EXHIBIT 1.2
NVIDIA CORPORATION
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES)
April _, 2000
From time to time, NVIDIA Corporation, a Delaware corporation (the
"Company"), may enter into one or more underwriting agreements that provide for
the sale of designated securities to the several underwriters named therein. The
standard provisions set forth herein may be incorporated by reference in any
such underwriting agreement (an "Underwriting Agreement"). The Underwriting
Agreement, including the provisions incorporated therein by reference, is herein
sometimes referred to as this Agreement. Terms defined in the Underwriting
Agreement are used herein as therein defined.
Subject to the terms and conditions herein set forth, the Company may
grant, if so provided in any such Underwriting Agreement relating thereto, an
option to the Underwriters, severally and not jointly, to purchase additional
Debt Securities to cover over-allotments, if any (the "Option Securities"). If
the Underwriting Agreement so provides, the Underwriters may purchase up to the
amount of Option Securities set forth therein at the same price as is applicable
to the Offered Securities. As used herein, the term "Offered Securities" shall
include Option Securities. Such option, if granted, will expire 30 days after
the date of the Underwriting Agreement, and may be exercised only for the
purpose of covering over-allotments which may be made in connection with the
offering and distribution of the Offered Securities upon notice by the Manager
to the Company setting forth the number of Option Securities as to which the
several Underwriters are then exercising the option and the time and date of
payment and delivery for such Option Securities.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement, including a prospectus, relating to the
Debt Securities and has filed with, or transmitted for filing to, or shall
promptly hereafter file with or transmit for filing to, the Commission a
prospectus supplement (the "Prospectus Supplement") specifically relating to the
Offered Securities pursuant to Rule 424 under the Securities Act of 1933, as
amended (the "Securities Act"). The term "Registration Statement" means the
registration statement, including the exhibits thereto, as amended to the date
of this
Agreement. The term "Basic Prospectus" means the prospectus included in the
Registration Statement. The term "Prospectus" means the Basic Prospectus
together with the Prospectus Supplement. The term "preliminary prospectus" means
a preliminary prospectus supplement specifically relating to the Offered
Securities together with the Basic Prospectus. As used herein, the terms "Basic
Prospectus," "Prospectus" and "preliminary prospectus" shall include in each
case the documents, if any, incorporated by reference therein. The terms
"supplement," "amendment" and "amend" as used herein shall include all documents
deemed to be incorporated by reference in the Prospectus that are filed
subsequent to the date of the Basic Prospectus by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
The term "Contract Securities" means the Offered Securities to be
purchased pursuant to the delayed delivery contracts substantially in the form
of Schedule I hereto, with such changes therein as the Company may approve (the
"Delayed Delivery Contracts"). The term "Underwriters' Securities" means the
Offered Securities other than Contract Securities.
1. Representations and Warranties. The Company represents and warrants
to and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or
threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied
or will comply when so filed in all material respects with the Exchange
Act and the applicable rules and regulations of the Commission
thereunder, (ii) each part of the Registration Statement, when such
part became effective, did not contain, and each such part, as amended
or supplemented, if applicable, will not contain 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, (iii) the Registration Statement and the Prospectus comply,
and, as amended or supplemented, if applicable, will comply in all
material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder and (iv) the Prospectus does
not contain and, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, except
that the representations and warranties set forth in this paragraph do
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not apply (A) to statements or omissions in the Registration Statement
or the Prospectus based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter through the
Manager expressly for use therein or (B) to that part of the
Registration Statement that constitutes the Statement of Eligibility
(Form T-1) under the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), of the Trustee.
(c) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Delaware,
has the corporate power and authority to own its property and to
conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its subsidiaries,
taken as a whole.
(d) Each subsidiary of the Company has been duly incorporated, is
validly existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described
in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business
or its ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole; all of the issued shares of capital
stock of each subsidiary of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and are owned
directly by the Company, free and clear of all liens, encumbrances,
equities or claims.
(e) This Agreement has been duly authorized, executed and delivered by
the Company.
(f) The authorized capital stock of the Company conforms as to legal
matters to the description thereof contained in the Prospectus under
the caption "Description of Capital Stock."
(g) The shares of common stock, par value $0.001 per share, of the
Company (the "Common Stock") outstanding on the date of the
Underwriting Agreement have been duly authorized and are validly
issued, fully paid and non-assessable; except as set forth in the
Prospectus, the Company does not have outstanding any options to
purchase, or any
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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; and all
outstanding shares of capital stock and options and other rights to
acquire capital stock of the Company have been issued in compliance
with the registration and qualification provisions of all applicable
securities laws and were not issued in violation of any preemptive
rights, rights of first refusal or other similar rights.
(h) Each of the Indenture related to the senior debt securities and the
Indenture related to the subordinated debt securities (together, the
"Indentures") has been duly qualified under the Trust Indenture Act and
has been duly authorized, executed and delivered by the Company and is
a valid and binding agreement of the Company, enforceable in accordance
with its terms except as (i) the enforceability thereof may be limited
by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability.
(i) The Delayed Delivery Contracts have been duly authorized, executed
and delivered by the Company and are valid and binding agreements of
the Company, enforceable in accordance with their respective terms
except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and
(ii) the availability of equitable remedies may be limited by equitable
principles of general applicability.
(j) The Offered Securities have been duly authorized and, when executed
and authenticated in accordance with the provisions of the applicable
Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of the Underwriting Agreement, in the case of
the Underwriters' Securities, or by institutional investors in
accordance with the terms of the Delayed Delivery Contracts, in the
case of the Contract Securities will be entitled to the benefits of the
applicable Indenture and will be valid and binding obligations of the
Company, in each case enforceable in accordance with their respective
terms except as (A) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (B) rights of acceleration, if any, and the availability
of equitable remedies may be limited by equitable principles of general
applicability.
(k) In the event the Offered Securities are convertible into Common
Stock of the Company (the "Underlying Securities"), the Underlying
Securities reserved for issuance upon conversion of the
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Offered Securities have been duly authorized and reserved and, when
issued upon conversion of the Offered Securities in accordance with the
terms of the Offered Securities, will be validly issued, fully paid and
non-assessable, and the issuance of the Underlying Securities will not
be subject to any preemptive or similar rights.
