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EXHIBIT 1.1
METRICOM, INC.
UNDERWRITING AGREEMENT
_____ __, 2000
NAME(S) OF MANAGING UNDERWRITERS
ADDRESS(ES) OF MANAGING UNDERWRITERS
Dear Sirs:
Metricom, Inc., a Delaware corporation (the "Company"), and Metricom
Finance, Inc., a Delaware corporation (collectively the "Issuers") propose to
issue and sell from time to time, either together or separately, certain of
their (i) senior debt securities (the "Senior Securities"), (ii) subordinated
debt securities (the "Subordinated Securities," and together with the Senior
Securities, the "Debt Securities"), and/or (iii) the Company's common stock, par
value $.001 per share (the "Common Stock"), in one or more offerings on terms
determined at the time of sale and set forth in a term agreement in the form of
Exhibit A hereto (the "Terms Agreement"). The Debt Securities may be convertible
into the Common Stock as set forth in the applicable Terms Agreement relating
thereto.
The Senior Securities are to be issued under an Indenture to be dated as of
a date subsequent to the date hereof (the "Senior Indenture"), between the
Issuers and Bank One Trust Company, N.A., as trustee (the "Senior Trustee").
The Subordinated Securities are to be issued under an Indenture dated as of a
date subsequent to the date hereof, as amended or supplemented (the
"Subordinated Indenture"), between the Issuers and Bank One Trust Company,
N.A., as trustee (the "Subordinated Trustee", and together with the Senior
Trustee, the "Trustees"). The Senior Indenture and the Subordinated Indenture
are collectively referred to herein as the "Indentures". The Senior Securities
and the Subordinated Securities may have varying designations, maturities, rates
and times of payment of interest, if any, selling prices, redemption terms, if
any, exchange terms, if any, conversion terms (in the case of Subordinated
Securities) and other specific terms as set forth in the applicable Terms
Agreement relating thereto.
The Debt Securities and Common Stock, to be issued and sold as specified in
the applicable Terms Agreement, shall collectively be referred to herein as the
"Offered Securities." As used herein, unless the context otherwise requires, the
term "Underwriters" shall mean the firm or firms specified as Underwriter or
Underwriters in the applicable Terms Agreement relating to the Offered
Securities and the term "you" shall mean the Underwriter or Underwriters, if no
underwriting syndicate is purchasing the Offered Securities, or the
representative or representatives of the Underwriters, if an underwriting
syndicate is purchasing the Offered Securities, as specified in the applicable
Terms Agreement.
Whenever Issuers or the Company, as applicable, determine to make an
offering of Offered Securities, Issuers or the Company, as applicable, will
enter into a Terms Agreement providing for the sale of the applicable Offered
Securities to, and the purchase
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and offering thereof by, the Underwriters. The Terms Agreement relating to the
Offered Securities shall specify the type of Offered Securities to be issued,
the names of the Underwriters participating in such offering (subject to
substitution as provided in Section 10 hereof), the principal amount or number
of Offered Securities which each such Underwriter severally agrees to purchase,
the price at which the Offered Securities are to be purchased by the
Underwriters from the Issuers or the Company, as applicable, the initial public
offering price, the time and place of delivery and payment and other specific
terms. In addition, each Terms Agreement shall specify whether the Issuers or
the Company, as applicable, have agreed to grant to the Underwriters an option
to purchase additional Offered Securities to cover over-allotments, if any, and
the amount of Offered Securities subject to such option (the "Option
Securities"). As used herein, the term "Offered Securities" shall include the
Option Securities, if any. The Terms Agreement may take the form of an exchange
of any standard form of written telecommunication between you and the Issuers or
the Company, as applicable. Each offering of Offered Securities will be governed
by this 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 Issuers or the Company, as applicable, and each Underwriter
participating in the offering of such Offered Securities, except as set forth in
Section 12 hereof.
The Issuers have prepared and filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (File No. 33-
**), including a prospectus, relating to the Offered Securities and the offering
thereof from time to time in accordance with Rule 415 under the Securities Act
of 1933, as amended (the "Securities Act"). Such registration statement has been
declared effective by the Commission. As provided in Section 4(a), a prospectus
supplement reflecting the terms of the Offered Securities, the terms of the
offering thereof and the other matters set forth therein has been prepared and
will be filed pursuant to Rule 424 under the Securities Act. Such prospectus
supplement, in the form first filed after the date of the applicable Terms
Agreement pursuant to Rule 424, is herein referred to as the "Prospectus
Supplement". Such registration statement, as amended at the date of the
applicable Terms Agreement, including the exhibits thereto and the documents
incorporated by reference therein, is herein called the "Registration
Statement", and the basic prospectus included therein relating to all offerings
of securities under the Registration Statement, as supplemented by the
Prospectus Supplement, is herein called the "Prospectus", except that, if such
basic prospectus is amended or supplemented on or prior to the date on which the
Prospectus Supplement is first filed pursuant to Rule 424, the term "Prospectus"
shall refer to the basic prospectus as so amended or supplemented and as
supplemented by the Prospectus Supplement, in either case including the
documents filed by the Issuers with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), that are incorporated by
reference therein. As used herein, "Effective Time" means the date and the time
as of which the Registration Statement, or the most recent post-effective
amendment thereto, if any, was declared effective by the Commission; "Effective
Date" means the date of the Effective Time; "Preliminary Prospectus Supplement"
means each prospectus supplement included in such registration statement, or
amendments thereof, before it became effective under the Securities Act.
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1. Representations, Warranties and Agreements of the Issuers. The Issuers
represent, warrant and agree that:
(a) The Issuers meet the requirements for use of Form S-3 under the
Securities Act.
(b) The Registration Statement conforms, and each Prospectus
Supplement and any further amendments or supplements to the Registration
Statement or any Prospectus Supplement will, when they become effective or
are filed with the Commission, as the case may be, conform in all respects
to the requirements of the Securities Act and the Rules and Regulations and
do not and will not, as of the applicable effective date (as to the
Registration Statement and any amendment thereto) and as of the applicable
filing date (as to each Prospectus Supplement and any supplement thereto)
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 (in the case of any Prospectus Supplement, in light of the
circumstances under which they were made) not misleading; provided that no
representation or warranty is made as to information contained in or
omitted from the Registration Statement or any Prospectus Supplement in
reliance upon and in conformity with written information furnished to the
Issuers through any Underwriter specifically for inclusion therein.
(c) The Registration Statement conforms , and each Prospectus
Supplement and any further amendments or supplements to the Registration
Statement or any Prospectus Supplement will, when they become effective or
are filed with the Commission, as the case may be, conform in all respects
to the requirements of the Trust Indenture Act of 1939, as amended (the
"TIA") and the rules and regulations thereunder. At each Delivery Date, the
applicable Indenture, if any, will comply in all material respects with the
requirements of the TIA and the rules and regulations thereunder.
(d) The documents incorporated by reference or deemed to be
incorporated in the Prospectus pursuant to Item 12 of Form S-3 under the
Securities Act, at the time they were or hereafter are filed with the
Commission, complied in all material respects with the requirements of the
Exchange Act, and the rules and regulations of the Commission thereunder
(the "Exchange Act Regulations") and, when read together and with the other
information in the Prospectus, as of the Effective Date of the Registration
Statement and any amendment thereto, 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 in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
(e) The Issuers and each of their subsidiaries (as defined in Section
14) have been duly incorporated and are validly existing as corporations in
good standing under the laws of their respective jurisdictions of
incorporation,
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are duly qualified to do business and are in good standing as foreign
corporations in each jurisdiction in which their respective ownership or
lease of property or the conduct of their respective businesses requires
such qualification, and have all power and authority necessary to own or
hold their respective properties and to conduct the businesses in which
they are engaged; and none of the subsidiaries of the Company is a
"significant subsidiary", as such term is defined in Rule 405 of the Rules
and Regulations.
(f) At each Delivery Date (as defined in Section 3), the Issuers or
the Company, as applicable, will have an authorized capitalization as set
forth in the applicable Prospectus Supplement, and all of the issued shares
of capital stock of the Issuers or the Company, as applicable, have been
duly and validly authorized and issued, are fully paid and non-assessable
and conform to the description thereof contained in the Registration
Statement and Prospectus; and all of the issued shares of capital stock of
each subsidiary of the Issuers or the Company, as applicable, have been
duly and validly authorized and issued and are fully paid and
non-assessable and are owned directly or indirectly by the Company, free
and clear of all liens, encumbrances, equities or claims.
