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Exhibit 1.1
AVAYA INC.
(a Delaware corporation)
UNDERWRITING AGREEMENT
17,000,000
Shares of Common Stock
Dated March 11, 2002
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TABLE OF CONTENTS
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PAGE
ARTICLE I
REPRESENTATIONS AND WARRANTIES
Section 1.01 Representations and Warranties by the Company.............................2
(a) Compliance with Registration Requirements........................2
(b) Incorporated Documents...........................................3
(c) Financial Statements.............................................3
(d) No Material Adverse Change in Business...........................4
(e) Good Standing of the Company.....................................4
(f) Good Standing of Subsidiaries....................................4
(g) Authorization of this Underwriting Agreement.....................4
(h) Descriptions of the Underwritten Securities......................5
(i) Absence of Defaults and Conflicts................................5
(j) Absence of Proceedings...........................................5
(k) Absence of Further Requirements..................................6
(l) Investment Company Act...........................................6
(m) Capitalization...................................................6
(n) Outstanding Rights...............................................6
(o) Absence of Manipulation..........................................6
(p) Registration and Listing.........................................7
(q) Books and Records................................................7
(r) 1934 Act Filings.................................................7
(s) Officers' Certificates...........................................7
ARTICLE II
SALE AND DELIVERY TO UNDERWRITER; CLOSING
Section 2.01 Underwritten Securities...................................................7
Section 2.02 Initial Underwritten Securities...........................................7
Section 2.03 Option Underwritten Securities............................................7
Section 2.04 Payment...................................................................8
Section 2.05 Denominations; Registration...............................................8
ARTICLE III
COVENANTS OF THE COMPANY
Section 3.01 Compliance with Securities Regulations and Commission Requests............8
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Section 3.02 Filing of Amendments......................................................9
Section 3.03 Delivery of Registration Statements.......................................9
Section 3.04 Delivery of Prospectuses..................................................9
Section 3.05 Continued Compliance with Securities Laws.................................9
Section 3.06 Blue Sky Qualifications...................................................10
Section 3.07 Earnings Statement........................................................10
Section 3.08 Use of Proceeds...........................................................10
Section 3.09 Listing...................................................................10
Section 3.10 Restriction on Sale of Securities.........................................10
Section 3.11 Reporting Requirements....................................................11
ARTICLE IV
PAYMENT OF EXPENSES
Section 4.01 Expenses..................................................................11
Section 4.02 Termination of Underwriting Agreement.....................................11
ARTICLE V
CONDITIONS OF UNDERWRITER'S OBLIGATIONS
Section 5.01 Effectiveness of Registration Statement...................................12
Section 5.02 Opinion of Counsel for Company............................................12
Section 5.03 Officers' Certificate.....................................................12
Section 5.04 Accountant's Comfort Letter...............................................13
Section 5.05 Bring-Down Comfort Letter.................................................13
Section 5.06 Approval of Listing.......................................................13
Section 5.07 No Objection..............................................................13
Section 5.08 Lock-Up Agreements........................................................13
Section 5.09 Over-Allotment Option.....................................................13
Section 5.10 Additional Documents......................................................14
Section 5.11 Termination of Underwriting Agreement.....................................14
ARTICLE VI
INDEMNIFICATION
Section 6.01 Indemnification of Underwriter............................................14
Section 6.02 Indemnification of Company, Directors and Officers........................15
Section 6.03 Actions Against Parties; Notification.....................................15
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ARTICLE VII
CONTRIBUTION
ARTICLE VIII
REPRESENTATIONS, WARRANTIES AND
AGREEMENTS TO SURVIVE DELIVERY
ARTICLE IX
TERMINATION
Section 9.01 Underwriting Agreement....................................................18
Section 9.02 Liabilities...............................................................19
ARTICLE X
[INTENTIONALLY OMMITTED]
ARTICLE XI
NOTICES
ARTICLE XII
PARTIES
ARTICLE XIII
GOVERNING LAW AND TIME
ARTICLE XIV
EFFECT OF HEADINGS
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AVAYA INC.
(a Delaware corporation)
UNDERWRITING AGREEMENT
March 11, 2002
Ladies and Gentlemen:
Avaya Inc., a corporation organized and existing under the
laws of Delaware (the "Company"), proposes, subject to the terms and conditions
stated herein, to issue and sell to Bear, Stearns & Co. Inc. (the "Underwriter")
an aggregate of 17,000,000 shares (the "Initial Underwritten Securities") of its
common stock, par value $0.01 per share (the "Common Stock"), and for the sole
purpose of covering over-allotments in connection with the sale of the Initial
Underwritten Securities, at the option of the Underwriter, up to an additional
2,550,000 shares (the "Option Underwritten Securities") of Common Stock. The
Initial Underwritten Securities and any Option Underwritten Securities purchased
by the Underwriter are referred to herein as the "Underwritten Securities." The
Underwritten Securities are more fully described in the Registration Statement
referred to below.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-57962) and amendments thereto for the registration of the Underwritten
Securities under the Securities Act of 1933, as amended (the "1933 Act"), and
the offering thereof from time to time in accordance with Rule 415 of the rules
and regulations of the Commission under the 1933 Act (the "1933 Act
Regulations"). Such registration statement has been declared effective by the
Commission, and the Company has filed such post-effective amendments thereto as
may be required and each such post-effective amendment has been declared
effective by the Commission. Such registration statement (as so amended, if
applicable), including the information, if any, deemed to be a part thereof
pursuant to Rule 430A(b) of the 1933 Act Regulations (the "Rule 430A
Information") or Rule 434(d) of the 1933 Act Regulations (the "Rule 434
Information"), is referred to herein as the "Registration Statement"; and the
final prospectus and the final prospectus supplement relating to the offering of
the Underwritten Securities, in the forms first furnished to the Underwriter by
the Company for use in connection with the offering of the Underwritten
Securities, are collectively referred to herein as the "Prospectus"; provided,
however, that all references to the "Registration Statement" and the
"Prospectus" shall also be deemed to include all documents incorporated therein
by reference pursuant to the Securities Exchange Act of 1934, as amended (the
"1934 Act"), which were filed under the 1934 Act on or before the effective date
of the Registration Statement or the date of the Prospectus, as the case may
be; provided, further, that if the Company files a registration statement with
the Commission pursuant to Rule 462(b) of the 1933 Act Regulations (the "Rule
462(b) Registration Statement"), then all references to "Registration Statement"
shall also be deemed to include the Rule 462 (b) Registration Statement; and
PROVIDED, FURTHER, that if the Company elects to rely upon Rule 434 of the 1933
Act Regulations, then all references to "Prospectus" shall also be deemed to
include the final or preliminary prospectus, as the case may
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be, in the forms first furnished to the Underwriter by the Company in reliance
upon Rule 434 of the 1933 Act Regulations. A "preliminary prospectus" shall be
deemed to refer to (i) any prospectus used before the Registration Statement
became effective and (ii) any prospectus that omitted, as applicable, the Rule
430A Information, the Rule 434 Information or other information to be included
upon pricing in a form of prospectus filed with the Commission pursuant to Rule
424(b) of the 1933 Act Regulations and was used after such effectiveness and
prior to the initial delivery of the Prospectus to the Underwriter by the
Company. For purposes of this Underwriting Agreement, all references to the
Registration Statement, Prospectus or preliminary prospectus or to any amendment
or supplement to any of the foregoing shall be deemed to include any copy filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("EDGAR").
