration Statement, has become effective under the
1933 Act and no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act and no proceedings for that
purpose shall have been instituted or be pending or threatened by the
Commission, and any request on the part of the Commission for additional
information shall have been complied with to the reasonable satisfaction of
counsel to the Underwriters. A prospectus containing information relating to the
description of the Underwritten Securities and any related Underlying
Securities, the specific method of distribution and similar matters shall have
been filed with the Commission in accordance with Rule 424(b)(1), (2), (3), (4)
or (5), as applicable (or any required post-effective amendment providing such
information shall have been filed and declared effective in accordance with the
requirements of Rule 430A), or, if the Company has elected to rely upon Rule 434
of the 1933 Act Regulations, a Term Sheet including the Rule 434 Information
shall have been filed with the Commission in accordance with Rule 424(b)(7).
(b) Opinion of Counsel for Company. At Closing Time, [Managing Underwriter]
shall have received the favorable opinion, dated as of Closing Time, of ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇ and the General Counsel of the Company, in form and substance
satisfactory to counsel for the Underwriters, together with signed or reproduced
copies of such letter for each of the other Underwriters, to the effect set
forth in Exhibit B hereto or to the effect set forth as an Exhibit to the
applicable Terms Agreement.
(c) Opinion of Counsel for Underwriters. On such Delivery Date, [Managing
Underwriter] shall have received the favorable opinion reasonably satisfactory
to the Underwriters, dated as of Closing Time, of counsel for the Underwriters,
together with signed or reproduced copies of such letter for each of the other
Underwriters. In giving such opinion, such counsel may rely, as to all matters
governed by the laws of jurisdictions other than the law of the State of New
York, the federal law of the United States and the General Corporation Law of
the State of Delaware, upon the opinions of counsel satisfactory to [Managing
Underwriter]. Such counsel may also state that, insofar as such opinion involves
factual matters, they have relied, to the extent they deem proper, upon
certificates of officers of the Company and its subsidiaries and certificates of
public officials.
(d) Officers' Certificate. On such Date of Delivery, there shall not have been,
since the date of the applicable Terms Agreement or since the respective dates
as of which information is given in the Prospectus, any material adverse change
in the financial condition or in the earnings or business affairs, or any
development involving a prospective material adverse change in the financial
condition, earnings or business affairs, of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of
business, and [Managing Underwriter] shall have received a certificate of the
President or a Vice President of the Company and of the chief financial officer
or chief accounting officer of the Company, dated as of Closing Time, to the
effect that (i) there has been no such material adverse change, (ii) the
representations and warranties in Section 1(a) are true and correct with the
same force and effect as though expressly made at and as of such Date of
Delivery, (iii) the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to such Date of
Delivery, and (iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been instituted, are pending or, to the best of such officer's knowledge, are
threatened by the Commission.
(e) Accountant's Comfort Letter. At the time of the execution of the applicable
Terms Agreement, [Managing Underwriter] shall have received from [independent
auditor] a letter dated such date, in form and substance satisfactory to
[Managing Underwriter], together with signed or reproduced copies of such letter
for each of the other Underwriters, containing statements and information of the
type ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
in the Registration Statement and the Prospectus.
(f) Bring-down Comfort Letter. At Closing Time, [Managing Underwriter] shall
have received from [independent auditor] a letter, dated as of Closing Time, to
the effect that they reaffirm the statements made in the letter furnished
pursuant to subsection (e) of this Section 5, except that the specified date
referred to shall be a date not more than three business days prior to the
Closing Time.
(g) Ratings. At Closing Time and at any relevant Date of Delivery, unless the
Underwritten Securities being sold pursuant to the applicable Terms Agreement
relate solely to Common Stock or Common Stock Warrants, the Underwritten
Securities shall have the ratings accorded by any "nationally recognized
statistical rating organization," as defined by the Commission for purposes of
Rule 436(g)(2) of the 1933 Act Regulations, if and as specified in the
applicable Terms Agreement, and the Company shall have delivered to [Managing
Underwriter] a letter, dated as of such date, from each such rating
organization, or other evidence satisfactory to [Managing Underwriter],
confirming that the Underwritten Securities have such ratings. Since the time of
execution of such Terms Agreement, there shall not have occurred a downgrading
in, or withdrawal of, the rating assigned to the Underwritten Securities or any
of the Company's other securities by any such rating organization, and no such
rating organization shall have publicly announced that it has under surveillance
or review its rating of the Underwritten Securities or any of the Company's
other securities.
(h) Approval of Listing. At Closing Time, the Underwritten Securities shall have
been approved for listing, subject only to official notice of issuance, if and
as specified in the applicable Terms Agreement.
(i) No Objection. If the Registration Statement or an offering of Underwritten
Securities has been filed with the NASD for review, the NASD shall not have
raised any objection with respect to the fairness and reasonableness of the
underwriting terms and arrangements.
(j) Lock-up Agreements. On the date of the applicable Terms Agreement, [Managing
Underwriter] shall have received, in form and substance satisfactory to it, each
lock-up agreement, if any, specified in such Terms Agreement as being required
to be delivered by the persons listed therein.
(k) Over-Allotment Option. In the event that the Underwriters are granted an
over-allotment option by the Company in the applicable Terms Agreement and the
Underwriters exercise their option to purchase all or any portion of the Option
Underwritten Securities, the representations and warranties of the Company
contained herein and the statements in any certificates furnished by the Company
or any of its subsidiaries hereunder shall be true and correct as of each Date
of Delivery, and, at the relevant Date of Delivery [Managing Underwriter] shall
have received:
(1) A certificate, dated such Date of Delivery, of the
President or a Vice President of the Company and the chief financial
officer or chief accounting officer of the Company, confirming that the
certificate delivered at the Closing Time pursuant to Section 5(d)
hereof remains true and correct as of such Date of Delivery.
(2) The favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ and the General
Counsel of the Company and counsel for the Company, in form and
substance satisfactory to counsel for the Underwriters, dated such Date
of Delivery, relating to the Option Underwritten Securities and
otherwise to the same effect as the opinion required by Section 5(b)
hereof.
(3) The favorable opinion of counsel for the Underwriters,
dated such Date of Delivery, relating to the Option Underwritten
Securities and otherwise to the same effect as the opinion required by
Section 5(c) hereof.
(4) A letter from [independent auditor], in form and substance
satisfactory to [Managing Underwriter] and dated such Date of Delivery,
substantially in the same form and substance as the letter furnished to
[Managing Underwriter] pursuant to Section 5(f) hereof, except that the
"specified date" on the letter furnished pursuant to this paragraph
shall be a date not more than three business days prior to such Date of
Delivery.
(5) Since the time of execution of such Terms Agreement, there
shall not have occurred a downgrading in, or withdrawal of, the rating
assigned to the Underwritten Securities or any of the Company's other
securities by any such rating organization, and no such rating
organization shall have publicly announced that it has under
surveillance or review its rating of the Underwritten Securities or any
of the Company's other securities.
(l) Additional Documents. At Closing Time and at each Date of Delivery, counsel
for the Underwriters shall have been furnished with such documents and opinions
as they may reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the Underwritten Securities as herein contemplated, or in
order to evidence the accuracy of any of the representations or warranties, or
the fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company in connection with the issuance and sale of the
Underwritten Securities as herein contemplated shall be reasonably satisfactory
in form and substance to [Managing Underwriter] and counsel for the
Underwriters.
(m) Termination of Terms Agreement. If any condition specified in this Section 5
shall not have been fulfilled when and as required to be fulfilled, the
applicable Terms Agreement (or, with respect to the Underwriters' exercise of
any applicable over-allotment option for the purchase of Option Underwritten
Securities on a Date of Delivery after the Closing Time, the obligations of the
Underwriters to purchase the Option Underwritten Securities on such Date of
Delivery) may be terminated by [Managing Underwriter] by notice to the Company
at any time at or prior to the Closing Time (or such Date of Delivery, as
applicable), and such termination shall be without liability of any party to any
other party except as provided in Section 4 and except that Sections 1, 6, 7 and
8 shall survive any such termination and remain in full force and effect.
SECTION 6. Indemnification.
---------------
(a) Indemnification of Underwriters. 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 1933 Act or Section 20 of the 1934 Act
as follows:
(1) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the Rule
430A Information and the Rule 434 Information deemed to be a part
thereof, if applicable, or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make
the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact included in
any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(2) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided
that (subject to Section 6(d) below) any such settlement is effected
with the written consent of the Company; and
(3) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by [Managing
Underwriter]), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any
loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through [Managing Underwriter] expressly for use in
the Registration Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information deemed to be a part thereof, if
applicable, or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto); and provided further that the Company will not be liable to
any Underwriter with respect to any Preliminary Prospectus to the extent that
any such loss, liability, claim, damage or expense resulted from the fact that
such Underwriter, in contravention of a requirement of this Agreement or
applicable law, sold Securities to a person to whom such Underwriter failed to
send or give, at or prior to the Closing Date, a copy of the Final Prospectus,
as then amended or supplemented if: (i) the Company has previously furnished
copies thereof, in accordance with Section 3(d) of this Agreement at least 48
hours prior to the Closing Time, to the Underwriters and the loss, liability,
claim, damage or expense of such Underwriter resulted from an untrue statement
or omission of a material fact contained in or omitted from the Preliminary
Prospectus which was corrected in the Final Prospectus as, if applicable,
amended or supplemented prior to the Closing Date and such Final Prospectus was
required by law to be delivered at or prior to the written confirmation of sale
to such person and (ii) such failure to give or send such Final Prospectus by
the Closing Date to the party or parties asserting such loss, liability, claim,
damage or expense would have cured the defect giving rise to such loss,
liability, claim, damage or expense.
(b) Indemnification of Company, Directors and Officers. Each Underwriter
severally agrees to indemnify and hold harmless the Company, 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 1933 Act or
Section 20 of the 1934 Act against any and all loss, liability, claim, damage
and expense described in the indemnity contained in subsection (a) of this
Section, as incurred, but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions, made in the Registration Statement
(or any amendment thereto), including the Rule 430A Information and the Rule 434
Information deemed to be a part thereof, if applicable, or any preliminary
prospectus or 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 [Managing Underwriter] expressly for use in
the Registration Statement (or any amendment thereto) or such preliminary
prospectus or the Prospectus (or any amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party shall give
notice as promptly as reasonably practicable to each indemnifying party of any
action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by [Managing Underwriter],
and, in the case of parties indemnified pursuant to Section 6(b) above, counsel
to the indemnified parties shall be selected by the Company. An indemnifying
party may participate at its own expense in the defense of any such action;
provided, however, that counsel to the indemnifying party shall not (except with
the consent of the indemnified party) also be counsel to the indemnified party.
In no event shall the indemnifying parties be liable for fees and expenses of
more than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested in writing an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 6(a)(ii) effected without its written consent if
(i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid written request, (ii) such indemnifying
party shall have received notice of the terms of such settlement at least 30
days prior to such settlement being entered into and (iii) such indemnifying
party shall not have reimbursed such indemnified party in accordance with such
written request prior to the date of such settlement. Notwithstanding the
immediately preceding sentence, if at any time an indemnified party shall have
requested in writing an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel, an indemnifying party shall not be liable for
any settlement of the nature contemplated by Section 6(d) effected without its
written consent if (x) such indemnifying party reimburses such indemnified party
in accordance with such request to the extent it considers such request to be
reasonable; and (y) such indemnifying party provides written notice to the
indemnified party substantiating the unpaid balance as unreasonable, in each
case prior to the date of such settlement.
SECTION 7. Contribution. If the indemnification provided for in Section 6 hereof
is for any reason unavailable to or insufficient to hold harmless an indemnified
party in respect of any losses, liabilities, claims, damages or expenses, or any
action in respect thereof, referred to therein, then each indemnifying party
shall contribute to the aggregate amount paid or payable by such indemnified
party as a result of such losses, liabilities, claims, damages and expenses, or
any action in respect thereof, (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company, on the one hand, and the
Underwriters, on the other hand, from the offering of the Underwritten
Securities pursuant to the applicable Terms Agreement or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company, on the one hand, and the
Underwriters, on the other hand, in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, or any
action 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 hand, in connection with the offering of the
Underwritten Securities pursuant to the applicable Terms Agreement shall be
deemed to be in the same respective proportions as the total net proceeds from
the offering of such Underwritten Securities (before deducting expenses but
after deducting amounts with respect to any reserves for the payment of interest
in connection with the Debt Securities) received by the Company, on the one
hand, and the total underwriting discounts and commissions received by the
Underwriters, on the other hand, in each case as set forth on the cover of the
Prospectus, or, if Rule 434 is used, the corresponding location on the Term
Sheet bear to the aggregate initial public offering price of such Underwritten
Securities as set forth on such cover.
The relative fault of the Company, on the one hand, and the
Underwriters, on the other hand, shall be determined by reference to whether any
such untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by the
Company or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount paid or payable by an indemnified party as a result of losses,
liabilities, claims, damages and expenses, or action in respect thereof, and
referred to above in this Section 7 shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in investigating,
preparing or defending against any such action.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Underwritten Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise paid or become liable to pay by reason of any
such untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 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 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to their respective underwriting obligations and not joint.
SECTION 8. Representations, Warranties, Agreements and Indemnities to Survive
Delivery. All representations, warranties, agreements and indemnities contained
in this Purchase Agreement or the applicable Terms Agreement or in certificates
of officers of the Company or any of its subsidiaries submitted pursuant hereto
or thereto shall remain operative and in full force and effect, regardless of
any investigation made by or on behalf of any Underwriter or controlling person,
or by or on behalf of the Company, and shall survive delivery of and payment for
the Underwritten Securities.
SECTION 9. Termination.
-----------
(a) Terms Agreement. [Managing Underwriter] may terminate the Purchase Agreement
and the applicable Terms Agreement, by notice to the Company, at any time at or
prior to the Closing Time or any relevant Date of Delivery, if (i) there has
been, since the time of execution of such Terms Agreement or since the
respective dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) there has occurred any material adverse
change in the financial markets in the United States or, if the Underwritten
Securities or any related Underlying Securities include Debt Securities
denominated or payable in, or indexed to, one or more foreign or composite
currencies, in the international financial markets, or any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which is
such as to make it, in the judgment of [Managing Underwriter], impracticable to
market the Underwritten Securities or to enforce contracts for the sale of the
Underwritten Securities, or (iii) trading in any securities of the Company has
been suspended or materially limited by the Commission or the New York Stock
Exchange, or if trading generally on the New York Stock Exchange or the American
Stock Exchange or in the Nasdaq National Market has been suspended or materially
limited, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices have been required, by either of said exchanges or by such
system or by order of the Commission, the NASD or any other governmental
authority, or (iv) a banking moratorium has been declared by either Federal or
New York authorities or, if the Underwritten Securities or any related
Underlying Securities include Debt Securities denominated or payable in, or
indexed to, one or more foreign or composite currencies, by the relevant
authorities in the related foreign country or countries.
(b) Liabilities. If this Purchase Agreement and the applicable Terms Agreement
is terminated pursuant to this Section 9, such termination shall be without
liability of any party to any other party except as provided in Section 4
hereof, and provided further that Sections 1, 6, 7 and 8 shall survive such
termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more of the
Underwriters shall fail at the Closing Time or the relevant Date of Delivery, as
the case may be, to purchase the Underwritten Securities which it or they are
obligated to purchase under the applicable Terms Agreement (the "Defaulted
Securities"), then [Managing Underwriter] shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, [Managing Underwriter] shall not have
completed such arrangements within such 24-hour period, then:
(a) if the number or aggregate principal amount, as the case may be, of
Defaulted Securities does not exceed 10% of the number or aggregate principal
amount, as the case may be, of Underwritten Securities to be purchased on such
date pursuant to such Terms Agreement, the non-defaulting Underwriters shall be
obligated, severally and not jointly, to purchase the full amount thereof in the
proportions that their respective underwriting obligations under such Terms
Agreement bear to the underwriting obligations of all non-defaulting
Underwriters, or
(b) if the number or aggregate principal amount, as the case may be, of
Defaulted Securities exceeds 10% of the number or aggregate principal amount, as
the case may be, of Underwritten Securities to be purchased on such date
pursuant to such Terms Agreement, such Terms Agreement (or, with respect to the
Underwriters' exercise of any applicable over-allotment option for the purchase
of Option Underwritten Securities on a Date of Delivery after the Closing Time,
the obligations of the Underwriters to purchase, and the Company to sell, such
Option Underwritten Securities on such Date of Delivery) shall terminate without
liability on the part of any non-defaulting Underwriter, except that the Company
shall continue to be liable for the payment of expenses to the extent set forth
in Sections 4 and 11.