(g) The Offered Securities to be issued and sold by the Issuers or the
Company, as applicable, to the Underwriters have been duly and validly
authorized and, when issued and delivered against payment therefor as
provided herein and in the applicable Terms Agreement will be duly and
validly issued, fully paid and non-assessable and the Offered Securities
will conform to the description thereof contained in the Prospectus
Supplement.
(h) This Agreement has been duly authorized, executed and delivered by
the Issuers or the Company; as applicable, and upon execution and delivery
of each Terms Agreement by the Issuers or the Company, as applicable, such
Terms Agreement shall have been duly authorized, executed and delivered by
the Issuers or the Company, as applicable.
(i) The execution, delivery and performance of this Agreement and each
Terms Agreement by the Issuers or the Company, as applicable, and the
consummation of the transactions contemplated hereby and thereby will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which the
Issuers or the Company, as applicable, or any of its subsidiaries is a
party or by which the Issuers or the Company, as applicable, or any of
their subsidiaries is bound or to which any of the property or assets of
the Issuers or the Company, as applicable, or any of their subsidiaries is
subject, nor will such actions result in any violation of the provisions of
the charter or by-laws of the Issuers or the Company, as applicable, or any
of their subsidiaries or any statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over the
Issuers or Company, as applicable, or any of their subsidiaries or any of
their properties or assets; and except for the registration
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of the Offered Securities under the Securities Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under the Exchange Act and applicable state or foreign securities
laws in connection with the purchase and distribution of the Offered
Securities by the Underwriters, no consent, approval, authorization or
order of, or filing or registration with, any such court or governmental
agency or body is required for the execution, delivery and performance of
this Agreement or the applicable Terms Agreement by the Issuers or the
Company, as applicable, and the consummation of the transactions
contemplated hereby and thereby.
(j) There are no contracts, agreements or understandings between the
Issuers or the Company, as applicable, and any person granting such person
the right (other than rights which have been waived or satisfied) to
require the Issuers or the Company, as applicable, to file a registration
statement under the Securities Act with respect to any securities of the
Issuers or the Company, as applicable owned or to be owned by such person
or to require the Issuers or the Company, as applicable, to include such
securities in the securities registered pursuant to the Registration
Statement or in any securities being registered pursuant to any other
registration statement filed by the Issuers or the Company, as applicable,
under the Securities Act.
(k) Except as described in each Prospectus Supplement, the Issuers or
the Company, as applicable, have not and will not have sold or issued any
shares of Common Stock or Debt Securities during the six-month period
preceding the date of such Prospectus Supplement, including any sales
pursuant to Rule 144A under, or Regulations D or S of, the Securities Act,
other than shares issued pursuant to employee benefit plans, qualified
stock options plans or other employee compensation plans or pursuant to
outstanding options, rights or warrants.
(l) None of the Issuers or the Company, as applicable, or any of their
subsidiaries has sustained, since the date of the latest audited financial
statements included in the Prospectus Supplement, any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth
or contemplated in the Prospectus Supplement; and, since such date, there
has not been any change in the capital stock or long-term debt of the
Issuers or the Company, as applicable, or any of their subsidiaries or any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations of the
Issuers or the Company, as applicable, and their subsidiaries, otherwise
than as set forth or contemplated in the Prospectus Supplement.
(m) The historical [and pro forma] financial statements (including the
related notes and supporting schedules) filed as part of the Registration
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Statement or included in the Prospectus Supplement present fairly the
financial condition and results of operations of the entities purported to
be shown thereby, at the dates and for the periods indicated, and have been
prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved. [The pro
forma financial statements have been prepared on a basis consistent with
such historical statements of the Issuers or the Company, as applicable,
except for the pro forma adjustments specified therein, and give effect to
assumptions made on a reasonable basis and in good faith and present fairly
the historical and proposed transactions contemplated by each Prospectus
Supplement, each applicable Terms Agreement and this Agreement.] The
[other] financial and statistical information and data included in the
Prospectus Supplement[, historical and pro forma,] have been derived from
the financial records of the Issuers or the Company (or its predecessors),
as applicable, and, in all material respects, have been prepared on a basis
consistent with such books and records of the Issuers or the Company, as
applicable, (or its predecessor).
(n) As of the execution of this Agreement and any applicable Delivery
Date, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, who have certified certain financial statements
of the Company, whose report appears in the Registration Statement [and
will appear in each Prospectus Supplement] and who have delivered the
initial letter referred to in Section 7(f) hereof, are independent public
accountants as required by the Securities Act and the Rules and
Regulations.
(o) The Issuers or the Company, as applicable, and each of their
subsidiaries have good and marketable title in fee simple to all real
property and good and marketable title to all personal property owned by
them, in each case free and clear of all liens, encumbrances and defects
except such as do not materially affect the value of such property and do
not materially interfere with the use made and proposed to be made of such
property by the Issuers or the Company, as applicable, and their
subsidiaries; and all real property and buildings held under lease by the
Issuers or the Company, as applicable, and their subsidiaries are held by
them under valid, subsisting and enforceable leases, with such exceptions
as are not material and do not interfere with the use made and proposed to
be made of such property and buildings by the Issuers or the Company, as
applicable, and their subsidiaries.
(p) The Issuers or the Company, as applicable and each of their
subsidiaries carry, or are covered by, insurance in such amounts and
covering such risks as is adequate for the conduct of their respective
businesses and the value of their respective properties and as is customary
for companies engaged in similar businesses in similar industries.
(q) The Issuers or the Company, as applicable, and each of their
subsidiaries own or possess adequate rights to use all material patents,
patent applications, trademarks, service marks, trade names, trademark
registrations, service ▇▇▇▇ registrations, copyrights and licenses
necessary for the conduct
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of their respective businesses and have no reason to believe that the
conduct of their respective businesses will conflict with, and have not
received any notice of any claim of conflict with, any such rights of
others.
(r) There are no legal or governmental proceedings pending to which
the Issuers or the Company, as applicable, or any of their subsidiaries is
a party or of which any property or assets of the Issuers or the Company,
as applicable, or any of their subsidiaries is the subject which, if
determined adversely to the Issuers or the Company, as applicable, or any
of their subsidiaries, might have a material adverse effect on the
consolidated financial position, stockholders' equity, results of
operations, business or prospects of the Company, and its subsidiaries; and
to the best of the Company's knowledge, no such proceedings are threatened
or contemplated by governmental authorities or threatened by others.
(s) There are no contracts or other documents which are required to be
described in the Prospectus Supplement or filed as exhibits to the
Registration Statement by the Securities Act or by the Rules and
Regulations which have not been described in the Prospectus Supplement or
filed as exhibits to the Registration Statement.
(t) No relationship, direct or indirect, exists between or among the
Issuers or the Company. as applicable, on the one hand, and the directors,
officers, stockholders, customers or suppliers of the Issuers or the
Company. as applicable, on the other hand, which is required to be
described in the Prospectus Supplement which is not so described.
(u) No labor disturbance by the employees of the Issuers or the
Company, as applicable, exists or, to the knowledge of the Issuers or the
Company, as applicable, is imminent which might be expected to have a
material adverse effect on the consolidated financial position,
stockholders' equity, results of operations, business or prospects of the
Company and its subsidiaries.
(v) The Issuers or the Company, as applicable, have filed all federal,
state and local income and franchise tax returns required to be filed
through the date hereof and has paid all taxes due thereon, and no tax
deficiency has been determined adversely to the Issuers or the Company, as
applicable, or any of their subsidiaries which has had (nor do the Issuers
or the Company, as applicable, have any knowledge of any tax deficiency
which, if determined adversely to the Issuers or the Company, as
applicable, or any of their subsidiaries, might have a material adverse
effect on the consolidated financial position, stockholders' equity,
results of operations, business or prospects of the Company and its
subsidiaries.
(w) Since the date as of which information is given in the Prospectus
Supplement through the date hereof, and except as may otherwise be
disclosed
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in the Prospectus Supplement, the Issuers or the Company, as applicable,
have not (i) issued or granted any securities, (ii) incurred any liability
or obligation, direct or contingent, other than liabilities and obligations
which were incurred in the ordinary course of business, (iii) entered into
any transaction not in the ordinary course of business or (iv) declared or
paid any dividend on its capital stock.
(x) The Issuers or the Company, as applicable, (i) make and keep
accurate books and records and (ii) maintain internal accounting controls
which provide reasonable assurance that (A) transactions are executed in
accordance with management's authorization, (B) transactions are recorded
as necessary to permit preparation of its financial statements and to
maintain accountability for its assets, (C) access to its assets is
permitted only in accordance with management's authorization and (D) the
reported accountability for its assets is compared with existing assets at
reasonable intervals.
(y) None of the Issuers or the Company, as applicable, nor any of
their subsidiaries (i) is in violation of its charter or by-laws, (ii) is
in default in any material respect, and no event has occurred which, with
notice or lapse of time or both, would constitute such a default, in the
due performance or observance of any term, covenant or condition contained
in any material indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which it is a party or by which it is bound or
to which any of its properties or assets is subject or (iii) is in
violation in any material respect of any law, ordinance, governmental rule,
regulation or court decree to which it or its property or assets may be
subject or has failed to obtain any material license, permit, certificate,
franchise or other governmental authorization or permit necessary to the
ownership of its property or to the conduct of its business.
(z) None of the Issuers or the Company, as applicable, nor any of
their subsidiaries, nor any director, officer, agent, employee or other
person associated with or acting on behalf of the Issuers or the Company,
as applicable, or any of their subsidiaries, has used any corporate funds
for any unlawful contribution, gift, entertainment or other unlawful
expense relating to political activity, made any direct or indirect
unlawful payment to any foreign or domestic government official or employee
from corporate funds; violated or is in violation of any provision of the
Foreign Corrupt Practices Act of 1977, or made any bribe, rebate, payoff,
influence payment, kickback or other unlawful payment.
(aa) None of the Issuers or the Company, as applicable, nor any of
their SUBSIDIARIES, or will be after the offering and use of proceeds
therefrom, an "investment company" within the meaning of such term under
the Investment Company Act of 1940 and the rules and regulations of the
Commission thereunder
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(bb) If the Offered Securities include Debt Securities, such Debt
Securities shall, on the date of the Terms Agreement relating to such
Offered Securities, be duly authorized for issuance and sale pursuant to
this Agreement and, when such Debt Securities are duly executed,
authenticated and delivered pursuant to the provisions of this Agreement
and the applicable Indenture against payment of the consideration therefor
in accordance with this Agreement and the applicable Terms Agreement, such
Debt Securities will be valid and legally binding obligations of the
Issuers or the Company, as applicable, enforceable in accordance with their
terms, except as enforceability thereof may be limited by bankruptcy,
insolvency or other laws relating to or affecting enforcement of creditors'
rights or by general equity principles and will be entitled to the benefits
of the applicable Indenture; and the Indentures conform in all material
respects to all statements relating thereto contained in the Prospectus
Supplement; and, if the Offered Securities include Subordinated Securities
that are convertible into Common Stock ("Convertible Subordinated
Securities"), then such Subordinated Securities shall be convertible into
Common Stock in accordance with their terms and the terms of a Convertible
Subordinated Security Prospectus Supplement (a "Convertible Prospectus
Supplement").
(cc) If the Offered Securities include Debt Securities, the applicable
Indenture has been duly authorized by the Issuers or the Company, as
applicable, will be substantially in the form filed as an exhibit to the
Registration Statement and, when duly executed and delivered by the Issuers
or the Company, as applicable, and the Trustee, will constitute a valid and
binding obligation of the Issuers or the Company, as applicable,
enforceable against the Issuers or the Company, as applicable, in
accordance with its terms, except as enforceability thereof may be limited
by bankruptcy, insolvency or other laws relating to or affecting
enforcement of creditors' rights or by general equity principles; and the
summary descriptions of the applicable Indenture set forth in the
Prospectus Supplement conforms in all material respects to the provisions
contained in the applicable Indenture.
2. Purchase of the Offered Securities by the Underwriters. The several
commitments of the Underwriters to purchase Offered Securities pursuant to any
Terms Agreement shall be deemed to have been made on the basis of the
representations and warranties herein contained and shall be subject to the
terms and conditions set forth herein.
In addition, on the basis of the representations and warranties herein and
subject to the terms and contained herein set forth, the Issuers or the Company,
as applicable may grant, if so provided in the Terms Agreement applicable to any
Terms Agreement, an option to the Underwriters named in such Terms Agreement,
severally and not jointly, to purchase up to the amount of Option Securities set
forth therein at the same price per security as is applicable to the Offered
Securities. Such option, if granted, may be exercised in whole or in part from
time to time from time to time for the purpose of covering over-allotments as
provided in Section 4 hereof. Option Securities shall be purchased severally for
the account of the Underwriters in proportion to the number of shares of Offered
Securities set opposite
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the name of such Underwriters in the Terms Agreement applicable to the Offered
Securities. The respective purchase obligations of each Underwriter with respect
to any Option Securities that are Common Stock shall be adjusted by the
Underwriters so that no Underwriter shall be obligated to purchase such Common
Stock other than in 100 share amounts.
Neither the Issuers nor the Company, as applicable, shall be obligated to
deliver any of the Offered Securities to be delivered on any Delivery Date (as
hereinafter defined), as the case may be, except upon payment for all the
Offered Securities to be purchased on such Delivery Date as provided herein.
3. Delivery of and Payment for the Securities. (a) Delivery of and payment
for the Offered Securities shall be made at the office of Weil, Gotshal & ▇▇▇▇▇▇
LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, at 10:00 A.M., New York City
time, on the fourth full business day (unless postponed in accordance with the
provisions of this Agreement) following the Delivery Date or at such other date
or place as shall be agreed upon by you and the Issuers or the Company, as
applicable, in the applicable Terms Agreement. This date and time are sometimes
referred to as the "First Delivery Date." On the Delivery Date, the Issuers or
the Company, as applicable, shall deliver or cause to be delivered certificates
representing the Offered Securities to the Underwriters for the account of each
Underwriter named in the Terms Agreement applicable to the Offered Securities
against payment to or upon the order of the Issuers or the Company, as
applicable, of the purchase price by wire transfer in immediately available
funds. Time shall be of the essence, and delivery at the time and place
specified pursuant to the applicable Terms Agreement is a further condition of
the obligation of each Underwriter thereunder. Upon delivery, the Offered
Securities shall be registered in such names and in such denominations as the
Underwriters shall request in writing not less than two full business days prior
to the First Delivery Date.
(b) The option granted in Section 2 will expire 30 days after the date of
the applicable Terms Agreement and may be exercised in whole or in part from
time to time by written notice being given to the Issuers, or the Company, as
applicable, by the Underwriters. Such notice shall set forth the aggregate
number of Option Securities as to which the option is being exercised, the names
in which the Option Securities are to be registered, the denominations in which
the Option Securities are to be issued and the date and time, as determined by
the Underwriters, when the Option Securities are to be delivered; provided,
however, that this date and time shall not be earlier than the Delivery Date nor
earlier than the second business day after the date on which the option shall
have been exercised nor later than the fifth business day after the date on
which the option shall have been exercised. The date and time the Option
Securities are delivered are sometimes referred to as a "Second Delivery Date"
and the First Delivery Date and any Second Delivery Date are sometimes each
referred to as a "Delivery Date."
(c) Delivery of and payment for the Option Securities shall be made at the
place specified in the first sentence of Section 3(a) (or at such other place as
shall be determined by agreement between the Underwriters and the Issuers or the
Company, as applicable) at 10:00 A.M., New York City time, on such Second
Delivery Date. On such
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Second Delivery Date, the Issuer or the Company, as applicable, shall deliver or
cause to be delivered the certificates representing the Option Securities to the
Underwriters for the account of each Underwriter against payment to or upon the
order of the Issuers or the Company, as applicable, of the purchase price by
wire transfer in immediately available funds. Time shall be of the essence, and
delivery at the time and place specified pursuant to the applicable Terms
Agreement shall be a further condition of the obligation of each Underwriter
thereunder. Upon delivery, the Option Securities shall be registered in such
names and in such denominations as the Underwriters shall request in the
aforesaid written notice.
4. Further Agreements of the Issuers. The Issuers or the Company, as
applicable, agree:
(a) To prepare a Preliminary Prospectus Supplement in a form approved
by the Underwriters and, not later than the Commission's close of business
on the second business day following the execution and delivery of each
Terms Agreement or, if applicable, such earlier time as may be required by
Rule 430A(a)(3) under the Securities Act, to file a Prospectus Supplement
pursuant to Rule 424(b) under the Securities Act; to make no further
amendment to the Registration Statement (including any post-effective
amendment) or any amendment or supplement to the Prospectus except as
permitted herein and by the applicable Terms Agreement; to advise the
Underwriters , promptly after receiving notice thereof, of the time when
any supplement to the Prospectus Supplement has been filed and to furnish
such Underwriters with copies thereof; to advise such Underwriters,
promptly after receiving notice thereof, of the issuance by the Commission
of any stop order or of any order preventing or suspending the use of any
Preliminary Prospectus Supplement or the Prospectus Supplement, of the
suspension of the qualification of the Offered Securities for offering or
sale in any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by the Commission for
the amending or supplementing of the Registration Statement or the
Prospectus Supplement or for additional information; and, in the event of
the issuance of any stop order or of any order preventing or suspending the
use of any Preliminary Prospectus Supplement or the Prospectus Supplement
or suspending any such qualification, to use promptly its best efforts to
obtain its withdrawal;
(b) To furnish promptly to each of the Underwriters and to counsel for
the Underwriters a signed copy of the Registration Statement as originally
filed with the Commission, and each amendment thereto filed with the
Commission, including all consents and exhibits filed therewith;
(c) To deliver promptly to the Underwriters such number of the
following documents as the Underwriters shall reasonably request: (i)
conformed copies of the Registration Statement as originally filed with the
Commission and each amendment thereto (in each case excluding exhibits
other than this Agreement and the computation of per share earnings) and
(ii)
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each Preliminary Prospectus Supplement, the Prospectus Supplement and any
supplemented Prospectus Supplement and, if the delivery of a prospectus
supplement is required at any time after the Effective Time in connection
with the offering or sale of the Offered Securities or any other securities
relating thereto and if at such time any events shall have occurred as a
result of which the Prospectus Supplement as then supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such Prospectus
Supplement is delivered, not misleading, or, if for any other reason it
shall be necessary to supplement the Prospectus Supplement in order to
comply with the Securities Act, to notify the Underwriters and, upon their
request, to prepare and furnish without charge to each Underwriter and to
any dealer in securities as many copies as the Underwriters may from time
to time reasonably request of a supplemented Prospectus Supplement which
will correct such statement or omission or effect such compliance.
(d) To file promptly with the Commission any amendment to the
Registration Statement or any supplement to the Prospectus Supplement that
may, in the judgment of the Issuers or the Company, as APPLICABLE, or the
Underwriters, be required by the Securities Act or requested by the
Commission;
(e) Prior to filing with the Commission any amendment to the
Registration Statement or supplement to the Prospectus Supplement or any
Prospectus Supplement pursuant to Rule 424 of the Rules and Regulations, to
furnish a copy thereof to the Underwriters and counsel for the Underwriters
and obtain the consent of the Underwriters to the filing;
(f) As soon as practicable (it being understood that the Issuers or
the Company, as applicable, shall have until at least 410 or, if the fourth
quarter following the fiscal quarter that includes the applicable effective
date is the last fiscal quarter of the fiscal year, 455 days after the end
of the current fiscal quarter), to make generally available to the
Company's security holders, as applicable, [and to deliver to the
Underwriters, if any,] an earnings statement of the Issuers or the Company,
as applicable, and their subsidiaries (which need not be audited) complying
with Section 11(a) of the Securities Act and the Rules and Regulations
(including, at the option of the Issuers or the Company, as applicable,
Rule 158);
(g) For a period of five years following the Effective Date, to
furnish to the Underwriters copies of all materials furnished by the
Issuers or the Company, as applicable, to its securityholders and all
public reports and all reports and financial statements furnished by the
Company to the Nasdaq Stock Market or the principal national securities
exchange upon which the Common Stock may be listed pursuant to requirements
of or agreements with
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Nasdaq or such exchange or to the Commission pursuant to the Exchange Act
or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the Underwriters
may reasonably request to qualify the Offered Securities for offering and
sale under the securities laws of such jurisdictions as the Underwriters
may request and to comply with such laws so as to permit the continuance of
sales and dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of the Offered Securities; provided
that in connection therewith the Issuers or the Company, as applicable,
shall not be required to qualify as a foreign corporation or to file a
general consent to service of process in any jurisdiction;
(i) For a period specified in the applicable Terms Agreement,
commencing on the date of such Terms Agreement, not to, directly or
indirectly, (1) offer for sale, sell, contract to sell, pledge, hedge or
otherwise dispose, directly or indirectly, of any shares of Common Stock,
Debt Securities or securities convertible into or exchangeable for Common
Stock (other than the Offered Securities and shares issued pursuant to
employee benefit plans, qualified stock option plans or other employee
compensation plans existing on the date hereof or pursuant to currently
outstanding options, warrants or rights), or sell or grant options, rights
or warrants with respect to any shares of Common Stock, Debt Securities or
securities convertible into or exchangeable for Common Stock (other than
the grant of options pursuant to option plans existing on the date hereof),
or (2) enter into any swap or other derivatives transaction that transfers
to another, in whole or in part, any of the economic benefits or risks of
ownership of such shares of Common Stock or Debt Securities, whether any
such transaction described in clause (1) or (2) above is to be settled by
delivery of Common Stock, Debt Securities or other securities, in cash or
otherwise, or (3) publicly disclose an intention to make any such offer,
sale, pledge, hedge, swap or other transaction, in each case without the
prior written consent of the Underwriters; and to cause each officer and
director of the Issuers or the Company, as applicable, to furnish to the
Underwriters, prior to the First Delivery Date, a letter or letters, in
form and substance satisfactory to counsel for the Underwriters, pursuant
to which each such person shall agree not to, directly or indirectly, (1)
offer for sale, sell, pledge or otherwise dispose of (or enter into any
transaction or device which is designed to, or could be expected to, result
in the disposition by any person at any time in the future of) any shares
of Common Stock, Debt Securities or securities convertible into or
exchangeable for Common Stock or (2) enter into any swap or other
derivatives transaction that transfers to another, in whole or in part, any
of the economic benefits or risks of ownership of such shares of Common
Stock or Debt Securities, whether any such transaction described in clause
(1) or (2) above is to be settled by delivery of Common Stock, Debt
Securities or other securities, in cash or otherwise, in each case for a
period specified in the applicable Terms
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Agreement, commencing on the date of such Terms Agreement, without the
prior written consent of the Underwriters;
(j) If and to the extent specified in the applicable Terms Agreement,
to apply for the inclusion of the Offered Securities in the National Market
System of the Nasdaq Stock Market and to use its best efforts to complete
that listing, subject only to official notice of issuance and evidence of
satisfactory distribution, prior to the First Delivery Date;
(k) Prior to filing with the Commission its final Report on Form 10-Q
containing the information specified in Rule 463 of the Rules and
Regulations, to furnish a copy thereof to the counsel for the Underwriters
and receive and consider its comments thereon, and to deliver promptly to
the Underwriters a signed copy of such Report on Form 10-Q filed by it with
the Commission;
(l) To take such steps as shall be necessary to ensure that none of
the Issuers or the Company, as applicable, or any of their subsidiaries
shall become an "investment company" within the meaning of such term under
the Investment Company Act of 1940 and the rules and regulations of the
Commission thereunder.
5. Expenses. The Issuers or the Company, as applicable, agree to pay all
expenses incident to the performance of its obligations under this Agreement and
any applicable Terms Agreement, including (a) the costs incident to the
authorization, issuance, sale and delivery of the Offered Securities and any
taxes payable in that connection; (b) the costs incident to the preparation,
printing and filing under the Securities Act of the Registration Statement and
any amendments and exhibits thereto; (c) the costs of distributing the
Registration Statement as originally filed and each amendment thereto and any
post-effective amendments thereof (including, in each case, exhibits), any
Preliminary Prospectus Supplement, the Prospectus Supplement and any supplement
to the Prospectus Supplement, all as provided in this Agreement; (d) the costs
of producing and distributing this Agreement and any other related documents in
connection with the offering, purchase, sale and delivery of the stock; (e) the
filing fees incident to securing any required review by the National Association
of Securities Dealers, Inc. of the terms of sale of the Offered Securities; (f)
any applicable listing or other fees; (g) the fees and expenses of qualifying
the Offered Securities under the securities laws of the several jurisdictions as
provided in Section 4 (h) and of preparing, printing and distributing a Blue Sky
Memorandum (including related reasonable fees and expenses of counsel to the
Underwriters); (h) all costs and expenses of the Underwriters, including the
reasonable fees and disbursements of counsel for the Underwriters, incident to
the offer and sale of the Offered Securities by the Underwriters to employees
and persons having business relationships with the Issuers or the Company, as
applicable, and their subsidiaries; and (i) all other costs and expenses
incident to the performance of the obligations of the Issuers or the Company, as
applicable, under this Agreement; provided that, except as provided in this
Section 5 and in Section 10 the Underwriters shall pay their own costs and
expenses, including the costs and expenses of their counsel, any transfer taxes
on the Offered Securities which they may sell and the expenses of advertising
any offering of the Offered Securities made by the Underwriters.
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6. Conditions of Underwriters' Obligations. The respective obligations of
the Underwriters hereunder are subject to the accuracy, when made and on the
applicable Delivery Date, of the representations and warranties of the Issuers
or the Company, as applicable, contained herein, to the performance by the
Issuers or the Company, as applicable, of their obligations hereunder, and to
each of the following additional terms and conditions:
(a) The Prospectus Supplement shall have been timely filed with the
Commission in accordance with Section 4(a); no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have
been issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and any request of the Commission for
inclusion of additional information in the Registration Statement or the
Prospectus Supplement or otherwise shall have been complied with.
(b) No Underwriter shall have discovered and disclosed to the Company
on or prior to such Delivery Date that the Registration Statement or the
Prospectus Supplement or any amendment or supplement thereto contains an
untrue statement of a fact which, in the opinion of Weil, Gotshal & ▇▇▇▇▇▇
LLP, counsel for the Underwriters, is material or omits to state a fact
which, in the opinion of such counsel, is material and is required to be
stated therein or is necessary to make the statements therein not
misleading.
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the applicable Terms
Agreement, the Offered Securities, the Registration Statement and the
Prospectus Supplement, and all other legal matters relating to this
Agreement and the applicable Terms Agreement and the transactions
contemplated hereby and thereby shall be reasonably satisfactory in all
material respects to counsel for the Underwriters, and the Issuers or the
Company, as applicable, shall have furnished to such counsel all documents
and information that they may reasonably request to enable them to pass
upon such matters.
(d) ▇▇▇▇▇▇ Godward LLP shall have furnished to the Underwriters their
written opinion, as counsel to the Issuers or the Company, as applicable,
addressed to the Underwriters and dated such Delivery Date, in form and
substance reasonably satisfactory to the Underwriters, to the effect that:
(i) The Issuers or the Company, as applicable, and each of their
subsidiaries have been duly incorporated and are validly existing as
corporations in good standing under the laws of their respective
jurisdictions of incorporation, are duly qualified to do business and
are in good standing as foreign corporations in each jurisdiction in
which their respective ownership or lease of property or the conduct
of their respective businesses requires such qualification and have
all power and authority necessary to own or hold their respective
properties and conduct the businesses in which they are engaged;
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(ii) The Issuers or the Company, as applicable, have an
authorized capitalization as set forth in the Prospectus and
Prospectus Supplement, and all of the issued shares of capital stock
of the Issuers or the Company, as applicable, (including the Offered
Securities being delivered on such Delivery Date) have been duly and
validly authorized and issued, are fully paid and non-assessable and
conform to the description thereof contained in the Prospectus and
Prospectus Supplement; and all of the issued shares of capital stock
of each subsidiary of the Issuers or the Company, as applicable, have
been duly and validly authorized and issued and are fully paid,
non-assessable and are owned directly or indirectly by the Issuers or
the Company, as applicable, free and clear of all liens, encumbrances,
equities or claims;
(iii) There are no preemptive or other rights to subscribe for or
to purchase, nor any restriction upon the voting or transfer of, any
of the Offered Securities pursuant to the Issuers' or the Company's,
as applicable, charter or by-laws or any agreement or other instrument
known to such counsel;
(iv) All real property and buildings held under lease by the
Issuers or the Company, as applicable, and their subsidiaries are held
by them under valid, subsisting and enforceable leases, with such
exceptions as are not material and do not interfere with the use made
and proposed to be made of such property and buildings by the Issuers
or the Company, as applicable, and their subsidiaries;
(v) To the best of such counsel's knowledge, there are no legal
or governmental proceedings pending to which the Issuers or the
Company, as applicable, or any of their subsidiaries is a party or of
which any property or assets of the Issuers or the Company, as
applicable, or any of its subsidiaries is the subject which, if
determined adversely to the Issuers or the Company, as applicable, or
any of its subsidiaries, might have a material adverse effect on the
consolidated financial position, stockholders' equity, results of
operations, business or prospects of the Company and its subsidiaries;
and, to the best of such counsel's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened
by others;
(vi) The Registration Statement was declared effective under the
Securities Act as of the date and time specified in such opinion, the
Prospectus Supplement was filed with the Commission pursuant to the
subparagraph of Rule 424(b) of the Rules and Regulations specified in
such opinion on the date specified therein and no stop order
suspending the effectiveness of the Registration Statement has been
issued and, to the knowledge of such counsel, no
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proceeding for that purpose is pending or threatened by the
Commission;
(vii) The Registration Statement and the Prospectus Supplement
and any further amendments or supplements thereto made by the Issuers
or the Company, as applicable, prior to such Delivery Date (other than
the financial statements and related schedules therein, as to which
such counsel need express no opinion) comply as to form in all
material respects with the requirements of the Securities Act and the
Rules and Regulations;
(viii) To the best of such counsel's knowledge, there are no
contracts or other documents which are required to be described in the
Prospectus Supplement or filed as exhibits to the Registration
Statement by the Securities Act or by the Rules and Regulations which
have not been described or filed as exhibits to the Registration
Statement;
(ix) This Agreement and the applicable Terms Agreement have been
duly authorized, executed and delivered by the Issuers or the Company,
as applicable;
(x) The issue and sale of the Offered Securities being delivered
on such Delivery Date by the Issuers or the Company, as applicable,
and the compliance by the Issuers or the Company, as applicable, with
all of the provisions of this Agreement and the consummation of the
transactions contemplated hereby will not conflict with or result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument known to such counsel
to which the Issuers or the Company, as applicable, or any of their
subsidiaries is a party or by which the Issuers or the Company, as
applicable, or any of their subsidiaries is bound or to which any of
the property or assets of the Issuers or the Company, as applicable,
or any of their subsidiaries is subject, nor will such actions result
in any violation of the provisions of the charter or by-laws of the
Issuers or the Company, as applicable, or any of their subsidiaries or
any statute or any order, rule or regulation known to such counsel of
any court or governmental agency or body having jurisdiction over the
Issuers or the Company, as applicable, or any of its subsidiaries or
any of their properties or assets; and, except for the registration of
the Offered Securities under the Securities Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under the Exchange Act and applicable state or foreign
securities laws in connection with the purchase and distribution of
the Offered Securities by the Underwriters, no consent, approval,
authorization or order of, or filing or registration with, any such
court
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or governmental agency or body is required for the execution, delivery
and performance of this Agreement by the Issuers or the Company, as
applicable, and the consummation of the transactions contemplated
hereby;
(xi) To the best of such counsel's knowledge, there are no
contracts, agreements or understandings between the Issuers or the
Company, as applicable, and any person granting such person the right
(other than rights which have been waived or satisfied) to require the
Issuers or the Company, as applicable, to file a registration
statement under the Securities Act with respect to any securities of
the Issuers or the Company, as applicable, owned or to be owned by
such person or to require the Issuer or the Company, as applicable, to
include such securities in the securities registered pursuant to the
Registration Statement or in any securities being registered pursuant
to any other registration statement filed by the Issuer or the
Company, applicable, under the Securities Act;
(xii) If the Offered Securities include Debt Securities, the
applicable Indenture has been duly and validly authorized, executed
and delivered by the Issuers or the Company, as applicable, and
constitutes the valid and binding agreement of the Issuers or the
Company, as applicable, enforceable in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy, insolvency
or other laws relating to or affecting enforcement of creditors'
rights or by general equity principles;
(xiii) If the Offered Securities include Debt Securities, such
Debt Securities are in the form contemplated by the applicable
Indenture, and have been duly and validly authorized by all necessary
corporate action and, when executed and authenticated as specified in
the applicable Indenture and delivered against payment pursuant to
this Agreement, as supplemented by the applicable Terms Agreement,
will be valid and binding obligations of the Issuers or the Company,
as applicable, enforceable in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency or other
laws relating to or affecting enforcement of creditors' rights or by
general equity principles, and except further as enforcement thereof
may be limited by requirements that a claim (or a foreign currency
judgment in respect of such claim) be converted into United States
dollars at a rate of exchange prevailing on a date determined pursuant
to applicable law, and will be entitled to the benefits of the
applicable Indenture;
(xiv) The Offered Securities and, if applicable, the Indenture
and the Common Stock, conform in all material respects to the
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descriptions thereof in the Prospectus and the applicable Prospectus
Supplement;
(xv) If the Offered Securities include Debt Securities, the
applicable Indenture is qualified under the 1939 Act; and
(xvi) If the Offered Securities include Convertible Subordinated
Securities or Convertible Preferred Stock, the shares of Common Stock
issuable upon conversion of such Convertible Subordinated Securities
or Convertible Preferred Stock have been duly authorized and reserved
for issuance upon such conversion by all necessary corporate action
and such shares, when issued upon such conversion will be duly and
validly issued and will be fully paid and non-assessable, and the
issuance of such shares upon such conversion will not be subject to
preemptive rights.
