EXHIBIT 1.1
EXECUTION COPY
2,000,000 SHARES
VIASAT, INC.
COMMON STOCK, PAR VALUE $0.0001 PER SHARE
UNDERWRITING AGREEMENT
January 8, 2002
SG COWEN SECURITIES CORPORATION,
As Representative of the several Underwriters
c/o SG Cowen Securities Corporation
Financial Square
New York, New York 10005
Dear Sirs:
1. INTRODUCTORY. ViaSat, Inc., a Delaware corporation (the "Company"), proposes
to sell, pursuant to the terms of this Underwriting Agreement (the "Agreement"),
to the several underwriters named in Schedule A hereto (the "Underwriters," or,
each, an "Underwriter"), an aggregate of 2,000,000 shares (the "Firm Shares") of
common stock, $0.0001 par value (the "Common Stock"), of the Company. The
Company also proposes to sell to the Underwriters, upon the terms and conditions
set forth in Section 3 hereof, up to an additional 300,000 shares of Common
Stock (the "Optional Shares"). The Firm Shares and the Optional Shares are
hereinafter collectively referred to as the "Securities." SG Cowen Securities
Corporation ("SG Cowen") is acting as representative of the several Underwriters
and in such capacity is hereinafter referred to as the "Representative."
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents and
warrants to, and agrees with, the several Underwriters that:
(a) The Company meets the requirements for the use of Form S-3 under the
Securities Act of 1933, as amended (the "Securities Act"). A
registration statement on Form S-3 (File No. 333-69664), including all
pre-effective amendments thereto (the "Initial Registration Statement"),
in respect of the Securities has been filed with the Securities and
Exchange Commission (the "Commission") pursuant to Rule 415 under the
Securities Act; the Initial Registration Statement and any
post-effective amendment thereto, each in the form heretofore delivered
to you for each of the other Underwriters, and, excluding exhibits
thereto, but including all documents incorporated by reference in the
prospectus contained therein, have been declared effective by the
Commission in such form; other than a registration statement, if any,
increasing the size of the offering (a "Rule 462(b) Registration
Statement"), filed pursuant to Rule 462(b) under the Securities Act, and
the rules and regulations (the "Rules and Regulations") of the
Commission thereunder, which became effective upon filing, no other
document with respect to the Initial Registration Statement or document
incorporated by reference therein has heretofore been filed with the
Commission; and no stop order suspending the effectiveness of the
Initial Registration Statement, any post-effective amendment thereto or
the Rule 462(b) Registration Statement, if any, has been issued and no
proceeding for that purpose has been initiated or threatened by the
Commission (any preliminary prospectus included in the Initial
Registration Statement or filed with the Commission pursuant to Rule
424(a) of the Rules and Regulations, is hereinafter called a
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"Preliminary Prospectus"); the various parts of the Initial Registration
Statement and the Rule 462(b) Registration Statement, if any, including
all exhibits thereto and including (i) the information contained in the
form of final prospectus filed with the Commission pursuant to Rule
424(b) under the Securities Act and the information, if any, deemed by
virtue of Rule 430A under the Securities Act to be part of the Initial
Registration Statement at the time it was declared effective and (ii)
the documents incorporated by reference in the prospectus contained in
the Initial Registration Statement at the time such part of the Initial
Registration Statement became effective, each as amended at the time
such part of the Initial Registration Statement became effective or such
part of the Rule 462(b) Registration Statement, if any, became or
hereafter becomes effective, are hereinafter collectively called the
"Registration Statements"; and such final prospectus, in the form first
filed pursuant to Rule 424(b) under the Securities Act, is hereinafter
called the "Prospectus"; and any reference herein to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form
S-3 under the Securities Act, as of the date of such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment or supplement to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any documents filed after the
date of such Preliminary Prospectus or Prospectus, as the case may be,
under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and incorporated by reference in such Preliminary Prospectus or
Prospectus, as the case may be; and any reference to any amendment to
the Registration Statements shall be deemed to refer to and include any
annual report of the Company filed pursuant to Section 13(a) or 15(d) of
the Exchange Act after the effective date of the Initial Registration
Statement that is incorporated by reference in the Registration
Statements. No document has been or will be prepared or distributed in
reliance on Rule 434 under the Securities Act. No order preventing or
suspending the use of any Preliminary Prospectus has been issued by the
Commission.
(b) The Initial Registration Statement conforms (and the Rule 462(b)
Registration Statement, if any, the Preliminary Prospectus, the
Prospectus and any amendments or supplements to either of the
Registration Statements or the Prospectus, when they become effective or
are filed with the Commission, as the case may be, will conform) in all
material respects to the requirements of the Securities Act and the
Rules and Regulations and does not and will not, as of the applicable
effective date (as to the Registration Statements, the Preliminary
Prospectus and any amendments thereto) and as of the applicable filing
date, the First Closing Date (as defined below) and the Option Closing
Date (as defined below) (as to the Prospectus and any amendment or
supplement thereto) contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that the foregoing representations and warranties shall not
apply to information contained in or omitted from the Registration
Statements or the Prospectus or any such amendment or supplement thereto
in reliance upon, and in conformity with, written information furnished
to the Company through the Representative by or on behalf of any
Underwriter specifically for inclusion therein. As filed, the Prospectus
shall include all required information under the Securities Act with
respect to the Securities and the offering of the Securities and, except
to the extent that the Representative shall agree to a modification
thereof, shall be in the form furnished to the Representative prior to
the execution of this Agreement.
(c) The documents incorporated by reference in the Prospectus, when they
became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Securities
Act or the Exchange Act, as applicable, and the rules and regulations of
the Commission thereunder, and none of such documents contained any
untrue statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading; and any further documents so filed and
incorporated by reference in the Prospectus, when such documents become
effective or are filed
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with the Commission, as the case may be, will conform in all material
respects to the requirements of the Securities Act or the Exchange Act,
as applicable, and the rules and regulations of the Commission
thereunder and will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading.
(d) The Company and each of its subsidiaries (as defined in Section 14)
have been duly organized and are validly existing as organizations in
good standing under the laws of their respective jurisdictions of
organization, are duly qualified to do business and are in good standing
as foreign organizations 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, except where the failure to so
qualify or have such power or authority would not reasonably be expected
to, singularly or in the aggregate, have a material adverse effect on
the condition (financial or otherwise), results of operations or
business of the Company and its subsidiaries taken as a whole (a
"Material Adverse Effect"). The Company owns or controls, directly or
indirectly, only the corporations, associations or other entities listed
on Schedule B.
(e) This Agreement has been duly authorized, executed and delivered by
the Company.
(f) The Securities to be issued and sold by the Company to the
Underwriters hereunder have been duly and validly authorized and, when
issued and delivered against payment therefor as provided herein, will
be duly and validly issued, fully paid and nonassessable and free of any
preemptive or similar rights and will conform to the description thereof
contained in the Prospectus.
(g) The Company has an authorized capitalization as 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
nonassessable and conform to the description thereof contained in the
Prospectus. On the date hereof, the Company has 23,866,147 shares of
Common Stock issued and outstanding and 5,223,946 shares of Common Stock
that may be issued upon exercise of all options and warrants outstanding
on the date hereof or that are available on the date hereof for future
grant or issuance pursuant to the Company's employee stock purchase
plan. Except as set forth above, on the date hereof, there are no shares
of capital stock or voting securities of the Company that are issued,
reserved for issuance or outstanding.
(h) All the outstanding shares of capital stock of each subsidiary of
the Company have been duly authorized and validly issued, are fully paid
and nonassessable and, except to the extent set forth in the Prospectus,
are owned by the Company directly or indirectly through one or more
wholly-owned subsidiaries, free and clear of any claim, lien,
encumbrance, security interest, restriction upon voting or transfer or
any other claim of any third party, except that (i) the Company's equity
interest in Immeon Networks, LLC is as set forth on Schedule B and such
equity interest is subject to restrictions on voting and transfers under
the Limited Liability Company Agreement of Immeon Networks, LLC; (ii)
the Company owns 60% of the outstanding shares of capital stock of
TrellisWare Technologies, Inc., which are subject to restrictions on
voting and transfer under a Voting Agreement among TrellisWare
Technologies, Inc. and certain investors and an Investor Rights
Agreement among TrellisWare Technologies, Inc. and certain investors;
and (iii) 9,692,307.69 of the Class B Units of U.S. Monolithics, LLC
that are owned by the Company are subject to a security interest under a
Pledge and Security Agreement by and between Wildblue Communications,
Inc. and the Company and all of the Class A Units and Class B Units of
U.S. Monolithics, LLC that are owned by the Company are subject to
certain
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restrictions on transfers under the Amended and Restated Operating
Agreement of U.S. Monolithics, LLC.