All references in this Underwriting Agreement to financial
statements and schedules and other information which is "contained," "included"
or "stated" (or other references of like import) in the Registration Statement,
Prospectus or preliminary prospectus shall be deemed to mean and include all
such financial statements and schedules and other information which is
incorporated by reference in the Registration Statement, Prospectus or
preliminary prospectus, as the case may be, which were filed under the 1934 Act
on or before the effective date of the Registration Statement, the date of the
Prospectus or the date of the preliminary prospectus, as the case may be; and
all references in this Underwriting Agreement to amendments or supplements to
the Registration Statement, Prospectus or preliminary prospectus shall be deemed
to include the filing of any document under the 1934 Act which is incorporated
by reference in the Registration Statement, Prospectus or preliminary
prospectus, as the case may be, after the effective date of the Registration
Statement, the date of the Prospectus or the date of the preliminary prospectus,
as the case may be.
ARTICLE I
REPRESENTATIONS AND WARRANTIES
Section 1.01 REPRESENTATIONS AND WARRANTIES BY THE COMPANY.
The Company represents and warrants to the Underwriter, as of the date hereof,
as of the Closing Time (as defined below) and, if applicable, as of each Date of
Delivery (as defined below) (in each case, a "Representation Date"), as follows:
(a) COMPLIANCE WITH REGISTRATION REQUIREMENTS. The Company
meets the requirements for use of Form S-3 under the 1933 Act. The Registration
Statement (including any Rule 462(b) Registration Statement) has become
effective under the 1933 Act and no stop order suspending the effectiveness of
the Registration Statement (or such Rule 462(b) Registration Statement) has been
issued under the 1933 Act and no proceedings for that purpose have been
instituted or are pending or, to the knowledge of the Company, are contemplated
by the Commission, and any request on the part of the Commission for additional
information has been complied with.
At the respective times the Registration Statement (including
any Rule 462(b) Registration Statement) and any post-effective amendments
thereto (including the filing of the Company's most recent Annual Report on Form
10-K with the Commission (the "Annual Report
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on Form 10-K")) became effective and at each Representation Date, the
Registration Statement (including any Rule 462(b) Registration Statement) and
any amendments thereto complied and will comply in all material respects with
the requirements of the 1933 Act and the 1933 Act Regulations and did not and
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading. At the date of the Prospectus, at the Closing Time and
at each Date of Delivery, if any, neither the Prospectus nor any amendments and
supplements thereto included or will include an untrue statement of a material
fact or omitted or will omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading. If the Company elects to rely upon Rule 434 of the 1933
Act Regulations, the Company will comply with the requirements of Rule 434.
Notwithstanding the foregoing, the representations and warranties in this
subsection shall not apply to statements in or omissions from the Registration
Statement or the Prospectus made in reliance upon and in conformity with
information furnished to the Company in writing by or on behalf of the
Underwriter for use in the Registration Statement or the Prospectus.
Each preliminary prospectus and prospectus filed as part of
the Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when so
filed in all material respects with the 1933 Act Regulations and each
preliminary prospectus and the Prospectus delivered to the Underwriter for use
in connection with the offering of Underwritten Securities will, at the time of
such delivery, be identical to any electronically transmitted copies thereof
filed with the Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
(b) INCORPORATED DOCUMENTS. The documents incorporated or
deemed to be incorporated by reference in the Registration Statement and the
Prospectus, at the time they were or hereafter are filed with the Commission,
complied and will comply in all material respects with the requirements of the
1934 Act and the rules and regulations of the Commission thereunder (the "1934
Act Regulations") and, when read together with the other information in the
Prospectus, at the date of the Prospectus, at the Closing Time and at each Date
of Delivery, if any, did not and will not include an untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(c) FINANCIAL STATEMENTS. The financial statements of the
Company included in the Registration Statement and the Prospectus, together with
the related schedules and notes, as well as those financial statements,
schedules and notes of any other entity included therein, present fairly in all
material respects the financial position of the Company and its consolidated
subsidiaries at the dates indicated and the statement of operations,
stockholders' equity and cash flows of the Company and its consolidated
subsidiaries for the periods specified. Such financial statements have been
prepared in conformity with generally accepted accounting principles ("GAAP")
applied on a consistent basis throughout the periods involved. The supporting
schedules, if any, included in the Registration Statement and the Prospectus
present fairly in all material respects and in accordance with GAAP the
information required to be stated therein. The selected financial data and the
summary financial information included in the Prospectus present fairly in all
material respects the information shown therein and have been compiled on a
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basis consistent with that of the audited financial statements included in the
Registration Statement and the Prospectus.
(d) NO MATERIAL ADVERSE CHANGE IN BUSINESS. Since the
respective dates as of which information is given in the Registration Statement
and the Prospectus, including information incorporated by reference, except as
otherwise stated therein, (A) there has been no material adverse change in the
condition, financial or otherwise, or in the earnings or business affairs of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business (a "Material Adverse Effect"), (B)
there have been no transactions entered into by the Company or any of its
subsidiaries, other than those arising in the ordinary course of business, which
are material with respect to the Company and its subsidiaries considered as one
enterprise and (C) except for regular dividends on the Company's common stock or
preferred stock, in amounts per share that are consistent with past practice or
the applicable charter document or supplement thereto, respectively, there has
been no dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(e) GOOD STANDING OF THE COMPANY. The Company has been duly
organized and is validly existing as a corporation in good standing under the
laws of the State of Delaware and has corporate power and authority to own,
lease and operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under, or as
contemplated under, this Underwriting Agreement. The Company is duly qualified
as a foreign corporation to transact business and is in good standing in each
other jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except where
the failure to so qualify or be in good standing would not result in a Material
Adverse Effect.
(f) GOOD STANDING OF SUBSIDIARIES. Each subsidiary listed on
Schedule A attached hereto (the "Material Subsidiaries") has been duly organized
and is validly existing as a corporation or limited liability company, as the
case may be, in good standing under the laws of the jurisdiction of its
organization, has corporate or limited liability company, as the case may be,
power and authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and is duly qualified as a foreign
corporation or limited liability company, as the case may be, to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to so qualify or
be in good standing would not result in a Material Adverse Effect. Except as
otherwise stated in the Registration Statement and the Prospectus, all of the
issued and outstanding capital stock of each Material Subsidiary has been duly
authorized and is validly issued, fully paid and non-assessable and is owned by
the Company, directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity. None of the
outstanding shares of capital stock of any Material Subsidiary was issued in
violation of preemptive or other similar rights of any securityholder of such
Material Subsidiary.
(g) AUTHORIZATION OF THIS UNDERWRITING AGREEMENT. This
Underwriting Agreement has been duly authorized, executed and delivered by the
Company.
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(h) DESCRIPTIONS OF THE UNDERWRITTEN SECURITIES. The
Securities, when issued and delivered in accordance with this Underwriting
Agreement, will conform in all material respects to the statements relating
thereto contained in the Prospectus and will be in substantially the form filed
or incorporated by reference, as the case may be, as an exhibit to the
Registration Statement.
(i) ABSENCE OF DEFAULTS AND CONFLICTS. Neither the Company nor
any of its Material Subsidiaries is in violation of its charter or by-laws. To
the Company's best knowledge after due inquiry, except as disclosed in the
Registration Statement or Prospectus, neither the Company nor any of its
subsidiaries is in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture, mortgage,
deed of trust, loan or credit agreement, note, lease or other agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which it or any of them may be bound, or to which any of the assets, properties
or operations of the Company or any of its subsidiaries is subject
(collectively, "Agreements and Instruments"), except for such defaults that
would not result in a Material Adverse Effect. The execution, delivery and
performance of this Underwriting Agreement and any other agreement or instrument
entered into or issued or to be entered into or issued by the Company in
connection with the transactions contemplated hereby or thereby or in the
Registration Statement and the Prospectus and the consummation of the
transactions contemplated herein and in the Registration Statement and the
Prospectus (including the issuance and sale of the Underwritten Securities and
the use of the proceeds from the sale of the Underwritten Securities as
described under the caption "Use of Proceeds") and compliance by the Company
with its obligations hereunder and thereunder have been duly authorized by all
necessary corporate action and, (A) do not and will not, whether with or without
the giving of notice or passage of time or both, conflict with or constitute a
breach of, or default or Repayment Event (as defined below) under, or result in
the creation or imposition of any lien, charge or encumbrance upon any assets,
properties or operations of the Company or any of its subsidiaries pursuant to,
any Agreements and Instruments (B) result in any violation of (i) the provisions
of the charter or by-laws of the Company or any of its subsidiaries or (ii) any
applicable law, statute, rule, regulation, judgment, order, writ or decree of
any government, government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any of its subsidiaries or any of their assets,
properties or operations, except for such defaults, Repayment Events and
violations that would not result in a Material Adverse Effect. As used herein, a
"Repayment Event" means any event or condition which gives the holder of any
note, debenture or other evidence of indebtedness (or any person acting on such
holder's behalf) the right to require the repurchase, redemption or repayment of
all or a portion of such indebtedness by the Company or any of its subsidiaries.
(j) ABSENCE OF PROCEEDINGS. Except as described (directly or
by incorporation by reference) in the Prospectus, there is no legal or
governmental proceeding, including routine litigation, to which the Company or
its subsidiaries is a party, or of which any property of the Company or its
subsidiaries is the subject which, singularly or in the aggregate, is reasonably
likely to have a Material Adverse Effect, and to the Company's knowledge, no
such proceeding is overtly threatened by governmental authorities or overtly
threatened by others, and the defense of all such proceedings is not reasonably
likely to result in a Material Adverse Effect.
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(k) ABSENCE OF FURTHER REQUIREMENTS. No filing with, or
authorization, approval, consent, license, order, registration, qualification or
decree of, any court or governmental authority or agency, domestic or foreign,
is necessary or required for the due authorization, execution and delivery by
the Company of this Underwriting Agreement or for the performance by the Company
of the transactions contemplated under the Prospectus or this Underwriting
Agreement, except such as have been already made, obtained or rendered, as
applicable.
(l) INVESTMENT COMPANY ACT. The Company is not, and upon the
issuance and sale of the Underwritten Securities as herein contemplated and the
application of the net proceeds therefrom as described in the Prospectus will
not be, an "investment company" within the meaning of the Investment Company Act
of 1940, as amended (the "1940 Act").
(m) CAPITALIZATION. The Company has the authorized
capitalization set forth in the Prospectus and all of the issued shares of
capital stock of the Company have been duly and validly authorized and issued,
are fully paid and non-assessable and were not issued in violation of or subject
to any preemptive or similar rights that entitle or will entitle any person to
acquire any Underwritten Securities from the Company upon issuance or sale by
the Company of Underwritten Securities in the Offering, except for such rights
as may have been fully satisfied or waived prior to the date hereof; the
Underwritten Securities to be delivered at the Closing Time and on the Date of
Delivery, if any (as hereinafter respectively defined), have been duly and
validly authorized and, when delivered by the Company in accordance with this
Underwriting Agreement, will be duly and validly issued, fully paid and
non-assessable and will not have been issued in violation of or subject to any
preemptive or similar rights that entitle or will entitle any person to acquire
any Underwritten Securities from the Company upon issuance thereof by the
Company, except for such rights as may have been fully satisfied or waived prior
to the date hereof.
(n) OUTSTANDING RIGHTS. Except as described in the Prospectus,
(i) there are no outstanding securities of the Company convertible or
exchangeable into or evidencing the right to purchase or subscribe for any
shares of capital stock of the Company and there are no outstanding or
authorized options, warrants or rights of any character obligating the Company
to issue any shares of its capital stock or any securities convertible or
exchangeable into or evidencing the right to purchase or subscribe for any
shares of such stock, and (ii) no holder of any securities of the Company or any
other person has the right, contractual or otherwise, which has not been
satisfied or effectively waived, to cause the Company to sell or otherwise issue
to them, or to permit them to underwrite the sale of, any of the Underwritten
Securities or the right to have any shares of Common Stock or other securities
of the Company included in the Registration Statement or the right, as a result
of the filing of the Registration Statement, to require registration under the
Act of any shares of Common Stock or other securities of the Company.
