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$200,000,000
ANALOG DEVICES, INC.
___% Convertible Subordinated Notes due 2000
UNDERWRITING AGREEMENT
----------------------
December __, 1995
MONTGOMERY SECURITIES
GOLDMAN, SACHS & CO.
c/o Montgomery Securities
600 Montgomery Street
San Francisco, California 94111
Dear Sirs:
Section 1. Introductory. Analog Devices, Inc., a Massachusetts
corporation (the "Company"), proposes to issue and sell to the Underwriters
named in Schedule I hereto (the "Underwriters") an aggregate of $200,000,000
principal amount of the ___% Convertible Subordinated Notes due 2000 of the
Company (the "Firm Notes"). In addition, the Company proposes to grant to the
Underwriters an option to purchase up to an aggregate of $30,000,000 principal
amount of the Securities (the "Option Notes") as provided in Section 4 hereof.
The Firm Notes and, to the extent such option is exercised, the Option Notes
are hereinafter collectively referred to as the "Notes."
You have advised the Company that you propose to make a public offering of
the Notes on the effective date of the registration statement hereinafter
referred to, or as soon thereafter as in your judgment is advisable.
The Company hereby confirms its agreement with respect to the purchase of
the Notes by you as follows:
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Section 2. Representations and Warranties of the Company. The Company
represents and warrants to you that:
(a) A registration statement on Form S-3 (File No. 33- ) with
respect to the Notes has been prepared by the Company in conformity with
the requirements of the Securities Act of 1933, as amended (the "Act"),
and the rules and regulations (the "Rules and Regulations") of the
Securities and Exchange Commission (the "Commission") thereunder and has
been filed with the Commission. The Company has also taken such actions
as are necessary to qualify the Indenture dated as of December __, 1995
(the "Indenture") between the Company and State Street Bank and Trust
Company, as Trustee (the "Trustee"), under the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"), and the rules and
regulations of the Commission thereunder. The Company has prepared and
has filed or proposes to file prior to the effective date of such
registration statement an amendment or amendments to such registration
statement, which amendment or amendments have been or will be similarly
prepared. There have been delivered to you two signed copies of such
registration statement and amendments, together with two copies of each
exhibit filed therewith. Conformed copies of such registration statement
and amendments (but without exhibits) and of the related preliminary
prospectus have been delivered to you in such reasonable quantities as you
have requested. The Company will next file with the Commission one of the
following: (i) prior to effectiveness of such registration statement, a
further amendment thereto, including the form of final prospectus, or (ii)
a final prospectus in accordance with Rules 430A and 424(b) of the Rules
and Regulations. As filed, such amendment and form of final prospectus,
or such final prospectus, shall include all Rule 430A Information and,
except to the extent that you shall agree in writing to a modification,
shall be in all substantive respects in the form furnished to you prior to
the date and time that this Agreement was executed and delivered by the
parties hereto, or, to the extent not completed at such date and time,
shall contain only such specific additional information and other changes
(beyond that contained in the latest Preliminary Prospectus) as the
Company shall have previously advised you in writing would be included or
made therein.
The term "Registration Statement" as used in this Agreement shall
mean such registration statement (including the documents incorporated by
reference thereto and all exhibits thereto but excluding the Form T-1 and
including any registration statement filed pursuant to Rule 462(b) under
the Act) at the time such registration statement becomes effective and, in
the event any post-effective amendment thereto becomes effective prior to
the First Closing Date (as hereinafter defined), shall also mean such
registration statement as so amended; provided, however, that such term
shall also include all Rule 430A Information deemed to be included in such
registration statement at the time such registration statement becomes
effective as provided by Rule 430A of the Rules and Regulations. The term
"Preliminary Prospectus" shall mean any preliminary prospectus referred to
in the preceding paragraph and any preliminary prospectus included in the
Registration Statement
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at the time it becomes effective that omits Rule 430A Information. The
term "Prospectus" as used in this Agreement shall mean the prospectus
relating to the Notes in the form in which it is first filed with the
Commission pursuant to Rule 424(b) of the Rules and Regulations or, if no
filing pursuant to Rule 424(b) of the Rules and Regulations is required,
shall mean the form of final prospectus included in the Registration
Statement at the time such registration statement becomes effective. The
term "Rule 430A Information" means information with respect to the Notes
and the offering thereof permitted to be omitted from the Registration
Statement when it becomes effective pursuant to Rule 430A of the Rules and
Regulations. 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 Form S-3 under the Act as of
the date of the Preliminary Prospectus or the Prospectus, as the case may
be.
(b) The Commission has not issued any order preventing or suspending
the use of any Preliminary Prospectus, and each Preliminary Prospectus has
conformed in all material respects to the requirements of the Act, the
Rules and Regulations and the Trust Indenture Act and, as of its date, has
not included any untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; and at the
time the Registration Statement becomes effective, and at all times
subsequent thereto up to and including each Closing Date hereinafter
mentioned, the Registration Statement and the Prospectus, and any
amendments or supplements thereto, will contain all material statements
and information required to be included therein by the Act, the Rules and
Regulations and the Trust Indenture Act and will in all material respects
conform to the requirements of the Act, the Rules and Regulations and the
Trust Indenture Act, and neither the Registration Statement nor the
Prospectus, nor any amendment or supplement thereto, will include any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading; provided, however, no representation or warranty contained
in this subsection 2(b) shall be applicable to information contained in or
omitted from any Preliminary Prospectus, the Registration Statement, the
Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by you,
specifically for use in the preparation thereof. The documents
incorporated by reference in the Prospectus, when they were filed with the
Commission, conformed in all material respects to the requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and the
rules and regulations of the Commission thereunder, and none of such
documents 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; and any further documents so filed
and incorporated by reference in the Prospectus or any further amendment
or supplement thereto, when such documents are filed with the Commission,
will conform to all material respects to the requirements of the
Exchange Act and the rules and
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regulations of the Commission thereunder and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by you
expressly for use therein.
(c) The Company does not own or control, directly or indirectly, any
corporation, association or other entity other than the subsidiaries
listed in Exhibit 21.1 to its 1994 Annual Report on Form 10-K and other
than the following companies: (i) Analog Devices Proprietary Limited (ii)
Analog Devices India Private Limited, (iii) Analog Devices Realty
Holdings, Inc., (iv) Analog Devices Gen. Trias, Inc, (v) Analog Devices
International Financial Services Company and (vi) Analog Devices Foreign
Sales Corporation. The Company and each of its subsidiaries have been
duly incorporated and are validly existing as corporations in good
standing under the laws of their respective jurisdictions of incorporation
(except with respect to subsidiaries incorporated in jurisdictions where
the concept of good standing is not recognized), with full power and
authority (corporate and other) to own and lease their properties and
conduct their respective businesses as described in the Prospectus; the
Company owns all of the outstanding capital stock of its subsidiaries free
and clear of all claims, liens, charges and encumbrances; the Company and
each of its significant subsidiaries as defined in rule 1-02(w) of
Regulation S-X under the act and the exchange act and as set forth on
Schedule II attached hereto (the "Material Subsidiaries") are in
possession of and operating in compliance with all authorizations,
licenses, permits, consents, certificates and orders material to the
conduct of their respective businesses, all of which are valid and in full
force and effect; the Company and each of its subsidiaries are duly
qualified to do business and in good standing as foreign corporations in
each jurisdiction in which the ownership or leasing of properties or the
conduct of their respective businesses requires such qualification, except
for jurisdictions in which the failure to so qualify would not have a
material adverse effect upon the Company and its subsidiaries taken as a
whole; and no proceeding has been instituted in any such jurisdiction,
revoking, limiting or curtailing, or seeking to revoke, limit or curtail,
such power and authority or qualification.