(i) The execution, delivery and performance of this Agreement by the
Company and the consummation of the transactions contemplated hereby (a)
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 Company or any of its subsidiaries is a party or by which
the Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is subject,
(b) will not result in any violation of the provisions of the charter or
by-laws of the Company or any of its subsidiaries and (c) will not
result in any violation of any statute or any order, rule or regulation
of any court or governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their properties or assets,
in each of clauses (a) and (c), other than any such conflict, breach,
violation or default that would not reasonably be expected to,
singularly or in the aggregate, have a Material Adverse Effect.
(j) Except for the registration of the Securities under the Securities
Act and such consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act and applicable
state securities laws and the National Association of Securities
Dealers, Inc. in connection with the purchase and distribution of the
Securities by the Underwriters, no consent, approval, authorization or
order of, or filing or registration with, any court or governmental
agency or body is required for the execution, delivery and performance
of this Agreement by the Company and the consummation of the
transactions contemplated hereby.
(k) Each of PricewaterhouseCoopers LLP and Nelson Lambson & Co., PLC,
who have expressed their opinions on the audited financial statements
and related schedules included or incorporated by reference in the
Registration Statements and the Prospectus are independent public
accountants as required by the Securities Act and the Rules and
Regulations.
(l) The financial statements, together with the related notes and
schedules, included or incorporated by reference in the Prospectus and
in each Registration Statement fairly present in all material respects
the financial position and the results of operations and changes in
financial position of each of the Company and its consolidated
subsidiaries and U.S. Monolithics, LLC, as the case may be, at the
respective dates or for the respective periods therein specified. Such
statements and related notes and schedules have been prepared in
accordance with generally accepted accounting principles in the United
States applied on a consistent basis, except that the unaudited balance
sheet, income statement and statement of cash flows of U.S. Monolithics,
LLC for the nine-month period ended September 30, 2001 lack footnotes.
(m) Neither the Company nor any of its subsidiaries has sustained, since
the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, 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; and, since such date, there has
not been any material change in the capital stock or long-term debt of
the Company or any of its subsidiaries or any material adverse change,
or any development that would reasonably be expected to, singularly or
in the aggregate, have a prospective material adverse change, in or
affecting the business, general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole, otherwise than as set forth or
contemplated in the Prospectus. The Company is not currently aware of
any facts or circumstances that would require it to file any current
report on Form 8-K under the Exchange
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Act other than in connection with the offering of the securities or as
otherwise contemplated by this Agreement.
(n) Except as set forth in the Prospectus, there is no legal or
governmental proceeding pending to which the Company or any of its
subsidiaries is a party or of which any property or assets of the
Company or any of its subsidiaries is the subject which, singularly or
in the aggregate, if determined adversely to the Company or any of its
subsidiaries, would reasonably be expected to have a Material Adverse
Effect or would prevent or adversely affect the ability of the Company
to perform its obligations under this Agreement; and to the best of the
Company's knowledge, no such proceedings are threatened by governmental
authorities or threatened by others.
(o) Neither the Company nor any of its subsidiaries (i) is in violation
of its charter or by-laws, (ii) is in default in any 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 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 property or
assets is subject or (iii) is in violation in any respect of any law,
ordinance, governmental rule, regulation or court decree to which it or
its property or assets may be subject, except, with respect to clauses
(ii) and (iii), any violations or defaults which would not reasonably be
expected to, singularly or in the aggregate, have a Material Adverse
Effect.
(p) The Company and each of its subsidiaries possess such licenses,
certificates, authorizations and permits issued by, and have made all
declarations and filings with, the appropriate state, local, federal or
foreign regulatory agencies or bodies which are necessary for the
ownership of their respective properties or the conduct of their
respective businesses as described in the Prospectus (collectively, the
"Governmental Permits"); the Company and its subsidiaries are in
compliance with such Governmental Permits except where the failure to so
comply, singularly or in the aggregate, would not reasonably be expected
to have a Material Adverse Effect; all of the Governmental Permits are
valid and in full force and effect, except where the invalidity of such
Governmental Permits or the failure of such Governmental Permits to be
in full force and effect would not reasonably be expected to, singularly
or in the aggregate, have a Material Adverse Effect; all such
Governmental Permits are free and clear of any restrictions or
conditions that are in addition to, or materially different from, those
normally applicable to similar licenses, certificates, authorizations
and permits and the Company has not received written notification of any
proceedings relating to the revocation or modification of any such
Governmental Permits and, to the best of its knowledge, has no reason to
believe that any such Governmental Permits will not be renewed, other
than any modification, revocation or failure to renew that would not
reasonably be expected to, singularly or in the aggregate, have a
Material Adverse Effect.
(q) Neither the Company nor any of its subsidiaries is or, after giving
effect to the offering of the Securities and the application of the
proceeds thereof as described in the Prospectus will become an
"investment company" within the meaning of the Investment Company Act of
1940, as amended, and the rules and regulations of the Commission
thereunder.
(r) Neither the Company nor any of its officers, directors or affiliates
has taken or will take, directly or indirectly, any action designed or
intended to stabilize or manipulate the price of any security of the
Company, or which caused or resulted in, or which would in the future
reasonably be expected to cause or result in, stabilization or
manipulation of the price of any security of the Company.
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(s) The Company and its subsidiaries own or possess the right to use all
patents, trademarks, trademark registrations, service marks, service
mark registrations, trade names, copyrights, licenses, inventions, trade
secrets and other intellectual property rights which are necessary for
their respective businesses as described in the Prospectus, including
but not limited to those intellectual property rights described in the
Prospectus as being owned by them for the conduct of their respective
businesses, except where failure to own or possess such intellectual
property rights would not reasonably be expected to, singularly or in
the aggregate, have a Material Adverse Effect. The Company is not aware
of any claim to the contrary or any challenge by any other person to the
intellectual property rights of the Company and its subsidiaries with
respect to the foregoing, nor is the Company aware of any existing facts
or circumstances that could be raised by any other person to
legitimately challenge the intellectual property rights of the Company
and its subsidiaries, other than any such claim or challenge that would
not reasonably be expected to, singularly or in the aggregate, have a
Material Adverse Effect. The Company and its subsidiaries have made all
declarations and filings, including but not limited to assignments and
payment of fees, with the appropriate state, federal or foreign
regulatory bodies which are necessary to maintain in full force and
effect ownership and possession of the intellectual property rights of
the Company and its subsidiaries, except where such failure to make the
same would not reasonably be expected to, singularly or in the
aggregate, have a Material Adverse Effect, and the Company has not
received notification of any revocation or modification of any
intellectual property right, and has no reason to believe that any
renewable intellectual property right will not be renewed, other than
any revocation, modification or failure to renew that would not
reasonably be expected to, singularly or in the aggregate, have a
Material Adverse Effect. To the best of the Company's knowledge, the
business of the Company and its subsidiaries as described in the
Prospectus does not infringe or conflict with any patents, trademarks,
trademark registrations, service marks, service mark registrations,
trade names, copyrights, trade secrets, licenses or other intellectual
property or franchise right of any person, other than any such
infringement or conflict that would not reasonably be expected to,
singularly or in the aggregate, have a Material Adverse Effect. Except
as described in the Prospectus and except for those claims that would
not reasonably be expected to, singularly or in the aggregate, have a
Material Adverse Effect, no claim has been made against the Company or
any of its subsidiaries alleging the infringement by the Company or any
of its subsidiaries of any patent, trademark, trademark registrations,
service mark, service mark registrations, trade name, copyright, trade
secret, license in or other intellectual property right or franchise
right of any person.
(t) The Company and each of its subsidiaries have good and marketable
title in fee simple to, or have valid rights to lease or otherwise use,
all items of real or personal property which are material to the
business of the Company and its subsidiaries taken as a whole, in each
case free and clear of all liens, encumbrances, claims and defects that
would reasonably be expected to, singularly or in the aggregate, have a
Material Adverse Effect.
(u) No labor disturbance by the employees of the Company or any of its
subsidiaries exists or, to the best of the Company's knowledge, is
imminent that would reasonably be expected to, singularly or in the
aggregate, have a Material Adverse Effect. The Company is not aware that
any key employee or significant group of employees of the Company or any
subsidiary plans to terminate employment with the Company or any such
subsidiary.