In rendering such opinion, such counsel may (i) state that their opinion is
limited to matters governed by the Federal laws of the United States of
America and the General Corporation Law of the State of Delaware and (ii)
in giving the opinion referred to in Section 8(d)(iv), state that no
examination of record titles for the purpose of such opinion has been made,
and that they are relying upon a general review of the titles of the
Issuers or the Company, as applicable, and their subsidiaries, upon
opinions of local counsel and abstracts, reports and policies of title
companies rendered or issued at or subsequent to the time of acquisition of
such property by the Issuers or the Company, as applicable, or their
subsidiaries, upon opinions of counsel to the lessors of such property and,
in respect of matters of fact, upon certificates of officers of the Issuers
or the Company, as applicable, or their subsidiaries, provided that such
counsel shall state that they believe that both the Underwriters and they
are justified in relying upon such opinions, abstracts, reports, policies
and certificates. Such counsel shall also have furnished to the
Underwriters a written statement, addressed to the Underwriters and dated
such Delivery Date, in form and substance satisfactory to the Underwriters,
to the effect that (x) such counsel has acted as counsel to the Issuers or
the Company, as applicable, in connection with previous financing
transactions and has acted as counsel to the Company in connection with the
preparation of the Registration Statement, and (y) based on the foregoing,
no facts have come to the attention of such counsel which lead them to
believe that the Registration Statement, as of the Effective Date,
contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make
the statements therein not misleading, or that the Prospectus Supplement
contains any untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading. The foregoing opinion and statement may be qualified
by a statement to the effect that such counsel does not assume any
responsibility for the accuracy, completeness or
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fairness of the statements contained in the Registration Statement or the
Prospectus Supplement except for the statements made in the Prospectus
Supplement under the identified in Section 8(d)(viii) and (ix).
(e) The Underwriters shall have received from ▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
LLP, counsel for the Underwriters, such opinion or opinions, dated such
Delivery Date, with respect to the issuance and sale of the Offered
Securities, the Registration Statement, the Prospectus Supplement and other
related matters as the Underwriters may reasonably require, and the Company
shall have furnished to such counsel such documents as they reasonably
request for the purpose of enabling them to pass upon such matters.
(f) At the time of execution of this Agreement, the Underwriters shall
have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP a letter, in form and substance
satisfactory to the Underwriters, addressed to the Underwriters and dated
the date hereof (i) confirming that they are independent public accountants
within the meaning of the Securities Act and are in compliance with the
applicable requirements relating to the qualification of accountants under
Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date
hereof (or, with respect to matters involving changes or developments since
the respective dates as of which specified financial information is given
in the Prospectus Supplement, as of a date not more than five days prior to
the date hereof), the conclusions and findings of such firm with respect to
the financial information and other matters ordinarily covered by
accountants' "comfort letters" to underwriters in connection with
registered public offerings.
(g) With respect to the letter of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP referred to in
the preceding paragraph and delivered to the Underwriters concurrently with
the execution of this Agreement (the "initial letter"), the Issuers or the
Company, as applicable, shall have furnished to the Underwriters a letter
(the "bring-down letter") of such accountants, addressed to the
Underwriters and dated such Delivery Date (i) confirming that they are
independent public accountants within the meaning of the Securities Act and
are in compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X of the
Commission, (ii) stating, as of the date of the bring-down letter (or, with
respect to matters involving changes or developments since the respective
dates as of which specified financial information is given in the
Prospectus Supplement, as of a date not more than five days prior to the
date of the bring-down letter), the conclusions and findings of such firm
with respect to the financial information and other matters covered by the
initial letter and (iii) confirming in all material respects the
conclusions and findings set forth in the initial letter.
(h) The Issuers or the Company, as applicable, shall have furnished to
the Underwriters a certificate, dated such Delivery Date, of its Chairman
of the Board, its President or a Vice President and its chief financial
officer stating that:
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(i) The representations, warranties and agreements of the Company in
Section 1 are true and correct as of such Delivery Date; the Issuers or the
Company, as applicable, have complied with all their agreements contained
herein; and the conditions set forth in Subsections (a) and (i) of this
Section 7 have been fulfilled; and
(ii) They have carefully examined the Registration Statement and the
Prospectus Supplement and, in their opinion (A) as of the Effective Date,
the Registration Statement and Prospectus Supplement did not include any
untrue statement of a material fact and did not omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading, and (B) since the Effective Date no event has
occurred which should have been set forth in a supplement or amendment to
the Registration Statement or the Prospectus Supplement.
(i) (i) None of the Issuers or the Company, as applicable, or any of
their subsidiaries shall have sustained since the date of the latest
audited financial statements included in the Prospectus Supplement any loss
or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth
or contemplated in the Prospectus Supplement or (ii) since such date there
shall not have been any change in the capital stock or long-term debt of
the Issuers or the Issuers or the Company, as applicable, or any of their
subsidiaries or any change, or any development involving a prospective
change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the Issuers or
the Company, as applicable, and their subsidiaries, otherwise than as set
forth or contemplated in the Prospectus Supplement, the effect of which, in
any such case described in clause (i) or (ii), is, in the judgment of the
Underwriters, so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Offered Securities being delivered on such Delivery Date on the terms and
in the manner contemplated in the Prospectus Supplement.
(j) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange or the American Stock Exchange or
in the over-the-counter market, or trading in any securities of the Issuers
or the Company, as applicable, on any exchange or in the over-the-counter
market, shall have been suspended or minimum prices shall have been
established on any such exchange or such market by the Commission, by such
exchange or by any other regulatory body or governmental authority having
jurisdiction, (ii) a banking moratorium shall have been declared by Federal
or state authorities, (iii) the United States shall have become engaged in
hostilities, there shall have been an escalation in hostilities involving
the United States or
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there shall have been a declaration of a national emergency or war by the
United States or (iv) there shall have occurred such a material adverse
change in general economic, political or financial conditions (or the
effect of international conditions on the financial markets in the United
States shall be such) as to make it, in the judgment of the Underwriters
impracticable or inadvisable to proceed with the public offering or
delivery of the Offered Securities being delivered on such Delivery Date on
the terms and in the manner contemplated in the Prospectus Supplement.
(k) The Nasdaq Stock Market or such other exchange as may be specified
in the applicable Terms Agreement shall have approved the Offered
Securities for inclusion in the National Market System, subject only to
official notice of issuance and evidence of satisfactory distribution.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
7. Indemnification and Contribution.
(a) The Issuers or the Company, as applicable, shall indemnify and
hold harmless each Underwriter, its officers and employees and each person,
if any, who controls any Underwriter within the meaning of the Securities
Act, from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof (including, but not limited to,
any loss, claim, damage, liability or action relating to purchases and
sales of Offered Securities), to which that Underwriter, officer, employee
or controlling person may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action arises
out of, or is based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained (A) in any Preliminary Prospectus
Supplement, the Registration Statement or the Prospectus Supplement or in
any amendment or supplement thereto, or (B) in any materials or information
provided to investors by, or with the approval of, the Company in
connection with the marketing of the offering of the Stock ("Marketing
Materials"), including any roadshow or investor presentations made to
investors by the Company (whether in person or electronically) (ii) the
omission or alleged omission to state in any Preliminary Prospectus
Supplement, the Registration Statement or the Prospectus Supplement, or in
any amendment or supplement thereto, or in any Marketing Materials, or in
any Blue Sky Application any material fact required to be stated therein or
necessary to make the statements therein not misleading or (iii) any act or
failure to act or any alleged act or failure to act by any Underwriter in
connection with, or relating in any manner to, the Offered Securities or
the offering contemplated hereby, and which is included as part of or
referred to in any loss, claim, damage, liability or action arising out of
or based upon matters covered by clause (i) or (ii) above (provided that
neither the Issuers nor the Company, as applicable, shall be liable under
this clause (iii) to the
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extent that it is determined in a final judgment by a court of competent
jurisdiction that such loss, claim, damage, liability or action resulted
directly from any such acts or failures to act undertaken or omitted to be
taken by such Underwriter through its gross negligence or willful
misconduct), and shall reimburse each Underwriter and each such officer,
employee or controlling person promptly upon demand for any legal or other
expenses reasonably incurred by that Underwriter, officer, employee or
controlling person in connection with investigating or defending or
preparing to defend against any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that neither the
Issuers nor the Company, as applicable, shall be liable in any such case to
the extent that any such loss, claim, damage, liability or action arises
out of, or is based upon, any untrue statement or alleged untrue statement
or omission or alleged omission made in any Preliminary Prospectus
Supplement, the Registration Statement or the Prospectus Supplement, or in
any such amendment or supplement, in reliance upon and in conformity with
written information concerning such Underwriter furnished to the Issuers or
the Company, as applicable, through the Underwriters by or on behalf of any
Underwriter specifically for inclusion therein which information consists
solely of the information specified in Section 7(e). The foregoing
indemnity agreement is in addition to any liability which the Issuers or
the Company, as applicable, may otherwise have to any Underwriter or to any
officer, employee or controlling person of that Underwriter.
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Issuers or the Company, as applicable, their officers and
employees, each of their directors and each person, if any, who controls
the Issuers or Company, as applicable, within the meaning of the Securities
Act, from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof, to which the Issuers or the
Company, as applicable, or any such director, officer or controlling person
may become subject, under the Securities Act or otherwise, insofar as such
loss, claim, damage, liability or action arises out of, or is based upon,
(i) any untrue statement or alleged untrue statement of a material fact
contained (A) in any Preliminary Prospectus Supplement, the Registration
Statement or the Prospectus Supplement or in any amendment or supplement
thereto, or (B) in any Blue Sky Application or (ii) the omission or alleged
omission to state in any Preliminary Prospectus Supplement, the
Registration Statement or the Prospectus Supplement, or in any amendment or
supplement thereto, or in any Blue Sky Application any material fact
required to be stated therein or necessary to make the statements therein
not misleading, but in each case only to the extent that the untrue
statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with written information concerning
such Underwriter furnished to the Issuers or the Company, as applicable,
through the Underwriters by or on behalf of that Underwriter specifically
for inclusion therein, and shall reimburse the Issuers or the Company, as
applicable, and any such director, officer or controlling
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person for any legal or other expenses reasonably incurred by the Issuers
or the Company, as applicable, or any such director, officer or controlling
person in connection with investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action as such expenses
are incurred. The foregoing indemnity agreement is in addition to any
liability which any Underwriter may otherwise have to the Issuers or the
Company, as applicable, or any such director, officer, employee or
controlling person.
(c) Promptly after receipt by an indemnified party under this Section
7 of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 7, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however,
that the failure to notify the indemnifying party shall not relieve it from
any liability which it may have under this Section 7 except to the extent
it has been materially prejudiced by such failure and, provided further,
that the failure to notify the indemnifying party shall not relieve it from
any liability which it may have to an indemnified party otherwise than
under this Section 7. If any such claim or action shall be brought against
an indemnified party, and it shall notify the indemnifying party thereof,
the indemnifying party shall be entitled to participate therein and, to the
extent that it wishes, jointly with any other similarly notified
indemnifying party, to assume the defense thereof with counsel reasonably
satisfactory to the indemnified party. After notice from the indemnifying
party to the indemnified party of its election to assume the defense of
such claim or action, the indemnifying party shall not be liable to the
indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the
defense thereof other than reasonable costs of investigation; provided,
however, that the Underwriters shall have the right to employ counsel to
represent jointly the Underwriters and their respective officers, employees
and controlling persons who may be subject to liability arising out of any
claim in respect of which indemnity may be sought by the Underwriters
against the Issuers or the Company, as applicable, under this Section 7 if,
in the reasonable judgment of the Underwriters, it is advisable for the
Underwriters and those officers, employees and controlling persons to be
jointly represented by separate counsel, and in that event the fees and
expenses of such separate counsel shall be paid by the Issuers or the
Company, as applicable. No indemnifying party shall (i) without the prior
written consent of the indemnified parties (which consent shall not be
unreasonably withheld), settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit or
proceeding, or (ii) be liable for any settlement of any such action
effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with
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the consent of the indemnifying party or if there be a final judgment of
the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any loss
or liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 7 shall for
any reason be unavailable to or insufficient to hold harmless an
indemnified party under Section 7(a) or 7(b) in respect of any loss, claim,
damage or liability, or any action in respect thereof, referred to therein,
then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such
indemnified party as a result of such loss, claim, damage or liability, or
action in respect thereof, (i) in such proportion as shall be appropriate
to reflect the relative benefits received by the Issuers or the Company, as
applicable, on the one hand and the Underwriters on the other from the
offering of the Offered Securities or (ii) if the allocation provided by
clause (i) above 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 Issuers or the Company,
as applicable, on the one hand and the Underwriters on the other with
respect to the statements or omissions which resulted in such loss, claim,
damage or liability, or action in respect thereof, as well as any other
relevant equitable considerations. The relative benefits received by the
Issuers or the Company, as applicable, on the one hand and the Underwriters
on the other with respect to such offering shall be deemed to be in the
same proportion as the total net proceeds from the offering of the Offered
Securities purchased under this Agreement (before deducting expenses)
received by the Issuers or the Company, as applicable, on the one hand, and
the total underwriting discounts and commissions received by the
Underwriters with respect to the shares of the Offered Securities purchased
under this Agreement, on the other hand, bear to the total gross proceeds
from the offering of the shares of the Offered Securities under this
Agreement, in each case as set forth in the table on the cover page of the
Prospectus Supplement. The relative fault shall be determined by reference
to whether the 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 Issuers or the Company, as applicable, or the
Underwriters, the intent of the parties and their relative knowledge,
access to information and opportunity to correct or prevent such statement
or omission. The Issuers or Company, as applicable, agree that it would not
be just and equitable if contributions pursuant to this Section were to be
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 into account the equitable considerations referred to herein.
The amount paid or payable by an indemnified party as a result of the loss,
claim, damage or liability, or action in respect thereof, referred to above
in this Section shall be deemed to include, for purposes of this Section
7(d), any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or
claim. Notwithstanding the
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provisions of this Section 7(d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at
which the Offered Securities underwritten by it and distributed to the
public was 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 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 Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute as provided in this Section 7(d)
are several in proportion to their respective underwriting obligations and
not joint.
8. Defaulting Underwriters.
If, on the applicable Delivery Date, any Underwriter defaults in the
performance of its obligations under this Agreement, the remaining
non-defaulting Underwriters participating in an offering of Offered Securities
shall be obligated to purchase the Offered Securities which the defaulting
Underwriter agreed but failed to purchase on such Delivery Date in the
respective proportions which the number of the Offered Securities set opposite
the name of each remaining non-defaulting Underwriter named in the applicable
Terms Agreement bears to the total number of the Offered Securities set opposite
the names of all the remaining non-defaulting Underwriters named in the
applicable Terms Agreement; provided, however, that the remaining non-defaulting
Underwriters shall not be obligated to purchase any of the Offered Securities on
such Delivery Date if the total number of the Offered Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase on such
date exceeds 9.09% of the total number of the Offered Securities to be purchased
on such Delivery Date, and any remaining non-defaulting Underwriter shall not be
obligated to purchase more than 110% of the number of the Offered Securities
which it agreed to purchase on such Delivery Date pursuant to the terms of
Section 3. If the foregoing maximums are exceeded, the remaining non-defaulting
Underwriters, or those other underwriters satisfactory to the Underwriters who
so agree, shall have the right, but shall not be obligated, to purchase, in such
proportion as may be agreed upon among them, all the Offered Securities to be
purchased on such Delivery Date. If the remaining Underwriters or other
underwriters satisfactory to the Underwriters do not elect to purchase the
shares which the defaulting Underwriter or Underwriters agreed but failed to
purchase on such Delivery Date, this Agreement (or, with respect to the Second
Delivery Date, the obligation of the Underwriters to purchase, and of the
Company to sell, the Option Securities) shall terminate without liability on the
part of any non-defaulting Underwriter or the Issuer or the Company, as
applicable, except that the Issuer or the Company, as applicable, will continue
to be liable for the payment of expenses to the extent set forth in Sections 5
and 10.
Nothing contained herein shall relieve a defaulting Underwriter of any
liability it may have to the Issuer or the Company, as applicable, for damages
caused by its default. If other underwriters are obligated or agree to purchase
the Offered Securities of a defaulting or withdrawing Underwriter, either the
Underwriters or the Issuer or the Company, as applicable, may postpone the
Delivery Date for up to seven full business days in order to effect any changes
that in the opinion of counsel for the Company or counsel for the
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27
Underwriters may be necessary in the Registration Statement, the Prospectus
Supplement or in any other document or arrangement.
9. Termination. The obligations of the Underwriters hereunder may be
terminated by the Underwriters by notice given to and received by the Issuer or
the Company, as applicable, prior to delivery of and payment for the Offered
Securities if, prior to that time, any of the events described in Sections 6(i)
or 6(j), shall have occurred or if the Underwriters shall decline to purchase
the Offered Securities for any reason permitted under this Agreement.
10. Reimbursement of Underwriters' Expenses. If (a) the Issuer or the
Company, as applicable, shall fail to tender the Offered Securities for delivery
to the Underwriters by reason of any failure, refusal or inability on the part
of the Issuer or the Company, as applicable, to perform any agreement on its
part to be performed, or because any other condition of the Underwriters'
obligations hereunder required to be fulfilled by the Company is not fulfilled,
the Issuer or the Company, as applicable, will reimburse the Underwriters for
all reasonable out-of-pocket expenses (including fees and disbursements of
counsel) incurred by the Underwriters in connection with this Agreement and the
proposed purchase of the Offered Securities, and upon demand the Issuer or the
Company, as applicable, shall pay the full amount thereof to the
Representative(s). If this Agreement is terminated pursuant to Section 9 by
reason of the default of one or more Underwriters, neither the Issuer nor the
Company, as applicable, shall be obligated to reimburse any defaulting
Underwriter on account of those expenses.
11. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail, telex
or facsimile transmission to _______, or in respect of any Terms Agreement,
to such other person as may be named therein;
(b) if to the Issuer or the Company shall be delivered or sent by
mail, telex or facsimile transmission to the address of the Company set
forth in the Registration Statement, Attention: Chief Financial Officer
(Fax: (415) ______);
provided, however, that any notice to an Underwriter pursuant to Section 7(c)
shall be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its acceptance telex to the
Underwriters, which address will be supplied to any other party hereto by the
Underwriters upon request. Any such statements, requests, notices or agreements
shall take effect at the time of receipt thereof. The Issuer or the Company, as
applicable, shall be entitled to act and rely upon any request, consent, notice
or agreement given or made on by the Underwriters.
12. Persons Entitled to Benefit of Agreement. This Agreement shall inure to
the benefit of and be binding upon the Underwriters, the Issuer or the Company,
as applicable, and their respective successors. This Agreement and the terms and
provisions
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hereof are for the sole benefit of only those persons, except that (A) the
representations, warranties, indemnities and agreements of the Issuer or the
Company, as applicable, contained in this Agreement shall also be deemed to be
for the benefit of the person or persons, if any, who control any Underwriter
within the meaning of Section 15 of the Securities Act and (B) the indemnity
agreement of the Underwriters contained in Section 7(b) of this Agreement shall
be deemed to be for the benefit of directors of the Company, officers of the
Company who have signed the Registration Statement and any person controlling
the Issuer or the Company, as applicable, within the meaning of Section 13 of
the Securities Act. Nothing in this Agreement is intended or shall be construed
to give any person, other than the persons referred to in this Section 12, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision contained herein.
13. Survival. The respective indemnities, representations, warranties and
agreements of the Issuer or the Company, as applicable, and the Underwriters
contained in this Agreement and each Terms Agreement or made by or on behalf on
them, respectively, pursuant to this Agreement, shall survive the delivery of
and payment for the Offered Securities and shall remain in full force and
effect, regardless of any investigation made by or on behalf of any of them or
any person controlling any of them.
14. Definition of "Business Day" and "Subsidiary". For purposes of this
Agreement, (a) "business day" means each Monday, Tuesday, Wednesday, Thursday or
Friday which is not a day on which banking institutions in New York are
generally authorized or obligated by law or executive order to close and (b)
"subsidiary" has the meaning set forth in Rule 405 of the Rules and Regulations.
15. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of New York.
16. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
17. Headings. The headings herein are inserted for convenience of reference
only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
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Very truly yours,
METRICOM, INC.
By
-------------------------------------
Name:
METRICOM FINANCE, INC.
By
-------------------------------------
Name:
Title:
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Exhibit A
METRICOM, INC.
METRICOM FINANCE, INC.
[Title of Securities]
TERMS AGREEMENT
Dated: , 200_
TO: [NAMES OF UNDERWRITERS]
[ADDRESSES OF UNDERWRITERS]
RE: UNDERWRITING AGREEMENT DATED ________, 2000.
DEAR SIRS:
WE (THE "REPRESENTATIVE[S]") UNDERSTAND THAT METRICOM, INC., A DELAWARE
CORPORATION, AND/OR (THE "COMPANY" AND COLLECTIVELY, THE "ISSUERS"), PROPOSE TO
ISSUE AND SELL [[$ AGGREGATE PRINCIPAL AMOUNT] OF THEIR [SENIOR DEBT SECURITIES]
[AND] [SUBORDINATED [CONVERTIBLE DEBT SECURITIES] (THE "DEBT SECURITIES")] [AND]
[_________ SHARES OF THE COMPANY'S COMMON STOCK, PAR VALUE $.001 PER SHARE (THE
"COMMON STOCK")]. THIS AGREEMENT IS THE TERMS AGREEMENT REFERRED TO IN THE
UNDERWRITING AGREEMENT DATED _______________, 200_ (THE "UNDERWRITING
AGREEMENT"). SUBJECT TO THE TERMS AND CONDITIONS SET FORTH HEREIN OR
INCORPORATED BY REFERENCE HEREIN, THE UNDERWRITERS NAMED BELOW (THE
"UNDERWRITERS") OFFER TO PURCHASE, SEVERALLY AND NOT JOINTLY, THE RESPECTIVE
[AMOUNTS OF [DEBT SECURITIES] [AND] [COMMON STOCK]] SET FORTH BELOW.
PRINCIPAL AMOUNT OF PRINCIPAL AMOUNT OF
UNDERWRITER DEBT SECURITIES COMMON STOCK
------------------- -------------------
TOTAL $_________ $_________
DEBT SECURITIES
TITLE OF DEBT SECURITIES: PRINCIPAL AMOUNT TO BE ISSUED: $
SENIOR OR SUBORDINATED:
CURRENCY:
CURRENT RATINGS:
31
INTEREST RATE OR FORMULA: %
INTEREST PAYMENT DATES:
DATE OF MATURITY:
REDEMPTION PROVISIONS:
SINKING FUND REQUIREMENTS:
INITIAL PUBLIC OFFERING PRICE: % OF THE PRINCIPAL AMOUNT, PLUS ACCRUED
INTEREST, IF ANY, [OR AMORTIZED ORIGINAL ISSUE DISCOUNT, IF ANY,] FROM , 200_.
PURCHASE PRICE: % OF THE PRINCIPAL AMOUNT, PLUS ACCRUED INTEREST, IF ANY,
[OR AMORTIZED ORIGINAL ISSUE DISCOUNT, IF ANY,] FROM , 200_ (PAYABLE IN NEXT DAY
FUNDS).
LISTING REQUIREMENT: [NONE] [NASDAQ]
CONVERTIBLE:
CONVERSION PROVISIONS:
DELIVERY DATE AND LOCATION:
ADDITIONAL REPRESENTATIONS, IF ANY:
REDEMPTION PROVISIONS:
LOCK-UP PROVISIONS:
SINKING FUND REQUIREMENTS:
NUMBER OF OPTION SECURITIES, IF ANY:
OTHER TERMS AND CONDITIONS:
COMMON STOCK
TITLE OF COMMON STOCK:
PRINCIPAL AMOUNT TO BE ISSUED: $
CURRENCY:
2
32
ANNUAL CASH DIVIDEND RATE: %
PAYABLE:
LIQUIDATION PREFERENCE PER SHARE:
INITIAL PUBLIC OFFERING PRICE: %, PLUS ACCRUED INTEREST OR AMORTIZED
ORIGINAL ISSUE DISCOUNT, IF ANY, FROM ____________, 200_
PURCHASE PRICE: % PLUS ACCRUED INTEREST OR AMORTIZED ORIGINAL ISSUE
DISCOUNT, IF ANY, FROM _____________, 200_ (PAYABLE IN NEXT DAY FUNDS).
LISTING REQUIREMENT: [NONE] [NASDAQ]
CONVERTIBLE:
INITIAL CONVERSION PRICE: $_____ PER SHARE OF [COMMON STOCK].
OTHER CONVERSION PROVISIONS:
DELIVERY DATE AND LOCATION:
ADDITIONAL REPRESENTATIONS, IF ANY:
REDEMPTION PROVISIONS:
LOCK-UP PROVISIONS:
SINKING FUND REQUIREMENTS:
NUMBER OF OPTION SECURITIES, IF ANY:
OTHER TERMS AND CONDITIONS:
3