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in (i) a
termination of the applicable Terms Agreement or (ii) in the case of a Date of
Delivery after the Closing Time, a termination of the obligations of the
Underwriters and the Company with respect to the related Option Underwritten
Securities, as the case may be, either [Managing Underwriter] or the Company
shall have the right to postpone the Closing Time or the relevant Date of
Delivery, as the case may be, for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or the Prospectus or
in any other documents or arrangements.
SECTION 11. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to [Managing Underwriter] at [address of Managing
Underwriter], attention of ____________________; and notices to the Company
shall be directed to it at U.S. Wireless Corporation, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of ________________________.
SECTION 12. Parties. This Purchase Agreement and the applicable Terms Agreement
shall each inure to the benefit of and be binding upon the Company, [Managing
Underwriter] and, upon execution of such Terms Agreement, any other Underwriters
and their respective successors. Nothing expressed or mentioned in this Purchase
Agreement or such Terms Agreement is intended or shall be construed to give any
person, firm or corporation, other than the Underwriters and the Company and
their respective successors and the controlling persons and officers and
directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Purchase Agreement or such Terms Agreement or any provision
herein or therein contained. This Purchase Agreement and such Terms Agreement
and all conditions and provisions hereof and thereof are intended to be for the
sole and exclusive benefit of the parties hereto and thereto and their
respective successors, and said controlling persons and officers and directors
and their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Underwritten Securities from any
Underwriter shall be deemed to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS PURCHASE AGREEMENT AND ANY
APPLICABLE TERMS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY
TIME.
SECTION 14. Effect of Headings. The Article and Section headings herein and
the Table of Contents are for convenience only and shall not affect the
construction hereof.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this Purchase Agreement, along with all counterparts, will become a binding
agreement between [Managing Underwriter] and the Company in accordance with its
terms.
Very truly yours,
U.S. WIRELESS CORPORATION
By: _________________________
Name:
Title:
CONFIRMED AND ACCEPTED, as of the date first above written:
[MANAGING UNDERWRITER]
By: _____________________________
Authorized Signatory
Exhibit A
U.S. WIRELESS CORPORATION
(a Delaware corporation)
Common Stock, Warrants to Purchase Common Stock,
Preferred Stock, Warrants to Purchase Preferred Stock,
Depositary Shares,
Debt Securities and Warrants to Purchase Debt Securities,
Units
TERMS AGREEMENT
___________, 2000
To: U.S. Wireless Corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
We understand that U.S. Wireless Corporation, a Delaware corporation
(the "Company"), proposes to issue and sell [_______ shares of its common stock,
par value $.01 per share (the "Common Stock")] [________ shares of its preferred
stock, par value $.01 per share (the "Preferred Stock")] [in the form of
_________ depositary shares (the "Depositary Shares") each representing _______
of a share of Preferred Stock] [$ _______ aggregate principal amount of its
[senior] [subordinated] debt securities (the "Debt Securities")] [_______
warrants (the "Common Stock Warrants") to purchase common stock, par value $.01
per share] [_______ warrants (the "Preferred Stock Warrants") to purchase
preferred stock, par value $.01 per share] [________ warrants (the "Debt
Security Warrants") to purchase $_________ aggregate principal amount of
[senior] [subordinated] debt securities] [________units (the "Units") consisting
of ________ ([such securities also being hereinafter referred to as] the
"[Initial] Underwritten Securities"). Subject to the terms and conditions set
forth or incorporated by reference herein, we [the underwriters named below (the
"Underwriters")] offer to purchase [, severally and not jointly,] the [[number]
[principal] [amount] of] Underwritten Securities [opposite their names set forth
below] at the purchase price set forth below [, and a proportionate share of
Option Underwritten Securities set forth below, to the extent any are
purchased].
[Number]
[Principal Amount]
Underwriter....... of [Initial] Underwritten Securities
--------------------------------------------------------------------------------
Total ......... [$]
===
The Underwritten Securities shall have the following terms:
[Common Stock]
Title:
Number of shares:
Number of Option Underwritten Securities:
Initial public offering price per share: $
Purchase price per share: $
Listing requirements:
Black-out provisions:
Lock-up provisions:
Other terms and conditions:
Closing date and location:
[Preferred Stock]
Title:
Rank:
Ratings:
Number of shares:
Number of Option Underwritten Securities:
Dividend rate (or formula) per share: $
Dividend payment dates:
Stated value: $
Liquidation preference per share: $
Redemption provisions:
Sinking fund requirements:
Conversion provisions:
Listing requirements:
Black-out provisions:
Lock-up provisions:
Initial public offering price per share: $___ plus accumulated dividends,
if any, from _____
Purchase price per share: $___ plus accumulated dividends, if any, from
_____
Other terms and conditions:
Closing date and location:
[Depositary Shares]
[Title:
Fractional amount of Preferred Stock represented by each Depositary
Share:
Ratings:
Rank:
Number of shares:
Number of Option Underwritten Securities:
Dividend rate (or formula) per share:
Dividend payment dates:
Liquidation preference per share:
Redemption provisions:
Sinking fund requirements:
Conversion provisions:
Listing requirements:
Black-out provisions:
Lock-up provisions:
Initial public offering price per share: $____ plus accumulated dividends,
if any, from ___
Purchase price per share: $____ plus accumulated dividends, if any, from
___
Other terms and conditions:
Closing date and location:]
[Debt Securities]
Title:
Rank:
Ratings:
Aggregate principal amount:
Denominations:
Currency of payment:
Interest rate or formula:
Interest payment dates:
Regular record dates:
Stated maturity date:
Redemption provisions:
Sinking fund requirements:
Conversion provisions:
Listing requirements:
Black-out provisions:
Fixed or Variable Price Offering: [Fixed] [Variable] Price Offering
If Fixed Price Offering, initial public offering price per
share: % of the principal amount, plus accrued interest [amortized
original issue discount], if any, from _________________.
Purchase price per share: ___% of principal amount, plus accrued interest
[amortized original issue discount], if any, from -----------------.
Form:
Other terms and conditions:
Closing date and location:
[Common Stock] [Preferred Stock] [Debt Security] Warrants
Title:
Type:
Number:
Warrant Agent:
Issuable jointly with [Common Stock] [Preferred Stock] [Debt Securities]: [Yes]
[No]
Number of [Common Stock] [Preferred Stock] [Debt Security] Warrants issued with
each [share of Common Stock] [share of Preferred Stock] [$__________ principal
amount of Debt Securities]:
Date(s) from which or period(s) during which [Common Stock] [Preferred
Stock] [Debt Security] Warrants are exercisable: Date(s) on which
[Common Stock] [Preferred Stock] [Debt Security] Warrants expire:
Exercise price(s):
Initial public offering price: $
Purchase price: $
Title of Underlying Securities:
[Number of shares] [Principal amount] purchasable upon exercise of one
[Common Stock] [Preferred Stock] [Debt Security] Warrant:
Terms of Underlying Securities:
Other terms and conditions:
Closing date and location:
[Units]
Title:
Number:
Consisting of: [Number and title of securities]
Unit Agent:
All of the provisions contained in the document attached as Annex I
hereto entitled "U.S. WIRELESS CORPORATION -- Common Stock, Warrants to Purchase
Common Stock, Preferred Stock, Warrants to Purchase Preferred Stock, [Depositary
Shares,] Debt Securities, Warrants to Purchase Debt Securities and
Units--Underwriting Agreement" are hereby incorporated by reference in their
entirety herein and shall be deemed to be a part of this Terms Agreement to the
same extent as if such provisions had been set forth in full herein. Terms
defined in such document are used herein as therein defined.
Counsel to the Company will be required to deliver an opinion in the
form attached hereto.
Please accept this offer no later than ____ o'clock P.M. (New York City
time) on ______________ by signing a copy of this Terms Agreement in the space
set forth below and returning the signed copy to us.
Very truly yours,
[MANAGING UNDERWRITER]
By: ___________________________________
Authorized Signatory
[Acting on behalf of itself
and the other named Underwriters.]
Accepted:
U.S. WIRELESS CORPORATION
By: _________________________
Name:
Title: