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Exhibit 1.1
5,500,000 SHARES
TRITON NETWORK SYSTEMS, INC.
COMMON STOCK, $.001 PAR VALUE PER SHARE
UNDERWRITING AGREEMENT
_____ __, 2000
CREDIT SUISSE FIRST BOSTON CORPORATION
DEUTSCHE BANK SECURITIES INC.
U.S. BANCORP PIPER JAFFRAY INC.
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. Triton Network Systems, Inc., a Delaware
corporation ("COMPANY"), proposes to issue and sell 5,500,000 shares ("FIRM
SECURITIES") of its Common Stock, $.001 par value 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 825,000 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, Credit Suisse First Boston
Corporation (the "DESIGNATED UNDERWRITER") has agreed to reserve out of the Firm
Securities purchased by it under this Agreement, up to 325,000 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 (each an "UNDERWRITER" and collectively,
"UNDERWRITERS") as follows:
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the several Underwriters that:
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(a) A registration statement (No. 333-31434) 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, as
amended ("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, either (i) an additional registration 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
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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 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 misleading,
(ii) on the Effective Date of the Additional Registration Statement (if
any), each Registration Statement conformed, or will 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
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 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
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.
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(c) 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.
(d) Each subsidiary of the Company has been duly
incorporated and is an existing corporation in good standing under the
laws of the 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 of 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; all of the
issued and outstanding capital stock of each subsidiary of the Company
has been duly authorized and validly issued and is fully paid and
nonassessable; and the capital stock of each subsidiary owned by the
Company, directly or through subsidiaries, is owned free from liens,
encumbrances and defects.
(e) 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. The authorized capital stock of
the Company conforms to the description thereof contained in the
Prospectus. The information set forth under the caption
"Capitalization" in the Prospectus is true and complete. The
descriptions of the Company's stock option, stock purchase and other
stock plans or arrangements, and the options or other rights granted
and exercised thereunder, set forth in the Prospectus, accurately and
fairly present the information required to be shown with respect to
such plans, arrangements, options and rights. Without limiting the
generality of the preceding sentence, there are no outstanding options,
warrants, subscriptions, rights, calls, convertible securities,
commitments of sale or liens or other rights granted or issued by the
Company to purchase Securities or other securities of the Company,
other than as disclosed in the Prospectus.
(f) 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.
(g) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file a
registration statement under the Act with respect to any
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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 a Registration Statement or in any securities
being registered pursuant to any other registration statement filed by
the Company under the Act.
(h) Except as disclosed in the Prospectus, there are no
outstanding (i) securities or obligations of the Company or any
Subsidiary convertible into or exchangeable for any capital stock of
the Company or any such Subsidiary, (ii) warrants, rights or options to
subscribe for or purchase from the Company or any such Subsidiary any
such capital stock or any such convertible or exchangeable securities
or obligations, or (iii) obligations of the Company or any such
Subsidiary to issue any shares of capital stock, any such convertible
or exchangeable securities or obligations, or any such warrants, rights
or options.
(i) Except for the shares of capital stock of each of the
Subsidiaries owned by the Company and such Subsidiaries, neither the
Company nor any such Subsidiary owns any shares of stock or any other
equity securities of any corporation or has any equity interest in any
firm, partnership, association or other entity, except as described in
or contemplated by the Prospectus.
(j) The Company has filed a registration statement
pursuant to Section 12(g) of the Securities Exchange Act of 1934, as
amended ("EXCHANGE ACT"), to register the Securities and has filed an
application to list the Offered Securities on the Nasdaq National
Market; and the Offered Securities have been approved for listing on
the Nasdaq Stock Market's National Market, subject to notice of
issuance.
(k) The Company has not distributed and, prior to the
later of (a) any Closing Date (as defined herein) and (b) the
completion of the distribution of the Offered Securities, will not
distribute any offering material in connection with the offering of the
Offered Securities other than a Registration Statement, any preliminary
prospectus contained therein or the Prospectus or any amendment or
supplement thereto.
(l) Neither the Company nor any of its affiliates, nor
any person acting on behalf of any of them has, directly or indirectly,
(i) taken any action designed to cause or to result in, or that has
constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Offered Securities, or
(ii) since the filing of the Initial Registration Statement (x) sold,
bid for, purchased, or paid anyone any compensation for soliciting
purchases of, the Offered Securities or (y) paid or agreed to pay to
any person any compensation for soliciting another to purchase any
other securities of the Company.
(m) 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.
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(n) Neither the Company nor any subsidiary of the Company
is (i) in violation of the charter or by-laws of the Company or any
such subsidiary, (ii) in default in the performance of any obligation,
agreement, covenant or condition contained in any indenture, loan
agreement, mortgage, lease or other agreement or instrument that is
material to the Company and its subsidiaries, taken as a whole, to
which the Company or any subsidiary of the Company is a party or by
which the Company or any subsidiary of the Company or any of their
properties is bound or (iii) in violation of any applicable law or any
rule, regulation, judgment, order or decree of any court or any
governmental body or agency having jurisdiction over the Company, any
subsidiary of the Company or any of their properties.
(o) 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, 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 any agreement or instrument to
which the Company or any such subsidiary is a party or by which the
Company or any such subsidiary is bound or to which any of the
properties of the Company or any such subsidiary is subject, or the
charter or by-laws of the Company or any such subsidiary, and will not
result in the suspension, termination or revocation of any
Authorization (defined below) of the Company or any subsidiaries of the
Company or any other impairment of the rights of the holder of and such
Authorization, and the Company has full power and authority to
authorize, issue and sell the Offered Securities as contemplated by
this Agreement.
(p) This Agreement has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement on the
part of the Company, enforceable in accordance with its terms, except
as rights to indemnification hereunder may be limited by applicable law
and except as the enforcement hereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting creditors' rights generally or by general
equitable principles.
(q) 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.
(r) The Company and its subsidiaries possess adequate
certificates, authorities or permits ("AUTHORIZATIONS") 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
Authorization that, if determined adversely to the Company or any of
its subsidiaries, would individually or
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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 ("MATERIAL ADVERSE
EFFECT").
(s) 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.
(t) The Company and its subsidiaries own or have rights
under licenses to all patents, patent applications, inventions,
trademarks, service marks, trade names, know-how, copyrights,
confidential information and other intellectual property (collectively,
"INTELLECTUAL PROPERTY RIGHTS") necessary to conduct the business now
operated by them or as contemplated by the Prospectus, or presently
employed by them or contemplated to be employed by the Prospectus. The
Company has duly registered with all required authorities the domain
name of its sites on the World Wide Web ("DOMAIN NAMES") located at
http://www.triton-network.com, and is the sole and exclusive owner of
and possesses all rights necessary to use the Domain Names. Except as
set forth in the Registration Statement or in the Prospectus, neither
the Company, nor its subsidiaries, has received any notice of a claim,
nor does any of them have knowledge of facts for any such claim, that:
(i) challenges the Company's or its subsidiaries' rights in or to any
Intellectual Property; (ii) challenges the validity or scope of any
Intellectual Property; (iii) any third party has or will be able to
establish any rights in the Intellectual Property, except for the
ownership rights of the owners of the Intellectual Property which is
licensed to the Company or the rights of parties to whom the Company
has granted licenses of such Intellectual Property; (iv) the
Intellectual Property infringes or otherwise violates any patent,
copyright, trade secret, trademark or other proprietary right of any
third party; or (v) there is infringement of the Intellectual Property
by any third party, which, in the case of any such claim specified in
clauses (i), (ii), (iii), (iv) or (v) above, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a Material Adverse Effect. The Company has
agreements in place with each employee, consultant or other person or
party engaged by the Company for the assignment to the Company of all
intellectual property and exploitation rights in the work performed and
the protection of the trade secrets and confidential information of the
Company and of third parties which have been developed by such person
for or on behalf of the Company.
(u) 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
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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.
(v) 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.
(w) 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
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 assumptions used in
preparing the pro forma financial statements included in each
Registration Statement and the Prospectus provide a reasonable basis
for presenting the significant effects directly attributable to the
transactions or events described therein, the related pro forma
adjustments give appropriate effect to those assumptions, and the pro
forma columns therein reflect the proper application of those
adjustments to the corresponding historical financial statement
amounts; and the other financial and statistical information and data
set forth in each Registration Statement and the Prospectus (and any
amendment or supplement thereto) are, in all material respects,
accurately presented and prepared on a basis consistent with such
financial statements and the books and records of the Company.
(x) 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.
(y) The Company has filed all foreign, federal, state and
local tax returns that are required to be filed or has requested
extensions thereof (except in any case in which the failure so to file
would not have a Materially Adverse Effect) and has paid all taxes
required to be paid by it and any other assessment, fine or penalty
levied against it, to the extent that any of the foregoing is due and
payable, except for any such assessment, fine or penalty that is
currently being contested in good faith or as described in or
contemplated by the Prospectus.
(z) No relationship, direct or indirect, exists between
or among the Company or any of its subsidiaries on the one hand, and
the directors, officers, stockholders, customers or
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suppliers of the Company or any of its subsidiaries on the other hand,
which is required by the Act to be disclosed in the Registration
Statement or the Prospectus which is not so disclosed.
(aa) The Company and each of its subsidiaries maintains 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.
(ab) The Company has not at any time during the last five
(5) years (i) made any unlawful contribution to any candidate for
foreign office or failed to disclose fully any contribution in
violation of law, or (ii) made any payment to any federal or state
governmental officer or official, or other person charged with similar
public or quasi-public duties, other than payments required or
permitted by the laws of the United States or any jurisdiction thereof.
(ac) The Company and each of its Subsidiaries are insured
by insurers of recognized financial responsibility against such losses
and risks and in such amounts as are prudent and customary in the
businesses in which they are engaged; neither the Company nor any such
Subsidiary has been refused any insurance coverage sought or applied
for; and neither the Company nor any such Subsidiary has 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.
(ad) 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 an
"investment company" as defined in the Investment Company Act of 1940.
(ae) Neither the Company nor any of its affiliates does
business with the government of Cuba or with any person or affiliate
located in Cuba within the meaning of Section 517.075, Florida Statutes
and the Company agrees to comply with such Section if prior to the
completion of the distribution of the Offered Securities it commences
doing such business.
(af) 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
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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.
(ag) 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.
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
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 Testa, Hurwitz & Thibeault,
LLP, 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 Exchange Act, 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. 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 at the above office of Testa, Hurwitz & Thibeault, LLP 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
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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 Testa Hurwitz & Thibeault, LLP. 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 at the above
office of Testa, Hurwitz & Thibeault, LLP 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 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
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<PAGE> 12
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; 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 (five (5) 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 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
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<PAGE> 13
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 each report and any definitive proxy statement of
the Company filed with the Commission under the Securities Exchange Act
of 1934 or mailed to stockholders, 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, including, without
limitation, (i) 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,
(ii) 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, (iii) 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 (iv) 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 grants of employee stock options
pursuant to the terms of a plan in effect on the date hereof, issuances
of Securities pursuant to the exercise of such options or the exercise
of any other employee stock options outstanding on the date hereof.
(j) Except with the prior written consent of Credit
Suisse First Boston Corporation, 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 Securities, or any
securities convertible into, or exercisable or exchangeable for,
Securities, to make any short sale of, grant any option
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<PAGE> 14
for the purchase of, or otherwise transfer or dispose of, any such
Securities or other securities, prior to the expiration of the 180
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 Securities, or securities
convertible into or exercisable or exchangeable for Securities,
subject to a lock-up agreement.
(k) 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.
(l) 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 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 Ernst & Young 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;
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<PAGE> 15
(ii) on the basis of 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:
(A) the unaudited financial statements
included in the Registration Statement 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) the pro forma unaudited
consolidated revenues, net loss and net loss per
share amount for the year ended December 31, 2000
included in the Prospectus do not agree with the
amounts set forth in the unaudited consolidated
financial statements for those same periods or were
not determined on a basis substantially consistent
with that of the corresponding amounts in the
audited statements of income;
(C) 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 assets, as compared
with amounts shown on the latest balance sheet
included in the Prospectus; or
(D) 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, in
consolidated revenue, or net operating income, or in
the total or per share amounts of consolidated net
income,
except in all cases set forth in clauses (C) and (D) above
for changes, increases or decreases which the Prospectus
discloses have occurred or may occur or which are described
in such letter; and
(iii) 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
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<PAGE> 16
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) The Company shall have received from Ernst & Young
LLP (and furnished to the Representative) an examination report with
respect to Management's Discussion and Analysis of Financial Condition
and Result of Operations of the Company for the fiscal years ending
December 31, 1999 and December 31, 1998, and review report with
respect to Management's Discussion and Analysis of Financial Condition
and Results of Operations of the Company for the quarter ended March
31, 2000 and the corresponding period for the prior fiscal year, each
in accordance with Statement on Standards for Attestation Engagement
No. 8 issued by the Auditing Standards Board of the American Institute
of Certified Public Accountants, and such examination report shall be
included in the Registration Statement.
(c) 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.
(d) 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
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<PAGE> 17
change, in the 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 or New York 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.
(e) The Representatives shall have received an opinion,
dated such Closing Date, of Wilson, Sonsini, Goodrich & Rosati,
Professional Corporation, counsel for the Company, to the effect that:
(i) The Company 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 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;
(ii) TNS Finance Company, Inc. ("TNS") has been
duly incorporated and is an existing corporation in good
standing under the laws of the State of Nevada, with
corporate power and authority to own its properties and
conduct its business as described in the Prospectus; and TNS
is duly qualified to do business as a foreign corporation in
good standing in all other jurisdiction in which its
ownership or lease of property or the conduct of its business
requires such qualification;
(iii) The Offered Securities delivered on such
Closing Date and all other outstanding shares of the Common
Stock of the Company have been duly authorized and validly
issued, are fully paid and nonassessable and conform to
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<PAGE> 18
the description thereof contained in the Prospectus; and the
stockholders of the Company have no preemptive rights with
respect to the Securities;
(iv) There are no contracts, agreements or
understandings, which have not been validly satisfied or
waived, known to such counsel between the Company and any
person granting such person the right 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 or in any securities being registered pursuant to
any other registration statement filed by the Company under
the Act;
(v) 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 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, except such as have been obtained and made under the
Act and such as may be required under state securities laws;
(vii) Neither the offer, sale or delivery of the
Offered Shares, the execution, delivery or performance by the
Company of this Agreement, compliance by the Company with the
provisions of this Agreement nor consummation by the Company
of the transactions contemplated by this Agreement (A)
violates the restated certificate of incorporation or the
by-laws, or other organizational documents, of the Company,
or (B) constitutes a breach of, or a default under, any
agreement, indenture, lease or other instrument to which the
Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries or any of their respective
properties is bound that is an exhibit to the Registration
Statement, which breach or default would reasonably be
expected to 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 or (C) will result in any violation of any existing law
or regulation (other than applicable state securities and
Blue Sky laws, as to which such counsel need not express an
opinion), or any ruling, judgment, injunction, order or
decree known to us and applicable to the Company or any of
its subsidiaries or any of their respective properties;
(viii) The Initial Registration Statement was
declared effective under the Act as of the date and time
specified in such opinion, the Additional Registration
Statement (if any) was filed and became effective under the
Act as of the date and time (if determinable) specified in
such opinion, the Prospectus
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<PAGE> 19
either was filed with the Commission pursuant to the
subparagraph of Rule 424(b) specified in such opinion on the
date specified therein or was included in the Initial
Registration Statement or the Additional Registration
Statement (as the case may be), and, 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 and no proceedings for that purpose have been
instituted or are pending or contemplated under the Act, and
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;
(ix) The descriptions in the Registration
Statements and Prospectus of statutes, legal and governmental
proceedings and contracts and other documents are accurate
and fairly present the information required to be shown; the
statements set forth under the caption "Description of
Capital Stock" in the Prospectus, insofar as such statements
purport to summarize certain provisions of the capital stock
of the Company, provide a fair summary of such provisions in
all material respects; the form of certificate for the
Securities conforms in all material respects to the
requirements of the Delaware General Corporation Law; the
description in the Registration Statement and the Prospectus
of the restated certificate of incorporation and the by-laws
of the Company fairly presents the information required to be
presented by the Act and the applicable rules and regulations
thereunder in all material respects; and the statements set
forth under the caption "Shares Eligible for Future Sale" in
the Prospectus, insofar as such statements constitute a
summary of the legal matters, documents or proceedings
referred to therein, provide a fair summary of such legal
matters, documents and proceedings in all material respects;
(x) To such counsel's knowledge, (A) there are
no legal or governmental proceedings or investigations
pending or threatened to which the Company or any of its
subsidiaries is a party, or to which the property of the
Company or any of its subsidiaries is subject, which are
required to be described in any Registration Statement or the
Prospectus (or any amendment or supplement thereto) that are
not so described and (B) there are no agreements, contracts,
indentures, leases or other documents that are required to be
described in any Registration Statement or the Prospectus or
to be filed as exhibits to any Registration Statement that
are not so described or filed, as the case may be; and
(xi) The Company has the corporate power and
authority to enter into this Agreement and to issue, sell and
deliver the Offered Securities to the Underwriters as
provided in this Agreement this Agreement has been duly
authorized, executed and delivered by the Company.
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<PAGE> 20
(xii) In addition, such counsel shall state that,
in connection with the preparation of the Registration
Statement and the Prospectus, such counsel has participated
in conferences with officers and representatives of the
Company, the Underwriters, counsel for the Underwriters and
the independent accountants of the Company, at which
conferences such counsel made inquiries of such persons and
others and discussed the contents of the Registration
Statement and the Prospectus; and that, while the limitations
inherent in the independent verification of factual matters
and the character of determinations involved in the
registration process are such that such counsel is not
passing upon and does not assume any responsibility for the
accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus,
subject to the foregoing and based on such participation,
inquiries and discussions, no facts have come to the
attention of such counsel which have caused such counsel to
believe that the Registration Statement, at the time it
became effective (but after giving effect to changes
incorporated pursuant to Rule 430A under the Act), contained
any untrue statement of a material fact or omitted to state
any material fact required to be stated therein or necessary
in order to make the statements therein not misleading
(except that such counsel need not express such view with
respect to the financial statements, including the notes and
schedules thereto, or any other financial or accounting data
included therein), or that the Prospectus, as of the date of
such Prospectus and as of the Closing Date, contained or
contains any untrue statement of a material fact or omitted
or omits to state any material fact necessary in order to
make the statements therein, in light of the circumstances
under which they were made, not misleading (except that such
counsel need not express such view with respect to the
financial statements, including the notes and schedules
thereto, or any other financial or accounting data included
therein).
(f) The Representatives shall have received a legal
opinion from each of Fulbright & Jaworski L.L.P. and Gilbreth &
Strozier, each of whom is patent counsel for the Company, dated the
Closing Date, to the effect that [A SEPARATE OPINION OR ADDITIONAL
LANGUAGE MAY BE NEEDED TO COVER THE LOCKHEED LICENSE]:
(i) The statements in the Registration
Statement and Prospectus under the captions "Risk Factors -
We rely on our intellectual property, and any failure by us
to protect our intellectual property could enable our
competitors to market products with similar features that may
reduce demand for our products" and "Business - Intellectual
Property" (collectively, the "Specified IP Sections") insofar
as such statements constitute a summary of legal matters or
contracts, agreements or other legal proceeding or documents
referred to therein, are accurate in all material respects.
(ii) As of the Closing Date, the Company had
executed assignments and transferring rights in and title to
the United States patent applications set forth in such
opinion and any patents that may issue thereon or claim
priority to such patents under United States law or
international convention. As of the Closing
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<PAGE> 21
Date, the Company has not assigned to any third party any
ownership rights in any of the patent applications set forth
in such opinion.
(iii) To the knowledge of such counsel, there is
no pending or threatened claim of any third party to any
ownership interest in any of the patents set forth in such
opinion or the patent applications set forth in such opinion.
(iv) To the knowledge of such counsel, there is
no material defect of form in, and there was no material
defect in the filing with the PTO of, the patent applications
set forth in such opinion.
(v) Except as set forth in the Registration
Statement or in the Prospectus under the caption "Legal
Proceedings," to our knowledge, there is no legal or
governmental proceeding (other than the patent application or
trademark or service mark registration proceedings initiated
by the Company) pending or threatened against the Company
relating to any patents, patent applications, trademarks,
service marks, copyrights, trade secrets, trade names or
trade dress owned or licensed by the Company.
(vi) Except as set forth in the Registration
Statement or in the Prospectus under the caption "Legal
Proceedings" to the knowledge of such counsel, there is no
pending or threatened action, suit or claim with respect to
infringement of any patent owned by the Company or with
respect to the Company's infringement, misappropriation or
violation of any patent, trademark, service mark, copyright,
trade secret or trade name rights of any third party.
(vii) Except as set forth in the Specified IP
Sections in the Registration Statement or in the Prospectus
and except for trademarks and service marks that have been
abandoned by the Company and matters otherwise disclosed in
such opinion, to the knowledge of such counsel, the Company
has received no notice challenging the validity, scope or
enforceability of any of the patents, trademarks or service
marks owned or licensed by the Company.
(viii) In addition, such counsel shall state that,
in connection with the preparation of the Registration
Statement and the Prospectus, such counsel has participated
in conferences with officers and representatives of the
Company, corporate counsel for the Company the Underwriters
and counsel for the Underwriters, at which conferences the
contents of the Specified IP Sections were discussed; and
although such counsel is not passing upon and does not assume
any responsibility for the accuracy, completeness or fairness
of the statements contained therein, and such counsel makes
no representation that it has verified independently the
accuracy, completeness or fairness of such statements, on the
basis of the foregoing and the information disclosed to such
counsel (relying as to materiality on the officers and other
representatives of the Company), (a) no facts have come to
the attention of such counsel which have caused such counsel
to believe that the contents of the Specified IP Section in
the Registration Statement,
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<PAGE> 22
as of the time the Registration Statement became effective
under the Act, contained any untrue statement of a material
fact or omitted to state any material fact required to be
stated therein or necessary in order to make the statements
therein not misleading, and (b) no facts have come to the
attention of such counsel which have caused such counsel to
believe that the contents of the Specified IP Section in the
Registration Statement, as of the time the Registration
Statement was filed with the Securities and Exchange
Commission, contained any untrue statement of a material fact
or omitted to state any material fact required to be stated
therein or necessary in order to make the statements therein
not misleading.
In rendering any such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deems proper, on certificates of
responsible officers of the Company and public officials.
(g) The Representatives shall have received from Testa,
Hurwitz & Thibeault, LLP, 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 request for the purpose of enabling them to pass
upon such matters.
(h) The Representatives shall have received a
certificate, dated such Closing Date, of the President or any Vice
President and the 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; 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,
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.
(i) On or prior to the date of this Agreement, the
Representatives shall have received lock-up letters from each of the
executive officers, directors, and stockholders of the Company.
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<PAGE> 23
(j) The Representatives shall have received a letter,
dated such Closing Date, of Ernst & Young 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.
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 the Representatives 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.
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 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, 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.
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<PAGE> 24
(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 concession and reallowance figures appearing in the
fourth paragraph under the caption "Underwriting" and the information
contained in the eighth and ninth paragraphs under the caption
"Underwriting"; and (ii) the following information in the Prospectus
furnished on behalf of Deutsche Banc Securities, Inc.: "Deutsche Bank
Securities Inc. and its affiliates beneficially own an aggregate of
440,000 shares of our preferred stock which will automatically convert
into 440,000 shares of common stock upon the closing of this offering.
Deutsche Bank Securities Inc. holds a 5.97% interest in Telesoft
Partners IA, L.P. which holds 2,731,427 shares of our preferred stock
which will automatically convert into 2,731,427 shares of common stock
upon the closing of this offering."
(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
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<PAGE> 25
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 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 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
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<PAGE> 26
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,
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
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<PAGE> 27
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 Triton Network Systems,
Inc., 8529 South Park Circle, Orlando, FL 32819, Attention: Chief Financial
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 this financing, 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.
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.
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<PAGE> 28
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,
TRITON NETWORK SYSTEMS, INC.
By:
----------------------------------
Title:
-------------------------------
The foregoing Underwriting Agreement
is hereby confirmed and accepted
as of the date first above
written.
CREDIT SUISSE FIRST BOSTON CORPORATION
DEUTSCHE BANK SECURITIES, INC.
U.S. BANCORP PIPER JAFFRAY INC.
Acting on behalf of themselves and
as the Representatives of the
several Underwriters
By CREDIT SUISSE FIRST BOSTON
CORPORATION
By:
----------------------------------
Title:
-------------------------------
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<PAGE> 29
SCHEDULE A
[NUMBER OF]
UNDERWRITER FIRM SECURITIES
----------- ---------------
Credit Suisse First Boston Corporation....................
---------------
Deutsche Bank Securities, Inc.............................
---------------
U.S. Bancorp Piper Jaffray Inc............................
Total..............
===============
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