(d) The Company's authorized and outstanding capital stock is as set
forth under the heading "Capitalization" in the Prospectus as of the dates
stated therein; the issued and outstanding shares of Common Stock have
been duly authorized and validly issued, are fully paid and nonassessable,
are duly listed on the New York Stock Exchange, were not issued in
violation of any preemptive rights or other rights to subscribe for or
purchase securities, and conform to the description thereof contained in
the Prospectus. All of the shares of Common Stock issuable upon
conversion of the Notes have been duly authorized and duly reserved for
issuance upon such conversion and, when issued upon conversion of the
Notes pursuant to the terms of the Indenture, will be validly issued and
outstanding, fully paid and nonassessable with no personal liability
attached to the ownership thereof. None of the shares of Common Stock
issuable upon conversion of the Notes when delivered will be subject to
any lien, claim, encumbrance, restriction upon voting or transfer,
preemptive right
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or any other claim of any third party except such as are described in the
Prospectus. All issued and outstanding shares of capital stock of each
Material Subsidiary of the Company have been duly authorized and validly
issued and are fully paid and nonassessable and are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims. Except as disclosed in or contemplated by the
Prospectus and the financial statements of the Company, and the related
notes thereto, included in the Prospectus, the Company does not have
outstanding any options to purchase, or any preemptive rights or other
rights to subscribe for or to purchase, any securities or obligations
convertible into, or any contracts or commitments to issue or sell, shares
of its capital stock or any such options, rights, convertible securities
or obligations other than options granted in the ordinary course of
business under benefit plans described in the prospectus and the financial
statements of the company.
(e) The Notes have been duly authorized and, when issued, delivered
and paid for in the manner set forth in this Agreement, will be duly
executed, authenticated and delivered and will constitute valid and
legally binding obligations of the Company entitled to the benefits
provided by the Indenture under which they are to be issued, which will be
in substantially the form filed as an exhibit to the Registration
Statement subject, as to enforcement, to bankruptcy, insolvency,
fraudulent transfer, moratorium, reorganization and similar laws of
general applicability relating to or affecting creditors' rights and to
general equity principles; the Indenture has been duly authorized and duly
qualified under the Trust Indenture Act and, when executed and delivered
by the Company and the Trustee, the Indenture will constitute a valid and
legally binding instrument enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, fraudulent
transfer, moratorium, reorganization and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles, and the Notes and the Indenture will conform to the
descriptions thereof in the Prospectus.
(f) The Company has full legal right, power and authority to enter
into this Agreement, the Notes and the Indenture and perform the
transactions contemplated hereby and thereby. The Company has all
necessary corporate power and authority to issue the Common Stock issuable
upon conversion of the Notes. This Agreement, the Notes and the Indenture
have been duly authorized, executed and delivered by the Company and
constitute valid and binding obligations of the Company in accordance with
their terms. The making and performance of this Agreement, the Notes and
the Indenture by the Company and the consummation of the transactions
herein and therein contemplated (including the issuance of Common Stock
upon the conversion of the Notes) will not violate any provisions of the
certificate of incorporation or bylaws, or other organizational documents,
of the Company or any of its subsidiaries, and will not conflict with,
result in the creation or imposition of any lien, charge or encumbrance
upon any of the assets of the Company or any of its subsidiaries pursuant
to the terms of or the breach or violation of, or constitute, either by
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itself or upon notice or the passage of time or both, a default under any
agreement, mortgage, deed of trust, lease, franchise, license, indenture,
permit or other instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries or any of their respective properties may be bound or
affected, any statute or any authorization, judgment, decree, order,
rule or regulation of any court or any regulatory body, administrative
agency or other governmental body applicable to the Company or any of
its subsidiaries or any of their respective properties. No consent,
approval, authorization or other order of any court, regulatory body,
administrative agency or other governmental body is required for the
execution and delivery of this Agreement, the Notes and the Indenture
or the consummation of the transactions contemplated by this Agreement
and the Indenture, except for compliance with the Act, the Exchange Act,
the Trust Indenture Act, the Blue Sky laws applicable to the public
offering of the Notes by you and the clearance of such offering
with the National Association of Securities Dealers, Inc. (the "NASD").
(g) Ernst & Young LLP, who have expressed their opinion with respect
to the consolidated financial statements and schedules filed with the
Commission as a part of the Registration Statement and included in the
Prospectus and in the Registration Statement, are independent accountants
as required by the Act and the Rules and Regulations.
(h) The consolidated financial statements and schedules of the
Company, and the related notes thereto, included in the Registration
Statement and the Prospectus present fairly in all material respects the
financial position of the Company as of the respective dates of such
financial statements and schedules, and the results of operations and
changes in financial position of the Company for the respective periods
covered thereby. Such statements, schedules and related notes have been
prepared in accordance with generally accepted accounting principles
applied on a consistent basis. No other financial statements or schedules
are required to be included in the Registration Statement. The selected
financial data set forth in the Prospectus under the captions
"Capitalization" and "Selected Consolidated Financial Data" fairly present
the information set forth therein on the basis stated in the Registration
Statement.
(i) Except as disclosed in the Prospectus, and except as to
violations, breaches or defaults which individually or in the aggregate
would not be material to the Company, neither the Company nor any of its
subsidiaries is in violation or default of any provision of its articles
of organization or bylaws, or other organizational documents, or is in
breach of or default with respect to any provision of any agreement,
judgment, decree, order, mortgage, deed of trust, lease, franchise,
license, indenture, permit or other instrument to which it is a party or
by which it or any of its properties are bound; and there does not exist
any state of facts which constitutes an event of default on the part of
the Company or any such subsidiary as defined in such documents or which,
with notice or lapse of time or both, would constitute such an event of
default.
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(j) There are no contracts or other documents required to be
described in the Registration Statement or to be filed as exhibits to the
Registration Statement by the Act or by the Rules and Regulations, or to
be filed as exhibits to the documents incorporated by reference by the
Exchange Act or by the rules and regulations thereunder, which have not
been described or filed as required.
(k) Except as disclosed in the Prospectus, there are no legal or
governmental actions, suits or proceedings pending or, to the best of the
Company's knowledge, threatened to which the Company or any of its
subsidiaries is or may be a party or of which property owned or leased by
the Company or any of its subsidiaries is or may be the subject, or
related to environmental or discrimination matters, which actions, suits
or proceedings might, individually or in the aggregate, prevent or
materially adversely affect the transactions contemplated by this
Agreement or result in a material adverse change in the condition
(financial or otherwise), properties, business, results of operations or
prospects of the Company and its subsidiaries taken as a whole; and no
labor disturbance by the employees of the Company or any of its
subsidiaries exists or is imminent which might be expected to affect
adversely such condition, properties, business, results of operations or
prospects.
(l) The Company and its Material Subsidiaries have good and
marketable title to all the properties and assets reflected as owned by
them in the financial statements hereinabove described (or elsewhere in
the Prospectus), subject to no lien, mortgage, pledge, charge or
encumbrance of any kind except (i) those, if any, reflected in such
financial statements (or elsewhere in the Prospectus), or (ii) those which
do not materially adversely affect the values of such properties and
assets and do not adversely affect the use made and proposed to be made of
such property by the Company and its Material Subsidiaries. The Company
and each Material Subsidiary holds its leased properties under valid and
binding leases, with such exceptions as are not materially significant in
relation to the business of the Company. Except as disclosed in the
Prospectus, the Company owns or leases all such properties as are
necessary to its operations as now conducted or as proposed to be
conducted.
(m) Since the respective dates as of which information is given in
the Registration Statement and Prospectus, and except as described in or
specifically contemplated by the Prospectus: (i) the Company and its
subsidiaries have not sustained any material loss or interference with
their respective businesses or properties from fire, flood, windstorm,
accident or other calamity, which is not covered by insurance, or from any
labor dispute or court or government action, order or decree, otherwise
then as set forth in the Prospectus; (ii) the Company has not paid or
declared any dividends or other distributions with respect to its capital
stock and the Company and its subsidiaries are not in default in the
payment of principal or interest on any outstanding debt obligations;
(iii) there has not been any change in the capital stock of, or
indebtedness material to, the Company and its subsidiaries (other than in
the ordinary course of business); and (iv) there has not been any
material adverse
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change or a development involving a material adverse change in the
condition (financial or otherwise), business, properties, results of
operations, management or prospects of the Company and its subsidiaries
taken as a whole.
(n) Except as disclosed in or specifically contemplated by the
Prospectus and except to the extent that the lack of any of the following
would not have a material adverse effect on the condition (financial or
otherwise), business, results of operations or prospects of the Company,
the Company and its subsidiaries have sufficient trademarks, trade names,
patent rights, mask works, copyrights, licenses, approvals and
governmental authorizations to conduct their businesses as now conducted;
the expiration of any trademarks, trade names, patent rights, mask works,
copyrights, licenses, approvals or governmental authorizations would not
have a material adverse effect on the condition (financial or otherwise),
business, results of operations or prospects of the Company or its
subsidiaries; and the Company has no knowledge of any material
infringement by it or its subsidiaries of trademark, trade name rights,
patent rights, mask works, copyrights, licenses, trade secret or other
similar rights of others, and there is no claim being made against the
Company or its subsidiaries regarding trademark, trade name, patent, mask
work, copyright, license, trade secret or other infringement which could
have a material adverse effect on the condition (financial or otherwise),
business, results of operations or prospects of the Company and its
subsidiaries.
(o) The Company has not been advised, and has no reason to believe,
that either it or any of its subsidiaries is not conducting business in
compliance with all applicable laws, rules and regulations of the
jurisdictions in which it is conducting business, including, without
limitation, all applicable local, state and federal environmental laws and
regulations, except where failure to be so in compliance would not
materially adversely affect the condition (financial or otherwise),
business, results of operations or prospects of the Company and its
subsidiaries taken as a whole.
(p) The Company and its subsidiaries have filed all necessary
federal, state and foreign income and franchise tax returns (or has timely
filed for extensions thereof) and have paid all taxes shown as due
thereon, except in all cases for any such tax that is being contested in
good faith by the Company; and the Company has no knowledge of any tax
deficiency which has been or might be asserted or threatened against the
Company or its subsidiaries which could materially and adversely affect
the business, operations or properties of the Company and its subsidiaries
taken as a whole.
(q) The Company has complied with all applicable laws, rules and
regulations of the jurisdictions in which it is conducting business
relating to the import and export of raw materials, goods and other items,
except where failure to be so in compliance would not materially adversely
affect the condition (financial or otherwise), business, results of
operations or prospects of the Company and its subsidiaries taken as a
whole.
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(r) The Company is not an "investment company" within the meaning of
the Investment Company Act of 1940, as amended.
(s) The Company has not distributed and will not distribute prior to
the First Closing Date any offering material in connection with the
offering and sale of the Notes other than the Prospectus, the Registration
Statement and the other materials permitted by the Act.
(t) The Company has not taken and will not take, directly or
indirectly, any action designed to or that might be reasonably expected to
cause or result in stabilization or manipulation of the price of the
Common Stock to facilitate the sale or resale of the Notes.
(u) The conditions for the use of Form S-3 as set forth in the
General Instructions thereto, have been satisfied in connection with the
offering.
Section 3. Representations and Warranties of the Underwriter. You
represent and warrant to the Company that the information set forth (i) on the
cover page of the Prospectus with respect to price, underwriting discounts and
terms of the offering and (ii) under "Underwriting" in the Prospectus was
furnished to the Company by you for use in connection with the preparation of
the Registration Statement and the Prospectus and is correct in all material
respects.
Section 4. Purchase, Sale and Delivery of Notes. 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 issue and sell to
you an aggregate of $200,000,000 principal amount of the Firm Notes. You agree
to purchase from the Company all of the Firm Notes. The purchase price for the
Firm Notes to be paid by you to the Company shall be $______.
Delivery of the Firm Notes to be purchased by you and payment therefor
shall be made at the offices of Hale and Dorr, 60 State Street, Boston,
Massachusetts (or such other place as may be agreed upon by the Company and
you) at such time and date, not later than the third full business day
following the first date that any of the Notes are released by you for sale to
the public, as you shall designate by at least 48 hours' prior notice to the
Company (or at such other time and date, not later than one week after such
third full business day as may be agreed upon by the Company and you (the
"First Closing Date"); provided, however, that if the Prospectus is at any time
prior to the First Closing Date recirculated to the public, the First Closing
Date shall occur upon the later of the third full business day following the
first date that any of the Notes are released by you for sale to the public or
the date that is 48 hours after the date that the Prospectus has been so
recirculated.
Delivery of the Firm Notes shall be made by or on behalf of the Company to
you with respect to the Firm Notes to be sold by the Company against payment by
you of the purchase price therefor by certified or official bank checks payable
in next day funds to the order of the Company. The Notes shall be registered
in such names and denominations as you shall have requested at least two
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full business days prior to the First Closing Date, and shall be made
available for checking and packaging on the business day preceding the First
Closing Date at a location in Boston, Massachusetts, as may be designated by
you. Time shall be of the essence, and delivery at the time and place
specified in this Agreement is a further condition to your obligations.
In addition, on the basis of the representations, warranties and
agreements herein contained, but subject to the terms and conditions herein set
forth, the Company hereby grants an option to you to purchase up to an
aggregate of $30,000,000 principal amount of the Option Notes at the purchase
price to be paid for the Firm Notes, for use solely in covering any
over-allotments made by you in the sale and distribution of the Firm Notes.
The option granted hereunder may be exercised at any time (but not more than
once) within 30 days after the first date that any of the Notes are released by
you for sale to the public (within the meaning of the last sentence of Section
12 hereof), upon written notice by you to the Company setting forth the
aggregate number of Optional Notes as to which you are exercising the option,
the names and denominations in which the certificates for such Notes are to be
registered and the time and place at which such Notes will be delivered. Such
time of delivery (which may not be earlier than the First Closing Date), being
herein referred to as the "Second Closing Date," shall be determined by you,
but if at any time other than the First Closing Date shall not be earlier than
three nor later than five full business days after delivery of such notice of
exercise. The Option Notes will be made available for checking and packaging
on the business day preceding the Second Closing Date at a location in Boston,
Massachusetts, as may be designated by you. The manner of payment for and
delivery of the Option Notes shall be the same as for the Firm Notes purchased
from the Company as specified in the two preceding paragraphs. At any time
before lapse of the option, you may cancel such option by giving written notice
of such cancellation to the Company. If the option is cancelled or expires
unexercised in whole or in part, the Company will deregister under the Act the
number of Option Notes as to which the option has not been exercised.
Subject to the terms and conditions hereof, you propose to make a public
offering of Notes as soon after the effective date of the Registration
Statement as in your judgment is advisable and at the public offering price set
forth on the cover page of and on the terms set forth in the Prospectus.
Section 5. Covenants of the Company. The Company covenants and agrees
that:
(a) The Company will use its best efforts to cause the Registration
Statement and any amendment thereof, if not effective at the time and date
that this Agreement is executed and delivered by the parties hereto, to
become effective. If the Registration Statement has become or becomes
effective pursuant to Rule 430A of the Rules and Regulations, or the
filing of the Prospectus is otherwise required under Rule 424(b) of the
Rules and Regulations, the Company will file the Prospectus, properly
completed, pursuant to the applicable paragraph of Rule 424(b) of the
Rules and Regulations within the time period prescribed and will provide
evidence satisfactory to you of such timely filing. The Company
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will promptly advise you in writing (i) of the receipt of any comments of
the Commission, (ii) of any request of the Commission for amendment of or
supplement to the Registration Statement (either before or after it
becomes effective), any Preliminary Prospectus or the Prospectus or for
additional information, (iii) when the Registration Statement shall have
become effective and (iv) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or of the
institution of any proceedings for that purpose. If the Commission shall
enter any such stop order at any time, the Company will use its best
efforts to obtain the lifting of such order at the earliest possible
moment. The Company will not file any amendment or supplement to the
Registration Statement (either before or after it becomes effective), any
Preliminary Prospectus or the Prospectus of which you have not been
furnished with a copy a reasonable time prior to such filing or to which
you reasonably object or which is not in compliance with the Act and the
Rules and Regulations.
(b) The Company will prepare and file with the Commission, promptly
upon your request, any amendments or supplements to the Registration
Statement or the Prospectus which in your judgment may be necessary or
advisable to enable you to continue the distribution of the Notes and will
use its best efforts to cause the same to become effective as promptly as
possible. The Company will fully and completely comply with the
provisions of Rule 430A of the Rules and Regulations with respect to
information omitted from the Registration Statement in reliance upon such
Rule.
(c) If at any time within the nine-month period referred to in
Section 10(a)(3) of the Act during which a prospectus relating to the
Notes is required to be delivered under the Act any event occurs, as a
result of which the Prospectus, including any amendments or supplements,
would include an 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, or if it is necessary at any time to
amend the Prospectus, including any amendments or supplements, to comply
with the Act or the Rules and Regulations, the Company will promptly
advise you thereof and will promptly prepare and file with the Commission,
at its own expense, an amendment or supplement which will correct such
statement or omission or an amendment or supplement which will effect such
compliance and will use its best efforts to cause the same to become
effective as soon as possible; and, in case you are required to deliver a
prospectus after such nine-month period, the Company upon request, but at
your expense, will promptly prepare such amendment or amendments to the
Registration Statement and such Prospectus or Prospectuses as may be
necessary to permit compliance with the requirements of Section 10(a)(3)
of the Act.
(d) As soon as practicable, but not later than 45 days after the end
of the first quarter ending after one year following the "effective date
of the Registration Statement" (as defined in Rule 158(c) of the Rules and
Regulations), the Company will make generally available
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to its security holders an earning statement (which need not be audited)
covering a period of 12 consecutive months beginning after the
effective date of the Registration Statement which will satisfy the
provisions of the last paragraph of Section 11(a) of the Act.
(e) During such period as a prospectus is required by law to be
delivered in connection with sales by you or a dealer, the Company, at its
expense, but only for the nine-month period referred to in Section
10(a)(3) of the Act, will furnish to you or mail to your order copies of
the Registration Statement, the Prospectus, the Preliminary Prospectus and
all amendments and supplements to any such documents in each case as soon
as available and in such quantities as you may reasonably request, for the
purposes contemplated by the Act.
(f) The Company shall cooperate with you and your counsel in order
to qualify or register the Notes for sale under (or obtain exemptions from
the application of) the Blue Sky laws of such jurisdictions as you
designate, will comply with such laws and will continue such
qualifications, registrations and exemptions in effect so long as
reasonably required for the distribution of the Notes; PROVIDED, HOWEVER,
that the Company shall not be required to qualify as a foreign corporation
or to file a general consent to service of process in any such
jurisdiction where it is not presently qualified or where it would be
subject to taxation as a foreign corporation. The Company will advise you
promptly following receipt of notice of the suspension of the
qualification or registration of (or any such exemption relating to) the
Notes for offering, sale or trading in any jurisdiction or any initiation
or threat of any proceeding for any such purpose, and in the event of the
issuance of any order suspending such qualification, registration or
exemption, the Company, with your cooperation, will use its best efforts
to obtain the withdrawal thereof.
(g) During the period of five years hereafter, the Company will
furnish to you: (i) as soon as practicable after the end of each fiscal
year, copies of the Annual Report of the Company containing the balance
sheet of the Company as of the close of such fiscal year and statements of
income, stockholders' equity and cash flows for the year then ended and
the opinion thereon of the Company's independent public accountants; (ii)
as soon as practicable after the filing thereof, copies of each proxy
statement, Annual Report on Form 10-K, Quarterly Report on Form 10-Q,
Report on Form 8-K or other report filed by the Company with the
Commission, the NASD or any securities exchange; and (iii) as soon as
available, copies of any report or communication of the Company mailed
generally to holders of its Common Stock.
(h) Other than in accordance with and pursuant to the stock option,
restricted stock and stock purchase plans as described in the Prospectus
or the exercise of outstanding warrants, during the period of 90 days
after the first date that any of the Notes are released by you for sale to
the public, without your prior written consent (which consent may be
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withheld at your sole discretion), the Company will not issue, offer,
sell, grant options to purchase or otherwise dispose of any of the
Company's equity securities or any other securities convertible into
or exchangeable with its Common Stock or other equity security.
(i) The Company will apply the net proceeds of the sale of the Notes
sold by it substantially in accordance with its statements under the
caption "Use of Proceeds" in the Prospectus.
(j) The Company will use its best efforts to cause the Notes to be
sold by it to be listed on the New York Stock Exchange.
You may, in your sole discretion, waive in writing the performance by the
Company of any one or more of the foregoing covenants or extend the time for
their performance.
Section 6. Payment of Expenses. Whether or not the transactions
contemplated hereunder are consummated or this Agreement becomes effective or
is terminated, the Company agrees to pay all costs, fees and expenses incurred
in connection with the performance of its obligations hereunder and in
connection with the transactions contemplated hereby, including without
limiting the generality of the foregoing (i) all expenses incident to the
issuance and delivery of the Notes (including all printing and engraving
costs), (ii) all fees and expenses of the Trustee and any agent of the Trustee,
(iii) all necessary issue, transfer and other stamp taxes in connection with
the issuance and sale of the Notes to you, (iv) all fees and expenses of the
Company's counsel and the Company's independent accountants, (v) all costs and
expenses incurred in connection with the preparation, printing, filing,
shipping and distribution of the Registration Statement, each Preliminary
Prospectus and the Prospectus (including all exhibits and financial statements)
and all amendments and supplements provided for herein, (vi) all filing fees,
reasonable attorneys' fees and expenses incurred by the Company or you in
connection with qualifying or registering (or obtaining exemptions from the
qualification or registration of) all or any part of the Notes for offer and
sale under the securities or Blue Sky laws of the states or other jurisdictions
of the United States and the provinces of Canada, (vii) the filing fee of the
NASD, and (viii) all other fees, costs and expenses referred to in Item 14 of
the Registration Statement. Except as provided in this Section 6, Section 8
and Section 10 hereof, you shall pay all of your own expenses, including the
fees and disbursements of your counsel (excluding those relating to
qualification, registration or exemption under the Blue Sky laws and the Blue
Sky memorandum referred to above).
Section 7. Conditions of the Obligations of the Underwriter. Your
obligations to purchase and pay for the Firm Notes on the First Closing Date
and the Option Notes on the Second Closing Date shall be subject to the
accuracy of the representations and warranties on the part of the Company
herein set forth as of the date hereof and as of the First Closing Date or the
Second Closing Date, as the case may be, to the accuracy of the statements of
Company officers made
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pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder, and to the following additional conditions:
(a) The Registration Statement shall have become effective not later
than 5:00 P.M., Washington, D.C. Time, on the date of this Agreement, or
at such later time as shall have been consented to by you; if the filing
of the Prospectus, or any supplement thereto, is required pursuant to Rule
424(b) of the Rules and Regulations, the Prospectus shall have been filed
in the manner and within the time period required by Rule 424(b) of the
Rules and Regulations; and prior to such Closing Date, no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted or
shall be pending or, to the knowledge of the Company or you, shall be
contemplated by the Commission; and any request of the Commission for
inclusion of additional information in the Registration Statement, or
otherwise, shall have been complied with to your satisfaction.
(b) You shall be satisfied that since the respective dates as of
which information is given in the Registration Statement and Prospectus,
(i) there shall not have been any material change in the capital stock of
the Company or any of its subsidiaries or any material change in the
indebtedness of the Company or any of its subsidiaries taken as a whole
(other than in the ordinary course of business), (ii) no loss or damage
(whether or not insured) to the property of the Company or any of its
subsidiaries shall have been sustained which materially and adversely
affects the condition (financial or otherwise), business, results of
operations or prospects of the Company and its subsidiaries, (iii) no
legal or governmental action, suit or proceeding affecting the Company or
any of its subsidiaries which materially affects or may materially affect
the transactions contemplated by this Agreement shall have been instituted
or threatened and (iv) there shall not have been any material adverse
change in the condition (financial or otherwise), business, management,
results of operations or prospects of the Company and its subsidiaries
taken as a whole, which makes it impractical or inadvisable in your
judgment to proceed with the public offering or purchase the Notes as
contemplated hereby.
(c) There shall have been furnished to you on each Closing Date, in
form and substance satisfactory to you, except as otherwise expressly
provided below:
(i) An opinion of Hale and Dorr, counsel for the Company,
addressed to you dated the First Closing Date or the Second Closing Date,
as the case may be, in form and substance satisfactory to you, to the
effect that:
(1) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of The
Commonwealth of
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Massachusetts, with power and authority (corporate and other) to
own its properties and conduct its business as described in the
Prospectus;
(2) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued and outstanding shares of
Common Stock of the Company have been duly authorized, and all of the
shares of Common Stock issuable upon conversion of the Notes have
been duly authorized and duly reserved for issuance upon such
conversion; all of the issued and outstanding shares of Common Stock
of the Company are, and all of the shares of Common Stock issuable
upon conversion of the Notes, when issued and delivered upon the
conversion of the Notes pursuant to the terms of the Indenture, will
be validly issued and outstanding, fully paid and non-assessable;
other than as described in the Prospectus, the holders of outstanding
shares of capital stock of the Company are not entitled as such to
any preemptive or other rights to subscribe for or to purchase, and
no restrictions exist upon the voting or transfer of, any shares of
the Common Stock issuable upon conversion of the Notes, pursuant to
applicable law or the Company's corporate charter and by-laws or any
agreements or documents filed with the Commission as exhibits to the
Registration Statement or any document incorporated therein, and
neither the filing of the Registration Statement, the offering or
sale of the Notes nor the conversion of the Notes as contemplated by
this Agreement gives rise under any agreement or instrument filed
with the Commission as an exhibit to the Registration Statement or
any document incorporated therein to any rights, other than those
which have been waived or satisfied, for or relating to the
registration of any shares of Common Stock;
(3) Each Material Subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation (except
with respect to any such subsidiaries incorporated in jurisdictions
where the concept of good standing is not recognized); and all of the
issued shares of capital stock of each such Material Subsidiary have
been duly and validly authorized and issued, are fully paid and
non-assessable, and (except for directors' qualifying shares or such
shares as may be required by local laws to be owned by residents of
the jurisdiction of incorporation) are owned of record directly or
indirectly by the Company, to its knowledge free and clear of all
liens, encumbrances, equities or claims (such counsel being entitled,
in the case of material subsidiaries, to rely exclusively in respect
of the opinion in this clause upon the opinion of Houben Advocaten of
Breda, the Netherlands, and in respect of the matters of fact upon
certificates of officers of the Company or its subsidiaries, provided
that such counsel shall state that they believe that both you and
they are justified in relying upon such certificates);
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(4) To such counsel's knowledge there are no legal or
governmental actions, suits or proceedings pending against the
company that are required to be described in the prospectus that are
not described as required and, to such counsel's knowledge, no such
actions, suits or proceedings are threatened by governmental
authorities or by others;
(5) The Company has corporate power adequate for the execution,
delivery and performance of this Agreement, and this Agreement has
been duly authorized, executed and delivered by the Company;
(6) The Notes have been duly authorized and, when duly
executed, authenticated, issued in accordance with the Indenture and
delivered by the Company and paid for in accordance with the terms
thereof will constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the Indenture, subject,
as to enforcement, to bankruptcy, insolvency, fraudulent transfer,
moratorium, reorganization and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles;
(7) The Indenture has been duly authorized, executed and
delivered by the parties thereto and constitutes a legal and legally
binding instrument, enforceable in accordance with its terms,
subject, as to enforcement to bankruptcy, insolvency, fraudulent
transfer, moratorium, reorganization and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles; and the Indenture has been duly qualified
under the Trust Indenture Act;
(8) The statements in the Prospectus under the captions
"Prospectus Summary", "Description of Notes" and "Description of
Capital Stock", insofar as such statements purport to summarize
certain provisions of documents or agreements specifically referred
to therein or matters of law, are correct in all material respects;
(9) The issue and sale of the Notes and the compliance by the
Company with all of the provisions of the Notes, the Indenture and
this Agreement and the consummation of the transactions herein and
therein contemplated 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 filed as an exhibit to the
Registration Statement, nor will such actions result in any violation
of the provisions of the Restated Articles or Organization or By-laws
of the Company or any statute or any order specifically naming the
Company, any rule or regulation of any court or
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governmental agency or body of the United States having jurisdiction
over the Company or any of its properties; except for such conflicts,
breaches, violations and defaults as are not reasonably likely,
individually or in the aggregate, to have (a) a material adverse
effect on the financial position, stockholders' equity, results of
operations, business or prospects of the Company and its
subsidiaries, taken as a whole or (b) any adverse effect on the
consummation of the transactions contemplated by this Agreement;
(10) No consent, approval, authorization, order, registration
or qualification of or with any such court or governmental agency or
body is required for the issue and sale of the Notes or the
consummation by the Company of the transactions contemplated by this
Agreement or the Indenture, except such as have been obtained under
the Act and the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws (as to the applicability of
which no opinion need be expressed) in connection with the purchase
and distribution of the Securities by the Underwriters;
(11) The documents incorporated by reference in the Prospectus
or any further amendment or supplement thereto made by the Company
prior to the Time of Delivery (other than the financial statements
and financial data and related schedules therein, as to which such
counsel need express no opinion), when they become effective or were
filed with the Commission, as the case may be, complied as to form in
all material respects with the requirements of the Exchange Act, and
the rules and regulations of the Commission thereunder;
(12) The Registration Statement and the Prospectus and any
further amendments and supplements thereto made by the Company prior
to the Time of Delivery (other than the financial statements and
financial data and related schedules therein, as to which such
counsel need express no opinion) comply as to form in all material
respects with the requirements of the Act and the Trust Indenture Act
and the rules and regulations thereunder and they do not know of any
amendment to the Registration Statement required to be filed or of
any contracts or other documents of a character required to be filed
as an exhibit to the Registration Statement or required to be
incorporated by reference into the Prospectus or required to be
described in the Registration Statement or the Prospectus which are
not filed or incorporated by reference or described as required; and
(13) The Registration Statement has become effective under the
Act; to the knowledge of such counsel, no stop order suspending
effectiveness of the
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Registration Statement has been issued or any proceeding therefor
instituted or threatened by the Commission.
Such counsel shall state, without passing upon or assuming any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus, that nothing has
come to their attention that would cause them to believe (a) that, as of the
effective date of the Registration Statement, the Registration Statement (or as
of its date, any amendment or supplement thereto and made by the Company prior
to the date of such opinion) contained any untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading or (b) that, as of the date of
the Prospectus as most recently amended or supplemented, the Prospectus (or any
such amendment or supplement thereto) contains any untrue statement of a
material fact or omits to state a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading or (c) that it is
necessary, as of the date of such opinion, to supplement or amend the
Registration Statement or the Prospectus. Such counsel need express no belief
as to the financial statements, including the notes and schedules thereto, or
any financial data set forth or referred to in the Registration Statement or
the Prospectus or as to any statements in or omissions from any such documents
made in reliance upon and in conformity with written information furnished to
the Company by the Underwriters specifically for use therein, or as to any
statements in or omissions from the part of the Registration Statement which
shall constitute the Statement of Eligibility and Qualification under the Trust
Indenture Act of the Trustee under the Indenture.
(ii) An opinion of William Wise, General Counsel of the Company,
dated the First Closing Date or the Second Closing Date, as the case may
be, in form and substance satisfactory to you to the effect that the
Company has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each
other jurisdiction in which it owns or leases properties, or conducts any
business, so as to require such qualification, except where the failure to
be in good standing or to so qualify would not have a material adverse
effect on the financial position, stockholders' equity, results of
operations, business or prospects of the Company and its subsidiaries
taken as a whole.
(iii) Such opinion or opinions of Ropes & Gray, as counsel for you,
dated the First Closing Date or the Second Closing Date, as the case may
be, with respect to the incorporation of the Company, the sufficiency of
all corporate proceedings and other legal matters relating to this
Agreement, the validity of the Notes, the Registration Statement and the
Prospectus and other related matters as you may reasonably require, and
the Company shall have furnished to such counsel such documents and shall
have exhibited to them such papers and records as they may reasonably
request for the purpose of enabling them to pass
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upon such matters. In connection with such opinions, such counsel may
rely on representations or certificates of officers of the Company and
governmental officials.
(iv) A certificate of the Company executed by the Chairman of the
Board or the President and Chief Operating Officer and the chief financial
or accounting officer of the Company, dated the First Closing Date or the
Second Closing Date, as the case may be, to the effect that:
(1) The representations and warranties of the Company set forth
in Section 2 of this Agreement are true and correct as of the date of
this Agreement and as of the First Closing Date or the Second Closing
Date, as the case may be, and the Company has complied with all the
agreements and satisfied all the conditions on its part to be
performed or satisfied on or prior to such Closing Date;
(2) The Commission has not issued any order preventing or
suspending the use of the Prospectus or any Preliminary Prospectus
filed as a part of the Registration Statement or any amendment
thereto; no stop order suspending the effectiveness of the
Registration Statement has been issued; and to the best of the
knowledge of the respective signers, no proceedings for that purpose
have been instituted or are pending or contemplated under the Act;
(3) Each of the respective signers of the certificate has
carefully examined the Registration Statement and the Prospectus; in
his opinion and to the best of his knowledge, the Registration
Statement and the Prospectus and any amendments or supplements
thereto contain all statements required to be stated therein
regarding the Company and its subsidiaries; and neither the
Registration Statement nor the Prospectus nor any amendment or
supplement thereto includes any untrue statement of a material fact
or omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading;
(4) Since the initial date on which the Registration Statement
was filed, no agreement, written or oral, transaction or event has
occurred which should have been set forth in an amendment to the
Registration Statement or in a supplement to or amendment of any
prospectus which has not been disclosed in such a supplement or
amendment;
(v) On the date before this Agreement is executed and also on the
First Closing Date and the Second Closing Date a letter addressed to you
from Ernst & Young LLP, independent accountants, the first one to be dated
the day before the date of this Agreement,
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the second one to be dated the First Closing Date and the third one (in
the event of a second closing) to be dated the Second Closing Date, in
form and substance satisfactory to you.
(vi) On or before the date of this Agreement, letters from Ray Stata
and Jerald G. Fishman, in form and substance satisfactory to you,
containing exceptions agreed upon, confirming that for a period of 30 days
after the first date that any of the Notes are released by you for sale to
the public, such person will not directly or indirectly sell or offer to
sell or otherwise dispose of any shares of Common Stock or any right to
acquire such shares without your prior written consent, which consent may
be withheld at your sole discretion.
(vii) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities (including
the Notes) by any "nationally recognized statistical rating organization,"
as that term is defined by the Commission for purposes of Rule 436(g)(2)
under the Act and (ii) no such organization shall have publicly announced
that it has under surveillance or review, with possible negative
implications, its rating of any of the Company's debt securities
(including the Notes).
All such opinions, certificates, letters and documents shall be in
compliance with the provisions hereof only if they are reasonably satisfactory
to you and to Ropes & Gray, your counsel. The Company shall furnish you with
such manually signed or conformed copies of such opinions, certificates,
letters and documents as you request. Any certificate signed by any officer of
the Company and delivered to you or your counsel shall be deemed to be a
representation and warranty by the Company to you as to the statements made
therein.
If any condition to the your obligations hereunder to be satisfied prior
to or at the First Closing Date or the Second Closing Date is not so satisfied,
this Agreement at your election will terminate upon notification by you to the
Company without liability on your part or the part of the Company except for
the expenses to be paid or reimbursed by the Company pursuant to Sections 6 and
8 hereof and except to the extent provided in Section 10 hereof.
Section 8. Reimbursement of Underwriter's Expenses. Notwithstanding any
other provisions hereof, if this Agreement shall be terminated by you pursuant
to Section 7, or if the sale to you of the Notes at the First Closing Date or
the Second Closing Date is not consummated because of any refusal, inability or
failure on the part of the Company to perform any agreement herein or to comply
with any provision hereof, the Company agrees to reimburse you upon demand for
all out-of-pocket expenses that shall have been reasonably incurred by you in
connection with the proposed purchase and the sale of the Notes, including but
not limited to fees and disbursements of counsel, printing expenses, travel
expenses, postage, telegraph charges and telephone charges relating directly to
the offering contemplated by the Prospectus. Any such termination shall be
without liability of any party to any other party except that the provisions of
this Section, Section 6 and Section 10 shall at all times be effective and
shall apply.
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Section 9. Effectiveness of Registration Statement. You and the Company
will use your and its best efforts to cause the Registration Statement to
become effective, to prevent the issuance of any stop order suspending the
effectiveness of the Registration Statement and, if such stop order be issued,
to obtain as soon as possible the lifting thereof.
Section 10. Indemnification. (a) The Company agrees to indemnify and
hold harmless you and each person, if any, who controls you within the meaning
of the Act against any losses, claims, damages, liabilities or expenses, joint
or several, to which you or such controlling person may become subject, under
the Act, the Trust Indenture Act, the Exchange Act, or other federal or state
statutory law or regulation, or at common law or otherwise (including in
settlement of any litigation, if such settlement is effected with the written
consent of the Company), insofar as such losses, claims, damages, liabilities
or expenses (or actions in respect thereof as contemplated below) arise out of
or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, any Preliminary
Prospectus, the Prospectus, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state in any of
them a material fact required to be stated therein or necessary to make the
statements in any of them not misleading, or arise out of or are based in whole
or in part on any inaccuracy in the representations and warranties of the
Company contained herein or any failure of the Company to perform its
obligations hereunder or under law; and will reimburse you and each such
controlling person for any legal and other expenses as such expenses are
reasonably incurred by you or such controlling person in connection with
investigating, defending, settling, compromising or paying any such loss,
claim, damage, liability, expense or action; provided, however, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage, liability or expense arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
the Registration Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto in reliance upon and in conformity with the
information furnished to the Company pursuant to Section 3 hereof; and
provided, further, that the Company shall not be liable to you under the
indemnity agreement in this Section 10(a) with respect to any Preliminary
Prospectus to the extent that any such loss, claim, damage, liability or
expense results from the fact you sold Notes to a person as to whom it shall be
established that there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the Prospectus or of the Prospectus as
then amended or supplemented in any case where such delivery is required by the
Act if the Company has previously furnished copies thereof to you and the loss,
claim, damage, liability or expense results from an untrue statement or
omission of a material fact contained in the Preliminary Prospectus which was
corrected in the Prospectus or in the Prospectus as then amended or
supplemented. In addition to its other obligations under this Section 10(a),
the Company agrees that, as an interim measure during the pendency of any
claim, action, investigation, inquiry or other proceeding arising out of or
based upon any statement or omission, or any alleged statement or omission, or
any inaccuracy in the representations and warranties of the Company herein or
failure to perform its obligations hereunder, all as described in this Section
10(a), it will reimburse you on a quarterly basis for all reasonable legal or
other
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expenses incurred in connection with investigating or defending any such claim,
action, investigation, inquiry or other proceeding, notwithstanding the absence
of a judicial determination as to the propriety and enforceability of the
Company's obligation to reimburse you for such expenses and the possibility
that such payments might later be held to have been improper by a court of
competent jurisdiction. To the extent that any such interim reimbursement
payment is so held to have been improper, you shall promptly return it to the
Company, together with interest, compounded daily, determined on the basis of
the prime rate (or other commercial lending rate for borrowers of the highest
credit standing) announced from time to time by Bank of America NT&SA, San
Francisco, California (the "Prime Rate"). Any such interim reimbursement
payments which are not made to you within 30 days of a request for
reimbursement shall bear interest at the Prime Rate from the date of such
request. This indemnity agreement will be in addition to any liability which
the Company may otherwise have.
(b) You will indemnify and hold harmless the Company, each of its
directors, each of its officers who signed the Registration Statement and each
person, if any, who controls the Company within the meaning of the Act, against
any losses, claims, damages, liabilities or expenses to which the Company, or
any such director, officer or controlling person may become subject, under the
Act, the Trust Indenture Act, the Exchange Act, or other federal or state
statutory law or regulation, or at common law or otherwise (including in
settlement of any litigation, if such settlement is effected with your written
consent), insofar as such losses, claims, damages, liabilities or expenses (or
actions in respect thereof as contemplated below) arise out of or are based
upon any untrue or alleged untrue statement of any material fact contained in
the Registration Statement, any Preliminary Prospectus, the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon 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, in each
case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in the
Registration Statement, any Preliminary Prospectus, the Prospectus, or any
amendment or supplement thereto, in reliance upon and in conformity with the
information furnished to the Company pursuant to Section 3 hereof; and will
reimburse the Company, or any such director, officer or controlling person for
any legal and other expense reasonably incurred by the Company, or any such
director or officer or any such controlling person in connection with
investigating, defending, settling, compromising or paying any such loss,
claim, damage, liability, expense or action. In addition to your other
obligations under this Section 10(b), you agree that, as an interim measure
during the pendency of any claim, action, investigation, inquiry or other
proceeding arising out of or based upon any statement or omission, or any
alleged statement or omission, described in this Section 10(b) which relates to
information furnished to the Company pursuant to Section 3 hereof, you will
reimburse the Company (and, to the extent applicable, each officer, director or
controlling person) on a quarterly basis for all reasonable legal or other
expenses incurred in connection with investigating or defending any such claim,
action, investigation, inquiry or other proceeding, notwithstanding the absence
of a judicial determination as to the propriety and enforceability of your
obligation to reimburse the Company (and, to the extent applicable, each
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officer, director or controlling person) for such expenses and the possibility
that such payments might later be held to have been improper by a court of
competent jurisdiction. To the extent that any such interim reimbursement
payment is so held to have been improper, the Company (and, to the extent
applicable, each officer, director or controlling person) shall promptly
return it to you together with interest, compounded daily, determined on the
basis of the Prime Rate. Any such interim reimbursement payments which are not
made to the Company within 30 days of a request for reimbursement shall bear
interest at the Prime Rate from the date of such request. This indemnity
agreement will be in addition to any liability which you may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party under this
Section, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party for contribution or
otherwise than under the indemnity agreement contained in this Section or to
the extent it is not prejudiced as a proximate result of such failure. In case
any such action is brought against any indemnified party and such indemnified
party seeks or intends to seek indemnity from an indemnifying party, the
indemnifying party will be entitled to participate in, and, to the extent that
it may wish, jointly with all other indemnifying parties similarly notified, to
assume the defense thereof with counsel reasonably satisfactory to such
indemnified party; provided, however, if the defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be a conflict
between the positions of the indemnifying party and the indemnified party in
conducting the defense of any such action or that there may be legal defenses
available to it and/or other indemnified parties which are different from or
additional to those available to the indemnifying party, the indemnified party
or parties shall have the right to select separate counsel to assume such legal
defenses and to otherwise participate in the defense of such action on behalf
of such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of its election so to assume the
defense of such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party under this
Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed such counsel in connection with the
assumption of legal defenses in accordance with the proviso to the next
preceding sentence (it being understood, however, that the indemnifying party
shall not be liable for the expenses of more than one separate counsel,
approved by you in the case of paragraphs (a) and (b), representing the
indemnified parties who are parties to such action) or (ii) the indemnifying
party shall not have employed counsel reasonably satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of the action, in each of which cases the fees and
expenses of counsel shall be at the expense of the indemnifying party.
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(d) If the indemnification provided for in this Section 10 is required by
its terms but is for any reason held to be unavailable to or otherwise
insufficient to hold harmless an indemnified party under paragraphs (a), (b) or
(c) in respect of any losses, claims, damages, liabilities or expenses referred
to herein, then each applicable indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of any losses,
claims, damages, liabilities or expenses referred to herein (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and you from the offering of the or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company and you in connection with the
statements or omissions or inaccuracies in the representations and warranties
herein which resulted in such losses, claims, damages, liabilities or expenses,
as well as any other relevant equitable considerations. The respective
relative benefits received by the Company and you shall be deemed to be in the
same proportion, in the case of the Company, as the total price paid to the
Company for the Notes sold by them to you (net of underwriting commissions but
before deducting expenses), and in your case as the underwriting commissions
received by you, bears to the total of such amounts paid to the Company and
received by you as underwriting commissions. The relative fault of the Company
and you 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 or the inaccurate or the alleged
inaccurate representation and/or warranty relates to information supplied by
the Company or you and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, claims,
damages, liabilities and expenses referred to above shall be deemed to include,
subject to the limitations set forth in subparagraph (c) of this Section 10,
any legal or other fees or expenses reasonably incurred by such party in
connection with investigating or defending any action or claim. The provisions
set forth in subparagraph (c) of this Section 10 with respect to notice of
commencement of any action shall apply if a claim for contribution is to be
made under this subparagraph (d); provided, however, that no additional notice
shall be required with respect to any action for which notice has been given
under subparagraph (c) for purposes of indemnification. The Company and you
agree that it would not be just and equitable if contribution pursuant to this
Section 10 were determined solely by pro rata allocation or by any other method
of allocation which does not take account of the equitable considerations
referred to in this paragraph. Notwithstanding the provisions of this Section
10, you shall not be required to contribute any amount in excess of the amount
of the total underwriting commissions received by you in connection with the
Notes underwritten by you and distributed to the public. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(e) It is agreed that any controversy arising out of the operation of the
interim reimbursement arrangements set forth in Sections 10(a) and 10(b)
hereof, including the amounts of any requested reimbursement payments and the
method of determining such amounts, shall be settled by arbitration conducted
under the provisions of the Constitution and Rules of the Board of Governors
of the New
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York Stock Exchange, Inc. or pursuant to the Code of Arbitration Procedure of
the NASD. Any such arbitration must be commenced by service of a written
demand for arbitration or written notice of intention to arbitrate, therein
electing the arbitration tribunal. In the event the party demanding
arbitration does not make such designation of an arbitration tribunal in such
demand or notice, then the party responding to said demand or notice is
authorized to do so. Such an arbitration would be limited to the operation of
the interim reimbursement provisions contained in Sections 10(a) and 10(b)
hereof and would not resolve the ultimate propriety or enforceability of the
obligation to reimburse expenses which is created by the provisions of such
Sections 10(a) and 10(b) hereof.
Section 11. Default of Underwriter. It shall be a condition to this
Agreement and the obligation of the Company to sell and deliver the Notes
hereunder that, except as hereinafter in this paragraph provided, you shall
purchase and pay for all the Notes agreed to be purchased hereunder upon tender
of all such shares in accordance with the terms hereof. If you default in your
obligation to purchase Notes hereunder on either the First or Second Closing
Date and arrangements satisfactory to you and the Company for the purchase of
such Notes by other persons are not made within 48 hours after such default,
this Agreement will terminate without liability on the part of the Company
except for the expenses to be paid by the Company pursuant to Section 6 hereof
and except to the extent provided in Section 10 hereof.
In the event that Notes to which a default relates are to be purchased by
another party or parties, you or the Company shall have the right to postpone
the First or Second Closing Date, as the case may be, for not more than five
business days in order that the necessary changes in the Registration
Statement, Prospectus and any other documents, as well as any other
arrangements, may be effected. As used in this Agreement, any reference to you
in your capacity as an underwriter shall include any person substituted for you
in whole or in part under this Section. Nothing herein will relieve you from
liability for your default.
Section 12. Effective Date. This Agreement shall become effective
immediately as to Sections 6, 8, 10, 13 and 14 and, as to all other provisions,
(i) if at the time of execution of this Agreement the Registration Statement
has not become effective, at 2:00 P.M., California time, on the first full
business day following the effectiveness of the Registration Statement, or (ii)
if at the time of execution of this Agreement the Registration Statement has
been declared effective, at 2:00 P.M., California time, on the first full
business day following the date of execution of this Agreement; but this
Agreement shall nevertheless become effective at such earlier time after the
Registration Statement becomes effective as you may determine on and by notice
to the Company or by release of any of the Notes for sale to the public. For
the purposes of this Section 12, the Notes shall be deemed to have been so
released upon the release for publication of any newspaper advertisement
relating to the Notes or upon the release by you of telegrams (i) advising that
the Notes are released for public offering, or (ii) offering the Notes for sale
to securities dealers, whichever may occur first.
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Section 13. Termination. Without limiting the right to terminate this
Agreement pursuant to any other provision hereof:
(a) This Agreement may be terminated by the Company by notice to you
or by you by notice to the Company at any time prior to the time this
Agreement shall become effective as to all its provisions, and any such
termination shall be without liability on the part of the Company to you
(except for the expenses to be paid or reimbursed by the Company pursuant
to Sections 6 and 8 hereof and except to the extent provided in Section 10
hereof) or of you to the Company (except to the extent provided in Section
10 hereof).
(b) This Agreement may also be terminated by you on or prior to the
First Closing Date by notice to the Company (i) if additional material
governmental restrictions, not in force and effect on the date hereof,
shall have been imposed upon trading in securities generally or minimum or
maximum prices shall have been generally established on the New York Stock
Exchange or on the American Stock Exchange or in the over the counter
market by the NASD, or trading in securities generally shall have been
suspended on either such Exchange or in the over the counter market by the
NASD, or a general banking moratorium shall have been established by
federal, New York or California authorities, (ii) if an outbreak of major
hostilities or other national or international calamity or any substantial
change in political, financial or economic conditions shall have occurred
or shall have accelerated or escalated to such an extent, as, in your
reasonable judgment, to affect materially and adversely the marketability
of the Notes, (iii) if any adverse event shall have occurred or shall
exist which makes untrue or incorrect in any material respect any
statement or information contained in the Registration Statement or
Prospectus or which is not reflected in the Registration Statement or
Prospectus but should be reflected therein in order to make the statements
or information contained therein not misleading in any material respect,
or (iv) if there shall be any action, suit or proceeding pending or
threatened (except as described in the Prospectus, and then only to the
extent there has not occurred since the date of the Prospectus any
development or prospective development relating to any such action, suit
or proceeding so described), or there shall have been any development or
prospective development involving particularly the business or properties
or securities of the Company or any of its subsidiaries or the
transactions contemplated by this Agreement, which, in your reasonable
judgment, may materially and adversely affect the Company's business or
earnings and makes it impracticable or inadvisable to offer or sell the
Notes. Any termination pursuant to this subsection (b) shall be without
liability on your part to the Company or on the part of the Company to you
(except for expenses to be paid or reimbursed by the Company pursuant to
Sections 6 and 8 hereof and except to the extent provided in Section 10
hereof).
Section 14. Representations and Indemnities to Survive Delivery. The
respective indemnities, agreements, representations, warranties and other
statements of the Company, of its
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officers and of you set forth in or made pursuant to this Agreement will remain
in full force and effect, regardless of any investigation made by or on behalf
of you or the Company or any of its or their partners, officers or directors
or any controlling person, as the case may be, and will survive delivery of
and payment for the Notes sold hereunder and any termination of this Agreement.
Section 15. Notices. All communications hereunder shall be in writing
and, if sent to you, shall be mailed, delivered or telegraphed and confirmed to
you at 600 Montgomery Street, San Francisco, California 94111, Attention: Mr.
Joseph M. Schell with a copy to Ropes & Gray, One International Place, Boston,
Massachusetts 02110, Attention: Keith F. Higgins, Esq.; and if sent to the
Company shall be mailed, delivered or telegraphed and confirmed to the Company
at Analog Devices, Inc., Three Technology Way, Norwood, Massachusetts
02062-9106, Attention: President, with a copy to Hale and Dorr, 60 State
Street, Boston, Massachusetts 02109, Attention: Paul P. Brountas, Esq. and
Mark G. Borden, Esq. The Company or you may change the address for receipt of
communications hereunder by giving notice to the other.
Section 16. Successors. This Agreement will inure to the benefit of and
be binding upon the parties hereto, including any substitute party pursuant to
Section 11 hereof, and to the benefit of the officers and directors and
controlling persons referred to in Section 10, and in each case their
respective successors, personal representatives and assigns, and no other
person will have any right or obligation hereunder. No such assignment shall
relieve any party of its obligations hereunder. The term "successors" shall not
include any purchaser of the Notes as such from you merely by reason of such
purchase.
Section 17. 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.
Section 18. Applicable Law. This Agreement shall be governed by and
construed in accordance with the internal laws (and not the laws pertaining to
conflicts of laws) of the Commonwealth of Massachusetts.
Section 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. This Agreement may be executed in several
counterparts, each one of which shall be an original, and all of which shall
constitute one and the same document.
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
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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 you.
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed copies hereof, whereupon
it will become a binding agreement among the Company and you, all in accordance
with its terms.
Very truly yours,
ANALOG DEVICES, INC.
By:
--------------------
Jerald G. Fishman
President and Chief
Operating Officer
The foregoing Underwriting Agreement is hereby
confirmed and accepted by us in San Francisco,
California as of the date first above written.
MONTGOMERY SECURITIES
By:
-------------------------------------------
Managing Director
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SCHEDULE I
Principal Amount of
Underwriter Notes to be Purchased
----------- ---------------------
Montgomery Securities. . . . . . . . . . . . . .
Goldman, Sachs & Co. . . . . . . . . . . . . . . ------------
Total. . . . . . . . . . . . . . . . . . . . . . $200,000,000
============
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SCHEDULE II
Material Subsidiaries
---------------------
Analog Devices, B.V., a limited liability company organized under the laws of
the Netherlands
Analog Devices, Holdings, B.V., a limited liability company organized under the
laws of the Netherlands
A-2