(o) ABSENCE OF MANIPULATION. Neither the Company nor any of
its affiliates have taken and nor will any of them take, directly or indirectly,
any action designed to cause or result in, or which constitutes or which might
reasonably be expected to constitute, the stabilization or manipulation of the
price of the shares of Common Stock to facilitate the sale or resale of the
Underwritten Securities in violation of applicable law.
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(p) REGISTRATION AND LISTING. The Common Stock is registered
pursuant to Section 12(b) of the 1934 Act and the outstanding shares of Common
Stock are listed, and the Underwritten Securities will prior to the Closing Time
be approved for listing, on the New York Stock Exchange, and the Company has
taken no action designed to, or likely to have the effect of, terminating the
registration of the Common Stock under the 1934 Act or de-listing the Common
Stock from the New York Stock Exchange, nor has the Company received any
notification that the Commission or the New York Stock Exchange is contemplating
terminating such registration or listing.
(q) BOOKS AND RECORDS. Each of the Company and the Material
Subsidiaries (i) makes and keeps accurate books and records and (ii) maintains
internal accounting controls that 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 and appropriate action is taken with respect to any
differences.
(r) 1934 ACT FILINGS. The Company has timely filed all
reports, contracts or documents required to be filed with the Commission under
the 1934 Act and the rules and regulations thereunder.
(s) OFFICERS' CERTIFICATES. Any certificate signed by any
officer of the Company and delivered to the Underwriter or to counsel for the
Underwriter in connection with the offering of the Underwritten Securities shall
be deemed a representation and warranty by the Company to the Underwriter as to
the matters covered thereby on the date of such certificate.
ARTICLE II
SALE AND DELIVERY TO UNDERWRITER; CLOSING
Section 2.01 UNDERWRITTEN SECURITIES. The commitment of the
Underwriter to purchase the Underwritten Securities pursuant to this
Underwriting Agreement shall be deemed to have been made on the basis of the
representations, warranties and agreements herein contained and shall be subject
to the terms and conditions herein set forth.
Section 2.02 INITIAL UNDERWRITTEN SECURITIES. The Company
agrees to sell to the Underwriter and the Underwriter agrees to purchase from
the Company, 17,000,000 Initial Underwritten Securities at a purchase price per
share of $5.723.
Section 2.03 OPTION UNDERWRITTEN SECURITIES. The Company
hereby grants to the Underwriter the option to purchase up to 2,550,000 Option
Underwritten Securities at the same purchase price per share to be paid by the
Underwriter to the Company for the Initial Underwritten Securities as set forth
in Section 2.02, for the sole purpose of covering over-allotments in the sale of
Initial Underwritten Securities by the Underwriter. This option may be exercised
at any time and from time to time, in whole or in part, on or before the
thirtieth day following the date of the Prospectus, by written notice by the
Underwriter to the Company. Such
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notice shall set forth the aggregate number of Option Underwritten Securities as
to which the option is being exercised and the date and time, as reasonably
determined by the Underwriter, when the Option Underwritten Securities are to be
delivered (each such date being herein sometimes referred to as a "Date of
Delivery"); provided, however, that a Date of Delivery shall not be earlier than
the Closing Time nor later than the fifth full business day after the date on
which the option shall have been exercised.
Section 2.04 PAYMENT. Payment of the purchase price for, and
delivery of, the Initial Underwritten Securities shall be made at the offices of
counsel for the Underwriter, or at such other place as shall be agreed upon by
the Underwriter and the Company, at 9:00 A.M. (Eastern time) on the third
(fourth, if the pricing occurs after 4:30 P.M. (Eastern time) on any given day)
business day after the date hereof (unless postponed in accordance with the
provisions of Article X hereof), or such other time not later than ten business
days after such date as shall be agreed upon by the Underwriter and the Company
(such time and date of payment and delivery being herein called "Closing Time").
In addition, in the event that the Underwriter has exercised its option, if any,
to purchase any or all of the Option Underwritten Securities, payment of the
purchase price for, and delivery of such Option Underwritten Securities, shall
be made at the above-mentioned offices of counsel for the Underwriter, or at
such other place as shall be agreed upon by the Underwriter and the Company, on
the relevant Date of Delivery as specified in the notice from the Underwriter to
the Company.
Payment shall be made to the Company by wire transfer of
immediately available funds to a bank account designated by the Company, against
delivery to the Underwriter for the account of the Underwriter of the
Underwritten Securities to be purchased by it.
Section 2.05 DENOMINATIONS; REGISTRATION. The Underwritten
Securities or certificates for the Underwritten Securities, as applicable, shall
be in such denominations and registered in such names as the Underwriter may
request in writing at least one full business day prior to the Closing Time or
the relevant Date of Delivery, as the case may be. The Underwritten Securities
or certificates for the Underwritten Securities, as applicable, will be made
available for examination and packaging by the Underwriter in The City of New
York not later than 10:00 A.M. (Eastern time) on the business day prior to the
Closing Time or the relevant Date of Delivery, as the case may be.
ARTICLE III
COVENANTS OF THE COMPANY
The Company covenants with the Underwriter participating in
the offering of Underwritten Securities, as follows:
Section 3.01 COMPLIANCE WITH SECURITIES REGULATIONS AND
COMMISSION REQUESTS. The Company, subject to Section 3.02, will comply with the
requirements of Rule 430A of the 1933 Act Regulations and/or Rule 434 of the
1933 Act Regulations, if and as applicable, and will notify the Underwriter
immediately, and confirm the notice in writing, of (i) the effectiveness of any
post-effective amendment to the Registration Statement or the filing of any
supplement or amendment to the Prospectus, (ii) the receipt of any comments from
the
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Commission, (iii) any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or for
additional information, and (iv) the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or of any order
preventing or suspending the use of any preliminary prospectus, or of the
suspension of the qualification of the Underwritten Securities for offering or
sale in any jurisdiction, or of the initiation or threatening of any proceedings
for any of such purposes. The Company will promptly effect the filings necessary
pursuant to Rule 424 and will take such steps as it deems necessary to ascertain
promptly whether the Prospectus transmitted for filing under Rule 424 was
received for filing by the Commission and, in the event that it was not, it will
promptly file the Prospectus. The Company will make every reasonable effort to
prevent the issuance of any stop order and, if any stop order is issued, to
obtain the lifting thereof at the earliest possible moment.
Section 3.02 FILING OF AMENDMENTS. The Company will give the
Underwriter notice of its intention to file or prepare any amendment to the
Registration Statement (including any filing under Rule 462(b) of the 1933 Act
Regulations), or any amendment, supplement or revision to either the prospectus
included in the Registration Statement at the time it became effective or to the
Prospectus, whether pursuant to the 1933 Act, the 1934 Act or otherwise, will
furnish the Underwriter with copies of any such documents a reasonable amount of
time prior to such proposed filing or use, as the case may be, and will not file
or use any such document to which the Underwriter or counsel for the Underwriter
shall reasonably object.
Section 3.03 DELIVERY OF REGISTRATION STATEMENTS. The Company
has furnished or will deliver to the Underwriter and counsel for the
Underwriter, without charge, signed copies of the Registration Statement as
originally filed and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein and documents incorporated or
deemed to be incorporated by reference therein) and signed copies of all
consents and certificates of experts, and will also deliver to the Underwriter,
without charge, a conformed copy of the Registration Statement as originally
filed and of each amendment thereto (without exhibits) for the Underwriter. The
Registration Statement and each amendment thereto furnished to the Underwriter
will be identical to any electronically transmitted copies thereof filed with
the Commission pursuant to EDGAR, except to the extent permitted by Regulation
S-T.
Section 3.04 DELIVERY OF PROSPECTUSES. The Company will
deliver to the Underwriter, without charge, as many copies of each preliminary
prospectus as the Underwriter may reasonably request, and the Company hereby
consents to the use of such copies for purposes permitted by the 1933 Act. The
Company will furnish to the Underwriter, without charge, during the period when
the Prospectus is required to be delivered under the 1933 Act or the 1934 Act,
such number of copies of the Prospectus as the Underwriter may reasonably
request. The Prospectus and any amendments or supplements thereto furnished to
the Underwriter will be identical to any electronically transmitted copies
thereof filed with the Commission pursuant to EDGAR, except to the extent
permitted by Regulation S-T.
Section 3.05 CONTINUED COMPLIANCE WITH SECURITIES LAWS. The
Company will comply with the 1933 Act and the 1933 Act Regulations and the 1934
Act and the 1934 Act Regulations so as to permit the completion of the
distribution of the Underwritten Securities as contemplated in this Underwriting
Agreement and in the Registration Statement and the
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Prospectus. If at any time when the Prospectus is required by the 1933 Act or
the 1934 Act to be delivered in connection with sales of the Securities, any
event shall occur or condition shall exist as a result of which it is necessary,
in the opinion of counsel for the Underwriter or for the Company, to amend the
Registration Statement in order that the Registration Statement will not contain
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
or to amend or supplement the Prospectus in order that the Prospectus will not
include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the light of
the circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the opinion of such counsel, at any such time to amend
the Registration Statement or amend or supplement the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations, the
Company will promptly prepare and file with the Commission, subject to Section
3.02, such amendment or supplement as may be necessary to correct such statement
or omission or to make the Registration Statement or the Prospectus comply with
such requirements, and the Company will furnish to the Underwriter, without
charge, such number of copies of such amendment or supplement as the Underwriter
may reasonably request.
Section 3.06 BLUE SKY QUALIFICATIONS. The Company will use its
reasonable best efforts, in cooperation with the Underwriter, to qualify the
Underwritten Securities for offering and sale under the applicable securities
laws of such states and other jurisdictions (domestic or foreign) as the
Underwriter may reasonably designate and to maintain such qualifications in
effect for a period of not less than one year from the date hereof and, in any
event, for so long as required for the distribution of the Underwritten
Securities; provided, however, that the Company shall not be obligated to file
any general consent to service of process or to qualify as a foreign corporation
or as a dealer in securities in any jurisdiction in which it is not so qualified
or to subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject. In each jurisdiction in
which the Underwritten Securities have been so qualified, the Company will file
such statements and reports as may be required by the laws of such jurisdiction
to continue such qualification in effect for a period of not less than one year
from the date hereof and, in any event, for so long as required for the
distribution of the Underwritten Securities.
Section 3.07 EARNINGS STATEMENT. The Company will timely file
such reports pursuant to the 1934 Act as are necessary in order to make
generally available to its securityholders as soon as practicable an earnings
statement for the purposes of, and to provide the benefits contemplated by, the
last paragraph of Section 11(a) of the 1933 Act.
Section 3.08 USE OF PROCEEDS. The Company will use the net
proceeds received by it from the sale of the Underwritten Securities in the
manner specified in the Prospectus under "Use of Proceeds".
Section 3.09 LISTING. The Company will use its reasonable best
efforts to effect the listing of the Underwritten Securities, prior to the
Closing Time, on the New York Stock Exchange.
Section 3.10 RESTRICTION ON SALE OF SECURITIES. During the
period beginning the date hereof and ending 90 days after the Closing Time, the
Company will not, without the prior
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written consent of the Underwriter, directly or indirectly, issue, sell, offer
or contract to sell, grant any option for the sale of, or otherwise dispose of,
Common Stock other than (a) the Company's sale of the Initial Underwritten
Securities hereunder, (b) the Company's issuance of Common Stock pursuant to the
Stock Purchase Agreement and the Conversion and Exercise Agreement, each dated
as of March 10, 2002, among the Company, Warburg, Pincus Netherlands Equity
Partners I, C.V., Warburg, Pincus Netherlands Equity Partners II, C.V., Warburg,
Pincus Netherlands Equity Partners III, C.V., and Warburg, Pincus Netherlands
Equity Partners, L.P. and (c) the Company's issuance of Common Stock upon (i)
the conversion or exchange of convertible or exchangeable securities outstanding
on the date hereof; (ii) the exercise of currently outstanding options; (iii)
the exercise of currently outstanding warrants; and (iv) the grant and exercise
of options under, or the issuance and sale of shares pursuant to, employee stock
option plans in effect on the date hereof.
Section 3.11 REPORTING REQUIREMENTS. The Company, during the
period when the Prospectus is required to be delivered under the 1933 Act or the
1934 Act, will file all documents required to be filed with the Commission
pursuant to the 1934 Act within the time periods required by the 1934 Act and
the 1934 Act Regulations.
ARTICLE IV
PAYMENT OF EXPENSES
Section 4.01 EXPENSES. The Company will pay all expenses
incident to the performance of its obligations under this Underwriting
Agreement, including (i) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the preparation, printing
and delivery to the Underwriter of this Underwriting Agreement, and such other
documents as may be required in connection with the offering, purchase, sale,
issuance or delivery of the Underwritten Securities, (iii) the preparation,
issuance and delivery of the Underwritten Securities, any certificates for the
Underwritten Securities, as applicable, to the Underwriter, including any
transfer taxes and any stamp or other duties payable upon the sale, issuance or
delivery of the Underwritten Securities to the Underwriter, (iv) the fees and
disbursements of the Company's counsel, accountants and other advisors or agents
(including transfer agents and registrars), (v) the qualification of the
Underwritten Securities under state securities laws in accordance with the
provisions of Section 3.06 hereof, including filing fees and the reasonable fees
and disbursements of counsel for the Underwriter in connection therewith and in
connection with the preparation, printing and delivery of the Blue Sky Survey,
and any amendment thereto, (vi) the printing and delivery to the Underwriter of
copies of each preliminary prospectus and the Prospectus and any amendments or
supplements thereto, (vii) the fees charged by nationally recognized statistical
rating organizations for the rating of the Underwritten Securities, if
applicable, (viii) the fees and expenses incurred with respect to the listing of
the Underwritten Securities, if applicable, and (ix) the filing fees incident
to, and the reasonable fees and disbursements of one counsel to the Underwriter
in connection with, the review, if any, by the National Association of
Securities Dealers, Inc. (the "NASD") of the terms of the sale of the
Underwritten Securities.
Section 4.02 TERMINATION OF UNDERWRITING AGREEMENT. If this
Underwriting Agreement is terminated by the Underwriter in accordance with the
provisions of Section 5.11
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hereof, the Company shall reimburse the Underwriter for up to $50,000 of
out-of-pocket expenses, in addition to the reasonable fees and disbursements of
one counsel for the Underwriter.
ARTICLE V
CONDITIONS OF UNDERWRITER'S OBLIGATIONS
The obligations of the Underwriter to purchase and pay for the
Underwritten Securities pursuant to this Underwriting Agreement are subject to
the accuracy of the representations and warranties of the Company contained in
Article I hereof or in certificates of any officer of the Company delivered
pursuant to the provisions hereof, to the performance by the Company of its
covenants and other obligations hereunder, and to the following further
conditions:
Section 5.01 EFFECTIVENESS OF REGISTRATION STATEMENT. The
Registration Statement, including any Rule 462(b) Registration Statement, has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
1933 Act and no proceedings for that purpose shall have been instituted or be
pending or threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the
reasonable satisfaction of counsel to the Underwriter. A prospectus containing
information relating to the description of the Underwritten Securities, the
specific method of distribution and similar matters shall have been filed with
the Commission in accordance with Rule 424(b)(1), (2), (3), (4) or (5), as
applicable (or any required post-effective amendment providing such information
shall have been filed and declared effective in accordance with the requirements
of Rule 430A), or, if the Company has elected to rely upon Rule 434 of the 1933
Act Regulations, a term sheet including the Rule 434 Information shall have been
filed with the Commission in accordance with Rule 424(b)(7).
Section 5.02 OPINION OF COUNSEL FOR COMPANY. At Closing Time,
the Underwriter shall have received the opinion, dated as of Closing Time, of
Pamela F. Craven, Senior Vice President, General Counsel and Secretary for the
Company, in form and substance reasonably satisfactory to counsel for the
Underwriter, to the effect set forth in Exhibit A hereto and to such further
effect as counsel to the Underwriter may reasonably request.
Section 5.03 OFFICERS' CERTIFICATE. At Closing Time, there
shall not have been, since the date hereof or since the respective dates as of
which information is given in the Prospectus, except as otherwise stated in the
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings or business affairs of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, and the Underwriter shall have received a
certificate of the Treasurer of the Company and of the chief financial officer
or chief accounting officer of the Company, dated as of Closing Time, to the
effect that (i) there has been no such material adverse change, (ii) the
representations and warranties in Section 1.01 are true and correct with the
same force and effect as though expressly made at and as of the Closing Time,
(iii) the Company has complied with all agreements and satisfied all conditions
on its part to be performed or satisfied at or prior to the Closing Time, and
(iv) no stop order suspending the effectiveness of the Registration Statement
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has been issued and no proceedings for that purpose have been instituted, are
pending or, to the best of such officer's knowledge, are threatened by the
Commission.
Section 5.04 ACCOUNTANT'S COMFORT LETTER. The Underwriter
shall have received from PricewaterhouseCoopers a letter dated the date hereof,
in form and substance satisfactory to the Underwriter, containing statements and
information of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain financial
information contained in the Registration Statement and the Prospectus.
Section 5.05 BRING-DOWN COMFORT LETTER. At Closing Time, the
Underwriter shall have received from PricewaterhouseCoopers a letter, dated as
of Closing Time, to the effect that they reaffirm the statements made in the
letter furnished pursuant to Section 5.04 of this Article V, except that the
specified date referred to shall be a date not more than three business days
prior to the Closing Time.
Section 5.06 APPROVAL OF LISTING. At Closing Time, the
Underwritten Securities shall have been approved for listing on the New York
Stock Exchange, subject only to official notice of issuance.
Section 5.07 NO OBJECTION. If the Registration Statement or an
offering of Underwritten Securities has been filed with the NASD for review, the
NASD shall not have raised any objection with respect to the fairness and
reasonableness of the underwriting terms and arrangements.
Section 5.08 LOCK-UP AGREEMENTS. The Underwriter shall have
received, in form and substance satisfactory to it, a lock-up agreement from
each person specified on Schedule B hereto.
Section 5.09 OVER-ALLOTMENT OPTION. In the event that the
Underwriter exercises its option to purchase all or any portion of the Option
Underwritten Securities, the representations and warranties of the Company
contained herein and the statements in any certificates furnished by the Company
or any of its subsidiaries hereunder shall be true and correct as of each Date
of Delivery, and, at the relevant Date of Delivery, the Underwriter shall have
received:
(i) A certificate, dated such Date of Delivery, of the
Treasurer of the Company and the chief financial officer or chief
accounting officer of the Company, confirming that the certificate
delivered at the Closing Time pursuant to Section 5.03 hereof remains
true and correct as of such Date of Delivery;
(ii) The opinion of Pamela F. Craven, Senior Vice President,
General Counsel and Secretary for the Company, in form and substance
reasonably satisfactory to counsel for the Underwriter, dated such Date
of Delivery, relating to the Option Underwritten Securities and
otherwise to the same effect as the opinion required by Section 5.02
hereof; and
(iii) A letter from PricewaterhouseCoopers, in form and
substance reasonably satisfactory to the Underwriter and dated such
Date of Delivery, substantially in the same
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form and substance as the letter furnished to the Underwriter pursuant
to Section 5.05 hereof, except that the "specified date" on the letter
furnished pursuant to this paragraph shall be a date not more than
three business days prior to such Date of Delivery; and
Section 5.10 ADDITIONAL DOCUMENTS. At Closing Time and at each
Date of Delivery, counsel to the Underwriter shall have been furnished with such
documents and opinions as they may reasonably require for the purpose of
enabling them to pass upon the issuance and sale of the Underwritten Securities
as herein contemplated, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company in connection with
the issuance and sale of the Underwritten Securities as herein contemplated
shall be satisfactory in form and substance to the Underwriter and counsel for
the Underwriter.
Section 5.11 TERMINATION OF UNDERWRITING AGREEMENT. If any
condition specified in this Article V shall not have been fulfilled when and as
required to be fulfilled, this Underwriting Agreement (or, with respect to the
Underwriter's exercise of any applicable over-allotment option for the purchase
of Option Underwritten Securities on a Date of Delivery after the Closing Time,
the obligations of the Underwriter to purchase the Option Underwritten
Securities on such Date of Delivery) may be terminated by the Underwriter by
notice to the Company at any time at or prior to the Closing Time (or such Date
of Delivery, as applicable), and such termination shall be without liability of
any party to any other party except as provided in Article IV and except that
Articles VI and VII shall survive any such termination and remain in full force
and effect.
ARTICLE VI
INDEMNIFICATION
Section 6.01 INDEMNIFICATION OF UNDERWRITER. The Company
agrees to indemnify and hold harmless the Underwriter and each person, if any,
who controls the Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act as follows:
(a) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information deemed to be a part thereof, if
applicable, or the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue statement of
a material fact included in any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto), or the omission or alleged omission therefrom
of a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(b) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever
based upon any such untrue statement or omission, or any such alleged
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untrue statement or omission, provided, that, any such settlement is effected
with the written consent of the Company; and
(c) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by the Underwriter),
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or omission,
to the extent that any such expense is not paid under (a) or (b) above;
PROVIDED, HOWEVER, that the Company will not be liable in any such case to the
extent but only to the extent that any such loss, liability, claim, damage or
expense arises out of or is based upon any untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in conformity
with the Underwriter Information (as defined below). The Company acknowledges
that the statements set forth in the in the following paragraphs (or sentences
thereof) under the caption "Underwriting" in the Prospectus constitute the only
information furnished in writing by or on behalf of the Underwriter expressly
for use in the Registration Statement relating to the Underwritten Securities as
originally filed or in any amendment thereof, any related preliminary prospectus
or the Prospectus or in any amendment thereof or supplement thereto, as the case
may be: (i) the second, third, fourth, fifth and sixth sentences of the fourth
paragraph; (ii) the seventh paragraph; (iii) the eighth paragraph; (iv) the
ninth paragraph and (v) the first, second and third sentences of the thirteenth
paragraph (the "Underwriter Information"). This indemnity agreement will be in
addition to any liability which the Company may otherwise have including under
this Underwriting Agreement.
Section 6.02 INDEMNIFICATION OF COMPANY, DIRECTORS AND
OFFICERS. The Underwriter agrees to indemnify and hold harmless the Company, its
directors, each of its officers who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in Section 6.01,
as incurred, but only to the extent such loss, liability, claim, damage and
expense arises out of or is based upon untrue statements or omissions, or
alleged untrue statements or omissions, made in the Registration Statement (or
any amendment thereto), including the Rule 430A Information and the Rule 434
Information deemed to be a part thereof, if applicable, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with the Underwriter Information, PROVIDED,
HOWEVER, that in no case shall the Underwriter be liable or responsible for any
amount in excess of the underwriting discount applicable to the Underwritten
Securities purchased by the Underwriter hereunder.
Section 6.03 ACTIONS AGAINST PARTIES; NOTIFICATION. Each
indemnified party shall give notice as promptly as reasonably practicable to
each indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability hereunder to
the extent it is not materially prejudiced as a result thereof and in any event
shall not relieve it from any liability which it may have otherwise than on
account of this indemnity agreement. In case any such claim or action is brought
against any indemnified party, and it
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notifies an indemnifying party of the commencement thereof, an indemnifying
party may participate, at its own expense in the defense of such action, and to
the extent the indemnifying may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense (and control) thereof with counsel
satisfactory to such indemnified party. Notwithstanding the foregoing, the
indemnified party or parties shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of such indemnified party or parties unless (i) the employment of
such counsel shall have been authorized in writing by one of the indemnifying
parties in connection with the defense of such action, (ii) the indemnifying
parties shall not have employed counsel to have charge of the defense of such
action within a reasonable time after notice of commencement of the action,
(iii) the indemnifying party does not diligently defend the action after
assumption of the defense, or (iv) such indemnified party or parties shall have
reasonably concluded that there may be defenses available to it or them which
are different from or additional to those available to one or all of the
indemnifying parties (in which case the indemnifying parties shall not have the
right to direct the defense of such action on behalf of the indemnified party or
parties), in any of which events such fees and expenses shall be borne by the
indemnifying parties. In no event shall the indemnifying parties be liable for
reasonable fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Article VI or Article VII hereof (whether or not the indemnified
parties are actual or potential parties thereto), unless such settlement,
compromise or consent (i) includes an unconditional release of each indemnified
party from all liability arising out of such litigation, investigation,
proceeding or claim, (ii) does not include a statement as to or an admission of
fault, culpability or a failure to act by or on behalf of any indemnified party
and (iii) the indemnifying party reaffirms its indemnification obligations
pursuant to this Underwriting Agreement.
ARTICLE VII
CONTRIBUTION
If the indemnification provided for in Article VI hereof is
for any reason unavailable to or insufficient to hold harmless an indemnified
party in respect of any losses, liabilities, claims, damages or expenses
referred to therein, then each indemnifying party shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and expenses of
the nature contemplated by such indemnification provision (including any
investigation, legal and other expenses incurred in connection with, and any
amount paid in settlement (as provided in Section 6.01(b)) of, any action, suit
or proceeding or any claims asserted, but after deducting in the case of losses,
claims, damages, liabilities and expenses suffered by the Company any
contribution received by the Company from persons, other than the Underwriter,
who may also be liable for contribution, including persons who control the
Company within the meaning of
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Section 15 of the 1933 Act or Section 20(a) of the 1934 Act, officers of the
Company who signed the Registration Statement and directors of the Company)
incurred by such indemnified party, as incurred (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company, on the one
hand, and the Underwriter, on the other hand, from the offering of the
Underwritten Securities pursuant to this Underwriting Agreement or (ii) if the
allocation provided by clause (i) is not permitted by applicable law or
indemnification is not available as a result of the indemnifying party not
having received notice as provided in Article VI hereof, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company, on the one hand, and the
Underwriter, on the other hand, in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
The relative benefits received by the Company, on the one
hand, and the Underwriter, on the other hand, in connection with the offering of
the Underwritten Securities pursuant to the this Underwriting Agreement shall be
deemed to be in the same respective proportions as the total net proceeds from
the offering of such Underwritten Securities (before deducting expenses)
received by the Company and the total underwriting discount received by the
Underwriter, in each case as set forth on the cover of the Prospectus, or, if
Rule 434 is used, the corresponding location on the term sheet, bear to the
aggregate initial public offering price of such Underwritten Securities as set
forth on such cover or corresponding location.
The relative fault of the Company, on the one hand, and the
Underwriter, on the other hand, shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriter and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Underwriter agree that it would not be
just and equitable if contribution pursuant to this Article VII were determined
by pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to above in this Article VII.
The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Article VII shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Article VII, the
Underwriter shall not be required to contribute any amount in excess of the
amount by which the total price at which the Underwritten Securities distributed
to the public were offered to the public exceeds the amount of any damages which
the Underwriter has otherwise been required to pay by reason of any such untrue
or alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation.
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For purposes of this Article VII, each person, if any, who
controls the Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as the
Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act shall have the same rights to contribution as the Company.
Any party entitled to contribution will, promptly after
receipt of notice of commencement of any action, suit or proceeding against such
party in respect of which a claim for contribution may be made against another
party or parties, notify each party or parties from whom contribution may be
sought, but the omission to so notify such party or parties shall not relieve
the party or parties from whom contribution may be sought from any obligation it
or they may have under this Article VII or otherwise to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this
contribution agreement.
ARTICLE VIII
REPRESENTATIONS, WARRANTIES AND
AGREEMENTS TO SURVIVE DELIVERY
Except in the event of termination of this Underwriting
Agreement prior to Closing Time, all representations, warranties and agreements
contained in this Underwriting Agreement or in certificates of officers of the
Company submitted pursuant hereto or thereto shall remain operative and in full
force and effect, regardless of any investigation made by or on behalf of the
Underwriter or controlling person, or by or on behalf of the Company, and shall
survive delivery of and payment for the Underwritten Securities.
ARTICLE IX
TERMINATION
Section 9.01 UNDERWRITING AGREEMENT. The Underwriter shall
have the right to terminate this Underwriting Agreement at any time prior to the
Closing Time or the relevant Date of Delivery, as the case may be, if (A) any
domestic or international event or act or occurrence has materially disrupted,
or in the Underwriter's opinion will in the immediate future materially disrupt,
the market for the Company's securities or securities in general; or (B) if
trading on the New York Stock Exchange shall have been suspended, or minimum or
maximum prices for trading shall have been fixed, or maximum ranges for prices
for securities shall have been required, on the New York Stock Exchange by the
New York Stock Exchange or by order of the Commission or any other governmental
authority having jurisdiction; or (C) if a banking moratorium has been declared
by any state or federal authority or if any material disruption in commercial
banking or securities settlement or clearance services shall have occurred; or
(D) (i) if there shall have occurred any outbreak or escalation of hostilities
or acts of terrorism involving the United States (including the current war on
terrorism conducted by the United States and others) or there is a declaration
of a national emergency or war by the United States or (ii) if
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there shall have been any other calamity or crisis or any change in political,
financial or economic conditions if the effect of any such event in (i) or (ii)
as in the Underwriter's judgment makes it impracticable or inadvisable to
proceed with the offering, sale and delivery of the Initial Underwritten
Securities or the Option Underwritten Securities, as the case may be, on the
terms and in the manner contemplated by the Prospectus.
Section 9.02 LIABILITIES. If this Underwriting Agreement is
terminated pursuant to this Article IX, such termination shall be without
liability of any party to any other party except as provided in Article IV
hereof, and provided further that Articles VI and VII (in the event of
termination prior to Closing Time) and Articles I, VI, VII and VIII (in the
event of termination subsequent to Closing Time) shall survive such termination
and remain in full force and effect.
ARTICLE X
[INTENTIONALLY OMMITTED]
ARTICLE XI
NOTICES
All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by
any standard form of telecommunication. Notices to the Underwriter shall be
directed to Bear, Stearns & Co. Inc., 383 Madison Avenue, New York, New York
10179, attention of General Counsel, with a copy to Cadwalader, Wickersham &
Taft, 100 Maiden Lane, New York, New York 10038, attention of Dennis J. Block,
Esq.; and notices to the Company shall be directed to it at 211 Mt. Airy Road,
Basking Ridge, NJ 07920, attention of General Counsel.
ARTICLE XII
PARTIES
This Underwriting Agreement shall inure to the benefit of and
be binding upon the Company, the Underwriter and their respective successors.
Nothing expressed or mentioned in this Underwriting Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriter and the Company and their respective successors and the controlling
persons and officers and directors referred to in Articles VI and VII and their
heirs and legal representatives, any legal or equitable right, remedy or claim
under or in respect of this Underwriting Agreement or any provision herein
contained. This Underwriting Agreement and all conditions and provisions hereof
are intended to be for the sole and exclusive benefit of the parties hereto and
their respective successors, and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Underwritten Securities from
the Underwriter shall be deemed to be a successor by reason merely of such
purchase.
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ARTICLE XIII
GOVERNING LAW AND TIME
THIS UNDERWRITING AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED TIMES OF DAY
REFER TO NEW YORK CITY TIME.
ARTICLE XIV
EFFECT OF HEADINGS
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
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If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Company a counterpart hereof,
whereupon this Underwriting Agreement, along with all counterparts, will become
a binding agreement between the Underwriter and the Company in accordance with
its terms.
Very truly yours,
AVAYA INC.
By: /s/ Garry K. McGuire
---------------------
Name: Garry K. McGuire
Title: Chief Financial Officer and Senior
Vice President, Operations
CONFIRMED AND ACCEPTED,
as of the date first above written:
BEAR, STEARNS & CO. INC.
By: /s/ Stephen Parish
-------------------
Authorized Signatory
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