(v) No "prohibited transaction" (as defined in Section 406 of the
Employee Retirement Income Security Act of 1974, as amended, including
the regulations and published interpretations thereunder ("ERISA")), or
Section 4975 of the Internal Revenue Code of 1986, as amended from time
to time (the "Code"), or "accumulated funding deficiency" (as defined in
Section 302 of ERISA) or any of the events set forth in Section 4043(b)
of ERISA (other than events with respect to which the 30-day notice
requirement under Section 4043 of ERISA has been waived)
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has occurred with respect to any employee benefit plan of the Company or
its subsidiaries which would reasonably be expected to, singularly or in
the aggregate, have a Material Adverse Effect; each such employee
benefit plan is in compliance in all material respects with applicable
law, including ERISA and the Code; the Company has not incurred and does
not expect to incur material liability under Title IV of ERISA with
respect to the termination of, or withdrawal from, any "pension plan"
(as defined in ERISA); and each "pension plan" for which the Company
would have any liability that is intended to be qualified under Section
401(a) of the Code is so qualified in all material respects and nothing
has occurred, whether by action or by failure to act, which would
reasonably be expected to cause the loss of such qualification.
(w) There has been no storage, generation, transportation, handling,
treatment, disposal, discharge, emission, or other release of any kind
of toxic or other wastes or other hazardous substances by, due to, or
caused by the Company or any of its subsidiaries or for which the
Company or any of its subsidiaries is otherwise liable upon any of the
property now or previously owned or leased by the Company or any of its
subsidiaries, or upon any other property, in violation of any statute or
any ordinance, rule, regulation, order, judgment, decree or permit or
which would, under any statute or any ordinance, rule (including rule of
common law), regulation, order, judgment, decree or permit, which would
reasonably be expected to give rise to any liability, except for any
violation or liability which would not reasonably be expected to,
singularly or in the aggregate with all such violations and liabilities,
have a Material Adverse Effect; there has been no disposal, discharge,
emission or other release of any kind onto such property or into the
environment surrounding such property of any toxic or other wastes or
other hazardous substances with respect to which the Company or any of
its subsidiaries has knowledge, except for any such disposal, discharge,
emission, or other release of any kind which would not reasonably be
expected to, singularly or in the aggregate with all such discharges and
other releases, have a Material Adverse Effect.
(x) The Company and its subsidiaries each (i) has filed all necessary
federal, state, local and foreign income and franchise tax returns or
has duly requested extensions thereof, (ii) has paid all federal, state,
local and foreign taxes due and payable for which it is liable, and
(iii) does not have any tax deficiency or claims outstanding or assessed
or, to the best of the Company's knowledge, proposed against it, except
those, in each of the cases described in clauses (i), (ii) and (iii),
that would not reasonably be expected to, singularly or in the
aggregate, have a Material Adverse Effect.
(y) The Company and each of its 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.
(z) The Company and each of its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurances
that (i) transactions are executed in accordance with management's
general or specific authorization; (ii) transactions are recorded as
necessary to permit preparation of financial statements in conformity
with generally accepted accounting principles and to maintain
accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv)
the recorded accountability for assets is compared with existing assets
at reasonable intervals and appropriate action is taken with respect to
any differences.
(aa) The minute books of the Company and each of its subsidiaries have
been made available to the Underwriters and counsel for the
Underwriters, and such books (i) contain a reasonably detailed summary
of all meetings and actions of the directors and stockholders of the
Company
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and each of its subsidiaries since the time of their respective dates of
organization through the date of the latest meeting and action, and (ii)
accurately reflect in all material respects all transactions referred to
in such minute books.
(bb) There is no franchise, lease, contract, agreement or document
required by the Securities Act or by the Rules and Regulations to be
described or incorporated by reference in the Prospectus or to be filed
as an exhibit to the Registration Statements which is not described or
incorporated by reference or filed therein as required; and all
descriptions of any such franchises, leases, contracts, agreements or
documents contained or incorporated by reference in the Registration
Statements are accurate and complete descriptions of such documents in
all material respects. Other than as described in the Prospectus, no
such franchise, lease, contract or agreement has been suspended or
terminated for convenience or default by the Company or any of the other
parties thereto, and the Company has not received notice of any such
pending or threatened suspension or termination, except for such pending
or threatened suspensions or terminations that would not reasonably be
expected to, singularly or in the aggregate, have a Material Adverse
Effect.
(cc) No relationship, direct or indirect, exists between or among the
Company on the one hand, and the directors, officers, stockholders,
customers or suppliers of the Company on the other hand, which is
required to be described in the Prospectus and which is not so
described.
(dd) No person or entity has the right to require registration of shares
of Common Stock or other securities of the Company because of the filing
or effectiveness of either or both of the Registration Statements,
except for persons and entities who have expressly waived such right or
who have been given proper notice and have failed to exercise such right
within the time or times required under the terms and conditions of such
right.
(ee) Neither the Company nor any of its subsidiaries owns any "margin
securities" as that term is defined in Regulation U of the Board of
Governors of the Federal Reserve System (the "Federal Reserve Board"),
and none of the proceeds of the sale of the Securities will be used,
directly or indirectly, for the purpose of purchasing or carrying any
margin security, for the purpose of reducing or retiring any
indebtedness which was originally incurred to purchase or carry any
margin security or for any other purpose which would cause any of the
Securities to be considered a "purpose credit" within the meanings of
Regulation T, U or X of the Federal Reserve Board.
(ff) Neither the Company nor any of its subsidiaries is a party to any
contract, agreement or understanding with any person that would give
rise to a valid claim against the Company or the Underwriters for a
brokerage commission, finder's fee or like payment in connection with
the offering and sale of the Securities.
(gg) No forward-looking statement (within the meaning of Section 27A of
the Securities Act and Section 21E of the Exchange Act) contained in the
Prospectus has been made or reaffirmed without a reasonable basis or has
been disclosed other than in good faith.
(hh) No consent, approval, authorization or order of, or filing,
notification or registration with, the Nasdaq is required for the
listing and trading of the Securities on the Nasdaq National Market.
(ii) The Company is subject to and in compliance in all material
respects with the reporting requirements of Section 13 or Section 15(d)
of the Exchange Act. The Common Stock is registered pursuant to Section
12(g) of the Exchange Act and is listed on the Nasdaq National Market,
and the Company has taken no action designed to, or reasonably likely to
have the effect
9
of, terminating the registration of the Common Stock under the Exchange
Act or delisting the Common Stock from the Nasdaq National Market, nor
has the Company received any notification that the Commission or the
National Association of Securities Dealers is contemplating terminating
such registration or listing.
(jj) The Company has not distributed and, prior to the later of (i) the
Option Closing Date and (ii) the completion of the distribution of the
Securities, will not distribute any written offering material in
connection with the offering and sale of the Securities other than the
Registration Statements or any amendment thereto, any Preliminary
Prospectus or the Prospectus or any amendment or supplement thereto, or
other materials, if any, permitted under the Securities Act.
3. PURCHASE, SALE AND DELIVERY OF OFFERED SECURITIES. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to sell to each
Underwriter, and each Underwriter agrees, severally and not jointly, to purchase
from the Company that number of Firm Shares (rounded up or down, as determined
by SG Cowen in its discretion, in order to avoid fractions) obtained by
multiplying 2,000,000 Firm Shares by a fraction the numerator of which is the
number of Firm Shares set forth opposite the name of such Underwriter in
Schedule B hereto and the denominator of which is the total number of Firm
Shares.
The purchase price per share to be paid by the Underwriters to the
Company for the Securities will be $13.725 per share (the "Purchase Price").
The Company will deliver the Firm Shares to the Representative for the
respective accounts of the several Underwriters, in the form of definitive
certificates, issued in such names and in such denominations as the
Representative may direct by notice in writing to the Company given at or prior
to 12:00 Noon, New York time, on the second full business day preceding the
First Closing Date against payment of the aggregate Purchase Price therefor, by
wire transfer in federal (same day) funds to an account at a bank designated by
the Company and reasonably acceptable to SG Cowen, payable to the order of the
Company, all at the offices of Paul, Weiss, Rifkind, Wharton & Garrison, 1285
Avenue of the Americas, New York, New York 10019. Time shall be of the essence,
and delivery of the Firm Shares at the time and place specified pursuant to this
Agreement is a further condition of the obligations of each Underwriter
hereunder. The time and date of the delivery and closing shall be at 10:00 A.M.,
New York time, on January 14, 2002, in accordance with Rule 15c6-1 of the
Exchange Act. The time and date of such payment and delivery are herein referred
to as the "First Closing Date." The First Closing Date and the location of
delivery of, and the form of payment for, the Firm Shares may be varied by
agreement between the Company and SG Cowen.
The Company shall make the certificates for the Firm Shares available to
the Representative for examination on behalf of the Underwriters in New York,
New York, at least twenty-four hours prior to the First Closing Date.
For the purpose of covering any over-allotments in connection with the
distribution and sale of the Firm Shares as contemplated by the Prospectus, the
Underwriters may purchase all or less than all of the Optional Shares. The price
per share to be paid for the Optional Shares shall be the Purchase Price. The
Company agrees to sell to the Underwriters the number of Optional Shares
specified in the written notice by SG Cowen described below and the Underwriters
agree, severally and not jointly, to purchase such Optional Shares. Such
Optional Shares shall be purchased from the Company for the account of each
Underwriter in the same proportion as the number of Firm Shares set forth
opposite such Underwriter's name bears to the total number of Firm Shares
(subject to adjustment by SG Cowen to eliminate fractions). The option granted
hereby may be exercised as to all or any part of the Optional Shares at any
time, and from time to time, not more than thirty (30) days subsequent to the
date of this Agreement. No Optional Shares shall be sold and delivered unless
the Firm Shares previously have been,
10
or simultaneously are, sold and delivered. The right to purchase the Optional
Shares or any portion thereof may be surrendered and terminated at any time upon
written notice by SG Cowen to the Company.
The option granted hereby may be exercised by written notice being given
to the Company by SG Cowen setting forth the number of Optional Shares to be
purchased by the Underwriters and the date and time for delivery of and payment
for the Optional Shares. Each date and time for delivery of and payment for the
Optional Shares (which may be the First Closing Date, but not earlier) is herein
called the "Option Closing Date" and shall in no event be earlier than two (2)
business days nor later than five (5) business days after written notice is
given. The Option Closing Date and the First Closing Date are hereinafter called
the "Closing Dates."
The Company will deliver the Optional Shares to the Underwriters, in the
form of definitive certificates, issued in such names and in such denominations
as the Representative may direct by notice in writing to the Company given at or
prior to 12:00 Noon, New York time, on the second full business day preceding
the Option Closing Date against payment of the aggregate Purchase Price
therefor, in federal (same day) funds by wire transfer to an account at a bank
designated by the Company and reasonably acceptable to SG Cowen payable to the
order of the Company, all at the offices of Paul, Weiss, Rifkind, Wharton &
Garrison, 1285 Avenue of the Americas, New York, New York 10019. Time shall be
of the essence, and delivery of the Optional Shares at the time and place
specified pursuant to this Agreement is a further condition of the obligations
of each Underwriter hereunder. The Company shall make the certificates for the
Optional Shares available to the Representative for examination on behalf of the
Underwriters in New York, New York, not later than 10:00 A.M., New York time, on
the business day preceding the Option Closing Date. The Option Closing Date and
the location of delivery of, and the form of payment for, the Optional Shares
may be varied by agreement between the Company and SG Cowen.
The several Underwriters propose to offer the Securities for sale upon
the terms and conditions set forth in the Prospectus.
4. FURTHER AGREEMENTS OF THE COMPANY. The Company agrees with the several
Underwriters that:
(a) The Company will prepare the Rule 462(b) Registration Statement, if
necessary, in a form approved by the Representative (which approval
shall not be unreasonably withheld or delayed) and file such Rule 462(b)
Registration Statement with the Commission on the date hereof; prepare
the Prospectus in a form approved by the Representative and file such
Prospectus pursuant to Rule 424(b) under the Securities Act not later
than the second business day following the execution and delivery of
this Agreement; make no further amendment or any supplement to the
Registration Statements or to the Prospectus, including documents to be
incorporated by reference therein, from the date hereof until the Option
Closing Date, to which the Representative shall reasonably object by
notice to the Company after a reasonable period to review; advise the
Representative, promptly after it receives notice thereof, of the time
when any amendment to either Registration Statement has been filed or
becomes effective or any supplement to the Prospectus or any amended
Prospectus has been filed and to furnish the Representative with copies
thereof; file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act subsequent to the date of the Prospectus and for so long as the
delivery of a prospectus is required in connection with the offering or
sale of the Securities; advise the Representative, promptly after it
receives 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 or the Prospectus, of the suspension of the
qualification of the Securities for offering or sale in any
11
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 Statements or the Prospectus 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 or the Prospectus or suspending any such
qualification, use promptly its best efforts to obtain its withdrawal.
(b) If at any time prior to the expiration of nine months after the
effective date of the Initial Registration Statement when a prospectus
relating to the Securities is required to be delivered any event occurs
as a result of which the Prospectus as then amended or supplemented
would include any untrue statement of a material fact, or omit to state
any material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, or if it
is necessary at any time to amend the Prospectus or to file under the
Exchange Act any document incorporated by reference in the Prospectus to
comply with the Securities Act or the Exchange Act, the Company will
promptly notify the Representative thereof and upon its request will
prepare an amended or supplemented Prospectus or make an appropriate
filing pursuant to Section 13 or 14 of the Exchange Act which will
correct such statement or omission or effect such compliance. The
Company will furnish without charge to each Underwriter and to any
dealer in securities as many copies as the Representative may from time
to time reasonably request of such amended or supplemented Prospectus;
and in case any Underwriter is required to deliver a prospectus relating
to the Securities nine months or more after the effective date of the
Initial Registration Statement, the Company upon the reasonable request
of the Representative and at the expense of such Underwriter will
prepare promptly an amended or supplemented Prospectus as may be
necessary to permit compliance with the requirements of Section 10(a)(3)
of the Securities Act.
(c) The Company will furnish promptly to the Representative and to
counsel for the Underwriters a signed copy of each of the Registration
Statements as originally filed with the Commission, and each amendment
thereto filed with the Commission, including all consents and exhibits
filed therewith.
(d) The Company will deliver promptly to the Representative in New York
City such number of the following documents as the Representative shall
reasonably request: (i) conformed copies of the Registration Statements
as originally filed with the Commission and each amendment thereto (in
each case excluding exhibits), (ii) each Preliminary Prospectus, (iii)
the Prospectus (not later than 10:00 A.M., New York time, of the
business day following the execution and delivery of this Agreement) and
any amended or supplemented Prospectus (not later than 10:00 A.M., New
York City time, on the business day following the date of such amendment
or supplement) and (iv) any document incorporated by reference in the
Prospectus (excluding exhibits thereto).
(e) The Company will file such reports pursuant to the Exchange Act to
make generally available to its stockholders as soon as reasonably
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Securities Act), an earnings statement of the Company and its
subsidiaries (which need not be audited) for the purposes of, and to
provide the benefits contemplated by, the last paragraph of Section
11(a) of the Securities Act.
(f) The Company will promptly take from time to time such actions as the
Representative may reasonably request to qualify the Securities for
offering and sale under the securities or Blue Sky laws of such
jurisdictions as the Representative may reasonably designate and to
continue such qualifications in effect for so long as required for the
distribution of the Securities; provided that the Company and its
subsidiaries shall not be obligated to qualify as foreign organizations
in
12
any jurisdiction in which they are not so qualified or to file a general
consent to service of process in any jurisdiction.
(g) The Company and its subsidiaries will not directly or indirectly
offer, sell, assign, transfer, pledge, contract to sell, or otherwise
dispose of any shares of Common Stock or securities convertible into or
exercisable or exchangeable for Common Stock for a period of 90 days
from the date of the Prospectus without the prior written consent of SG
Cowen other than (i) the Company's sale of the Securities hereunder,
(ii) the issuance of shares 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
and warrants and (iii) the offering or issuance of no more than an
aggregate of 1,250,000 shares of Common Stock of the Company in
connection with the acquisition of unaffiliated entities or assets or
businesses of unaffiliated entities; provided, however, that each person
or entity to which securities are issued pursuant to this clause (iii)
shall have agreed to be bound by a lock-up agreement in the form of
Exhibit II hereto for the remainder of the lock-up period set forth in
such agreement.
(h) The Company will supply the Representative with copies of all
correspondence to and from, and all documents issued to and by, the
Commission in connection with the registration of the Securities under
the Securities Act.
(i) Prior to each of the Closing Dates, the Company will furnish to the
Representative, as soon as reasonably practicable after their
preparation, copies of any unaudited interim consolidated financial
statements of the Company prepared by or on behalf of the Company for
any quarterly periods subsequent to the periods covered by the financial
statements appearing in the Registration Statements and the Prospectus.
(j) Prior to each of the Closing Dates, the Company will not issue any
press release or other communication directly or indirectly or hold any
press conference with respect to the Company, its condition, financial
or otherwise, or earnings, business affairs or business prospects
(except for routine marketing communications and earnings releases,
each, in the ordinary course of business and consistent with the past
practices of the Company and of which the Representative is notified),
without the prior written consent of the Representative, which consent
shall not be unreasonably withheld or delayed, unless in the judgment of
the Company and its counsel, and after notification to the
Representative, such press release or communication is required by law.
(k) In connection with the offering of the Securities, until SG Cowen
shall have notified the Company of the completion of the resale of the
Securities (which notification shall be given in writing as promptly as
reasonably practicable), the Company will not, and will cause its
affiliated purchasers (as defined in Regulation M under the Exchange
Act) not to, either alone or with one or more other persons, bid for or
purchase, for any account in which it or any of its affiliated
purchasers has a beneficial interest, any Securities, or attempt to
induce any person to purchase any Securities; and not to, and to cause
its affiliated purchasers not to, make bids or purchase for the purpose
of creating actual, or apparent, active trading in or of raising the
price of the Securities.
(l) The Company will not take any action prior to the Option Closing
Date which would require the Prospectus to be amended or supplemented
pursuant to Section 4(b), other than the filing of any document under
the Exchange Act incorporated by reference in the Prospectus necessary
in order to comply with the requirements of the Exchange Act.
(m) The Company will apply the net proceeds from the sale of the
Securities as set forth in the Prospectus under the heading "Use of
Proceeds."
13
5. PAYMENT OF EXPENSES. The Company agrees with the Underwriters to pay (a) the
costs incident to the authorization, issuance, sale, preparation and delivery of
the Securities and any taxes payable in that connection; (b) the costs incident
to the registration of the Securities under the Securities Act; (c) the costs
incident to the preparation, printing and distribution of the Registration
Statements, Preliminary Prospectus, Prospectus and any amendments and exhibits
thereto or any document incorporated by reference therein, the costs of
printing, reproducing and distributing the "Agreement Among Underwriters"
between the Representative and the Underwriters, the Master Selected Dealers'
Agreement, the Underwriters' Questionnaire and this Agreement by mail, telex or
other reasonable means of communication; (d) the fees and expenses (including
related reasonable fees and expenses of counsel for the Underwriters) incurred
in connection with filings made with the National Association of Securities
Dealers; (e) any applicable listing or other fees; (f) the fees and expenses of
qualifying the Securities under the securities laws of the several jurisdictions
as provided in Section 4(f) and of preparing, printing and distributing Blue Sky
Memoranda and Legal Investment Surveys (including related reasonable fees and
expenses of counsel to the Underwriters); (g) all fees and expenses of the
registrar and transfer agent of the Securities; and (h) all other costs and
expenses incident to the performance of the obligations of the Company under
this Agreement (including, without limitation, the fees and expenses of the
Company's counsel and the Company's independent accountants); provided that,
except as otherwise expressly provided in this Section 5 and in Section 9, the
Underwriters shall pay their own costs and expenses, including the fees and
expenses of their counsel, any transfer taxes on the Securities which they may
sell and the expenses of advertising any offering of the Securities made by the
Underwriters.
6. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The respective obligations of the
several Underwriters hereunder are subject to the accuracy, when made and on
each of the Closing Dates, of the representations and warranties of the Company
contained herein, to the accuracy of the statements of the Company made in any
certificates pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder, and to each of the following additional
terms and conditions:
(a) No stop order suspending the effectiveness of either of the
Registration Statements shall have been issued and no proceedings for
that purpose shall have been initiated or threatened by the Commission,
and any request for additional information on the part of the Commission
(to be included in the Registration Statements or the Prospectus or
otherwise) shall have been complied with to the reasonable satisfaction
of the Representative. The Rule 462(b) Registration Statement, if any,
and the Prospectus shall have been timely filed with the Commission in
accordance with Section 4(a).
(b) None of the Underwriters shall have discovered and disclosed to the
Company on or prior to the Closing Date that either of the Registration
Statements or the Prospectus or any amendment or supplement thereto
contains an untrue statement of a fact which, in the opinion of counsel
for the Underwriters, is material or omits to state any 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 each of this Agreement, the
Securities, either of the Registration Statements and the Prospectus and
all other legal matters relating to this Agreement and the transactions
contemplated hereby shall be reasonably satisfactory in all material
respects to counsel for the Underwriters, and the Company shall have
furnished to such counsel all documents and information that they may
reasonably request to enable them to pass upon such matters.
(d) (i) Latham and Watkins shall have furnished to the Representative
such counsel's written opinion, as counsel to the Company, addressed to
the Underwriters and dated the Closing Date, in form and substance
reasonably satisfactory to the Representative, to the effect that:
14
(A) The Company has been duly incorporated and is validly
existing and in good standing under the laws of the
State of Delaware, with corporate power and authority to
own, lease and operate its properties and to conduct its
business as described in the Initial Registration
Statement and any post-effective amendments thereto
(collectively, including the documents incorporated by
reference therein, the "Registration Statement") and the
Prospectus. Based solely on certificates from public
officials, such counsel confirms that the Company is
qualified to do business in the State of California.
B) The authorized capital stock of the Company as of the
date hereof consists of: 100,000,000 shares of Common
Stock, par value $.0001 per share; and 5,000,000 shares
of preferred stock, par value $.0001 per share. The
shares of Common Stock issued on or subsequent to
December 6, 1996 and outstanding immediately prior to
the issuance of the Securities have been duly authorized
and validly issued and are fully paid and nonassessable.
(C) The Securities being issued and sold pursuant to this
Agreement have been duly authorized and, when issued to
and paid for by the Underwriters in accordance with the
terms of this Agreement, will be validly issued, fully
paid and nonassessable, will conform in all material
respects to the description thereof contained in the
Prospectus and will be free and clear of any preemptive
rights pursuant to the Company's Second Amended and
Restated Certificate of Incorporation or Bylaws and, to
the best of such counsel's knowledge, pursuant to any
contract to which the Company is a party. Such counsel
shall be permitted to advise the Underwriters that, with
their permission, such counsel has not undertaken a
review of any contracts to which the Company is a party
in connection with the opinion rendered with respect to
preemptive rights of the first sentence of this clause
(C).
(D) This Agreement has been duly authorized, executed and
delivered by the Company.
(E) Neither the execution and delivery by the Company of
this Agreement nor the issuance and sale of the
Securities by the Company pursuant to this Agreement
will result in the violation by the Company of its
Second Amended and Restated Certificate of Incorporation
or Bylaws, the General Corporation Law of the State of
Delaware or any federal or California statute, rule or
regulation known to us to be applicable to the Company
(other than federal or state securities laws, which are
specifically addressed elsewhere herein). To the best of
such counsel's knowledge, no consent, approval, license,
authorization, order, registration, qualification or
decree of, or filing with, any federal or California
court or governmental agency or body is necessary or
required for the due authorization, execution and
delivery of this Agreement or the consummation of the
issuance, sale and delivery of the Securities pursuant
to this Agreement, except such as have been obtained
under the Securities Act or Exchange Act and such as may
be required under state securities laws in connection
with the purchase and distribution of the Securities by
the Underwriters.
(F) The statements set forth in the Prospectus under the
caption "Description of Capital Stock", insofar as such
statements constitute a summary of legal matters, are
accurate in all material respects. To the best of such
counsel's knowledge, there are no contracts or documents
of a character required to be described in the
15
Registration Statement or Prospectus or to be filed as
exhibits to the Registration Statement that are not
described or filed as required.
(G) To the best of such counsel's knowledge, based solely on
docket searches for the Company of the San Diego County
Superior Court, the United States Bankruptcy Court,
Southern District of California, and the United States
District Court, Southern District of California, and
certificates from officers of the Company, there is no
pending or threatened action, suit, proceeding, inquiry
or investigation, to which the Company is a party, or to
which the property or assets of the Company is subject,
before or brought by any court or governmental agency or
body (a) that is required to be disclosed in the
Registration Statement pursuant to Item 103 of
Regulation S-K of the Securities Act, and which is not
so disclosed or (b) that would prevent or adversely
affect the ability of the Company to perform its
obligations under this Agreement.
(H) Based solely upon oral representations made to such
counsel by the staff of the Commission, the Registration
Statement has become effective under the Securities Act.
To the best of such counsel's knowledge, no stop order
suspending the effectiveness of the Registration
Statement has been issued under the Securities Act and
no proceedings therefor have been initiated or
threatened by the Commission, and any required filing of
the Prospectus pursuant to Rule 424(b) under the
Securities Act has been made in accordance with Rules
424(b) and 430A under the Securities Act.
(I) The Registration Statement and the Prospectus comply as
to form in all material respects with the requirements
for registration statements on Form S-3 under the
Securities Act and the Rules and Regulations; it being
understood, however, that such counsel will express no
opinion with respect to the financial statements,
schedules and other financial data included in, or
omitted from, the Registration Statement or the
Prospectus. In passing on compliance as to form of the
Registration Statement and the Prospectus, such counsel
will assume that the statements made and incorporated by
reference therein are correct and complete.
(J) The Company is not an "investment company" as such term
is defined in the Investment Company Act of 1940, as
amended.
Such counsel shall also have furnished to the Representative a written
statement, addressed to the Underwriters and dated the Closing Date, in form and
substance reasonably satisfactory to the Representative, to the effect that it
has acted as counsel to the Company in connection with the preparation of the
Registration Statement and the Prospectus and that it has participated in
conferences with officers and other representatives of the Company,
representatives of the independent public accountants for the Company, and the
Representative, at which the contents of the Registration Statement and the
Prospectus and related matters were discussed and during the course of such
participation, no facts came to its attention that caused it to believe that the
Registration Statement, at the time it became effective on November 27, 2001
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, or that the Prospectus (including the documents incorporated by
reference therein), as of its date or the date hereof, contained an untrue
statement of a material fact or omitted to state a material fact necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading; it being understood that such counsel need express no
belief or opinion with respect to the financial statements, schedules and other
financial data included in, or omitted from, the Registration Statement or the
Prospectus.
16
The foregoing opinion and statement may be qualified by a statement to
the effect that such counsel is not passing upon, and is not assuming
any responsibility for, the accuracy, completeness or fairness of the
statements contained in the Registration Statement and the Prospectus
and has not made any independent check or verification thereof except to
the extent of the opinion given in the first sentence of clause (F)
above.
(ii) Gregory Monahan, General Counsel of the Company, shall have
furnished to the Representative such counsel's written opinion,
addressed to the Underwriters and dated the Closing Date, in
form and substance reasonably satisfactory to the
Representative, to the effect that:
(A) Each of TrellisWare Technologies, Inc., Immeon Networks,
LLC and U.S. Monolithics, LLC has been duly organized
and is validly existing and in good standing under the
laws of its state of organization, with power and
authority to own, lease and operate its properties and
to conduct its business as described in the Registration
Statement and any post-effective amendments thereto.
(B) Neither the execution and delivery by the Company of
this Agreement nor the issuance and sale of the
Securities by the Company pursuant to this Agreement
will 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 that is
described or referred to in the Registration Statement
or the Prospectus or filed or incorporated by reference
as an exhibit to the Registration Statement, other than
any such conflict, breach, violation or default that
would not reasonably be expected to, singularly or in
the aggregate, have a Material Adverse Effect.
(C) To the best of such counsel's knowledge, the Company (i)
is not in violation of its Second Amended and Restated
Certificate of Incorporation or Bylaws, (ii) is not in
default, and no event has occurred that, with notice or
lapse of time or both, would constitute a default, in
the due performance or observance of any term, covenant
or condition contained in any agreement or instrument to
which it is a party or by which it is bound, (iii) is
not in violation of any law, ordinance, governmental
rule, regulation or court decree to which it or its
property or assets may be subject, and (iv) has obtained
and maintained in full force and effect such licenses,
permits, certificates, authorizations or permits from,
and has not failed to make any declaration or filing
with, regulatory or governmental authorities necessary
to the ownership of its property or to the conduct of
its business, except, in the case of clauses (ii)
through (iv), for those defaults, violations or failures
that would not reasonably be expect to, singularly or in
the aggregate, have a Material Adverse Effect. The
statements set forth in the Prospectus under the caption
"Regulatory Environment", insofar as much statements
constitute a summary of legal matters, are accurate in
all material respects.
(D) To the best of such counsel's knowledge, no person or
entity has the right to require registration of any
securities of the Company because of the filing or
effectiveness of the Registration Statement, except for
persons and entities who have expressly waived such
right or who have been given proper notice and have
failed to exercise such right within the time or times
required under the terms and conditions of such right.
17
(iii) Circuit, McKellogg, Kinney & Ross, LLP, former counsel to the
Company, shall have furnished to the Representative a letter,
addressed to the Underwriters and dated the Closing Date, in
form and substance reasonably satisfactory to the
Representative, to the effect that the Underwriters may rely on
the opinions set forth in such counsel's opinion letter dated
December 6, 1996 addressed to Oppenheimer & Co., Inc., Needham &
Company, Inc., and Unterberg Harris set forth as Exhibit I
hereto as if such opinions were addressed to the Underwriters.
(e) The Representative shall have received from Paul, Weiss, Rifkind,
Wharton & Garrison, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date, with respect to such matters as the
Underwriters may reasonably require, and the Company shall have
furnished to such counsel such documents as it reasonably requests for
enabling it to pass upon such matters.
(f) At the time of the execution of this Agreement, the Representative
shall have received from PricewaterhouseCoopers LLP, a letter, addressed
to the Underwriters and dated such date, in form and substance
reasonably satisfactory to the Representative (i) confirming that they
are independent certified public accountants with respect to the Company
and its subsidiaries within the meaning of the Securities Act and the
Rules and Regulations and (ii) stating the conclusions and findings of
such firm with respect to the financial statements and certain financial
information contained or incorporated by reference in the Prospectus.
(g) On the Closing Date, the Representative shall have received a letter
(the "PwC bring-down letter") from PricewaterhouseCoopers, LLP addressed
to the Underwriters and dated the Closing Date confirming, as of the
date of the PwC 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 as of a date not more
than three business 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 letter delivered to the
Representative concurrently with the execution of this Agreement
pursuant to Section 6(f).
(h) At the time of the execution of this Agreement, the Representative
shall have received from Nelson Lambson & Co., PLC, a letter, addressed
to the Underwriters and dated such date, in form and substance
reasonably satisfactory to the Representative (i) confirming that they
are independent certified public accountants with respect to U.S.
Monolithics, LLC and its subsidiaries within the meaning of the
Securities Act and the Rules and Regulations and (ii) stating the
conclusions and findings of such firm with respect to the financial
statements and certain financial information contained or incorporated
by reference in the Prospectus.
(i) On the Closing Date, the Representative shall have received a letter
(the "NL bring-down letter") from Nelson Lambson & Co., PLC addressed to
the Underwriters and dated the Closing Date confirming, as of the date
of the NL 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 as of a date not more
than three business 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 letter delivered to the
Representative concurrently with the execution of this Agreement
pursuant to Section 6(h).
(j) The Company shall have furnished to the Representative a
certificate, dated the Closing Date, of its Chairman of the Board, its
President or a Vice President and its chief financial officer stating
that (i) such officers have carefully examined the Registration
Statements and the Prospectus and, in their opinion, the Registration
Statements as of their respective effective dates
18
and the Prospectus, as of each such effective date, 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, (ii) since the effective date of the Initial
Registration Statement no event has occurred which should have been set
forth in a supplement or amendment to the Registration Statements or the
Prospectus, (iii) to the best of their knowledge, as of the Closing
Date, the representations and warranties of the Company in this
Agreement are true and correct and the Company has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date, and (iv) subsequent
to the date of the most recent financial statements included or
incorporated by reference in the Prospectus, there has been no material
adverse change in the financial position or results of operation of the
Company and its subsidiaries taken as a whole, or any material adverse
change, or any development that would reasonably be expected to,
singularly or in the aggregate, have a prospective material adverse
change, in or affecting the condition (financial or otherwise), results
of operations or business of the Company and its subsidiaries taken as a
whole, except as set forth in the Prospectus.
(k) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus 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; and (ii) since such date there
shall not have been any change in the capital stock or long-term debt of
the Company or any of its subsidiaries or any change, or any development
involving a prospective change, in or affecting the business, general
affairs, management, financial position, stockholders' equity or results
of operations of the Company and its subsidiaries taken as a whole,
otherwise than as set forth or contemplated in the Prospectus, the
effect of which, in any such case described in clause (i) or (ii), is,
in the judgment of the Representative, so material and adverse as to
make it impracticable or inadvisable to proceed with the sale or
delivery of the Securities on the terms and in the manner contemplated
in the Prospectus.
(l) No action shall have been taken and no statute, rule, regulation or
order shall have been enacted, adopted or issued by any governmental
agency or body which would, as of the Closing Date, prevent the issuance
or sale of the Securities; and no injunction, restraining order or order
of any other nature by any federal or state court of competent
jurisdiction shall have been issued as of the Closing Date which would
prevent the issuance or sale of the Securities.
(m) Subsequent to the execution and delivery of this Agreement (i) no
downgrading shall have occurred in the rating accorded the Company's
debt securities by any "nationally recognized statistical rating
organization," as that term is defined by the Commission for purposes of
Rule 436(g)(2) of the Rules and Regulations and (ii) no such
organization shall have publicly announced that it has under
surveillance or review (other than an announcement with positive
implications of a possible upgrading), its rating of any of the
Company's debt securities.
(n) 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, the Nasdaq National Market or
the American Stock Exchange or in the over-the-counter market, or
trading in any securities of the Company 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 a material escalation in hostilities involving the United States or
there shall
19
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 Representative,
impracticable or inadvisable to proceed with the sale or delivery of the
Securities on the terms and in the manner contemplated in the
Prospectus.
(o) SG Cowen shall have received the written agreements, substantially
in the form of Exhibit II hereto, of the officers, directors and
stockholders of the Company listed in Schedule C to this Agreement.
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. (a) INDEMNIFICATION AND CONTRIBUTION. The Company shall indemnify and hold
harmless each Underwriter, its officers, employees, representatives and agents
and each person, if any, who controls any Underwriter within the meaning of the
Securities Act (collectively the "Underwriter Indemnified Parties" and, each an
"Underwriter Indemnified Party") against any loss, claim, damage or liability,
joint or several, or any action in respect thereof, to which that Underwriter
Indemnified Party 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 in the Preliminary Prospectus, either of the Registration
Statements or the Prospectus or in any amendment or supplement thereto or (ii)
the omission or alleged omission to state in any Preliminary Prospectus, either
of the Registration Statements or the Prospectus or in any amendment or
supplement thereto a material fact required to be stated therein or necessary to
make the statements therein not misleading and shall reimburse each Underwriter
Indemnified Party for any legal or other expenses reasonably incurred by that
Underwriter Indemnified Party in connection with investigating or preparing to
defend or defending against or appearing as a third party witness in connection
with any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that the Company shall not 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 (i) an untrue statement or alleged untrue statement in
or omission or alleged omission from the Preliminary Prospectus, either of the
Registration Statements or the Prospectus or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company through the Representative by or on behalf of any Underwriter
specifically for use therein, which information the parties hereto agree is
limited to the Underwriter's Information (as defined in Section 16). This
indemnity agreement is not exclusive and will be in addition to any liability
which the Company might otherwise have and shall not limit any rights or
remedies which may otherwise be available at law or in equity to each
Underwriter Indemnified Party.
(b) Each Underwriter, severally and not jointly, shall indemnify and hold
harmless the Company, its officers, employees, representatives and agents, each
of its directors and each person, if any, who controls the Company within the
meaning of the Securities Act (collectively the "Company Indemnified Parties"
and each a "Company Indemnified Party") against any loss, claim, damage or
liability, joint or several, or any action in respect thereof, to which the
Company Indemnified Parties 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 in the Preliminary Prospectus, either of the
Registration Statements or the Prospectus or in any amendment or supplement
thereto or (ii) the omission or alleged omission to state therein a 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 furnished to the Company through
the Representative by or on
20
behalf of that Underwriter specifically for use therein, and shall reimburse the
Company Indemnified Parties for any legal or other expenses reasonably incurred
by such parties in connection with investigating or preparing to defend or
defending against or appearing as third party witness in connection with any
such loss, claim, damage, liability or action as such expenses are incurred;
provided that the parties hereto hereby agree that such written information
provided by the Underwriters consists solely of the Underwriter's Information.
This indemnity agreement is not exclusive and will be in addition to any
liability which the Underwriters might otherwise have and shall not limit any
rights or remedies which may otherwise be available at law or in equity to the
Company Indemnified Parties.
(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
any indemnified party shall have the right to employ separate counsel in any
such action and to participate in the defense thereof but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless (i) the
employment thereof has been specifically authorized by the indemnifying party in
writing, (ii) such indemnified party shall have been advised by such counsel
that there may be one or more legal defenses available to it which are different
from or additional to those available to the indemnifying party and in the
reasonable judgment of such counsel it is advisable for such indemnified party
to employ separate counsel or (iii) the indemnifying party has failed to assume
the defense of such action and employ counsel reasonably satisfactory to the
indemnified party, in which case, if such indemnified party notifies the
indemnifying party in writing that it elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such action on behalf of such indemnified party,
it being understood, however, that the indemnifying party shall not, in
connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys at any time for all such indemnified
parties, which firm shall be designated in writing by SG Cowen, if the
indemnified parties under this Section 7 consist of any Underwriter Indemnified
Party, or by the Company if the indemnified parties under this Section 7 consist
of any Company Indemnified Parties. Each indemnified party, as a condition of
the indemnity agreements contained in Sections 7(a) and 7(b), shall use all
reasonable efforts to cooperate with the indemnifying party in the defense of
any such action or claim. Subject to the provisions of Section 7(d) below, no
indemnifying party shall be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld or delayed), but if settled with its written consent or if there be a
final judgment for 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 at any time an indemnified party shall have requested that an
indemnifying party reimburse the indemnified party for reasonable fees and
expenses of counsel, such indemnifying party agrees that it shall be liable for
any settlement of the nature contemplated by this Section 7 effected without its
written
21
consent if (i) such settlement is entered into more than 45 days after receipt
by such indemnifying party of the request for reimbursement, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
(e) If the indemnification provided for in this Section 7 is unavailable or
insufficient to hold harmless an indemnified party under Section 7(a) or 7(b),
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 Company on the one hand and the Underwriters on the other from
the offering of the Securities or 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 Company 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 Company
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 Securities purchased under this Agreement (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters with respect to the Securities
purchased under this Agreement, in each case as set forth in the table on the
cover page of the Prospectus. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company on the one hand or the
Underwriters on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission; provided that the parties hereto agree that the
written information furnished to the Company through the Representative by or on
behalf of the Underwriters for use in any Preliminary Prospectus, either of the
Registration Statements or the Prospectus consists solely of the Underwriter's
Information. The Company and the Underwriters agree that it would not be just
and equitable if contributions pursuant to this Section 7(e) 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
7(e) shall be deemed to include, for purposes of this Section 7(e), any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7(e), no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the
Securities underwritten by it and distributed to the public were offered to the
public less 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(e) are several in proportion to their respective underwriting obligations and
not joint.
8. TERMINATION. The obligations of the Underwriters hereunder may be terminated
by SG Cowen, in its absolute discretion by written notice given to and received
by the Company prior to delivery of and payment for the Firm Shares if, prior to
that time, any of the events described in Sections 6(k), 6(m) or 6(n) have
occurred or if the Underwriters shall decline to purchase the Securities for any
reason permitted under this Agreement.
22
9. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If (a) this Agreement shall have
been terminated pursuant to Section 8 or 10, (b) the Company shall fail to
tender the Securities for delivery to the Underwriters for any reason permitted
under this Agreement, or (c) the Underwriters shall decline to purchase the
Securities for any reason permitted under this Agreement, the Company shall
reimburse the Underwriters for the reasonable fees and expenses of their counsel
and for such other out-of-pocket expenses as shall have been reasonably incurred
by them in connection with this Agreement and the proposed purchase of the
Securities, and, promptly upon demand, the Company shall pay the full amount
thereof to SG Cowen. If this Agreement is terminated pursuant to Section 10 by
reason of the default of one or more Underwriters, the Company shall not be
obligated to reimburse any defaulting Underwriter for any such fees or expenses.
10. SUBSTITUTION OF UNDERWRITERS. If any Underwriter or Underwriters shall
default in its or their obligations to purchase Securities hereunder and the
aggregate number which such defaulting Underwriter or Underwriters agreed but
failed to purchase does not exceed ten percent (10%) of the total number of
shares underwritten, the other Underwriters shall be obligated severally, in
proportion to their respective commitments hereunder, to purchase the shares
which such defaulting Underwriter or Underwriters agreed but failed to purchase.
If any Underwriter or Underwriters shall so default and the aggregate number
with respect to which such default or defaults occur is more than ten percent
(10%) of the total number of shares underwritten and arrangements reasonably
satisfactory to the Representative and the Company for the purchase of such
shares by other persons are not made within forty-eight (48) hours after such
default, this Agreement shall terminate.
If the remaining Underwriters or substituted Underwriters are required
hereby or agree to take up all or part of the Securities of a defaulting
Underwriter or Underwriters as provided in this Section 10, (i) the Company
shall have the right to postpone the Closing Dates for a period of not more than
five (5) full business days in order that the Company may effect whatever
changes may thereby be made necessary in the Registration Statement or the
Prospectus, or in any other documents or arrangements, and the Company agrees
promptly to file any amendments to the Registration Statement or supplements to
the Prospectus which may thereby be made necessary, and (ii) the respective
numbers of shares to be purchased by the remaining Underwriters or substituted
Underwriters shall be taken as the basis of their underwriting obligation for
all purposes of this Agreement. Nothing herein contained shall relieve any
defaulting Underwriter of its liability to the Company or the other Underwriters
for damages occasioned by its default hereunder. Any termination of this
Agreement pursuant to this Section 10 shall be without liability on the part of
any non-defaulting Underwriter or the Company, except expenses to be paid or
reimbursed pursuant to Sections 5 and 9 and except the provisions of Section 7
shall not terminate and shall remain in effect.