(l) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement, the
Indentures, the Offered Securities and the Delayed Delivery Contracts
will not contravene any provision of applicable law or the certificate
of incorporation or by-laws of the Company or any agreement or other
instrument binding upon the Company or any of its subsidiaries that is
material to the Company and its subsidiaries, taken as a whole, or any
judgment, order or decree of any governmental body, agency or court
having jurisdiction over the Company or any subsidiary, and no consent,
approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the
Company of its obligations under this Agreement, the Indentures, the
Offered Securities or the Delayed Delivery Contracts, except such as
may be required by the securities or Blue Sky laws of the various
states in connection with the offer and sale of the Offered Securities.
(m) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from
that set forth in the Prospectus (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement).
(n) There are no legal, regulatory or governmental proceedings pending
or, to the knowledge of the Company, threatened to which the Company or
any of its subsidiaries is a party or to which any of the properties of
the Company or any of its subsidiaries is subject that are required to
be described in the Registration Statement or the Prospectus and are
not so described or any statutes, regulations, contracts or other
documents that are required to be described in the Registration
Statement or the Prospectus or to be filed or incorporated by reference
as exhibits to the Registration Statement that are not described, filed
or incorporated as required.
(o) The Company and its subsidiaries have all necessary consents,
authorizations, approvals, orders, certificates and permits of and
from, and has made all declarations and filings with, all foreign,
federal, state, local and other governmental authorities, all
self-regulatory
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organizations and all courts and other tribunals, to own, lease,
license and use its properties and assets and to conduct its business
in the manner described in the Prospectus, except to the extent that
the failure to obtain or file would not, singly or in the aggregate,
have a material adverse effect on the Company and its subsidiaries,
taken as a whole.
(p) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or
filed pursuant to Rule 424 under the Securities Act, complied when so
filed in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder.
(q) The Company is not, and after giving effect to the offering and
sale of the Offered Securities and the application of the proceeds
thereof as described in the Prospectus will not be, required to
register as an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended.
(r) The Company and its subsidiaries (i) are in compliance with any and
all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment
or hazardous or toxic substances or wastes, pollutants or contaminants
(collectively, "Environmental Laws"), (ii) have received all permits,
licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) are
in compliance with all terms and conditions of any such permit, license
or approval, except where such noncompliance with Environmental Laws,
failure to receive required permits, licenses or other approvals or
failure to comply with the terms and conditions of such permits,
licenses or approvals would not, singly or in the aggregate, have a
material adverse effect on the Company and its subsidiaries, taken as a
whole.
(s) There are no costs or liabilities associated with Environmental
Laws (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance
with Environmental Laws or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to
third parties) which would, singly or in the aggregate, have a material
adverse effect on the Company and its subsidiaries, taken as a whole.
(t) The Company and its subsidiaries have complied with all provisions
of Section 517.075, Florida Statute relating to issuers doing business
with Cuba.
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(u) Subsequent to the date as of which information is given in the
Registration Statement and the Prospectus, (i) neither the Company nor
its subsidiaries have incurred any material liability or obligation,
direct or contingent, nor entered into any material transaction in each
case not in the ordinary course of business; (ii) neither the Company
nor its subsidiaries have purchased any of the Company's outstanding
capital stock other than unvested shares from former employees,
directors or consultants in accordance with the applicable governing
terms of agreements existing as of the date hereof, nor declared, paid
or otherwise made any dividend or distribution of any kind on its
capital stock; and (iii) there has not been any material change in the
capital stock, short-term debt or long-term debt of the Company, except
as described in the Prospectus.
(v) The Company and its subsidiaries have good and marketable title in
fee simple to all real property and good and marketable title to all
personal property owned by it that is material to the business of the
Company and its subsidiaries, taken as a whole, in each case free and
clear of any security interest, lien, encumbrance, claim, defect or
adverse interest of any nature except such as are described in the
Prospectus or such as do not materially affect the value of such
property and do not interfere with the use made and proposed to be made
of such property by the Company and its subsidiaries; and any real
property and buildings held under lease by the Company or its
subsidiaries is held by it under valid, subsisting and enforceable
leases with such exceptions as are not material and do not interfere
with the use made and proposed to be made of such property and
buildings by the Company and its subsidiaries, except as described in
the Prospectus.
(w) The Company owns or possesses adequate licenses or other rights to
use all patents, patent rights, inventions, trade secrets, copyrights,
trademarks, service marks, trade names, technology and know-how
necessary to conduct its business in the manner currently employed and
as described in the Prospectus; the Company is not obligated to pay a
royalty, grant a license, or provide other consideration to any third
party in connection with its patents, copyrights, trademarks, service
marks, trade names, or technology other than such royalties, licenses
or consideration that are not required to be disclosed in the
Prospectus pursuant to the Securities Act and the rules and regulations
thereunder and, except as disclosed in the Prospectus, the Company has
not received any notice of infringement or conflict with (and the
Company does not know of any infringement or conflict with) asserted
rights of others with respect to any patents, patent rights,
inventions, trade secrets, copyrights, trademarks, service marks, trade
names or know-how which could result in any material adverse effect
upon the Company and its subsidiaries, taken as a
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whole; and, except as disclosed in the Prospectus, the discoveries,
inventions, products or processes of the Company referred to in the
Prospectus do not, to the best knowledge of the Company, infringe or
conflict with any right or patent of any third party, or any discovery,
invention, product or process which is the subject of a patent
application filed by any third party, known to the Company which could
have a material adverse effect on the Company and its subsidiaries,
taken as a whole. Except as disclosed in the Prospectus, no third
party, including any academic or governmental organization, possesses
rights to the Company's patents, copyrights, trademarks, service marks,
trade names, or technology which, if exercised, could enable such third
party to develop products that could have a material adverse effect on
the ability of the Company and its subsidiaries to conduct its business
in the manner described in the Prospectus.
(x) No material labor dispute with the employees of the Company or its
subsidiaries exists, except as described in the Prospectus or, to the
knowledge of the Company, is imminent; and the Company is not aware of
any existing, threatened or imminent labor disturbance by the employees
of any of its principal suppliers, manufacturers or contractors that
could have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(y) The Company is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are
prudent and customary in the business in which the Company is engaged;
the Company has not been refused any insurance coverage sought or
applied for; and the Company does not have any reason to believe that
it will not be able to renew its existing insurance coverage as and
when such coverage expires or to obtain similar coverage from similar
insurers as may be necessary to continue its business at a cost that
would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole, except as described in the Prospectus.
(z) In the event the Offered Securities are convertible into Underlying
Securities, the Company has filed a supplemental listing application
with the Nasdaq Stock Market, Inc. to list the Underlying Securities,
and the Nasdaq Stock Market, Inc. has approved the Underlying
Securities for listing on the Nasdaq National Market, subject to
official notice of issuance.
(aa) Except as disclosed in the Prospectus, all outstanding shares of
Common Stock, and all securities convertible into or exercisable or
exchangeable for Common Stock in each case held by the directors and
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executive officers of the Company are subject to valid and binding
agreements (collectively, the "Lock-up Agreements") that, subject to
certain exceptions, restrict the holders thereof from selling, making
any short sale of, granting any option for the purchase of, or
otherwise transferring or disposing of, any of such shares of Common
Stock, or any such securities convertible into or exercisable or
exchangeable for Common Stock, for a period of 90 days after the date
of the Prospectus without the prior written consent of the Company or
the Manager.
2. Delayed Delivery Contracts. If the Prospectus provides for sales of
Offered Securities pursuant to Delayed Delivery Contracts, the Company hereby
authorizes the Underwriters to solicit offers to purchase Contract Securities on
the terms and subject to the conditions set forth in the Prospectus pursuant to
Delayed Delivery Contracts. Delayed Delivery Contracts may be entered into only
with institutional investors approved by the Company of the types set forth in
the Prospectus. On the Closing Date, the Company will pay to the Manager as
compensation for the accounts of the Underwriters the commission set forth in
the Underwriting Agreement in respect of the Contract Securities. The
Underwriters will not have any responsibility in respect of the validity or the
performance of any Delayed Delivery Contracts.
If the Company executes and delivers Delayed Delivery Contracts with
institutional investors, the aggregate amount of Offered Securities to be
purchased by the several Underwriters shall be reduced by the aggregate amount
of Contract Securities; such reduction shall be applied to the commitment of
each Underwriter pro rata in proportion to the amount of Offered Securities set
forth opposite such Underwriter's name in the Underwriting Agreement, except to
the extent that the Manager determines that such reduction shall be applied in
other proportions and so advises the Company; provided, however, that the total
amount of Offered Securities to be purchased by all Underwriters shall be the
aggregate amount set forth above, less the aggregate amount of Contract
Securities.
3. Terms of Public Offering. The Company is advised by the Manager that
the Underwriters propose to make a public offering of their respective portions
of the Underwriters' Securities as soon after this Agreement has been entered
into as in the Manager's judgment is advisable. The terms of the public offering
of the Underwriters' Securities are set forth in the Prospectus.
4. Payment and Delivery. Except as otherwise provided in this Section
4, payment for the Underwriters' Securities shall be made to the Company in
Federal or other funds immediately available at the time and place set forth in
the Underwriting Agreement, upon delivery to the Manager for the respective
accounts of the several Underwriters of the Underwriters' Securities registered
in such names and in such denominations as the Manager shall request in writing
not
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less than two full business days prior to the date of delivery, with any
transfer taxes payable in connection with the transfer of the Underwriters'
Securities to the Underwriters duly paid.
Delivery on the Closing Date of any Underwriters' Securities that are
Debt Securities in bearer form shall be effected by delivery of a single
temporary global Debt Security without coupons (the "Global Debt Security")
evidencing the Offered Securities that are Debt Securities in bearer form to a
common depositary for Morgan Guaranty Trust Company of New York, Brussels
office, as operator of the Euro-clear System ("Euro-clear"), and for Clearstream
Banking, societe anonyme ("Clearstream") for credit to the respective accounts
at Euro-clear or Clearstream of each Underwriter or to such other accounts as
such Underwriter may direct. Any Global Debt Security shall be delivered to the
Manager not later than the Closing Date, against payment of funds to the Company
in the net amount due to the Company for such Global Debt Security or by the
method and in the form set forth in the Underwriting Agreement. The Company
shall cause definitive Debt Securities in bearer form to be prepared and
delivered in exchange for such Global Debt Security in such manner and at such
time as may be provided in or pursuant to the applicable Indenture; provided,
however, that the Global Debt Security shall be exchangeable for definitive Debt
Securities in bearer form only on or after the date specified for such purpose
in the Prospectus.
5. Conditions to the Underwriters' Obligations. The several obligations
of the Underwriters are subject to the following conditions:
(a) Subsequent to the execution and delivery of the Underwriting
Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor
shall any notice have been given of any intended or potential
downgrading or of any review for a possible change that does
not indicate the direction of the possible change, in the
rating accorded any of the Company's securities by any
"nationally recognized statistical rating organization," as
such term is defined for purposes of Rule 436(g)(2) under the
Securities Act; and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a
whole, from that set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of
this Agreement) that, in the judgment of the Manager, is
material and adverse and that
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makes it, in the judgment of the Manager, impracticable to
market the Offered Securities on the terms and in the manner
contemplated in the Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by the chief executive
officer and the chief financial officer of the Company, to the effect
set forth in Section 5(a)(i) and to the effect that the representations
and warranties of the Company contained in this Agreement are true and
correct as of the Closing Date and that the Company has complied with
all of the agreements and satisfied all of the conditions on its part
to be performed or satisfied hereunder on or before the Closing Date.
The officers signing and delivering such certificate may rely
upon the best of their knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion
of Cooley Godward LLP, outside counsel for the Company, dated the
Closing Date, to the effect that:
(i) the Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of
the state of Delaware, has the corporate power and authority
to own its property and to conduct its business as described
in the Prospectus and is duly qualified as a foreign
corporation to transact business and is in good standing in
each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be
in good standing would have a material adverse effect on the
Company and its subsidiaries, taken as a whole;
(ii) each subsidiary of the Company has been duly
incorporated, is validly existing as a corporation in good
standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own
its property and to conduct its business and is duly qualified
to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be
in good standing would not have a material adverse effect on
the Company and its subsidiaries, taken as a whole; all of the
issued shares of capital stock of each subsidiary of the
Company have been duly and validly authorized and issued, are
fully paid and non-
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assessable, and are owned directly by the Company, free and
clear of all liens, encumbrances, equities or claims.
(iii) the authorized capital stock of the Company conforms
as to legal matters to the description thereof contained in
the Prospectus under the caption "Description of Capital
Stock";
(iv) the outstanding shares of Common Stock have been duly
authorized and are validly issued, fully paid and non-
assessable; except as set forth in the Prospectus, the Company
has no outstanding 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; and all outstanding shares of capital stock and
options and other rights to acquire capital stock have been
issued in compliance with the registration and qualification
provisions of all applicable securities laws and were not
issued in violation of any preemptive rights, rights of first
refusal or other similar rights;
(v) this Agreement has been duly authorized, executed
and delivered by the Company;
(vi) each of the Indentures has been duly qualified under
the Trust Indenture Act and has been duly authorized, executed
and delivered by the Company and is a valid and binding
agreement of the Company, enforceable in accordance with its
terms except as (A) the enforceability thereof may be limited
by bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (B) rights of acceleration and the
availability of equitable remedies may be limited by equitable
principles of general applicability;
(vii) the Delayed Delivery Contracts have been duly
authorized, executed and delivered by the Company and are
valid and binding agreements of the Company, enforceable in
accordance with their respective terms except as (A) the
enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights
generally and (B) the availability of equitable remedies may
be limited by equitable principles of general applicability;
(viii) the Offered Securities have been duly authorized and,
when executed and authenticated in accordance with the
provisions
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of the applicable Indenture and delivered to and paid for by
the Underwriters in accordance with the terms of the
Underwriting Agreement, in the case of Underwriters'
Securities, or by institutional investors in accordance with
the terms of the Delayed Delivery Contracts, in the case of
the Contract Securities will be entitled to the benefits of
the applicable Indenture and will be valid and binding
obligations of the Company, in each case enforceable in
accordance with their respective terms except as (1) the
enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights
generally and (2) rights of acceleration, if any, and the
availability of equitable remedies may be limited by equitable
principles of general applicability;
(ix) in the event the Offered Securities are convertible
into Underlying Securities, the Underlying Securities reserved
for issuance upon conversion of the Offered Securities have
been duly authorized and reserved and, when issued upon
conversion of the securities in accordance with the terms of
the Offered Securities, will be validly issued, fully paid and
non-assessable and the issuance of the Underlying Securities
will not be subject to any preemptive or similar rights;
(x) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this
Agreement, the Indentures, the Offered Securities and the
Delayed Delivery Contracts will not contravene any provision
of applicable law or the certificate of incorporation or
by-laws of the Company or, to the best of such counsel's
knowledge, any agreement or other instrument binding upon the
Company or any of its subsidiaries that is material to the
Company and its subsidiaries, taken as a whole, or, to the
best of such counsel's knowledge, any judgment, order or
decree of any governmental body, agency or court having
jurisdiction over the Company or any subsidiary, and no
consent, approval, authorization or order of, or qualification
with, any governmental body or agency is required for the
performance by the Company of its obligations under this
Agreement, the Indentures, the Offered Securities or the
Delayed Delivery Contracts or, except such as may be required
by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Offered Securities;
(xi) the statements (A) in the Prospectus under the
captions "Risk Factors - Legal Proceedings", "Description of
Debt Securities," "Plan of Distribution", (B) in the
Registration
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Statement under Item 15, (C) in "Item 3 - Legal Proceedings"
and "Item 11 - Management - Employee Benefit Plans" of the
Company's most recent annual report on Form 10-K incorporated
by reference in the Prospectus and (D) in "Item 1 - Legal
Proceedings" of Part II of the Company's quarterly reports on
Form 10-Q, if any, filed since such annual report, in each
case insofar as such statements constitute summaries of the
legal matters, documents or proceedings referred to therein,
fairly present the information called for with respect to such
legal matters, documents and proceedings and fairly summarize
the matters referred to therein;
(xii) after due inquiry, such counsel does not know of any
legal, regulatory or governmental proceedings pending or
overtly threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of
the Company or any of its subsidiaries is subject that are
required to be described in the Registration Statement or the
Prospectus and are not so described or of any statutes,
regulations, contracts or other documents that are required to
be described in the Registration Statement or the Prospectus
or to be filed or incorporated by reference as exhibits to the
Registration Statement that are not described, filed or
incorporated as required;
(xiii) the Company is not an "investment company" or an
entity "controlled" by an "investment company," as such terms
are defined in the Investment Company Act of 1940, as amended;
(xiv) the statements in the Prospectus under the caption
"Certain Federal Income Tax Considerations," insofar as such
statements constitute a summary of the United States federal
tax laws referred to therein, are accurate and fairly
summarize in all material respects the United States federal
tax laws referred to therein;
(xv) such counsel (A) is of the opinion that each
document, if any, filed pursuant to the Exchange Act and
incorporated by reference in the Prospectus (except for
financial statements and schedules included therein as to
which such counsel need not express any opinion) complied when
so filed as to form in all material respects with the Exchange
Act and the applicable rules and regulations of the Commission
thereunder, (B) has no reason to believe that (except for
financial statements and schedules as to which such counsel
need not express any belief and
14
except for that part of the Registration Statement that
constitutes the Form T-1 heretofore referred to) each part of
the Registration Statement, when such part became effective,
contained and, as of the date such opinion is delivered,
contains any untrue statement of a material fact or omitted or
omits to state a material fact required to be stated therein
or necessary to make the statements therein not misleading,
(C) is of the opinion that the Registration Statement and
Prospectus (except for financial statements and schedules
included therein as to which such counsel need not express any
opinion) comply as to form in all material respects with the
Securities Act and the applicable rules and regulations of the
Commission thereunder and (D) has no reason to believe that
(except for financial statements and schedules as to which
such counsel need not express any belief) the Prospectus as of
the date such opinion is delivered contains any untrue
statement of a material fact or omits to state a material fact
necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading.
(d) The Underwriters shall have received on the Closing Date an opinion
of Davis Polk & Wardwell, special counsel for the Underwriters, dated
the Closing Date, covering the matters referred to in Sections 5(c)(v),
5(c)(vi), 5(c)(vii), 5(c)(viii) and 5(c)(xi) (but only as to the
statements in the Prospectus under "Description of Debt Securities" and
"Plan of Distribution") and clauses 5(c)(xv)(B), 5(c)(xv)(C) and
5(c)(xv)(D) above.
With respect to Section 5(c)(xv) above, Cooley Godward LLP may
state that their opinion and belief are based upon their participation
in the preparation of the Registration Statement and Prospectus and any
amendments or supplements thereto and documents incorporated therein by
reference and review and discussion of the contents thereof, but are
without independent check or verification, except as specified. With
respect to clauses 5(c)(xv)(B), 5(c)(xv)(C) and 5(c)(xv)(D) above,
Davis Polk & Wardwell may state that their opinion and belief are based
upon their participation in the preparation of the Registration
Statement and Prospectus and any amendments or supplements thereto (but
not including documents incorporated therein by reference) and review
and discussion of the contents thereof (including documents
incorporated therein by reference), but are without independent check
or verification, except as specified.
15
The opinion of Cooley Godward LLP described in Section 5(c)
above shall be rendered to the Underwriters at the request of the
Company and shall so state therein.
(e) The Underwriters shall have received on the Closing Date a letter,
dated the Closing Date, in form and substance satisfactory to the
Underwriters, from the Company's independent public accountants,
containing statements and information of the type ordinarily included
in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in or
incorporated by reference into the Registration Statement and the
Prospectus; provided, however, that the letter delivered on the Closing
Date shall use a "cut-off date" not earlier than the date of the
Underwriting Agreement.
(f) The Lock-up Agreements, each in a form acceptable to the Managers,
between the Managers and certain shareholders, officers and directors
of the Company relating to sales and certain other depositions of
shares of Common Stock or certain other securities, delivered to the
Managers on or before the date hereof, shall be in full force and
effect on the Closing Date.
All of the agreements, opinions, certificates and letters mentioned
above or elsewhere in this Agreement shall be deemed in compliance with the
provisions hereof only if Davis Polk & Wardwell, counsel for the Underwriters,
shall be reasonably satisfied that they comply in form and scope.
The several obligations of the Underwriters to purchase Option
Securities hereunder are subject to the delivery to the Manager on the Option
Closing Date of such documents as the Manager may reasonably request with
respect to the good standing of the Company, the due authorization and issuance
of the Option Securities and other matters related to the issuance of the Option
Securities and an opinion or opinions of Cooley Godward LLP in form and
substance reasonably satisfactory to Davis Polk & Wardwell, counsel for the
Underwriters.
6. Covenants of the Company. In further consideration of the agreements
of the Underwriters herein contained, the Company covenants with each
Underwriter as follows:
(a) To furnish the Manager, without charge, four signed copies of the
Registration Statement (including exhibits thereto) and for delivery to
each other Underwriter a conformed copy of the Registration Statement
(without exhibits thereto) and, during the period mentioned in Section
6(c) below, as many copies of the Prospectus, any documents
incorporated by
16
reference therein and any supplements and amendments thereto or to the
Registration Statement as the Manager may reasonably request.
(b) Before amending or supplementing the Registration Statement or the
Prospectus with respect to the Offered Securities, to furnish to the
Manager a copy of each such proposed amendment or supplement and not to
file any such proposed amendment or supplement to which the Manager
reasonably objects, and to file with the Commission within the
applicable period specified in Rule 424(b) under the Securities Act any
prospectus required to be filed pursuant to such Rule.
(c) If, during such period after the first date of the public offering
of the Offered Securities as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall
occur or condition exist as a result of which it is necessary to amend
or supplement the Prospectus in order to make the statements therein,
in the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if, in the opinion of counsel for the
Underwriters, it is necessary to amend or supplement the Prospectus to
comply with applicable law, forthwith to prepare, file with the
Commission and furnish, at its own expense, to the Underwriters and to
the dealers (whose names and addresses the Manager will furnish to the
Company) to which Offered Securities may have been sold by the Manager
on behalf of the Underwriters and to any other dealers upon request,
either amendments or supplements to the Prospectus so that the
statements in the Prospectus as so amended or supplemented will not, in
the light of the circumstances when the Prospectus is delivered to a
purchaser, be misleading or so that the Prospectus, as amended or
supplemented, will comply with law.
(d) To endeavor to qualify the Offered Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as the
Manager shall reasonably request and to maintain such qualification for
as long as the Manager shall reasonably request.
(e) To make generally available to the Company's security holders and
to the Manager as soon as practicable an earning statement covering a
twelve month period beginning on the first day of the first full fiscal
quarter after the date of this Agreement, which earning statement shall
satisfy the provisions of Section 11(a) of the Securities Act and the
rules and regulations of the Commission thereunder. If such fiscal
quarter is the last fiscal quarter of the Company's fiscal year, such
earning statement shall be made available not later than 90 days after
the close of
17
the period covered thereby and in all other cases shall be made
available not later than 45 days after the close of the period covered
thereby.
(f) Whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, except as otherwise agreed
with the Manager, the Company agrees to pay or cause to be paid all
expenses incident to the performance of its obligations under this
Agreement, including: (i) the fees, disbursements and expenses of the
Company's counsel and the Company's accountants in connection with the
registration and delivery of the Offered Securities under the
Securities Act and all other fees or expenses in connection with the
preparation and filing of the Registration Statement, any preliminary
prospectus, the Prospectus and amendments and supplements to any of the
foregoing, including all printing costs associated therewith, and the
mailing and delivering of copies thereof to the Underwriters and
dealers, in the quantities specified herein, (ii) all costs and
expenses related to the transfer and delivery of the Offered Securities
to the Underwriters, including any transfer or other taxes payable
thereon, (iii) the cost of printing or producing any Blue Sky or Legal
Investment memorandum in connection with the offer and sale of the
Offered Securities under securities law of various states and other
jurisdictions and all expenses in connection with the qualification of
the Offered Securities for offer and sale under state securities laws
as provided in paragraph (d) of Section 6 hereof, including filing fees
and the reasonable fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection
with the Blue Sky or Legal Investment memorandum (iv) all filing fees
and the reasonable fees (in an amount not to exceed $15,000) and
disbursements of counsel to the Underwriters incurred in connection
with the review and qualification of the offering of the Offered
Securities by the NASD (if any), (v) all costs and expenses incident to
listing the Underlying Securities on the Nasdaq National Market (if
any), (vi) the cost of printing certificates representing the Offered
Securities, (vii) the costs and charges of any trustee, paying agent,
conversion agent, transfer agent, registrar or depositary, (viii) the
costs and expenses of the Company relating to investor presentations on
any "road show" undertaken in connection with the marketing of the
offering of the Offered Securities, including, without limitation,
expenses associated with the production of road show slides and
graphics, fees and expenses of any consultants engaged in connection
with the road show presentations with the prior approval of the
Company, travel and lodging expenses of the representatives and
officers of the Company and any such consultants, and the cost of any
aircraft chartered in connection with the road show, (ix) all expenses
in connection with any offer and sale of the Offered Securities outside
of the United States, including filing fees and the reasonable fees and
disbursements of counsel for the Underwriters in
18
connection with offers and sales outside of the United States, and (x)
all other costs and expenses incident to the performance of the
obligations of the Company hereunder for which provision is not
otherwise made in this Section 6(f). It is understood, however, that
except as otherwise provided in this Section 6(f), Section 7 entitled
"Indemnification and Contribution", and the last paragraph of Section 9
below, the Underwriters will pay all of their costs and expenses,
including fees and disbursements of their counsel, stock transfer taxes
payable on resale of any of the Offered Securities by them, and any
advertising expenses connected with any offers they may make.
(g) Not to take any action prohibited by Regulation M under the
Exchange Act in connection with the distribution of the Offered
Securities contemplated hereby.
(h) To (i) enforce the terms of each Lock-up Agreement, (ii) issue
stop-transfer instructions to the transfer agent for the Common Stock
with respect to any transaction or contemplated transaction that would
constitute a breach of or default under the applicable Lock-up
Agreement and (iii) upon written request of the Manager, to release
from the Lock-up Agreements those shares of Common Stock held by those
holders set forth in such request. In addition, except with the prior
written consent of the Manager, the Company agrees (i) not to amend or
terminate, or waive any right under, any Lock-up Agreement, or take any
other action that would directly or indirectly have the same effect as
an amendment or termination, or waiver of any right under, any Lock-up
Agreement, that would permit any holder of shares of Common Stock, or
securities convertible into or exercisable or exchangeable for Common
Stock, to sell, make any short sale of, grant any option for the
purchase of, or otherwise transfer or dispose of, any of such shares of
Common Stock or other securities prior to the expiration of 90 days
after the date of the Prospectus, and (ii) not to consent to any sale,
short sale, grant of an option for the purchase of, or other
disposition or transfer of shares of Common Stock, or securities
convertible into or exercisable or exchangeable for Common Stock,
subject to a Lock-up Agreement.
7. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred by any Underwriter or any such
controlling person in connection with defending or investigating any such action
or claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in
19
the Registration Statement or any amendment thereof, any preliminary prospectus
or the Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto), or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as
such losses, claims, damages or liabilities are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Manager expressly for use therein; provided,
however, that the foregoing indemnity agreement with respect to any preliminary
prospectus shall not inure to the benefit of any Underwriter from whom the
person asserting any such losses, claims, damages or liabilities purchased
Offered Securities, or any person controlling such Underwriter, if a copy of the
Prospectus (as then amended or supplemented if the Company shall have furnished
any amendments or supplements thereto) was not sent or given by or on behalf of
such Underwriter to such person, if required by law so to have been delivered,
at or prior to the written confirmation of the sale of the Offered Securities to
such person, and if the Prospectus (as so amended or supplemented) would have
cured the defect giving rise to such losses, claims, damages or liabilities,
unless such failure is the result of noncompliance by the Company with Section
6(a) hereof.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement and each person, if any, who controls the Company within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any amendment thereof,
any preliminary prospectus or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto), or caused
by any omission or alleged omission to state therein a material fact necessary
to make the statements therein in the light of the circumstances under which
they were made not misleading, but only with reference to information relating
to such Underwriter furnished to the Company in writing by such Underwriter
through the Manager expressly for use in the Registration Statement, any
preliminary prospectus, the Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either Section 7(a) or 7(b), such person (the "indemnified
party") shall promptly notify the person against whom such indemnity may be
sought (the "indemnifying party") in writing and the indemnifying party, upon
20
request of the indemnified party, shall retain counsel reasonably satisfactory
to the indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for (i) the fees and expenses of more than one separate firm (in
addition to any local counsel) for all Underwriters and all persons, if any, who
control any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act and (ii) the fees and expenses
of more than one separate firm (in addition to any local counsel) for the
Company, it directors, its officers who sign the Registration Statement and each
person, if any, who controls the Company within the meaning of either such
Section, and that all such fees and expenses shall be reimbursed as they are
incurred. In the case of any such separate firm for the Underwriters and such
control persons of any Underwriters, such firm shall be designated in writing by
the Manager. In the case of any such separate firm for the Company, and such
directors, officers and control persons of the Company, such firm shall be
designated in writing by the Company. The indemnifying party shall not be liable
for any settlement of any proceeding effected without its written consent, but
if settled with such consent or if there be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the second and third
sentences of this paragraph, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding.
21
(d) To the extent the indemnification provided for in Section 7(a) or
7(b) is unavailable to an indemnified party or insufficient in respect of any
losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party or parties on the other hand from the offering of the Offered
Securities or (ii) if the allocation provided by clause 7(d)(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 7(d)(i) above but also the
relative fault of the indemnifying party or parties on the one hand and of the
indemnified party or parties on the other hand in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on the other hand
in connection with the offering of the Offered Securities shall be deemed to be
in the same respective proportions as the net proceeds from the offering of such
Offered Securities (before deducting expenses) received by the Company and the
total underwriting discounts and commissions received by the Underwriters, in
each case as set forth in the table on the cover of the Prospectus Supplement,
bear to the aggregate public offering price of the Offered Securities. The
relative fault of the Company on the one hand and the Underwriters on the other
hand 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
or by the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Underwriters' respective obligations to contribute pursuant to this Section
7 are several in proportion to the respective principal amounts of Offered
Securities they have purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not be just or
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in Section 7(d). The amount paid or payable
by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, 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, no Underwriter shall be required to contribute any
amount in excess of the amount by which the
22
total price at which the Offered Securities underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The remedies provided for in this
Section 7 are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section
7 and the representations, warranties and other statements of the Company
contained in this Agreement shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any investigation made
by or on behalf of any Underwriter or any person controlling any Underwriter or
the Company, its officers or directors or any person controlling the Company and
(iii) acceptance of and payment for any of the Offered Securities.
8. Termination. This Agreement shall be subject to termination by
notice given by the Manager to the Company, if (a) after the execution and
delivery of the Underwriting Agreement and prior to the Closing Date (i) trading
generally shall have been suspended or materially limited on or by, as the case
may be, any of the New York Stock Exchange, the American Stock Exchange, the
National Association of Securities Dealers, Inc., the Chicago Board of Options
Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade, (ii)
trading of any securities of the Company shall have been suspended on any
exchange or in any over-the-counter market, (iii) a general moratorium on
commercial banking activities in New York shall have been declared by either
Federal or New York State authorities or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis that, in the judgment of the Manager, is material and adverse
and (b) in the case of any of the events specified in clauses 8(a)(i) through
8(a)(iv), such event, singly or together with any other such event, makes it, in
the judgment of the Manager, impracticable to market the Offered Securities on
the terms and in the manner contemplated in the Prospectus.
9. Defaulting Underwriters. If, on the Closing Date or Option Closing
Date, as the case may be, any one or more of the Underwriters shall fail or
refuse to purchase Underwriters' Securities that it has or they have agreed to
purchase hereunder on such date, and the aggregate amount of Underwriters'
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase is not more than one-tenth of the aggregate amount of the
Underwriters' Securities to be purchased on such date, the other Underwriters
shall be obligated severally in the proportions that the amount of Underwriters'
Securities set forth
23
opposite their respective names in the Underwriting Agreement bears to the
aggregate amount of Underwriters' Securities set forth opposite the names of all
such non-defaulting Underwriters, or in such other proportions as the Manager
may specify, to purchase the Underwriters' Securities which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date; provided that in no event shall the amount of Underwriters' Securities
that any Underwriter has agreed to purchase pursuant to this Agreement be
increased pursuant to this Section 9 by an amount in excess of one-ninth of such
amount of Underwriters' Securities without the written consent of such
Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall fail
or refuse to purchase Underwriters' Securities which it or they have agreed to
purchase hereunder on such date and the aggregate amount of Underwriters'
Securities with respect to which such default occurs is more than one-tenth of
the aggregate amount of Underwriters' Securities to be purchased on such date,
and arrangements satisfactory to the Manager and the Company for the purchase of
such Underwriters' Securities are not made within 36 hours after such default,
this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case either the Manager
or the Company shall have the right to postpone the Closing Date, but in no
event for longer than seven days, in order that the required changes, if any, in
the Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. If, on the Option Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Option Securities and the
aggregate principal amount of Option Securities with respect to which such
default occurs is more than one-tenth of the aggregate principal amount of
Option Securities to be purchased, the non- defaulting Underwriters shall have
the option to (a) terminate their obligation hereunder to purchase Option
Securities or (b) purchase not less than the principal amount of Option
Securities that such non-defaulting Underwriters would have been obligated to
purchase in the absence of such default. Any action taken under this paragraph
shall not relieve any defaulting Underwriter from liability in respect of any
default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder.
24
10. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
11. Applicable Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York.
12. Headings. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
25
UNDERWRITING AGREEMENT
___________, 200_
NVIDIA Corporation
3535 Monroe Street
Santa Clara, California 95051
Dear Sirs and Mesdames:
We (the "Manager") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or underwriters
being herein called the "Underwriters"), and we understand that NVIDIA
Corporation, a Delaware corporation (the "Company"), proposes to issue and sell
[Currency and Principal Amount] aggregate initial offering price of [Full title
of Debt Securities] (the "Debt Securities" or the "Offered Securities"). The
Debt Securities will be issued pursuant to the provisions of an Indenture dated
as of March __, 2000 (the "Indenture") between the Company and _, as Trustee
(the "Trustee").
Subject to the terms and conditions set forth or incorporated by
reference herein, the Company hereby agrees to sell to the several Underwriters,
and each Underwriter agrees, severally and not jointly, to purchase from the
Company the respective principal amounts of Debt Securities set forth below
opposite their names at a purchase price of ____% (the "Purchase Price") of the
principal amount of Debt Securities [, plus accrued interest, if any, from [Date
of Offered Securities] to the date of payment and delivery]1:
Principal Amount of
Name Debt Securities
- -------------------------------------------- --------------------
Morgan Stanley & Co. Incorporated
Morgan Stanley & Co. International Limited
[Insert syndicate list]
--------------------
Total...........................
- --------
/1/ To be added only if the transaction does not close "flat" (i.e., when
the purchaser pays accrued interest on the debt security at closing). Unless
otherwise provided in the Debt Securities, accrued interest, if any, will be
computed on the basis of a 360-day year of twelve 30-day months.
[The principal amount of Debt Securities to be purchased by the several
Underwriters shall be reduced by the aggregate principal amount of Debt
Securities sold pursuant to delayed delivery contracts.]/2/
The Underwriters will pay for the Offered Securities [(less any Offered
Securities sold pursuant to delayed delivery contracts)] upon delivery thereof
at [office] at ______ a.m. (New York City time) on ___________, 200_, or at such
other time, not later than 5:00 p.m. (New York City time) on __________, 200_,
as shall be designated by the Manager. The time and date of such payment and
delivery are hereinafter referred to as the Closing Date./3/
[On the basis of the representations and warranties incorporated by
reference in this Agreement, and subject to its terms and conditions, the
Company agrees to sell to the several Underwriters, the Option Securities, and
the Underwriters shall have a one-time right to purchase, severally and not
jointly, up to $________ principal amount of Option Securities at the Purchase
Price plus accrued interest, if any, to the date of payment and delivery. If the
Manager, on behalf of the several Underwriters, elects to exercise such option,
the Manager shall so notify the Company in writing not later than 30 days after
the date of this Agreement, which notice shall specify the principal amount of
Option Securities to be purchased by the several Underwriters and the date on
which such Option Securities are to be purchased. Such date may be the same as
the Closing Date but not earlier than the Closing Date nor later than ten
business days after the date of such notice. Option Securities may be purchased
solely for the purpose of covering over-allotments made in connection with the
offering of the Debt Securities. If any Option Securities are to be purchased,
each Underwriter agrees, severally and not jointly, to purchase the principal
amount of Option Securities (subject to such adjustments to eliminate fractional
securities as the Manager may determine) that bears the same proportion to the
total principal amount of Debt Securities to be purchased as the principal
amount of Debt Securities set forth above opposite the name of such Underwriter
bears to the total principal amount of Debt Securities set forth.
The Underwriters will pay for the Option Securities upon delivery
thereof at [office] at _____ a.m. (New York City time) on the date specified in
the notice delivered pursuant to the above paragraph, or at such other time, not
later than 5:00 p.m. (New York City time) on ________, 200_, as shall be
designated by the
- --------
/2/ To be added only if delayed delivery contracts are contemplated.
/3/ This paragraph would have to be modified for any Offered Securities
that are to be issued in bearer form.
2
Manager. The time and date of such payment and delivery are hereinafter referred
to as the Option Closing Date.]/4/
The Company hereby agrees that, without the prior written consent of
the Manager on behalf of the Underwriters, it will not, during the period ending
90 days after the date of the Prospectus, (i) offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant to purchase, lend, or otherwise
transfer or dispose of, directly or indirectly, any shares of Common Stock or
any securities convertible into or exercisable or exchangeable for Common Stock
or (ii) enter into any swap or other arrangement that transfers to another, in
whole or in part, any of the economic consequences of ownership of the Common
Stock, whether any such transaction described in clause (i) or (ii) above is to
be settled by delivery of Common Stock or such other securities, in cash or
otherwise. The foregoing sentence shall not apply to (A) the sale of the Offered
Securities under this Agreement or the issuance of any Underlying Securities,
(B) the issuance by the Company of any shares of Common Stock upon the exercise
of an option or warrant or the conversion of a security outstanding on the date
hereof of which the Underwriters have been advised in writing, (C) the grant or
exercise of options to purchase Common Stock under the Company's employee
benefit plans.
The Offered Securities shall have the terms set forth in the Prospectus
dated ___________, 200_, and the Prospectus Supplement dated ____________, 200_,
including the following:
Terms of Debt Securities
Maturity Date: _____________ ___, _____
Interest Rate: _____________ ___, _____
Redemption Provisions: _____________ ___, _____
Interest Payment Dates: ______________ ___ and
-------------- ---
commencing ______________
---, -----
[(Interest accrues from: ______________ ___, _____)]5
Form and Denomination: ______________
[Other Terms:]
- ------------
/4/ Include only if an over-allotment option is provided for.
/5/ To be added only if the transaction does not close flat.
3
[The commission to be paid to the Underwriters in respect of the
Offered Securities purchased pursuant to delayed delivery contracts arranged by
the Underwriters shall be ___% of the principal amount of the Debt Securities so
purchased.]/6/
All provisions contained in the document entitled NVIDIA Corporation
Underwriting Agreement Standard Provisions (Debt Securities) dated March _,
2000, a copy of which is attached hereto, are herein incorporated by reference
in their entirety and shall be deemed to be a part of this Agreement to the same
extent as if such provisions had been set forth in full herein, except that (i)
if any term defined in such document is otherwise defined herein, the definition
set forth herein shall control, (ii) all references in such document to a type
of security that is not an Offered Security shall not be deemed to be a part of
this Agreement, and (iii) all references in such document to a type of agreement
that has not been entered into in connection with the transactions contemplated
hereby shall not be deemed to be a part of this Agreement.
- --------
/6/ To be added only if delayed delivery contracts are contemplated.
4
[SIGNATURE PAGE WHERE
MORGAN STANLEY & CO. INCORPORATED
OR MORGAN STANLEY & CO. INTERNATIONAL LIMITED
IS A CO-LEAD MANAGER]
Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the space set forth below.
Very truly yours,
[MORGAN STANLEY & CO.
INCORPORATED]
[MORGAN STANLEY & CO.
INTERNATIONAL LIMITED]
[Name of Other Lead Managers]
Acting severally on behalf of themselves and the
several Underwriters named herein
By: [MORGAN STANLEY & CO.
INCORPORATED]
[MORGAN STANLEY & CO.
INTERNATIONAL LIMITED]
By:
--------------------------------
Name:
Title:
Accepted:
NVIDIA CORPORATION
By:
------------------------
Name:
Title:
5
[SIGNATURE PAGE WHERE
MORGAN STANLEY & CO. INCORPORATED
OR MORGAN STANLEY & CO. INTERNATIONAL LIMITED
IS SOLE MANAGER]
Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the space set forth below.
Very truly yours,
[MORGAN STANLEY & CO.
INCORPORATED]
[MORGAN STANLEY & CO.
INTERNATIONAL LIMITED]
[Name of Other Lead Managers]
Acting severally on behalf of itself and
the several Underwriters named herein
By:
------------------------
Name:
Title:
Accepted:
NVIDIA CORPORATION
By:
------------------------------
Name:
Title:
6
SCHEDULE I
DELAYED DELIVERY CONTRACT
________, 200_
Dear Sirs and Mesdames:
The undersigned hereby agrees to purchase from NVIDIA Corporation, a
Delaware corporation (the "Company"), and the Company agrees to sell to the
undersigned the Company's securities described in Schedule A annexed hereto (the
"Securities"), offered by the Company's Prospectus dated __________________,
200_ and Prospectus Supplement dated ________________, 200_, receipt of copies
of which are hereby acknowledged, at a purchase price stated in Schedule A and
on the further terms and conditions set forth in this Agreement. The undersigned
does not contemplate selling Securities prior to making payment therefor.
The undersigned will purchase from the Company Securities in the
principal amount and numbers on the delivery dates set forth in Schedule A. Each
such date on which Securities are to be purchased hereunder is hereinafter
referred to as a "Delivery Date."
Payment for the Securities which the undersigned has agreed to purchase
on each Delivery Date shall be made to the Company or its order by certified or
official bank check in New York Clearing House funds at the office of
______________________________, New York, N.Y., at 10:00 a.m. (New York City
time) on the Delivery Date, upon delivery to the undersigned of the Securities
to be purchased by the undersigned on the Delivery Date, in such denominations
and registered in such names as the undersigned may designate by written or
telegraphic communication addressed to the Company not less than five full
business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for the Securities on the Delivery Date shall be subject to the conditions that
(1) the purchase of Securities to be made by the undersigned shall not at the
time of delivery be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Company shall have sold, and delivery shall
have taken place to the underwriters (the "Underwriters") named in the
Prospectus Supplement referred to above of, such part of the Securities as is to
be sold to them. Promptly after completion of sale and delivery to the
Underwriters, the
Company will mail or deliver to the undersigned as its address set forth below
notice to such effect, accompanied by a copy of the opinion of counsel for the
Company delivered to the Underwriters in connection therewith.
Failure to take delivery of and make payment for Securities by any
purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under this agreement.
This Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
If this Agreement is acceptable to the Company, it is requested that
the Company sign the form of acceptance below and mail or deliver one of the
counterparts hereof to the undersigned at its address set forth below. This will
become a binding agreement, as of the date first above written, between the
Company and the undersigned when such counterpart is so mailed or delivered.
This Agreement shall be governed by and construed in accordance with
the internal laws of the State of New York.
Very truly yours,
------------------------------
(Purchaser)
By:
----------------------------
----------------------------
(Title)
----------------------------
----------------------------
----------------------------
(Address)
Accepted:
NVIDIA CORPORATION
By:
----------------------------
Name:
Title:
2
PURCHASER -- PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the representative of the
Purchaser with whom details of delivery on the Delivery Date may be discussed is
as follows: (Please print.)
Telephone No.
Name (including Area Code) Department
- ------------------- --------------------- -------------------
- ------------------- --------------------- -------------------
3
SCHEDULE A
Securities:
Principal Amounts or Numbers to be Purchased:
Purchase Price:
Delivery: