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EXHIBIT 1.1
7,000,000 SHARES OF COMMON STOCK
NOVATEL WIRELESS, INC.
COMMON SHARES, PAR VALUE $0.001 PER SHARE
UNDERWRITING AGREEMENT
October __, 2000
CREDIT SUISSE FIRST BOSTON CORPORATION
U.S. Bancorp Piper Jaffray Inc.
Banc of America Securities LLC
As Representatives of the Several Underwriters,
c/o Credit Suisse First Boston Corporation,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. Novatel Wireless, Inc., a Delaware corporation
("COMPANY"), proposes to issue and sell 7,000,000 shares ("FIRM SECURITIES") of
its common stock, par value $0.001 per share, ("SECURITIES") and also proposes
to issue and sell to the Underwriters, at the option of the Underwriters, an
aggregate of not more than 1,050,000 additional shares ("OPTIONAL SECURITIES")
of its Securities as set forth below. The Firm Securities and the Optional
Securities are herein collectively called the "OFFERED Securities". As part of
the offering contemplated by this Agreement, U.S. Bancorp Piper Jaffray Inc.
(the "DESIGNATED UNDERWRITER") has agreed to reserve out of the Firm Securities
purchased by it under this Agreement, up to shares, for sale to the Company's
directors, officers, employees and other parties associated with the Company
(collectively, "PARTICIPANTS"), as set forth in the Prospectus (as defined
herein) under the heading "Underwriting" (the "DIRECTED SHARE PROGRAM"). The
Firm Securities to be sold by the Designated Underwriter pursuant to the
Directed Share Program (the "DIRECTED SHARES") will be sold by the Designated
Underwriter pursuant to this Agreement at the public offering price. Any
Directed Shares not subscribed for by the end of the business day on which this
Agreement is executed will be offered to the public by the Underwriters as set
forth in the Prospectus. The Company hereby agrees with the several Underwriters
named in Schedule A hereto ("UNDERWRITERS") as follows:
2. Representations and Warranties of the Company. The Company represents
and warrants to, and agrees with, the several Underwriters that:
(a) A registration statement (No. 333-42570) relating to the
Offered Securities, including a form of prospectus, has been filed with
the Securities and Exchange Commission ("COMMISSION") and either (i) has
been declared effective under the Securities Act of 1933 ("ACT") and is
not proposed to be amended or (ii) is proposed to be amended by
amendment or post-effective amendment. If such registration statement
("INITIAL REGISTRATION STATEMENT") has been declared effective, no stop
order suspending the effectiveness of the initial registration statement
or any part thereof has been issued and no proceedings for that purpose
have been instituted or are pending or contemplated under the Act and
either (i) an additional registration
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statement ("ADDITIONAL REGISTRATION STATEMENT") relating to the Offered
Securities may have been filed with the Commission pursuant to Rule
462(b) ("RULE 462(b)") under the Act and, if so filed, has become
effective upon filing pursuant to such Rule and the Offered Securities
all have been duly registered under the Act pursuant to the initial
registration statement and, if applicable, the additional registration
statement or (ii) such an additional registration statement is proposed
to be filed with the Commission pursuant to Rule 462(b) and will become
effective upon filing pursuant to such Rule and upon such filing the
Offered Securities will all have been duly registered under the Act
pursuant to the initial registration statement and such additional
registration statement. If the Company does not propose to amend the
initial registration statement or if an additional registration
statement has been filed and the Company does not propose to amend it,
and if any post-effective amendment to either such registration
statement has been filed with the Commission prior to the execution and
delivery of this Agreement, the most recent amendment (if any) to each
such registration statement has been declared effective by the
Commission or has become effective upon filing pursuant to Rule 462(c)
("RULE 462(c)") under the Act or, in the case of the additional
registration statement, Rule 462(b). For purposes of this Agreement,
"EFFECTIVE TIME" with respect to the initial registration statement or,
if filed prior to the execution and delivery of this Agreement, the
additional registration statement means (i) if the Company has advised
the Representatives that it does not propose to amend such registration
statement, the date and time as of which such registration statement, or
the most recent post-effective amendment thereto (if any) filed prior to
the execution and delivery of this Agreement, was declared effective by
the Commission or has become effective upon filing pursuant to Rule
462(c), or (ii) if the Company has advised the Representatives that it
proposes to file an amendment or post-effective amendment to such
registration statement, the date and time as of which such registration
statement, as amended by such amendment or post-effective amendment, as
the case may be, is declared effective by the Commission. If an
additional registration statement has not been filed prior to the
execution and delivery of this Agreement but the Company has advised the
Representatives that it proposes to file one, "EFFECTIVE TIME" with
respect to such additional registration statement means the date and
time as of which such registration statement is filed and becomes
effective pursuant to Rule 462(b). "EFFECTIVE DATE" with respect to the
initial registration statement or the additional registration statement
(if any) means the date of the Effective Time thereof. The initial
registration statement, as amended at its Effective Time, including all
information contained in the additional registration statement (if any)
and deemed to be a part of the initial registration statement as of the
Effective Time of the additional registration statement pursuant to the
General Instructions of the Form on which it is filed and including all
information (if any) deemed to be a part of the initial registration
statement as of its Effective Time pursuant to Rule 430A(b) ("RULE
430A(b)") under the Act, is hereinafter referred to as the "INITIAL
REGISTRATION STATEMENT". The additional registration statement, as
amended at its Effective Time, including the contents of the initial
registration statement incorporated by reference therein and including
all information (if any) deemed to be a part of the additional
registration statement as of its Effective Time pursuant to Rule
430A(b), is hereinafter referred to as the "ADDITIONAL REGISTRATION
STATEMENT". The Initial Registration Statement and the Additional
Registration Statement are herein referred to collectively as the
"REGISTRATION STATEMENTS" and individually as a "REGISTRATION
STATEMENT". The form of prospectus relating to the Offered Securities,
as first filed with the Commission pursuant to and in accordance with
Rule 424(b) ("RULE 424(b)") under the Act or (if no such filing is
required) as included in a Registration Statement, is hereinafter
referred to as the "PROSPECTUS". No document has been or will be
prepared or distributed in reliance on Rule 434 under the Act.
(b) If the Effective Time of the Initial Registration Statement
is prior to the execution and delivery of this Agreement: (i) on the
Effective Date of the Initial Registration Statement, the Initial
Registration Statement complied as to form and conformed in all respects
to the requirements of the Act and the rules and regulations of the
Commission ("RULES AND REGULATIONS") and did not include any untrue
statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not
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misleading, (ii) on the Effective Date of the Additional Registration
Statement (if any), each Registration Statement complied as to form and
conformed, or will comply as to form and conform, in all respects to the
requirements of the Act and the Rules and Regulations and did not
include, or will not include, any untrue statement of a material fact
and did not omit, or will not omit, to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading and (iii) on the date of this Agreement, the Initial
Registration Statement and, if the Effective Time of the Additional
Registration Statement is prior to the execution and delivery of this
Agreement, the Additional Registration Statement each complies as to
form and conforms, and at the time of filing of the Prospectus pursuant
to Rule 424(b) or (if no such filing is required) at the Effective Date
of the Additional Registration Statement in which the Prospectus is
included, each Registration Statement and the Prospectus will comply as
to form and conform, in all respects to the requirements of the Act and
the Rules and Regulations, and neither of such documents includes, or
will include, any untrue statement of a material fact or omits, or will
omit, to state any material fact required to be stated therein or
necessary to make the statements therein not misleading. If the
Effective Time of the Initial Registration Statement is subsequent to
the execution and delivery of this Agreement: on the Effective Date of
the Initial Registration Statement, the Initial Registration Statement
and the Prospectus will comply as to form and conform in all respects to
the requirements of the Act and the Rules and Regulations, neither of
such documents will include any untrue statement of a material fact or
will omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and no
Additional Registration Statement has been or will be filed. The two
preceding sentences do not apply to statements in or omissions from a
Registration Statement or the Prospectus based upon written information
furnished to the Company by any Underwriter through the Representatives
specifically for use therein, it being understood and agreed that the
only such information is that described as such in Section 7(b) hereof.
(c) The descriptions in the Registration Statements and
Prospectus of legal and governmental proceedings and contracts and other
documents are accurate and fairly present the information required to be
shown; and there are (i) no legal or governmental proceedings required
to be described in a Registration Statement or the Prospectus which are
not described as required by the Act and the Rules and Regulations and
(ii) no contracts or documents of a character required to be described
in a Registration Statement or the Prospectus or to be filed as exhibits
to a Registration Statement which are not described and filed as
required by the Act and the Rules and Regulations.
(d) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware,
with power and authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus; and the Company is
duly qualified to do business as a foreign corporation in good standing
in all other jurisdictions in which its ownership or lease of property
or the conduct of its business requires such qualification, except where
the failure to be so qualified or in good standing would not,
individually or in the aggregate, have a material adverse effect on the
condition (financial or other), business, properties, or results of
operations of the Company and its subsidiaries taken as a whole (a
"Material Adverse Effect").
(e) Each of Novatel Wireless Solutions, Inc., a Delaware
corporation ("NWS"), and Novatel Wireless Technologies Ltd., an Alberta
corporation ("NWT" and together with NWS, the "Subsidiaries"), has been
duly incorporated and is an existing corporation in good standing under
the laws of the respective jurisdiction of its incorporation, with power
and authority (corporate and other) to own its properties and conduct
its business as described in the Prospectus; and each Subsidiary is duly
qualified to do business as a foreign corporation in good standing in
all other jurisdictions in which its ownership or lease of property or
the conduct of its business requires such qualification, except where
the failure to be so qualified or in good standing would not,
individually or in the aggregate, have a Material Adverse Effect; all of
the issued and outstanding
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capital stock of each Subsidiary has been duly authorized and validly
issued and is fully paid and nonassessable and is owned by the Company,
directly or through Subsidiaries, free from liens, encumbrances and
defects. NWS and NWT are the only subsidiaries of the Company.
(f) The Offered Securities and all other outstanding shares of
capital stock of the Company have been duly authorized; all outstanding
shares of capital stock of the Company are, and, when the Offered
Securities have been delivered and paid for in accordance with this
Agreement on each Closing Date (as defined below), such Offered
Securities will have been, validly issued, fully paid and nonassessable
and will conform to the description thereof contained in the Prospectus;
and the stockholders of the Company have no preemptive rights with
respect to the Securities. As of June 30, 2000, the Company has the
capitalization as set forth in the Prospectus under the caption
"Capitalization." As of the date of this Agreement, there are no
authorized or outstanding options, warrants, preemptive rights, rights
of first refusal or other rights to purchase, or equity or debt
securities convertible into or exchangeable or exercisable for, any
capital stock of the Company or any of its subsidiaries other than those
described in the Prospectus.
(g) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company or any
Underwriter for a brokerage commission, finder's fee or other like
payment in connection with this offering.
(h) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any of
its Subsidiaries and any person granting such person the right, other
than such rights that have been duly waived in writing by such persons,
to require the Company to file a registration statement under the Act
with respect to any securities of the Company owned or to be owned by
such person or to require the Company to include such securities in the
securities registered pursuant to the Registration Statement.
(i) The Offered Securities have been approved for listing on the
Nasdaq Stock Market's National Market, subject to notice of issuance.
(j) No consent, approval, authorization, or order of, or filing
with, any governmental agency or body or any court is required for the
consummation of the transactions contemplated by this Agreement in
connection with the issuance and sale of the Offered Securities by the
Company, except such as have been obtained and made under the Act and
such as may be required under state securities laws.
(k) The execution, delivery and performance of this Agreement,
and the issuance and sale of the Offered Securities will not result in a
breach or violation of any of the terms and provisions of, or constitute
a default under, (i) any statute, any rule, regulation or order of any
governmental agency or body or any court, domestic or foreign, having
jurisdiction over the Company or any Subsidiary of the Company or any of
their properties, or (ii) any agreement or instrument to which the
Company or any such Subsidiary is a party or by which the Company or any
Subsidiary is bound or to which any of the properties of the Company or
any such Subsidiary is subject, or (iii) the charter or by-laws of the
Company, as amended and restated, or any such Subsidiary, and the
Company has full power and authority to authorize, issue and sell the
Offered Securities as contemplated by this Agreement, except in the case
of clauses (i) and (ii) where such breach, violation or default would
not, individually or in the aggregate, have a Material Adverse Effect.
(l) This Agreement has been duly authorized, executed and
delivered by the Company and is the legal, valid and binding agreement
of the Company, enforceable against the Company in accordance with its
terms, subject to applicable bankruptcy, insolvency, fraudulent
conveyance,
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reorganization or similar laws affecting the rights of creditors
generally and subject to general principles of equity, and except
insofar as indemnification and contribution provisions may be limited by
applicable law or equitable principles.
(m) Except as disclosed in the Prospectus, the Company and its
Subsidiaries have good and marketable title to all real properties and
all other properties and assets owned by them, in each case free from
liens, encumbrances and defects that would materially affect the value
thereof or materially interfere with the use made or to be made thereof
by them; and except as disclosed in the Prospectus, the Company and its
Subsidiaries hold any leased real or personal property under valid and
enforceable leases with no exceptions that would materially interfere
with the use made or to be made thereof by them.
(n) The Company and its Subsidiaries possess adequate
certificates, authorities or permits issued by appropriate governmental
agencies or bodies necessary to conduct the business now operated by
them and have not received any notice of proceedings relating to the
revocation or modification of any such certificate, authority or permit
that, if determined adversely to the Company or any of its Subsidiaries,
would, individually or in the aggregate, have a Material Adverse Effect.
(o) No labor dispute with the employees of the Company or any
Subsidiary exists or, to the knowledge of the Company, is imminent that
might have a Material Adverse Effect.
(p) The Company and its Subsidiaries own, possess, license or can
acquire on reasonable terms, adequate trademarks, trade names and other
rights to inventions, know-how, patents, copyrights, confidential
information and other intellectual property (collectively, "INTELLECTUAL
PROPERTY RIGHTS") necessary to conduct the business now operated by
them, or presently employed by them, except where the failure to so own,
possess, license or acquire would not, individually or in the aggregate,
have a Material Adverse Effect, and have not received any notice of
infringement of or conflict with asserted rights of others with respect
to any intellectual property rights that, if determined adversely to the
Company or any of its Subsidiaries, would, individually or in the
aggregate, have a Material Adverse Effect.
(q) Except as disclosed in the Prospectus, neither the Company
nor any of its Subsidiaries is in violation of any statute, any rule,
regulation, decision or order of any governmental agency or body or any
court, domestic or foreign, relating to the use, disposal or release of
hazardous or toxic substances or relating to the protection or
restoration of the environment or human exposure to hazardous or toxic
substances (collectively, "ENVIRONMENTAL LAWS"), owns or operates any
real property contaminated with any substance that is subject to any
environmental laws, is liable for any off-site disposal or contamination
pursuant to any environmental laws, or is subject to any claim relating
to any environmental laws, which violation, contamination, liability or
claim would, individually or in the aggregate, have a Material Adverse
Effect; and the Company is not aware of any pending investigation which
might lead to such a claim.
(r) Except as disclosed in the Prospectus, there are no pending
actions, suits or proceedings against or affecting the Company, any of
its Subsidiaries or any of their respective properties that, if
determined adversely to the Company or any of its Subsidiaries, would,
individually or in the aggregate, have a Material Adverse Effect, or
would materially and adversely affect the ability of the Company to
perform its obligations under this Agreement, or which are otherwise
material in the context of the sale of the Offered Securities; and no
such actions, suits or proceedings are, to the Company's knowledge,
threatened or contemplated.
(s) The financial statements included in each Registration
Statement and the Prospectus present fairly the financial position of
the Company and its consolidated Subsidiaries as of the
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dates shown and their results of operations and cash flows for the
periods shown, and such financial statements have been prepared in
conformity with the generally accepted accounting principles in the
United States applied on a consistent basis; and the schedules included
in each Registration Statement present fairly the information required
to be stated therein.
(t) Except as disclosed in the Prospectus, since the date of the
latest audited financial statements included in the Prospectus, there
has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of
the Company and its Subsidiaries taken as a whole, and, except as
disclosed in or contemplated by the Prospectus, there has been no
dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(u) To the best knowledge of the Company, Arthur Andersen LLP,
who have expressed their opinion with respect to the financial
statements (which term as used in this Agreement includes the related
notes thereto) and supporting schedules included in the Prospectus, are
independent public or certified public accountants within the meaning of
Regulation S-X under the Act.
(v) The Company and its Subsidiaries on a consolidated basis,
maintain a system of internal accounting controls sufficient to provide
reasonable assurance that (i) transactions are executed in accordance
with management's general or specific authorizations, (ii) transactions
are recorded as necessary to permit preparation of financial statements
in conformity with generally accepted accounting principles and to
maintain accountability for assets, (iii) access to assets is permitted
only in accordance with management's general or specific authorization
and (iv) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences thereto.
(w) Each of the Company and its Subsidiaries maintains insurance
covering its properties, operations, personnel and businesses. Such
insurance insures against such losses and risks as are adequate in
accordance with customary industry practice to protect the Company and
its Subsidiaries and their respective businesses. None of the Company or
any of its Subsidiaries has received notice from any insurer or agent of
such insurer that substantial capital improvements or other expenditures
will have to be made in order to continue such insurance. All such
insurance is outstanding and duly in force on the date hereof, subject
only to changes made in the ordinary course of business, consistent with
past practice, which do not, singly or in the aggregate, materially
alter the coverage thereunder or the risks covered thereby. The Company
has no reason to believe that it or any Subsidiary will not be able (a)
to renew its existing insurance coverage as and when such policies
expire or (b) to obtain comparable coverage from similar institutions as
may be necessary or appropriate to conduct its business as now conducted
or as presently contemplated and at a cost that would not result in a
Material Adverse Effect.
(x) All material tax returns required to be filed by the Company
and each of its Subsidiaries in all jurisdictions, or properly requested
extensions thereof, have been so filed. All taxes, including withholding
taxes, penalties and interest, assessments, fees and other charges due
or claimed to be due from such entities or that are due and payable have
been paid, other than those being contested in good faith and for which
adequate reserves have been provided or those currently payable without
penalty or interest. To the knowledge of the Company, there are no
material proposed additional tax assessments against the Company, the
assets or property of the Company or any of its Subsidiaries. The
Company has made adequate charges, accruals and reserves in the
applicable financial statements included in the Prospectus in respect of
all federal, state and foreign income and franchise taxes for all
periods as to which the tax liability of the Company or any of its
consolidated Subsidiaries has not been finally determined.
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(y) Subsequent to the respective dates as of which information is
given in the Prospectus, (i) neither the Company nor any Subsidiary has
incurred any liabilities or obligations, direct or contingent, that are
material, individually or in the aggregate, to the Company and its
Subsidiaries taken as a whole, nor entered into any transaction not in
the ordinary course of business, (ii) none of the Company or any of its
Subsidiaries has incurred any liabilities or obligations, direct or
contingent, that will be material to the Company and its Subsidiaries
taken as a whole, (iii) there has not been, singly or in the aggregate,
any change or development that could reasonably be expected to result in
a Material Adverse Effect, (iv) there has been no dividend or
distribution of any kind declared, paid or made by the Company or any of
its Subsidiaries on any class of its capital stock, (v) there has been
no change in accounting methods or practices (including any change in
depreciation or amortization policies or rates) by the Company or any of
its Subsidiaries, (vi) there has been no revaluation by the Company or
any of its Subsidiaries of any of their assets, (vii) there has been no
increase in the salary or other compensation payable or to become
payable by the Company or any of its Subsidiaries to any of their
officers, directors, employees or advisors, nor any declaration, payment
or commitment or obligation of any kind for the payment by the Company
or any of its Subsidiaries of a bonus or other additional salary or
compensation to any such person, (viii) there has been no amendment or
termination of any material contract, agreement or license to which the
Company or any Subsidiary is a party or by which it is bound, (ix) there
has been no waiver or release of any material right or claim of the
Company or any Subsidiary, including any write-off or other compromise
of any material account receivable of the Company or any Subsidiary, and
(x) there has been no material change in pricing or royalties set or
charged by the Company or any Subsidiary to their respective customers
or licensees or in pricing or royalties set or charged by persons who
have licensed intellectual property rights to the Company or any of its
Subsidiaries.
(z) Neither the Company nor any Subsidiary is 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
be an "investment company" as defined in the Investment Company Act of
1940.
(aa) Furthermore, the Company represents and warrants to the
Underwriters that (i) the Registration Statement, the Prospectus and any
preliminary prospectus comply, and any further amendments or supplements
thereto will comply, with any applicable laws or regulations of foreign
jurisdictions in which the Prospectus or any preliminary prospectus, as
amended or supplemented, if applicable, are distributed in connection
with the Directed Share Program, and that (ii) no authorization,
approval, consent, license, order, registration or qualification of or
with any government, governmental instrumentality or court, other than
such as have been obtained, is necessary under the securities law and
regulations of foreign jurisdictions in which the Directed Shares are
offered outside the United States.
(bb) The Company has not offered, or caused the Underwriters to
offer, any Offered Securities to any person pursuant to the Directed
Share Program with the specific intent to unlawfully influence (i) a
customer or supplier of the Company to alter the customer's or
supplier's level or type of business with the Company or (ii) a trade
journalist or publication to write or publish favorable information
about the Company or its products.
The Company acknowledges that each of the Underwriters and, for purposes
of the opinions to be delivered to the Underwriters pursuant to Section 6
hereof, counsel to the Company and counsel to the Underwriters, will rely upon
the accuracy and truth of the foregoing representations and hereby consents to
such reliance.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Company agrees to sell to the
Underwriters, and the Underwriters agree, severally and not jointly, to
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purchase from the Company, at a purchase price of $ per share, the respective
numbers of shares of Firm Securities set forth opposite the names of the
Underwriters in Schedule A hereto.
The Company will deliver the Firm Securities to the Representatives for
the accounts of the Underwriters, against payment of the purchase price in
Federal (same day) funds by official bank check or checks or wire transfer to an
account at a bank acceptable to Credit Suisse First Boston Corporation ("CSFBC")
drawn to the order of the Company at the office of Latham & Watkins, 633 West
Fifth Street, Suite 4000, Los Angeles, CA 90071, at 10:00 A.M., New York time,
on , or at such other time not later than seven full business days thereafter as
CSFBC and the Company determine, such time being herein referred to as the
"FIRST CLOSING DATE". For purposes of Rule 15c6-1 under the Securities Exchange
Act of 1934, the First Closing Date (if later than the otherwise applicable
settlement date) shall be the settlement date for payment of funds and delivery
of securities for all the Offered Securities sold pursuant to the offering;
provided, however, that the delivery of the certificates evidencing the Firm
Securities shall be made through The Depository Trust Company ("DTC") at its
offices in New York, New York. The certificates for the Firm Securities so to be
delivered will be in definitive form, in such denominations and registered in
such names as CSFBC requests and will be made available for checking and
packaging for delivery at DTC at least 24 hours prior to the First Closing Date.
In addition, upon written notice from CSFBC given to the Company from
time to time not more than 30 days subsequent to the date of the Prospectus, the
Underwriters may purchase all or less than all of the Optional Securities at the
purchase price per Security to be paid for the Firm Securities. The Company
agrees to sell to the Underwriters the number of shares of Optional Securities
specified in such notice and the Underwriters agree, severally and not jointly,
to purchase such Optional Securities. Such Optional Securities shall be
purchased for the account of each Underwriter in the same proportion as the
number of shares of Firm Securities set forth opposite such Underwriter's name
bears to the total number of shares of Firm Securities (subject to adjustment by
CSFBC to eliminate fractions) and may be purchased by the Underwriters only for
the purpose of covering over-allotments made in connection with the sale of the
Firm Securities. No Optional Securities shall be sold or delivered unless the
Firm Securities previously have been, or simultaneously are, sold and delivered.
The right to purchase the Optional Securities or any portion thereof may be
exercised from time to time and to the extent not previously exercised may be
surrendered and terminated at any time upon notice by CSFBC to the Company.
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as an "OPTIONAL CLOSING DATE", which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "CLOSING DATE"), shall be determined by CSFBC
but shall be not later than five full business days after written notice of
election to purchase Optional Securities is given. The Company will deliver the
Optional Securities being purchased on each Optional Closing Date to the
Representatives for the accounts of the several Underwriters, against payment of
the purchase price therefor in Federal (same day) funds by official bank check
or checks or wire transfer to an account at a bank acceptable to CSFBC drawn to
the order of the Company, at the office of Latham & Watkins, 633 West Fifth
Street, Suite 4000, Los Angeles, CA 90071. The certificates for the Optional
Securities being purchased on each Optional Closing Date will be in definitive
form, in such denominations and registered in such names as CSFBC requests upon
reasonable notice prior to such Optional Closing Date and will be made available
for checking and packaging for delivery at DTC at a reasonable time in advance
of such Optional Closing Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus.
5. Certain Agreements of the Company. The Company agrees with the
several Underwriters that:
(a) If the Effective Time of the Initial Registration Statement
is prior to the execution and delivery of this Agreement, the Company
will file the Prospectus with the Commission
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pursuant to and in accordance with subparagraph (1) (or, if applicable
and if consented to by CSFBC, subparagraph (4)) of Rule 424(b) not later
than the earlier of (A) the second business day following the execution
and delivery of this Agreement or (B) the fifteenth business day after
the Effective Date of the Initial Registration Statement.
The Company will advise CSFBC promptly of any such filing
pursuant to Rule 424(b). If the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement and an additional registration statement is necessary to
register a portion of the Offered Securities under the Act but the
Effective Time thereof has not occurred as of such execution and
delivery, the Company will file the additional registration statement
or, if filed, will file a post-effective amendment thereto with the
Commission pursuant to and in accordance with Rule 462(b) on or prior to
10:00 P.M., New York time, on the date of this Agreement or, if earlier,
on or prior to the time the Prospectus is printed and distributed to any
Underwriter, or will make such filing at such later date as shall have
been consented to by CSFBC.
(b) The Company will advise CSFBC promptly of any proposal to
amend or supplement the initial or any additional registration statement
as filed or the related prospectus or the Initial Registration
Statement, the Additional Registration Statement (if any) or the
Prospectus and will not effect such amendment or supplementation without
CSFBC's consent, which shall not be unreasonably withheld, and the
Company will also advise CSFBC promptly of the effectiveness of each
Registration Statement (if its Effective Time is subsequent to the
execution and delivery of this Agreement) and of any amendment or
supplementation of a Registration Statement or the Prospectus and of the
institution by the Commission of any stop order proceedings in respect
of a Registration Statement and will use its best efforts to prevent the
issuance of any such stop order and to obtain as soon as possible its
lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act,
the Company will promptly notify CSFBC of such event 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 which will effect such compliance. Neither CSFBC's consent to,
nor the Underwriters' delivery of, any such amendment or supplement
shall constitute a waiver of any of the conditions set forth in Section
6.
(d) As soon as practicable, but not later than the Availability
Date (as defined below), the Company will make generally available to
its securityholders an earnings statement covering a period of at least
12 months beginning after the Effective Date of the Initial Registration
Statement (or, if later, the Effective Date of the Additional
Registration Statement) which will satisfy the provisions of Section
11(a) of the Act. For the purpose of the preceding sentence,
"AVAILABILITY DATE" means the 45th day after the end of the fourth
fiscal quarter following the fiscal quarter that includes such Effective
Date, except that, if such fourth fiscal quarter is the last quarter of
the Company's fiscal year, "AVAILABILITY DATE" means the 90th day after
the end of such fourth fiscal quarter.
(e) The Company will furnish to the Representatives copies of
each Registration Statement (four (4)) of which will be signed and will
include all exhibits), each related preliminary prospectus, and, so long
as a prospectus relating to the Offered Securities is required to be
delivered under the Act in connection with sales by any Underwriter or
dealer, the Prospectus and all amendments and supplements to such
documents, in each case in such quantities as CSFBC requests. The
Prospectus shall be so furnished on or prior to 3:00 P.M., New
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<PAGE> 10
York time, on the business day following the later of the execution and
delivery of this Agreement or the Effective Time of the Initial
Registration Statement. All other documents shall be so furnished as
soon as available. The Company will pay the expenses of printing and
distributing to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the Offered
Securities for sale under the laws of such jurisdictions as CSFBC
designates and will continue such qualifications in effect so long as
required for the distribution.
(g) During the period of five (5) years hereafter, the Company
will furnish to the Representatives and, upon request, to each of the
other Underwriters, as soon as practicable after the end of each fiscal
year, a copy of its annual report to stockholders for such year; and the
Company will furnish to the Representatives (i) as soon as available, a
copy of any definitive proxy statement of the Company filed with the
Commission under the Securities Exchange Act of 1934 or mailed to
stockholders and, upon request, a copy of each report of the Company
filed with the Commission under the Exchange Act, and (ii) from time to
time, such other information concerning the Company as CSFBC may
reasonably request.
(h) The Company will pay all expenses incident to the performance
of its obligations under this Agreement, for any filing fees and other
expenses (including fees and disbursements of counsel) incurred in
connection with qualification of the Offered Securities for sale under
the laws of such jurisdictions as CSFBC designates and the printing of
memoranda relating thereto for the filing fee incident to, and the
reasonable fees and disbursements of counsel to the Underwriters in
connection with, the review by the National Association of Securities
Dealers, Inc. of the Offered Securities, for any travel expenses of the
Company's officers and employees and any other expenses of the Company
in connection with attending or hosting meetings with prospective
purchasers of the Offered Securities and for expenses incurred in
distributing preliminary prospectuses and the Prospectus (including any
amendments and supplements thereto) to the Underwriters.
(i) For a period of 180 days after the date of the initial public
offering of the Offered Securities, the Company will not offer, sell,
contract to sell, pledge or otherwise dispose of, directly or
indirectly, or file with the Commission a registration statement under
the Act relating to, any additional shares of its Securities or
securities convertible into or exchangeable or exercisable for any
shares of its Securities, or publicly disclose the intention to make any
such offer, sale, pledge, disposition or filing, without the prior
written consent of CSFBC, except (i) grants of restricted stock or stock
options pursuant to the terms of a plan in effect on the date hereof,
(ii) issuances of Securities pursuant to the conversion or exchange of
convertible or exchangeable securities or the exercise of rights to
purchase securities or options, in each case outstanding on the date
hereof, or pursuant to the exercise of such options or the exercise of
any other employee stock options outstanding on the date hereof or (iii)
issuances of securities pursuant to the Company's 2000 Employee Stock
Purchase Plan.
(j) In connection with the Directed Share Program, the Company
will ensure that the Directed Shares will be restricted to the extent
required by the National Association of Securities Dealers, Inc. (the
"NASD") or the NASD rules from sale, transfer, assignment, pledge or
hypothecation for a period of three months following the date of the
effectiveness of the Registration Statement. The Designated Underwriter
will notify the Company as to which Participants will need to be so
restricted. The Company will direct the transfer agent to place stop
transfer restrictions upon such securities for such period of time.
(k) The Company will pay all fees and disbursements of counsel
incurred by the Underwriters in connection with the Directed Shares
Program and stamp duties, similar taxes or
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duties or other taxes, if any, incurred by the underwriters in
connection with the Directed Share Program.
Furthermore, the Company covenants with the Underwriters that the
Company will comply with all applicable securities and other applicable
laws, rules and regulations in each foreign jurisdiction in which the
Directed Shares are offered in connection with the Directed Share
Program.
6. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the Firm Securities on the
First Closing Date and the Optional Securities to be purchased on each Optional
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company herein, to the accuracy of the statements
of Company officers made pursuant to the provisions hereof, to the performance
by the Company of its obligations hereunder and to the following additional
conditions precedent:
(a) The Representatives shall have received a letter, dated the
date of delivery thereof (which, if the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement, shall be on or prior to the date of this Agreement or, if the
Effective Time of the Initial Registration Statement is subsequent to
the execution and delivery of this Agreement, shall be prior to the
filing of the amendment or post-effective amendment to the registration
statement to be filed shortly prior to such Effective Time), of Arthur
Andersen LLP confirming that they are independent public accountants
within the meaning of the Act and the applicable published Rules and
Regulations thereunder and stating to the effect that:
(i) in their opinion the financial statements and
schedules examined by them and included in the Registration
Statements comply as to form in all material respects with the
applicable accounting requirements of the Act and the related
published Rules and Regulations;
(ii) except as disclosed in such letter, they have
performed the procedures specified by the American Institute of
Certified Public Accountants for a review of interim financial
information as described in Statement of Auditing Standards No.
71, Interim Financial Information, on the unaudited financial
statements included in the Registration Statements;
(iii) on the basis of the review referred to in clause
(ii) above, a reading of the latest available interim financial
statements of the Company, inquiries of officials of the Company
who have responsibility for financial and accounting matters and
other specified procedures, nothing came to their attention that
caused them to believe that, except as disclosed in such letter:
(A) the unaudited financial statements included in
the Registration Statements do not comply as to form in
all material respects with the applicable accounting
requirements of the Act and the related published Rules
and Regulations or any material modifications should be
made to such unaudited financial statements for them to be
in conformity with generally accepted accounting
principles;
(B) at the date of the latest available balance
sheet read by such accountants, or at a subsequent
specified date not more than three business days prior to
the date of this Agreement, there was any change in the
capital stock or any increase in short-term indebtedness
or long-term debt of the Company and its consolidated
Subsidiaries or, at the date of the latest available
balance sheet read by such accountants, there was any
decrease in consolidated net current
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<PAGE> 12
assets or net assets, as compared with amounts shown on
the latest balance sheet included in the Prospectus; or
(C) for the period from the closing date of the
latest income statement included in the Prospectus to the
closing date of the latest available income statement read
by such accountants there were any decreases, as compared
with the corresponding period of the previous year and
with the period of corresponding length ended the date of
the latest income statement included in the Prospectus, in
consolidated net sales, net operating income or in the
total or per share amounts of consolidated net income,
except in all cases set forth in clauses (B) and (C) above for
changes, increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such letter;
and
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other financial
information contained in the Registration Statements (in each
case to the extent that such dollar amounts, percentages and
other financial information are derived from the general
accounting records of the Company and its Subsidiaries subject to
the internal controls of the Company's accounting system or are
derived directly from such records by analysis or computation)
with the results obtained from inquiries, a reading of such
general accounting records and other procedures specified in such
letter and have found such dollar amounts, percentages and other
financial information to be in agreement with such results,
except as otherwise specified in such letter.
For purposes of this subsection, (i) if the Effective Time of the
Initial Registration Statement is subsequent to the execution and
delivery of this Agreement, "REGISTRATION STATEMENTS" shall mean the
initial registration statement as proposed to be amended by the
amendment or post-effective amendment to be filed shortly prior to its
Effective Time, (ii) if the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement but
the Effective Time of the Additional Registration is subsequent to such
execution and delivery, "REGISTRATION STATEMENTS" shall mean the Initial
Registration Statement and the additional registration statement as
proposed to be filed or as proposed to be amended by the post-effective
amendment to be filed shortly prior to its Effective Time, and (iii)
"PROSPECTUS" shall mean the prospectus included in the Registration
Statements.
(b) If the Effective Time of the Initial Registration Statement
is not prior to the execution and delivery of this Agreement, such
Effective Time shall have occurred not later than 10:00 P.M., New York
time, on the date of this Agreement or such later date as shall have
been consented to by CSFBC. If the Effective Time of the Additional
Registration Statement (if any) is not prior to the execution and
delivery of this Agreement, such Effective Time shall have occurred not
later than 10:00 P.M., New York time, on the date of this Agreement or,
if earlier, the time the Prospectus is printed and distributed to any
Underwriter, or shall have occurred at such later date as shall have
been consented to by CSFBC. If the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement, the Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 5(a) of this
Agreement. Prior to such Closing Date, no stop order suspending the
effectiveness of a Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or, to the
knowledge of the Company or the Representatives, shall be contemplated
by the Commission.
(c) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) any change, or any development or
event involving a prospective change, in the
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<PAGE> 13
condition (financial or other), business, properties or results of
operations of the Company and its Subsidiaries taken as one enterprise
which, in the judgment of a majority in interest of the Underwriters
including the Representatives, is material and adverse and makes it
impractical or inadvisable to proceed with completion of the public
offering or the sale of and payment for the Offered Securities; (ii) any
downgrading in the rating of any debt securities of the Company by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act), or any public announcement that
any such organization has under surveillance or review its rating of any
debt securities of the Company (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (iii) any material suspension or material
limitation of trading in securities generally on the New York Stock
Exchange, or any setting of minimum prices for trading on such exchange,
or any suspension of trading of any securities of the Company on any
exchange or in the over-the-counter market; (iv) any banking moratorium
declared by U.S. Federal, New York or California authorities; or (v) any
outbreak or escalation of major hostilities in which the United States
is involved, any declaration of war by Congress or any other substantial
national or international calamity or emergency if, in the judgment of a
majority in interest of the Underwriters including the Representatives,
the effect of any such outbreak, escalation, declaration, calamity or
emergency makes it impractical or inadvisable to proceed with completion
of the public offering or the sale of and payment for the Offered
Securities.
(d)The Representatives shall have received an opinion, dated such
Closing Date, of Orrick, Herrington & Sutcliffe LLP, counsel for the
Company, to the effect that:
(i) Each of the Company and Novatel Wireless Solutions,
Inc. has been duly incorporated and is an existing corporation in
good standing under the laws of the State of Delaware, with
corporate power and authority to own its properties and conduct
its business as described in the Prospectus; and each of the
Company and Novatel Wireless Solutions, Inc. is duly qualified to
do business as a foreign corporation in good standing in all
other jurisdictions in which its ownership or lease of property
or the conduct of its business 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;
(ii) All of the issued and outstanding capital stock of
Novatel Wireless Solutions, Inc. has been duly authorized and
validly issued and, to our knowledge, is fully paid and
nonassessable; and is owned by the Company, directly or through
Subsidiaries, and to the knowledge of such counsel, is owned free
from liens, encumbrances and defects;
(iii) The Offered Securities delivered on such Closing
Date have been duly authorized and are validly issued, fully paid
and nonassessable, and all other outstanding shares of the Common
Stock of the Company outstanding on such Closing Date have been
duly authorized and are validly issued and, to our knowledge, are
fully paid and nonassessable, and all shares of Common Stock
conform in all material respects to the description thereof
contained in the Prospectus under the heading "Description of
Securities" insofar as such description purports to summarize
provisions of the outstanding shares of the capital stock of the
Company; and the stockholders of the Company have no preemptive
rights with respect to the Offered Securities under (A) the
Company's charter or by-laws, as amended and restated, (B)
Delaware General Corporation Law, (C) any written contract or
agreement pursuant to which the Company issued its Series A,
Series B, Series C and Series D preferred stock, and (D) to the
knowledge of such counsel, any other agreements or instruments to
which the Company is a party or by which the Company is bound;
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<PAGE> 14
(iv) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings known to such counsel
between the Company and any of its Subsidiaries and any person
granting such person the right, other than such rights that have
been duly waived in writing by such persons, to require the
Company to file a registration statement under the Act with
respect to any securities of the Company owned or to be owned by
such person or to require the Company to include such securities
in the securities registered pursuant to the Registration
Statement;
(v) Neither the Company nor any Subsidiary is 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 be an "investment company" as defined in the
Investment Company Act of 1940;
(vi) No consent, approval, authorization or order of, or
filing with, any governmental agency or body or any court is
required for the consummation of the transactions contemplated by
this Agreement in connection with the issuance or sale of the
Offered Securities by the Company (other than as may be required
by the securities or Blue Sky laws of the various states and
other jurisdictions as to which such counsel need not express any
opinion), except such as have been obtained and made under the
Act;
(vii) The execution, delivery and performance of this
Agreement and the issuance and sale of the Offered Securities
will not result in a material breach or violation of any of the
terms and provisions of, or constitute a material default under,
any statute, any rule, regulation or, to such counsel's
knowledge, any order of any governmental agency or body or any
court having jurisdiction over the Company or NWS or any of their
properties (except that such counsel need not express any opinion
with regard to foreign or state securities or Blue Sky laws or
regulations), and will not result in a material breach of any
agreement or instrument that is identified on Schedule B to this
Agreement, or the charter or by-laws of the Company or NWS, as
amended and restated, and the Company has full power and
authority to authorize, issue and sell the Offered Securities as
contemplated by this Agreement;
(viii) The Initial Registration Statement was declared
effective under the Act, the Additional Registration Statement
(if any) was filed and became effective under the Act, the
Prospectus either was filed with the Commission pursuant to the
subparagraph of Rule 424(b) specified in such opinion or was
included in the Initial Registration Statement or the Additional
Registration Statement (as the case may be); to the best of the
knowledge of such counsel, no stop order suspending the
effectiveness of a Registration Statement or any part thereof has
been issued; no proceedings to suspend the effectiveness of a
Registration Statement or any part thereof have been instituted
or are pending or, to such counsel's knowledge, threatened under
the Act; each Registration Statement and the Prospectus, and each
amendment or supplement thereto, as of their respective effective
or issue dates, complied as to form in all material respects with
the requirements of the Act and the Rules and Regulations;
nothing has come to the attention of such counsel that has caused
such counsel to believe that any part of a Registration Statement
or any amendment thereto, as of its effective date or as of such
Closing Date, contained any untrue statement of a material fact
or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading or that the Prospectus or any amendment or supplement
thereto, as of its issue date or as of such Closing Date,
contained any untrue statement of a material fact or omitted to
state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; the descriptions in the Registration
Statements and Prospectus of statutes under the caption
"Description of
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<PAGE> 15
Securities," and contracts and other documents are accurate and
fairly present the information required to be shown; and such
counsel does not know of any legal or governmental proceedings
required to be described in a Registration Statement or the
Prospectus which are not described as required or of any
contracts or documents of a character required to be described in
a Registration Statement or the Prospectus or to be filed as
exhibits to a Registration Statement which are not described and
filed as required; it being understood that such counsel need not
express opinion as to (A) the financial statements, including the
schedules and related notes, and other financial and statistical
data and information contained in the Registration Statements or
the Prospectus and (B) the descriptions under the headings
"Notice to Canadian Residents"; and
(ix) This Agreement has been duly authorized, executed and
delivered by the Company.
In rendering such opinions such counsel may rely as to matters of fact
upon certificates of officers of the Company and the Subsidiaries.
(e) The Representatives shall have received an opinion, dated
such Closing Date, of Stikeman Elliot, counsel for the Company, to the
effect that:
(i) Novatel Wireless Technologies Ltd. has been duly
incorporated and is an existing corporation in good standing
under the laws of Alberta, Canada, with corporate power and
authority to own its properties and conduct its business as
described in the Prospectus; and Novatel Wireless Technologies
Ltd. is duly qualified to do business as a foreign corporation in
good standing in all other jurisdictions in which its ownership
or lease of property or the conduct of its business requires such
qualification;
(ii) All of the issued and outstanding capital stock of
Novatel Wireless Technologies Ltd. has been duly authorized and
validly issued and is fully paid and nonassessable; and the
capital stock of Novatel Wireless Technologies Ltd. owned by the
Company, directly or through Subsidiaries, is owned free from
liens, encumbrances and defects.
In rendering such opinions such counsel may rely as to matters of fact
upon certificates of officers of the Company and the Subsidiaries.
(f) The Representatives shall have received from Latham &
Watkins, counsel for the Underwriters, such opinion or opinions, dated
such Closing Date, with respect to the incorporation of the Company, the
validity of the Offered Securities delivered on such Closing Date, the
Registration Statements, the Prospectus and other related matters as the
Representatives may require, and the Company shall have furnished to
such counsel such documents as they reasonably request for the purpose
of enabling them to pass upon such matters.
(g) The Representatives shall have received a certificate, dated
such Closing Date, of the Chief Executive Officer and Chief Financial
Officer of the Company in which such officers, to the best of their
knowledge after reasonable investigation, shall state that: the
representations and warranties of the Company in this Agreement are true
and correct as of such Closing Date; the Company has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to such Closing Date; no stop order
suspending the effectiveness of any Registration Statement has been
issued and no proceedings for that purpose have been instituted or are
contemplated by the Commission; the Additional Registration Statement
(if any) satisfying the requirements of subparagraphs (1) and (3) of
Rule 462(b) was filed pursuant to Rule 462(b), including payment of the
applicable filing fee in accordance with Rule 111(a) or (b) under the
Act, prior to the time the Prospectus was printed and distributed to any
Underwriter; and,
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<PAGE> 16
subsequent to the date of the most recent financial statements in the
Prospectus, there has been no material adverse change, nor any
development or event involving a prospective material adverse change, in
the condition (financial or other), business, properties or results of
operations of the Company and its Subsidiaries taken as a whole, except
as set forth in or contemplated by the Prospectus or as described in
such certificate.
(h) The Representatives shall have received a letter, dated such
Closing Date, of Arthur Andersen LLP which meets the requirements of
subsection (a) of this Section, except that the specified date referred
to in such subsection will be a date not more than three days prior to
such Closing Date for the purposes of this subsection.
(i) On or prior to the date of this Agreement, the
Representatives shall have received lockup letters, substantially in the
form attached hereto as Exhibit A, from each of the Company's executive
officers and directors, and holders of at least 99.9% of all securities
of the Company.
The Company will furnish the Representatives with such conformed copies
of such opinions, certificates, letters and documents as the Representatives
reasonably request. CSFBC may in its sole discretion waive on behalf of the
Underwriters compliance with any conditions to the obligations of the
Underwriters hereunder, whether in respect of an Optional Closing Date or
otherwise.
7. Indemnification and Contribution.
(a) The Company will indemnify and hold harmless each
Underwriter, its partners, directors and officers and each person, if
any, who controls such Underwriter within the meaning of Section 15 of
the Act, against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in
any Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus, 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, and will reimburse each Underwriter
for any legal or other expenses reasonably incurred by such Underwriter
in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided,
however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or
is based upon an untrue statement or alleged untrue statement in or
omission or alleged omission from any of such documents in reliance upon
and in conformity with written information furnished to the Company by
any Underwriter through CSFBC specifically for use therein, it being
understood and agreed that the only such information furnished by any
Underwriter consists of the information described as such in subsection
(b) below; and provided, further, that with respect to any untrue
statement or alleged untrue statement in or omission or alleged omission
from any preliminary prospectus the indemnity agreement contained in
this subsection (a) shall not inure to the benefit of any Underwriter
from whom the person asserting any such losses, claims, damages or
liabilities purchased the Offered Securities concerned, to the extent
that a prospectus relating to such Offered Securities was required to be
delivered by such Underwriter under the Act in connection with such
purchase and any such loss, claim, damage or liability of such
Underwriter results from the fact that there was not sent or given to
such person, at or prior to the written confirmation of the sale of such
Offered Securities to such person, a copy of the Prospectus if the
Company had previously furnished copies thereof to such Underwriter.
The Company agrees to indemnify and hold harmless the Designated
Underwriter and each person, if any, who controls the Designated
Underwriter within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act (the "DESIGNATED ENTITIES"), from
and against any and all losses, claims, damages and liabilities
(including, without limitation, any legal
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<PAGE> 17
or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) (i) caused by any untrue
statement or alleged untrue statement of a material fact contained in
any material prepared by or with the consent of the Company for
distribution to Participants in connection with the Directed Share
Program 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; (ii) caused by the failure of any
Participant to pay for and accept delivery of Directed Shares that the
Participant agreed to purchase; or (iii) related to, arising out of, or
in connection with the Directed Share Program, in each case other than
losses, claims, damages or liabilities (or expenses relating thereto)
that are finally judicially determined to have resulted from the bad
faith or gross negligence of the Designated Entities.
(b) Each Underwriter will severally and not jointly indemnify and
hold harmless the Company, its directors and officers and each person,
if any who controls the Company within the meaning of Section 15 of the
Act, against any losses, claims, damages or liabilities to which the
Company may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in any Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission
or the 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 reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives specifically for use therein, and will reimburse any
legal or other expenses reasonably incurred by the Company in connection
with investigating or defending any such loss, claim, damage, liability
or action as such expenses are incurred, it being understood and agreed
that the only such information furnished by any Underwriter consists of
(i) the following information in the Prospectus furnished on behalf of
each Underwriter: the fourth, sixth and sixteenth paragraphs under the
caption "Underwriting"; and (ii) the following information in the
Prospectus furnished on behalf of U.S. Bancorp Piper Jaffray Inc.: the
compensation information contained in the fourteenth paragraph under the
caption "Underwriting."
(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 the
indemnifying party under subsection (a) or (b) above, notify the
indemnifying party 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 otherwise than under
subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to
such indemnified party of its election so to assume the defense thereof,
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 other
than reasonable costs of investigation. Notwithstanding anything
contained herein to the contrary, if indemnity may be sought pursuant to
the last paragraph in Section 7 (a) hereof in respect of such action or
proceeding, then in addition to such separate firm for the indemnified
parties, the indemnifying party shall be liable for the reasonable fees
and expenses of not more than one separate firm (in addition to any
local counsel) for the Designated Underwriter for the defense of any
losses, claims, damages and liabilities arising out of the Directed
Share Program, and all persons, if any, who control the Designated
Underwriter within the meaning of either Section 15 of the Act of
Section 20 of the Exchange Act. No indemnifying party shall, without the
prior written consent of
17
<PAGE> 18
the indemnified party, effect any settlement of any pending or
threatened action 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 (i) includes an unconditional
release of such indemnified party from all liability on any claims that
are the subject matter of such action and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to
act by or on behalf of an indemnified party.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities referred to in
subsection (a) or (b) above (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand
and the Underwriters on the other from the offering of the Securities or
(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 on the one hand and the Underwriters on
the other in connection with the statements or omissions which 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 shall be
deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Company bear to the
total underwriting discounts and commissions received by the
Underwriters. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material
fact relates to information supplied by the Company or the Underwriters
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The
amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities referred to in the first sentence
of this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the subject
of this subsection (d). Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the
Securities underwritten by it and distributed to the public were offered
to the public exceeds the amount of any damages which 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
Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters'
obligations in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the
obligations of the Underwriters under this Section shall be in addition
to any liability which the respective Underwriters may otherwise have
and shall extend, upon the same terms and conditions, to each director
of the Company, to each officer of the Company who has signed a
Registration Statement and to each person, if any, who controls the
Company within the meaning of the Act.
8. Default of Underwriters. If any Underwriter or Underwriters default
in their obligations to purchase Offered Securities hereunder on either the
First or any Optional Closing Date and the aggregate number of shares of Offered
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase does not exceed 10% of the total number of shares of Offered Securities
that the Underwriters are obligated to purchase on such Closing Date, CSFBC may
make arrangements satisfactory to the Company for the purchase of such Offered
Securities by other persons, including any of the Underwriters,
18
<PAGE> 19
but if no such arrangements are made by such Closing Date, the non-defaulting
Underwriters shall be obligated severally, in proportion to their respective
commitments hereunder, to purchase the Offered Securities that such defaulting
Underwriters agreed but failed to purchase on such Closing Date. If any
Underwriter or Underwriters so default and the aggregate number of shares of
Offered Securities with respect to which such default or defaults occur exceeds
10% of the total number of shares of Offered Securities that the Underwriters
are obligated to purchase on such Closing Date and arrangements satisfactory to
CSFBC and the Company for the purchase of such Offered Securities by other
persons are not made within 36 hours after such default, this Agreement will
terminate without liability on the part of any non-defaulting Underwriter or the
Company, except as provided in Section 9 (provided that if such default occurs
with respect to Optional Securities after the First Closing Date, this Agreement
will not terminate as to the Firm Securities or any Optional Securities
purchased prior to such termination). As used in this Agreement, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section. Nothing herein will relieve a defaulting Underwriter from liability for
its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the several Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation, or statement as to the results thereof, made by or on behalf
of any Underwriter, the Company or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Offered Securities. If this Agreement is terminated pursuant
to Section 8 or if for any reason the purchase of the Offered Securities by the
Underwriters is not consummated, the Company shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 5 and the respective
obligations of the Company and the Underwriters pursuant to Section 7 shall
remain in effect, and if any Offered Securities have been purchased hereunder
the representations and warranties in Section 2 and all obligations under
Section 5 shall also remain in effect. If the purchase of the Offered Securities
by the Underwriters is not consummated for any reason other than solely because
of the termination of this Agreement pursuant to Section 8 or the occurrence of
any event specified in clause (iii), (iv) or (v) of Section 6(c), the Company
will reimburse the Underwriters for all out-of-pocket expenses (including fees
and disbursements of counsel) reasonably incurred by them in connection with the
offering of the Offered Securities.
10.Notices. All communications hereunder will be in writing and, if sent
to the Underwriters, will be mailed, delivered or telegraphed and confirmed to
the Representatives, c/o Credit Suisse First Boston Corporation, Eleven Madison
Avenue, New York, N.Y. 10010-3629, Attention: Investment Banking
Department--Transactions Advisory Group, or, if sent to the Company, will be
mailed, delivered or telegraphed and confirmed to it at Novatel Wireless, Inc.,
9360 Towne Centre Drive, Suite 100, San Diego, CA 92121, Attention: Chief
Executive Officer; provided, however, that any notice to an Underwriter pursuant
to Section 7 will be mailed, delivered or telegraphed and confirmed to such
Underwriter.
11.Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7, and no other
person will have any right or obligation hereunder.
12.Representation of Underwriters. The Representatives will act for the
several Underwriters in connection with the transactions contemplated by this
Agreement, and any action under this Agreement taken by the Representatives
jointly or by CSFBC will be binding upon all the Underwriters.
13.Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14.APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAWS.
19
<PAGE> 20
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
(Signature Page Follows)
20
<PAGE> 21
If the foregoing is in accordance with the Representatives'
understanding of our agreement, kindly sign and return to the Company one of the
counterparts hereof, whereupon it will become a binding agreement between the
Company and the several Underwriters in accordance with its terms.
Very truly yours,
NOVATEL WIRELESS, INC.
By
----------------------------------
Name
--------------------------------
Title
-------------------------------
The foregoing Underwriting Agreement is hereby
confirmed and accepted as of the date first above
written.
CREDIT SUISSE FIRST BOSTON CORPORATION
U.S. BANCORP PIPER JAFFRAY INC.
BANC OF AMERICA SECURITIES LLC
Acting on behalf of themselves and as the
Representatives of the several
Underwriters
By CREDIT SUISSE FIRST BOSTON CORPORATION
By
-----------------------------------
Name
---------------------------------
Title
--------------------------------
S-1
<PAGE> 22
SCHEDULE A
<TABLE>
<CAPTION>
NUMBER OF
UNDERWRITER FIRM SECURITIES
----------- ---------------
<S> <C>
Credit Suisse First Boston Corporation....................
U.S. Bancorp Piper Jaffray Inc............................
Banc of America Securities LLC............................
---------------
Total...................................... ===============
</TABLE>
A-1
<PAGE> 23
SCHEDULE B
MATERIAL AGREEMENTS
B-1
<PAGE> 24
EXHIBIT A
Lock-Up Agreement
March __, 2000
Credit Suisse First Boston Corporation
U.S. Bancorp Piper Jaffray Inc.
Banc of America Securities LLC
as Representatives of the Underwriters
c/o Credit Suisse First Boston
2400 Hanover Street
Palo Alto, CA 94304
Dear Sirs:
As an inducement to you, the Representatives of the Underwriters,
to execute the Underwriting Agreement, pursuant to which an offering will be
made that is intended to result in the establishment of a public market for the
Common Stock, par value $0.001 per share (the "SECURITIES"), of Novatel
Wireless, Inc., a Delaware corporation (the "COMPANY"), the undersigned hereby
agrees that from the date hereof and until 180 days after the public offering
date set forth on the final prospectus used to sell the Securities (the "PUBLIC
OFFERING DATE") pursuant to the Underwriting Agreement, to which you are or
expect to become parties, the undersigned will not offer, sell, contract to
sell, pledge or otherwise dispose of, directly or indirectly, any shares of
Securities or securities convertible into or exchangeable or exercisable for any
shares of Securities, enter into a transaction which would have the same effect,
or enter into any swap, hedge or other arrangement that transfers, in whole or
in part, any of the economic consequences of ownership of the Securities,
whether any such aforementioned transaction is to be settled by delivery of the
Securities or such other securities, in cash or otherwise, or publicly disclose
the intention to make any such offer, sale, pledge or disposition, or to enter
into any such transaction, swap, hedge or other arrangement, without, in each
case, the prior written consent of Credit Suisse First Boston Corporation.
Any Securities received upon exercise of options granted to the
undersigned will also be subject to this Agreement. Any Securities sold by the
undersigned to the Underwriters pursuant to the Underwriting Agreement or any
Securities acquired by the undersigned in the open market will not be subject to
this Agreement. A transfer of Securities to a family member or trust may be
made, provided the transferee agrees to be bound in writing by the terms of this
Agreement.
In furtherance of the foregoing, the Company and its transfer
agent and registrar are hereby authorized to decline to make any transfer of
shares of Securities if such transfer would constitute a violation or breach of
this Agreement.
This Agreement shall be binding on the undersigned and the
successors, heirs, personal representatives and assigns of the undersigned.
Very truly yours,
------------------------------------
[Name of stockholder]
Exhibit A-1