11. SUCCESSORS; PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall
inure to the benefit of and be binding upon the several Underwriters, the
Company and their respective successors. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any person other than the
persons mentioned in the preceding sentence any legal or equitable right, remedy
or claim under or in respect of this Agreement, or any provisions herein
contained, this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of such persons and
for the benefit of no other person; except that the representations, warranties,
covenants, agreements and indemnities of the Company contained in this Agreement
shall also be for the benefit of the Underwriter Indemnified Parties, and the
indemnities of the several Underwriters shall also be for the benefit of the
Company Indemnified Parties.
12. SURVIVAL OF INDEMNITIES, REPRESENTATIONS, WARRANTIES, ETC. The respective
indemnities, covenants, agreements, representations, warranties and other
statements of the Company and the several Underwriters, as set forth in this
Agreement or made by them respectively, pursuant to this Agreement, shall remain
in full force and effect, regardless of any investigation made by or on behalf
of any
23
Underwriter, the Company or any person controlling any of them and shall survive
delivery of and payment for the Securities.
13. NOTICES. 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 SG Cowen Securities Corporation, 1221 Avenue
of the Americas, New York, NY 10020, Attention: Equity Capital Markets
(Fax: 212-425-5801), with a copy to the same address, Attention: Legal
Department -- Jorge Pedreira (Fax: 212-278-7995);
(b) if to the Company shall be delivered or sent by mail, telex or
facsimile transmission to ViaSat, Inc., 6155 El Camino Real, Carlsbad CA
92009, Attention: Keven K. Lippert (Fax: 760-929-3926);
provided, however, that any notice to an Underwriter pursuant to Section
7 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
Representative, which address will be supplied to any other party hereto
by the Representative upon request. Any such statements, requests,
notices or agreements shall take effect at the time of receipt thereof.
14. DEFINITION OF CERTAIN TERMS. For purposes of this Agreement, (a) "business
day" means any day on which the New York Stock Exchange, Inc. is open for
trading 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 THE STATE OF NEW YORK.
16. UNDERWRITERS' INFORMATION. The parties hereto acknowledge and agree that,
for all purposes of this Agreement, the Underwriters' Information consists
solely of the following information in the Prospectus: (i) the last paragraph on
the front cover page concerning the terms of the offering by the Underwriters;
and (ii) the statements concerning the Underwriters under the heading
"Underwriting" contained in the third paragraph concerning concessions to
dealers and the eighth paragraph concerning penalty bids and stabilizing
transactions by the Underwriters.
17. AUTHORITY OF THE REPRESENTATIVE. In connection with this Agreement, the
Representative will act for and on behalf of the several Underwriters, and any
action taken under this Agreement by the Representative will be binding on all
the Underwriters.
18. PARTIAL UNENFORCEABILITY. The invalidity or unenforceability of any Section,
paragraph or provision of this Agreement shall not affect the validity or
enforceability of any other Section, paragraph or provision hereof. If any
Section, paragraph or provision of this Agreement is for any reason determined
to be invalid or unenforceable, there shall be deemed to be made such minor
changes (and only such minor changes) as are necessary to make it valid and
enforceable.
19. GENERAL. This Agreement constitutes the entire agreement of the parties to
this Agreement and supersedes all prior written or oral and all contemporaneous
oral agreements, understandings and negotiations with respect to the subject
matter hereof. In this Agreement, the masculine, feminine and neuter genders and
the singular and the plural include one another. The section headings in this
Agreement are for the convenience of the parties only and will not affect the
construction or interpretation of this Agreement. This Agreement may be amended
or modified, and the observance of any term of this Agreement may be waived,
only by a writing signed by the Company and the Representative.
24
20. COUNTERPARTS. This Agreement may be signed in any number of counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
25
If the foregoing is in accordance with your understanding of the
agreement between the Company and the several Underwriters, kindly indicate your
acceptance in the space provided for that purpose below.
Very truly yours,
VIASAT, INC.
By: /s/ Richard A. Baldridge
-------------------------------------
Name: Richard A. Baldridge
Title: Executive Vice President,
Chief Operating Officer and
Chief Financial Officer
Accepted as of
the date first above written:
SG COWEN SECURITIES CORPORATION
Acting on its own behalf and as Representative of
several Underwriters referred to in the foregoing
Agreement.
By: SG COWEN SECURITIES CORPORATION
By /s/ William Buchanan
-------------------------------
Name: William Buchanan
Title: Managing Director
26
SCHEDULE A
Number Number of
of Firm Optional
Shares Shares
to be to be
Name Purchased Purchased
- ---- --------- ---------
SG Cowen Securities Corporation 2,000,000 300,000
--------- -------
Total 2,000,000 300,000
========= =======
27
SCHEDULE B
PLACE OF VIASAT
NAME INCORPORATION OWNERSHIP
---- ------------- ---------
ViaSat Worldwide Limited Delaware 100%
ViaSat China Services Delaware 100%
ViaSat Foreign Sales Corporation Barbados 100%
ViaSat Europe Limited U.K. 100%
ViaSat Australia PTY Limited Australia 100%
ViaSat Inc. Limitada Chile 100%
ViaSat Canada Company Nova Scotia 100%
Immeon Networks LLC Delaware *
TrellisWare Technologies, Inc. Delaware 60%
U.S. Monolithics, LLC Arizona 100%
*The Company has the right to designate two of the four Management Committee
Members of Immeon Networks, LLC and is entitled to 50% of the profits, subject
to certain profit-split adjustments.
28
SCHEDULE C
Mark D. Dankberg
Richard A. Baldridge
Gregory D. Monahan
Steven R. Hart
Mark J. Miller
Robert L. Barrie
Stephen W. Cable
Cathy B. Akin
B. Allen Lay
Dr. Jeffrey M. Nash
Dr. Robert W. Johnson
William A. Owens
29
EXHIBIT I
30
EXHIBIT II
[Form of Lock-Up Agreement]
________, 2002
SG Cowen Securities Corporation
As representative of the
several Underwriters
c/o SG Cowen Securities Corporation
Financial Square
New York, New York 10005
Re: ViaSat, Inc. Securities
Dear Sirs:
In order to induce SG Cowen Securities Corporation ("SG Cowen") to enter
into a certain underwriting agreement with ViaSat, Inc., a Delaware corporation
(the "Company"), with respect to the public offering of shares of common stock
of the Company, par value $0.0001 per share (the "Common Stock"), the
undersigned hereby agrees that for a period of 90 days following the date of the
final prospectus filed by the Company with the Securities and Exchange
Commission in connection with such public offering, the undersigned will not,
without the prior written consent of SG Cowen, directly or indirectly, (i)
offer, sell, assign, transfer, pledge, contract to sell, or otherwise dispose
of, any shares of Common Stock or securities convertible into or exercisable or
exchangeable for Common Stock (the "Securities"), including, without limitation,
Securities which may be deemed to be beneficially owned by the undersigned in
accordance with the rules and regulations promulgated under the Securities Act
of 1933, as the same may be amended or supplemented from time to time (such
Securities, the "Beneficially Owned Securities"), (ii) enter into any swap,
hedge or similar agreement or arrangement that transfers in whole or in part,
the economic risk of ownership of Beneficially Owned Securities or (iii) engage
in any short selling of Securities.
The foregoing paragraph shall not apply to transfers of securities to a
trust established for the sole benefit of members of the undersigned's immediate
family; provided, however, that it shall be a condition to such transfer that
the trustee execute an agreement stating that the trust is receiving and holding
the securities subject to the provisions of this letter, and there shall be no
further transfer of such securities except in accordance with this letter
agreement.
Furthermore, the first paragraph of this letter agreement shall not
apply to the sale of up to an aggregate of 50,000 shares of Common Stock held by
officers and directors of the Company signing a lock-up agreement in connection
with the public offering, the allocation of such shares among such officers and
directors to be determined by the Company in its sole discretion.
Anything contained herein to the contrary notwithstanding, any person to
whom Securities or Beneficially Owned Securities are transferred from the
undersigned (other than pursuant to any transfer pursuant to the third paragraph
of this letter agreement) shall be bound by the terms of this letter agreement.
31
In addition, the undersigned hereby waives, from the date hereof until
the expiration of the 90 day period following the date of the Company's final
prospectus, any and all rights, if any, to request or demand registration
pursuant to the Securities Act of Securities that are registered in the name of
the undersigned or that are Beneficially Owned Securities. In order to enable
the aforesaid covenants to be enforced, the undersigned hereby consents to the
placing of legends and/or stop-transfer orders with the transfer agent of the
Securities with respect to the Securities or Beneficially Owned Securities.
[Signatory]
By:
--------------------------------------
Name:
Title: