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Exhibit 1.1
__________ SHARES
REPEATER TECHNOLOGIES, INC.
COMMON STOCK
PURCHASE AGREEMENT
_________ ___, 2000
U.S. BANCORP PIPER JAFFRAY
Banc of America Securities LLC
As Representatives of the several
Underwriters named in Schedule I hereto
c/o U.S. Bancorp Piper Jaffray
U.S. Bancorp Center
800 Nicollet Mall
Minneapolis, Minnesota 55402
Ladies and Gentlemen:
Repeater Technologies, Inc., a Delaware corporation (the
"Company") proposes to sell to the several Underwriters named in Schedule I
hereto (the "Underwriters") an aggregate of __________ shares (the "Firm
Shares") of the Company's common stock, $0.001 par value per share (herein
called "Common Stock"). The Firm Shares consist of __________ shares of
authorized but unissued shares of Common Stock to be issued and sold by the
Company. The Company has also granted to the several Underwriters an option to
purchase up to __________ additional shares of Common Stock on the terms and for
the purposes set forth in Section 3 hereof (the "Option Shares"). The Firm
Shares and any Option Shares purchased pursuant to this Purchase Agreement are
herein collectively called the "Securities."
The Company hereby confirms its agreement with respect to the
sale of the Securities to the several Underwriters, for whom you are acting as
Representatives (the "Representatives").
As part of the offering contemplated by this Agreement, U.S.
Bancorp Piper Jaffray (the "Designated Underwriter") has agreed to reserve out
of the Firm Shares purchased by it under this Agreement, up to ____________
shares, for sale to the Company's directors, officers, employees, customers,
vendors and other parties associated with the Company (collectively,
"Participants"), as set forth in the Prospectus (as defined herein) under the
heading "Underwriters" (the "Directed Share Program"). The Firm Shares 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
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Shares not orally confirmed for purchase by a Participant 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.
1. Registration Statement and Prospectus. A registration
statement on Form S-1 (File No. 333-31266) with respect to the Securities,
including a preliminary form of prospectus, has been prepared by the Company in
conformity with the requirements of the Securities Act of 1933, as amended (the
"Act"), and the rules and regulations ("Rules and Regulations") of the
Securities and Exchange Commission (the "Commission") thereunder and has been
filed with the Commission; one or more amendments to such registration statement
have also been so prepared and have been, or will be, so filed; and, if the
Company has elected to rely upon Rule 462(b) of the Rules and Regulations to
increase the size of the offering registered under the Act, the Company will
prepare and file with the Commission a registration statement with respect to
such increase pursuant to Rule 462(b). Copies of such registration statement(s)
and amendments and each related preliminary prospectus have been, or will be,
delivered to you promptly.
If the Company has elected not to rely upon Rule 430A of the
Rules and Regulations, the Company has prepared and will promptly file an
amendment to the registration statement and an amended prospectus (including a
term sheet meeting the requirements of Rule 434 of the Rules and Regulations).
If the Company has elected to rely upon Rule 430A of the Rules and Regulations,
it will prepare and file a prospectus (or a term sheet meeting the requirements
of Rule 434) pursuant to Rule 424(b) that discloses the information previously
omitted from the prospectus in reliance upon Rule 430A. Such registration
statement as amended at the time it is or was declared effective by the
Commission, and, in the event of any amendment thereto after the effective date
and prior to the First Closing Date (as hereinafter defined), such registration
statement as so amended (but only from and after the effectiveness of such
amendment), including a registration statement (if any) filed pursuant to Rule
462(b) of the Rules and Regulations increasing the size of the offering
registered under the Act and information (if any) deemed to be part of the
registration statement at the time of effectiveness pursuant to Rules 430A(b)
and 434(d) of the Rules and Regulations, is hereinafter called the "Registration
Statement." The prospectus included in the Registration Statement at the time it
is or was declared effective by the Commission is hereinafter called the
"Prospectus," except that if any prospectus (including any term sheet meeting
the requirements of Rule 434 of the Rules and Regulations provided by the
Company for use with a prospectus subject to completion within the meaning of
Rule 434 in order to meet the requirements of Section 10(a) of the Rules and
Regulations) filed by the Company with the Commission pursuant to Rule 424(b)
(and Rule 434, if applicable) of the Rules and Regulations or any other such
prospectus provided to the Underwriters by the Company for use in connection
with the offering of the Securities (whether or not required to be filed by the
Company with the Commission pursuant to Rule 424(b) of the Rules and
Regulations) differs from the prospectus on file at the time the Registration
Statement is or was declared effective by the Commission, the term "Prospectus"
shall refer to such differing prospectus (including any term sheet within the
meaning of Rule 434 of the Rules and Regulations) from and after the time such
prospectus is filed with the Commission or transmitted to the Commission for
filing pursuant to such Rule 424(b) (and Rule 434, if applicable) or from and
after the time it is first provided to the Underwriters by the Company for such
use. The term "Preliminary Prospectus" as used herein means any preliminary
prospectus included in the
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Registration Statement prior to the time it becomes or became effective under
the Act and any prospectus subject to completion as described in Rule 430A or
434 of the Rules and Regulations.
2. Representations and Warranties of the Company.
(a) The Company represents and warrants to, and agrees with, the
several Underwriters as follows:
(i) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission and each Preliminary
Prospectus, at the time of filing thereof, did not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
except that the foregoing shall not apply to statements in or omissions
from any Preliminary Prospectus in reliance upon, and in conformity
with, written information furnished to the Company by you, or by any
Underwriter through you, specifically for use in the preparation
thereof.
(ii) As of the time the Registration Statement (or any
post-effective amendment thereto, including a registration statement (if
any) filed pursuant to Rule 462(b) of the Rules and Regulations
increasing the size of the offering registered under the Act) is or was
declared effective by the Commission, upon the filing or first delivery
to the Underwriters of the Prospectus (or any supplement to the
Prospectus (including any term sheet meeting the requirements of Rule
434 of the Rules and Regulations)) and at the First Closing Date and
Second Closing Date (as hereinafter defined), (A) the Registration
Statement and the Prospectus (in each case, as so amended and/or
supplemented) conformed or will conform in all material respects to the
requirements of the Act and the Rules and Regulations, (B) the
Registration Statement (as so amended) did not or will not include an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, and (C) the Prospectus (as so supplemented) did
not or will not include an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances in which they
are or were made, not misleading; except that the foregoing shall not
apply to statements in or omissions from any such document in reliance
upon, and in conformity with, written information furnished to the
Company by you, or by any Underwriter through you, specifically for use
in the preparation thereof. If the Registration Statement has been
declared effective by the Commission, no stop order suspending the
effectiveness of the Registration Statement has been issued, and no
proceeding for that purpose has been initiated or, to the Company's
knowledge, threatened by the Commission.
(iii) The financial statements of the Company, together with the
notes thereto, set forth in the Registration Statement and the
Prospectus comply in all material respects with the requirements of the
Act and fairly present the financial condition of the Company as of the
dates shown and the results of operations and changes in cash flows for
the periods therein specified in conformity with United States generally
accepted
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accounting principles consistently applied throughout the periods
involved; and the supporting schedules included in the Registration
Statement present fairly the information required to be stated therein.
No other financial statements or schedules are required to be included
in the Registration Statement or Prospectus. PricewaterhouseCoopers LLP,
which has expressed its opinion with respect to the financial statements
and schedules filed as a part of the Registration Statement and included
in the Registration Statement and the Prospectus, are independent public
accountants as required by the Act and the Rules and Regulations. The
summary financial and other data included in the Registration Statement
and the Prospectus present fairly the information shown therein and have
been compiled on a basis consistent with the financial statements
presented therein.
(iv) The Company has been duly organized and is validly existing
as a corporation in good standing under the laws of its jurisdiction of
incorporation. The Company has full corporate power and authority to own
its properties and conduct its business as currently being carried on
and as described in the Registration Statement and the Prospectus, and
is duly qualified to do business as a foreign corporation in good
standing in each jurisdiction in which it owns or leases real property
or in which the conduct of its business makes such qualification
necessary and in which the failure to so qualify would have a material
adverse effect on the assets or properties, business, results of
operations, or condition (financial or otherwise) of the Company (a
"Material Adverse Effect").
(v) The Company has no significant subsidiaries as that term is
defined by Rule 1-02 of Regulation S-X.
(vi) Except as contemplated in the Registration Statement and the
Prospectus, subsequent to the date of the latest audited financial
statements included in the Prospectus, the Company and its subsidiaries
have not incurred any material liabilities or obligations, direct or
contingent, or entered into any material transactions, or declared or
paid any dividends or made any distribution of any kind with respect to
its capital stock; and there has not been any change in the capital
stock (other than a change in the number of outstanding Common Stock due
to the issuance of shares upon the exercise of outstanding options or
warrants or conversion of preferred stock), or any material change in
the short-term or long-term debt, or any issuance of options, warrants,
convertible securities or other rights to purchase the capital stock
(other than pursuant to the Company's equity incentive plans, which
change is not material), of the Company and its subsidiaries or any
change that had a Material Adverse Effect, or any development involving
a prospective Material Adverse Effect.
(vii) Except as set forth in the Registration Statement and the
Prospectus, there is not pending or, to the knowledge of the Company,
threatened or contemplated, any action, suit or proceeding to which the
Company or any of its subsidiaries is a party, or to which any property
or assets of the Company or any of its subsidiaries is subject, before
or by any court or governmental agency, authority or body, or any
arbitrator, which could reasonably be expected to result in a Material
Adverse Effect.
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(viii) There are no contracts or documents of the Company or any
of it is subsidiaries that are required to be described in the
Prospectus or to be filed as exhibits to the Registration Statement by
the Act or by the Rules and Regulations that have not been so described
or filed.
(ix) This Agreement has been duly authorized, executed and
delivered by the Company, and constitutes a valid, legal and binding
obligation of the Company, enforceable in accordance with its terms,
except as rights to indemnity hereunder may be limited by federal or
state securities laws and except as such enforceability may be limited
by bankruptcy, insolvency, reorganization or similar laws affecting the
rights of creditors generally and subject to general principles of
equity. The execution, delivery and performance of this Agreement and
the consummation of the transactions herein contemplated (including,
without limitation, the issuance and sale of the 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 agreement or instrument
to which the Company or any of its subsidiaries is a party or by which
they are bound or to which any of their property is subject, the
Company's charter or by-laws, or any order, rule, regulation or decree
of any court or governmental agency or body having jurisdiction over the
Company, its subsidiaries or any of its properties; no consent,
approval, authorization or order of, or filing with, any court or
governmental agency or body is required for the execution, delivery and
performance of this Agreement or for the consummation of the
transactions contemplated hereby, including the issuance or sale of the
Securities by the Company, except such as may be required under the Act
or state securities or blue sky laws; and the Company has full power and
authority to enter into this Agreement and to authorize, issue and sell
the Securities as contemplated by this Agreement.
(x) All of the issued and outstanding shares of capital stock of
the Company, including the outstanding shares of Common Stock, are duly
authorized and validly issued, fully paid and nonassessable, have been
issued in compliance with all federal and state securities laws, were
not issued in violation of or subject to any preemptive rights or other
rights to subscribe for or purchase securities that were not waived and
the capital stock of the Company, including the Common Stock, conforms
to the description thereof in the Registration Statement and Prospectus.
Except as otherwise stated in the Registration Statement and Prospectus,
there are no preemptive rights or other rights to subscribe for or to
purchase, or any restriction upon the voting or transfer of, any shares
of Common Stock pursuant to the Company's charter, bylaws or any
agreement or other instrument to which the Company is a party or by
which the Company is bound that does not expire upon the closing of the
sale of the Firm Shares. Except as described in the Registration
Statement and the Prospectus, there are no options, warrants,
agreements, contracts or other rights in existence to purchase or
acquire from the Company or any subsidiary of the Company any shares of
the capital stock of the Company or any subsidiary of the Company. The
Company has an authorized and outstanding capitalization as of March 31,
2000 as set forth in the Registration Statement and the Prospectus.
(xi) The Securities have been duly authorized and, when issued,
delivered and paid for in accordance with the terms hereof, will have
been validly issued and will be
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fully paid and nonassessable, and the holders thereof will not be
subject to personal liability by reason of being such holders, and
conforms to the description thereof in the Registration Statement and
the Prospectus. No further approval or authority of the stockholders of
the Company or the Board of Directors of the Company is required for the
sale and issuance of the Securities hereunder.
(xii) Neither the filing of the Registration Statement nor the
offering or sale of the Securities as contemplated by this Agreement
gives rise to any rights for or relating to the registration of any
Common Stock or other securities of the Company and no person or entity
holds a right to require registration under the Securities Act of shares
of capital stock of the Company at any other time, except as disclosed
in the Registration Statement and the Prospectus.
(xiii) The Company and its subsidiaries hold, and are operating
in compliance in all material respects with, all franchises, grants,
authorizations, licenses, permits, easements, consents, certificates and
orders of any governmental or self-regulatory body required for the
conduct of their business and all such franchises, grants,
authorizations, licenses, permits, easements, consents, certifications
and orders are valid and in full force and effect except where failure
to comply or hold any such franchise, grant, authorization, license,
permit, easement, consent, certificate or order would not have a
Material Adverse Effect; and the Company and its subsidiaries are in
compliance in all material respects with all applicable federal, state,
local and foreign laws, regulations, orders and decrees.
(xiv) The Company and its subsidiaries have good and marketable
title to all property described in the Registration Statement and the
Prospectus as being owned by them, in each case free and clear of all
liens, claims, security interests or other encumbrances except such as
are described in the Registration Statement and the Prospectus; the
property held under lease by the Company and its subsidiaries is held
under valid, subsisting and enforceable leases with only such exceptions
with respect to any particular lease as do not interfere in any material
respect with the conduct of the business of the Company or its
subsidiaries.
(xv) The Company and its subsidiaries own, or possess, license
or have other rights to use, on reasonable terms, all patents, patent
applications, trademarks, service marks, tradenames, trademark
registrations, service mark registrations, copyrights, licenses,
inventions, trade secrets, know-how, proprietary techniques, processes
and rights (collectively, the "Intellectual Property") necessary for the
conduct of the business of the Company as currently carried on
(including products, services and technology contemplated by current
research and development projects) and as described in the Registration
Statement and the Prospectus. Except as stated in the Registration
Statement and the Prospectus, no name that the Company or any of its
subsidiaries uses and no other aspect of the business of the Company or
any of its subsidiaries infringes, or requires the payment of license or
similar fees for, any Intellectual Property of others material to the
business or prospects of the Company and neither the Company nor any of
its subsidiaries has received any notice alleging any such infringement
or fee. To the knowledge of the Company, its Intellectual Property is
not being infringed by any third
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parties which infringement could reasonably be expected, whether singly
or in the aggregate, to have a Material Adverse Effect.
(xvi) Neither the Company nor any of its subsidiaries is (i) in
violation of its charter or bylaws (ii) in breach of or otherwise in
default in the performance of any obligation, agreement or condition
contained in any bond, debenture, note, indenture, loan agreement or any
other contract, lease or other instrument to which it is subject or by
which it may be bound, or to which any of the property or assets of the
Company or such subsidiary is subject, nor has any event occurred that
with notice and/or the passage of time would give rise to such a breach
or default or (iii) in violation of any law, ordinance, government rule,
regulation or court order or decree to which it is subject or by which
it may be bound or to which any of the property or assets of the Company
or its subsidiaries are subject, except in the case of clauses (ii) and
(iii) for such breaches, defaults or violations that individually or in
the aggregate would not have a Material Adverse Effect.
(xvii) The Company has filed all federal, state, local and
foreign income and franchise tax returns required to be filed and is not
in default in the payment of any taxes that were payable pursuant to
said returns or any assessments with respect thereto, other than any
that the Company is contesting in good faith.
(xviii)The Company has not distributed and will not distribute
any prospectus or other offering material in connection with the
offering and sale of the Securities other than any Preliminary
Prospectus or the Prospectus or other materials permitted by the Act to
be distributed by the Company.
(xix) The Securities have been duly authorized for quotation on
the Nasdaq National Market, subject to official notice of issuance, and,
on the date the Registration Statement became or becomes effective, the
Company's Registration Statement on Form 8-A or other applicable form
under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), became or will become effective.
(xx) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management's general or
specific authorization; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for
assets; (iii) access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the recorded
accountability for assets is compared with existing assets at reasonable
intervals and appropriate action is taken with respect to any
differences.
(xxi) Other than as contemplated by this Agreement, the Company
has not incurred any liability for any finder's or broker's fee or
agent's commission in connection with the execution and delivery of this
Agreement or the consummation of the transactions contemplated hereby
and, except as disclosed in the Prospectus and the Registration
Statement, there are no contracts, agreements or understandings between
the Company and any person that would give rise to any such liability.
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(xxii) Neither the Company nor any of its affiliates is presently
doing business with the government of Cuba or with any person or
affiliate located in Cuba.
(xxiii) No labor dispute with the employees of the Company or any
of its subsidiaries exists or, to the knowledge of the Company, is
threatened that could have a Material Adverse Effect. The Company has
not violated any applicable safety or similar law applicable to its
business nor any federal or state law relating to discrimination in the
hiring, promotion or pay of employees, nor any applicable federal or
state wage and hours law, nor any provisions of the Employee Retirement
Income Security Act or the rules and regulations promulgated thereunder,
the violation of any of which could have a Material Adverse Effect. The
Company is not aware of any existing, threatened or imminent labor
disturbance by the employees of any of its principal supplies
manufacturers or contractors that could have a Material Adverse Effect.
The Company is not aware of any threatened or pending litigation between
the Company and any of its executive officers that, if adversely
determined, could have a Material Adverse Effect.
(xxiv) No transaction has occurred or relationship, direct or
indirect, exists between or among the Company and any of its officers or
directors or any affiliate or affiliates of any such officer or director
that is required to be described in and is not described in the
Registration Statement and the Prospectus.
(xxv) The Company is in compliance in all material respects with
all presently applicable provisions of the Employee Retirement Income
Security Act of 1974, as amended, including the regulations and
published interpretations thereunder ("ERISA"); no "reportable event"
(as defined in ERISA) has occurred with respect to any "pension plan"
(as defined in ERISA) for which the Company would have any liability;
the Company has not incurred and does not expect to incur liability
under (A) Title IV of ERISA with respect to termination of, or
withdrawal from any "pension plan" or (B) Sections 412 or 4971 of the
Internal Revenue Code of 1986, as amended, including the regulations and
published interpretations thereunder (the "Code"); and each "pension
plan" for which the Company would have any liability that is intended to
be qualified under Section 401(a) of the Code is so qualified in all
material respects and nothing has occurred, whether by action or by
failure to act, which would cause the loss of such qualification.
(xxvi) The Company and its subsidiaries are insured by insurers
of recognized financial responsibility against such losses and risks in
such amounts as are customary in the business in which it is engaged;
and the Company has no reason to believe that it will not be able to
renew such 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.
(xxvii)The Company is not and, after giving effect to the sale
and issuance of the Securities and the application of the proceeds
thereof as described in the Prospectus, will not be an "investment
company" or a company "controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940, as amended, and the rules
and regulations thereunder (the "Investment Company Act").
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(xxviii) Neither the Company nor, to the knowledge of the
Company, any other person associated with or acting on behalf of the
Company including, without limitation, any director, officer, agent or
employee of the Company has, directly or indirectly, while acting on
behalf of the Company or any of its subsidiaries, (i) used any corporate
funds for unlawful contributions, gifts, entertainment or other unlawful
expenses relating to political activity; (ii) made any unlawful payment
to foreign or domestic government officials or employees or to foreign
or domestic political parties or campaigns from corporate funds; (iii)
violated any provision of the Foreign Corrupt Practices Act of 1977, as
amended; or (iv) made any bribe, rebate, payoff, influence payment,
kickback or other unlawful payment.
(xxix) The Company has reviewed its operations and any third
parties with which the Company has a material relationship to evaluate
the extent to which the business or operations of the Company or any of
its subsidiaries will be affected by the Year 2000 Problem (defined
below). As a result of such review, the Company has no reason to
believe, and does not believe, that the Year 2000 Problem will have a
Material Adverse Effect. The "Year 2000 Problem" as used herein means
any significant risk that computer hardware or software used in the
receipt, transmission, processing, manipulation, storage, retrieval,
retransmission or other utilization of data or in the operation of
mechanical or electrical systems of any kind will not, in the case of
dates or time periods occurring after December 31, 1999, function at
least as effectively as in the case of dates or time periods occurring
prior to January 1, 2000.
(xxx) The Company has not offered, or caused the Underwriters to
offer, any Securities to any person pursuant to the Directed Share
Program with the specific intent to unlawfully influence (i) a customer,
vendor or supplier of the Company to alter the customer's, vendor'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.
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.
(b) Any certificate signed by any officer of the Company and
delivered to you or to counsel pursuant to this Agreement shall be deemed a
representation and warranty by the Company to each Underwriter as to the matters
covered thereby.
3. Purchase, Sale and Delivery of Securities.
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(a) On the basis of the representations, warranties and
agreements herein contained, but subject to the terms and conditions herein set
forth, the Company agrees to issue and sell __________ Firm Shares to the
several Underwriters, and each Underwriter agrees, severally and not jointly, to
purchase from the Company the number of Firm Shares set forth opposite the name
of such Underwriter in Schedule I hereto. The purchase price for each Firm Share
shall be $_____ per share. The obligation of each Underwriter to the Company
shall be to purchase from the Company that number of Firm Shares set forth
opposite the name of such Underwriter in Schedule I hereto. In making this
Agreement, each Underwriter is contracting severally and not jointly; except as
provided in paragraph (c) of this Section 3 and in Section 8 hereof, the
agreement of each Underwriter is to purchase only the respective number of Firm
Shares specified in Schedule I.
The Firm Shares will be delivered by the Company to you for the
accounts of the several Underwriters against payment of the purchase price
therefor by certified or official bank check or other next day funds payable to
the order of the Company, as appropriate, at the offices of U.S. Bancorp Piper
Jaffray, U.S. Bancorp Center, 800 Nicollet Mall, Minneapolis, Minnesota, or such
other location as may be mutually acceptable, at 9:00 a.m. Central time on the
third (or if the Securities are priced, as contemplated by Rule 15c6-1(c) under
the Exchange Act, after 4:30 p.m. Eastern time, the fourth) full business day
following the date hereof, or at such other time and date as you and the Company
determine pursuant to Rule 15c6-1(a) under the Exchange Act, such time and date
of delivery being herein referred to as the "First Closing Date." If the
Representatives so elect, delivery of the Firm Shares may be made by credit
through full fast transfer to the accounts at The Depository Trust Company
designated by the Representatives. Certificates representing the Firm Shares, in
definitive form and in such denominations and registered in such names as you
may request upon at least two business days' prior notice to the Company, will
be made available for checking and packaging not later than 10:30 a.m., Central
time, on the business day next preceding the First Closing Date at the offices
of U.S. Bancorp Piper Jaffray, U.S. Bancorp Center, 800 Nicollet Mall,
Minneapolis, Minnesota, or such other location as may be mutually acceptable.
(b) On the basis of the representations, warranties and
agreements herein contained, but subject to the terms and conditions herein set
forth, the Company hereby grants to the several Underwriters an option to
purchase all or any portion of the Option Shares at the same purchase price as
the Firm Shares, for use solely in covering any over-allotments made by the
Underwriters in the sale and distribution of the Firm Shares. The option granted
hereunder may be exercised at any time (but not more than once) within 30 days
after the effective date of this Agreement upon notice (confirmed in writing) by
the Representatives to the Company setting forth the aggregate number of Option
Shares as to which the several Underwriters are exercising the option, the names
and denominations in which the certificates for the Option Shares are to be
registered and the date and time, as determined by you, when the Option Shares
are to be delivered, such time and date being herein referred to as the "Second
Closing" and "Second Closing Date", respectively; provided, however, that the
Second Closing Date shall not be earlier than the First Closing Date nor earlier
than the second business day after the date on which the option shall have been
exercised. The number of Option Shares to be purchased by each Underwriter shall
be the same percentage of the total number of Option Shares to be purchased by
the several Underwriters as the number of Firm Shares to be purchased by such
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Underwriter is of the total number of Firm Shares to be purchased by the several
Underwriters, as adjusted by the Representatives in such manner as the
Representatives deem advisable to avoid fractional shares. No Option Shares
shall be sold and delivered unless the Firm Shares previously have been, or
simultaneously are, sold and delivered.
The Option Shares will be delivered by the Company to you for the
accounts of the several Underwriters against payment of the purchase price
therefor by certified or official bank check or wire transfer or other next day
funds payable to the order of the Company, as appropriate, at the offices of
U.S. Bancorp Piper Jaffray, U.S. Bancorp Center, 800 Nicollet Mall, Minneapolis,
Minnesota, or such other location as may be mutually acceptable at 9:00 a.m.,
Central time, on the Second Closing Date. If the Representatives so elect,
delivery of the Option Shares may be made by credit through full fast transfer
to the accounts at The Depository Trust Company designated by the
Representatives. Certificates representing the Option Shares in definitive form
and in such denominations and registered in such names as you have set forth in
your notice of option exercise, will be made available for checking and
packaging not later than 10:30 a.m., Central time, on the business day next
preceding the Second Closing Date at the office of U.S. Bancorp Piper Jaffray,
U.S. Bancorp Center, 800 Nicollet Mall, Minneapolis, Minnesota, or such other
location as may be mutually acceptable.
(c) It is understood that you, individually and not as
Representatives of the several Underwriters, may (but shall not be obligated to)
make payment to the Company, on behalf of any Underwriter for the Securities to
be purchased by such Underwriter. Any such payment by you shall not relieve any
such Underwriter of any of its obligations hereunder. Nothing herein contained
shall constitute any of the Underwriters an unincorporated association or
partner with the Company.
4. Covenants. The Company covenants and agrees with the several
Underwriters as follows:
(a) If the Registration Statement has not already been declared
effective by the Commission, the Company will use its best efforts to cause the
Registration Statement and any post-effective amendments thereto to become
effective as promptly as possible; the Company will notify you promptly of the
time when the Registration Statement or any post-effective amendment to the
Registration Statement has become effective or any supplement to the Prospectus
(including any term sheet within the meaning of Rule 434 of the Rules and
Regulations) has been filed and of any request by the Commission for any
amendment or supplement to the Registration Statement or the Prospectus or
additional information; if the Company has elected to rely on Rule 430A of the
Rules and Regulations, the Company will prepare and file a Prospectus (or term
sheet within the meaning of Rule 434 of the Rules and Regulations) containing
the information omitted therefrom pursuant to Rule 430A of the Rules and
Regulations with the Commission within the time period required by, and
otherwise in accordance with the provisions of, Rules 424(b), 430A and 434, if
applicable, of the Rules and Regulations; if the Company has elected to rely
upon Rule 462(b) of the Rules and Regulations to increase the size of the
offering registered under the Act, the Company will prepare and file a
registration statement with respect to such increase with the Commission within
the time period required by, and otherwise in accordance with the provisions of,
Rule 462(b); the Company will prepare and file with the Commission, promptly
upon your request, any amendments or
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<PAGE> 12
supplements to the Registration Statement or the Prospectus (including any term
sheet within the meaning of Rule 434 of the Rules and Regulations) that, in your
opinion, may be necessary or advisable in connection with the distribution of
the Securities by the Underwriters; and the Company will not file any amendment
or supplement to the Registration Statement or Prospectus (including any term
sheet within the meaning of Rule 434 of the Rules and Regulations) to which you
shall reasonably object by notice to the Company after having been furnished a
copy a reasonable time prior to the filing.
(b) The Company will advise you, promptly after it shall receive
notice or obtain knowledge thereof, of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement, of the
suspension of the qualification of the Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceeding for any such
purpose; and the Company will promptly use its best efforts to prevent the
issuance of any stop order or to obtain its withdrawal if such a stop order
should be issued.
(c) Within the time during which a prospectus (including any term
sheet within the meaning of Rule 434 of the Rules and Regulations) relating to
the Securities is required to be delivered under the Act, the Company will
comply as far as it is able with all requirements imposed upon it by the Act, as
now and hereafter amended, and by the Rules and Regulations, as from time to
time in force, so far as necessary to permit the continuance of sales of or
dealings in the Securities as contemplated by the provisions hereof and the
Prospectus. If during such period any event occurs as a result of which the
Prospectus would include an untrue statement of a material fact or omit to state
a material fact necessary to make the statements therein, in the light of the
circumstances then existing, not misleading, or if during such period it is
necessary to amend the Registration Statement or supplement the Prospectus to
comply with the Act, the Company will promptly notify you and will forthwith
amend the Registration Statement or supplement the Prospectus (at the expense of
the Company) so as to correct such statement or omission or effect such
compliance.
(d) The Company will use its best efforts to qualify the
Securities for sale under the securities laws of such jurisdictions as you
reasonably designate and to continue such qualifications in effect so long as
required for the distribution of the Securities, except that the Company shall
not be required in connection therewith to qualify as a foreign corporation or
to execute a general consent to service of process in any state. The Company
will, from time to time, prepare and file such statements, reports, and other
documents as are or may be required to continue such qualifications in effect
for so long a period as you may reasonably request for distribution of the
Securities.
(e) The Company will furnish to the Underwriters copies of the
Registration Statement (five of which will be signed and will include all
exhibits), each Preliminary Prospectus, the Prospectus, and all amendments and
supplements (including any term sheet within the meaning of Rule 434 of the
Rules and Regulations) to such documents, in each case as soon as available and
in such quantities as you may from time to time reasonably request for up to six
months after the latest Closing Date. 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 date of the
Registration Statement. All other documents shall be so furnished promptly after
they become available. Prior to the filing thereof with the
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<PAGE> 13
Commission, the Company will submit to you, for your information, a copy of any
post-effective amendment to the Registration Statement and any supplement to the
Prospectus or any amended prospectus proposed to be filed. The Company will pay
the expenses of printing and distributing to the Underwriters all such
documents.
(f) During a period of five years commencing with the date
hereof, 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) promptly after they become
available, a copy of each report furnished to the stockholders of the Company
and all information, documents and reports filed with the Commission under the
Exchange Act or any rule or regulation of the Commission thereunder or furnished
to the National Association of Securities Dealers, Inc., NASDAQ or any
securities exchange, and (ii) from time to time, such other information
concerning the Company as U.S. Bancorp Piper Jaffray may reasonably request.
(g) The Company will make generally available to its security
holders as soon as practicable, but in any event not later than 15 months after
the end of the Company's current fiscal quarter, an earnings statement (which
need not be audited) covering a 12-month period beginning after the effective
date of the Registration Statement that shall satisfy the provisions of Section
11(a) of the Act and Rule 158 of the Rules and Regulations.
(h) The Company, whether or not the transactions contemplated
hereunder are consummated or this Agreement is prevented from becoming effective
under the provisions of Section 9(a) hereof or is terminated, will pay or cause
to be paid (A) all expenses (including transfer taxes allocated to the
respective transferees) incurred in connection with the delivery to the
Underwriters of the Securities, (B) all expenses and fees (including, without
limitation, fees and expenses of the Company's accountants and counsel but,
except as otherwise provided below, not including fees of the Underwriters'
counsel) in connection with the preparation, printing, filing, delivery, and
shipping of the Registration Statement (including the financial statements
therein and all amendments, schedules, and exhibits thereto), the Securities,
each Preliminary Prospectus, the Prospectus, and any amendment thereof or
supplement thereto, and the printing, delivery, and shipping of this Agreement
and other underwriting documents, including Blue Sky Memoranda, (C) all filing
fees and fees and disbursements of the Underwriters' counsel incurred in
connection with the qualification of the Securities for offering and sale by the
Underwriters or by dealers under the securities or blue sky laws of the states
and other jurisdictions which you shall designate in accordance with Section
4(c) hereof, (D) the fees and expenses of any transfer agent or registrar, (E)
the filing fees and other fees and expenses (including, without limitation, the
reasonable fees and disbursements of the underwriters' counsel) incident to any
required review by the National Association of Securities Dealers, Inc. of the
terms of the sale of the Securities, (F) listing fees, if any, (G) all fees and
disbursements of special or local counsel incurred by the Underwriters in
connection with the Directed Share Program and stamp charities, similar taxes or
duties or other taxes, if any, incurred by the Underwriters is connection with
the Directed Share Program and (H) all other costs and expenses incident to the
performance of their obligations hereunder that are not otherwise specifically
provided for herein. If the sale of the Securities provided for herein is not
consummated by reason of action by the Company pursuant to Section 9(a) hereof
which prevents this Agreement
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<PAGE> 14
from becoming effective, or by reason of any failure, refusal or inability on
the part of the Company or any of its subsidiaries to perform any agreement on
its or their part to be performed, or because any other condition of the
Underwriters' obligations hereunder required to be fulfilled by the Company is
not fulfilled, the Company will reimburse the several Underwriters for all
out-of-pocket disbursements (including fees and disbursements of counsel)
incurred by the Underwriters in connection with their investigation, preparing
to market and marketing the Securities or in contemplation of performing their
obligations hereunder. The Company shall not in any event be liable to any of
the Underwriters for loss of anticipated profits from the transactions covered
by this Agreement.
(i) The Company will apply the net proceeds from the sale of the
Securities to be sold by it hereunder for the purposes set forth in the
Prospectus and will file such reports with the Commission with respect to the
sale of the Securities and the application of the proceeds therefrom as may be
required in accordance with Rule 463 of the Rules and Regulations.
(j) The Company will not, without the prior written consent of
U.S. Bancorp Piper Jaffray, Inc., from the date of execution of this Agreement
and continuing to and including the date 180 days after the date of the
Prospectus (the "Lock-Up Period") offer for sale, sell, contract to sell,
pledge, grant any option for the sale of or otherwise issue or dispose of or
enter into any transaction which is designed to, or might reasonably be expected
to, result in the disposition (whether by actual disposition or effective
economic disposition due to cash settlement or otherwise) by the Company or any
affiliate of the Company, directly or indirectly (or publicly disclose the
intention to make any such offer, sale, pledge, grant, issuance or disposition),
any Common Stock or any securities convertible into or exchangeable for, or any
options or rights to purchase or acquire, Common Stock, except to the
Underwriters pursuant to this Agreement and except for (i) the issuance of
Common Stock pursuant to any employee stock option plan, stock ownership plan or
dividend reinvestment plan in effect on the date hereof and pursuant to the
conversion of securities or the exercise of stock options or warrants
outstanding on the date hereof, or (ii) from and after the date that is 75 days
after the date of the Prospectus, the issuance of any Common Stock or any
securities convertible into or exchangeable for, or any options or rights to
purchase or acquire, Common Stock, in connection with a merger or an
acquisitions of assets; provided that all persons that are issued such Common
Stock, securities, options or rights in connection with such merger or asset
acquisition agree not to offer for sale, sell, contract to sell, pledge, grant
any option for the sale of or otherwise dispose of such securities for the
period beginning from the date of acquisition of such securities and continuing
and including the date 180 days after the date of the Prospectus. The Company
agrees not to accelerate the vesting of any option or warrant or the lapse of
any repurchase right prior to the expiration of the Lock-Up Period.
(k) The Company either has caused to be delivered to you or will
cause to be delivered to you prior to the effective date of the Registration
Statement a signed letter in substantially the form of Exhibit A hereto (the
"Lock-Up Agreement") from each of the Company's directors, officers and
substantially all holders of the Company's capital stock and substantially all
holders of securities convertible into or exercisable for shares of the
Company's capital stock.
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<PAGE> 15
(l) The Company has not taken and will not take, directly or
indirectly, any action designed to or that might reasonably be expected to cause
or result in, or which has constituted, the stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the
Securities, and has not effected any sales of Common Stock that are required to
be disclosed in response to Item 701 of Regulation S-K under the Act that have
not been so disclosed in the Registration Statement.
(m) 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 instructions upon such securities for such period
of time.
(n) 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.
5. Conditions of Underwriters' Obligations. The obligations of the
several Underwriters hereunder are subject to the accuracy, as of the date
hereof and at each of the First Closing Date and the Second Closing Date (as if
made at such Closing Date), of and compliance with all representations,
warranties and agreements of the Company contained herein, to the performance by
the Company of its obligations hereunder and to the following additional
conditions:
(a) The Registration Statement shall have become effective not
later than 5:00 p.m., Central time, on the date of this Agreement, or such later
time and date as you, as Representatives of the several Underwriters, shall
approve and all filings required by Rules 424, 430A and 434 of the Rules and
Regulations shall have been timely made; no stop order suspending the
effectiveness of the Registration Statement or any amendment thereof shall have
been issued; no proceedings for the issuance of such an order shall have been
initiated or threatened; and any request of the Commission for additional
information (to be included in the Registration Statement or the Prospectus or
otherwise) shall have been complied with to your satisfaction.
(b) No Underwriter shall have advised the Company that the
Registration Statement or the Prospectus, or any amendment thereof or supplement
thereto (including any term sheet within the meaning of Rule 434 of the Rules
and Regulations), contains an untrue statement of fact that, in your opinion, is
material, or omits to state a fact which, in your opinion, is material and is
required to be stated therein or necessary to make the statements therein not
misleading.
(c) Except as contemplated in the Prospectus, subsequent to the
respective dates as of which information is given in the Registration Statement
and the Prospectus, neither the Company nor any of its subsidiaries shall have
incurred any material liabilities or obligations,
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<PAGE> 16
direct or contingent, or entered into any material transactions, or declared or
paid any dividends or made any distribution of any kind with respect to its
capital stock; and there shall not have been any change in the capital stock
(other than a change in the number of outstanding Common Stock due to the
issuance of shares upon the exercise of outstanding options or warrants), or any
material change in the short-term or long-term debt of the Company, or any
issuance of options, warrants, convertible securities or other rights to
purchase the capital stock of the Company or any of its subsidiaries, or any
material adverse change or any development involving a prospective material
adverse change (whether or not arising in the ordinary course of business), in
the general affairs, condition (financial or otherwise), business, key
personnel, property, prospects, net worth or results of operations of the
Company and its subsidiaries, taken as a whole, that, in your judgment, makes it
impractical or inadvisable to offer or deliver the Securities on the terms and
in the manner contemplated in the Registration Statement or the Prospectus.
(e) On each Closing Date, there shall have been furnished to you,
as Representatives of the several Underwriters, the opinion of Cooley Godward
LLP, general counsel for the Company, dated such Closing Date and addressed to
you, covering the matters set forth in Schedule II hereto.
In rendering such opinion such counsel may rely (i) as to matters
of law other than California and federal law, upon the opinion or opinions of
local counsel provided that the extent of such reliance is specified in such
opinion and that such counsel shall state that such opinion or opinions of local
counsel are satisfactory to them and that they believe they and you are
justified in relying thereon and (ii) as to matters of fact, to the extent such
counsel deems reasonable upon certificates of officers of the Company and its
subsidiaries provided that the extent of such reliance is specified in such
opinion.
(f) On each Closing Date, there shall have been furnished to you,
as Representatives of the several Underwriters, such opinion or opinions from
Shearman & Sterling, counsel for the several Underwriters, dated such Closing
Date and addressed to you, with respect to the validity of the Securities, the
Registration Statement, the Prospectus and other related matters as you
reasonably may request, and such counsel shall have received such papers and
information as they request to enable them to pass upon such matters.
(g) On each Closing Date you, as Representatives of the several
Underwriters, shall have received a letter of PricewaterhouseCoopers LLP, dated
such Closing Date and addressed to you:
(i) confirming that they are independent public accountants
within the meaning of the Act and are in compliance with the applicable
requirements relating to the qualifications of accountants under Rule
2-01 of Regulation S-X of the Commission;
(ii) stating that, in their opinion, the audited consolidated
financial statements and schedules examined by them and included in the
Registration Statement and the Prospectus comply in form in all material
respects with the applicable accounting requirements of the Act and the
Rules and Regulations;
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(iii) stating, as of the date of such letter (or, with respect to
matters involving changes or developments since the respective dates as
of which specified financial information is given in the Prospectus, as
of a date not more than five days prior to the date of such letter), the
conclusions and findings of said firm with respect to the financial
information and other matters covered by its letter delivered to you
concurrently with the execution of this Agreement, and the effect of the
letter so to be delivered on such Closing Date shall be to confirm the
conclusions and findings set forth in such prior letter;
(iv) stating that they have carried out certain specified
procedures, not constituting an audit, with respect to certain amounts,
percentaged and financial information that are derived from the general
accounting records of the Company and are included in the Registration
Statement and the Prospectus, including the amounts, percentages and
financial information included under the captions "Summary Financial
Data," "Capitalization," "Selected Financial Data", "Dilution",
"Business", "Risk Factors", "Certain Transactions" and "Management's
Discussion and Analysis of Financial Condition and Results of
Operations," and have compared such amounts, percentages and financial
information with such records of the Company and with information
derived from such records and have found them to be in agreement,
excluding any questions of legal interpretation;
(v) on the basis of the review referred to in clause (ii) above,
a reading of the latest available unaudited financial statements of the
Company and its subsidiaries, 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:
(1) the unaudited statements of operations data for the
period subsequent to March 31, 2000 were not determined on a
basis substantially consistent with that of the corresponding
amounts in the audited financial statements included in the
Registration Statement;
(2) 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 such letter, there
was any change in the capital stock or deferred revenue or any
increase in long-term debt, total or current liabilities or
stockholders' deficit, or any decrease in current assets or total
assets of the Company and its consolidated subsidiaries, as
compared with amounts shown on the latest balance sheet included
in the Prospectus; or
(3) for the period from March 31, 2000 to a specified date
not more than three business days prior to the date of such
letter, there were any decreases, as compared with the
corresponding period of the previous year and with the period of
corresponding length in the previous quarter, in total revenues,
or increases in loss from operations, comprehensive loss or the
total amounts of the net loss;
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(vi) on the basis of a reading of the unaudited pro forma
financial statements included in the Registration Statement and the
Prospectus (the "pro forma financial statements"); carrying out certain
specified procedures; inquiries of certain officials of the Company and
The Gwydion Company LLC who have responsibility for financial and
accounting matters; and proving the arithmetic accuracy of the
application of the pro forma adjustments to the historical amounts in
the pro forma financial statements, nothing came to their attention
which caused them to believe that the pro forma financial statements do
not comply as to form in all material respects with the applicable
accounting requirements of Rule 11-02 of Regulation S-X or that the pro
forma adjustments have not been properly applied to the historical
amounts in the compilation of such statements.
(h) On each Closing Date, there shall have been furnished to you,
as Representatives of the Underwriters, a certificate, dated such Closing Date
and addressed to you, signed by the chief executive officer and by the chief
financial officer of the Company, to the effect that:
(i) The representations and warranties of the Company in this
Agreement are true and correct, in all material respects, as if made at
and as of such Closing Date, and the Company has complied with all the
agreements and satisfied all the conditions on its part to be performed
or satisfied at or prior to such Closing Date;
(ii) No stop order or other order suspending the effectiveness of
the Registration Statement or any amendment thereof or the qualification
of the Securities for offering or sale has been issued, and no
proceeding for that purpose has been instituted or, to the best of their
knowledge, is contemplated by the Commission or any state or regulatory
body; and
(iii) The signers of said certificate have carefully examined
the Registration Statement and the Prospectus, and any amendments
thereof or supplements thereto (including any term sheet within the
meaning of Rule 434 of the Rules and Regulations), and (A) such
documents contain all statements and information required to be included
therein, the Registration Statement, or any amendment thereof, does not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, and the Prospectus, as amended or
supplemented, does not include any untrue statement of material fact or
omit to state a material fact necessary to make the statements therein,
in light of the circumstances under which they were made, not
misleading, (B) since the effective date of the Registration Statement,
there has occurred no event required t o be set forth in an amended or
supplemented prospectus which has not been so set forth, (C) subsequent
to the respective dates as of which information is given in the
Registration Statement and the Prospectus, neither the Company nor any
of its subsidiaries has incurred any material liabilities or
obligations, direct or contingent, or entered into any material
transactions, not in the ordinary course of business, or declared or
paid any dividends or made any distribution of any kind with respect to
its capital stock, and except as disclosed in the Prospectus, there has
not been any change in the capital stock (other than a change in the
number of outstanding shares of Common Stock due to the issuance of
shares upon the
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<PAGE> 19
exercise of outstanding options or warrants), or any material change in
the short-term or long-term debt, or any issuance of options, warrants,
convertible securities or other rights to purchase the capital stock, of
the Company, or any of its subsidiaries, or any Material Adverse Effect
or any development involving a prospective Material Adverse Effect, and
(D) except as stated in the Registration Statement and the Prospectus,
there is not pending, or, to the knowledge of the Company, threatened or
contemplated, any action, suit or proceeding to which the Company or any
of its subsidiaries is a party before or by any court or governmental
agency, authority or body, or any arbitrator, which might result in any
Material Adverse Effect.
The Company shall have furnished to you and counsel for the
Underwriters such additional documents, certificates and evidence as you or they
may have reasonably requested.
All such opinions, certificates, letters and other documents will
be in compliance with the provisions hereof only if they are satisfactory in
form and substance to you and counsel for the Underwriters. The Company will
furnish you with such conformed copies of such opinions, certificates, letters
and other documents as you shall reasonably request.
6. Indemnification and Contribution.
(a) (i)The Company agrees to 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 (including in
settlement of any litigation if such settlement is effected with the written
consent of the Company), insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, including the information deemed to be a part of the
Registration Statement at the time of effectiveness pursuant to Rules 430A and
434(d) of the Rules and Regulations, if applicable, any Preliminary Prospectus,
the Prospectus, or any amendment or supplement thereto (including any term sheet
within the meaning of Rule 434 of the Rules and Regulations), or in any
materials or information provided to investors by, or with the express approval
of, the Company in connection with the marketing of the offering of the Common
Stock, including any roadshow or investor presentations made to investors by the
Company (whether in person or electronically) 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 it in connection with investigating or defending against such loss,
claim, damage, liability or action; provided, however, that the Company shall
not be liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in the
Registration Statement, any Preliminary Prospectus, the Prospectus, or any such
amendment or supplement, in reliance upon and in conformity with written
information furnished to the Company by you, or by any Underwriter through you,
specifically for use in the preparation thereof.
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<PAGE> 20
(ii) 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 all and all losses, claims, damages and
liabilities, joint or several, to which the Designated Entities may
become subject, under the Act or otherwise (including in settlement of
any litigation if such settlement is effected with the written consent
of the Company), insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based on (A) any
untrue statement or alleged untrue statement of a material fact
contained in any prospectus wrapper material prepared by or with the
consent of the Company for distribution in foreign jurisdictions in
connection with the Directed Share Program attached to the Prospectus or
any preliminary prospectus or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein, when considered in conjunction with the
Prospectus or any preliminary prospectus, not misleading, or (B) the
failure of any Participant to pay for and accept delivery of Directed
Shares which, immediately following the effectiveness of the
Registration Statement, were subject to a properly confirmed agreement
to purchase, and will reimburse each Designated Entity for any legal or
other expenses reasonably incurred by it in connection with
investigating or defending against such loss, claim, damage, liability
or action; provided, that the Company shall not be responsible for
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.
(iii) In addition to its other obligations under this Section
6(a), the Company agrees that, as an interim measure during the pendency
of any claim, action, investigation, inquiry or other proceeding arising
out of or based upon any statement or omission, or any alleged statement
or omission, described in this Section 6(a), it will reimburse each
Underwriter on a monthly basis for all reasonable legal fees or other
expenses incurred in connection with investigating or defending any such
claim, action, investigation, inquiry or other proceeding,
notwithstanding the absence of a judicial determination as to the
propriety and enforceability of the Company's obligation to reimburse
the Underwriters for such expenses and the possibility that such
payments might later be held to have been improper by a court of
competent jurisdiction. To the extent that any such interim
reimbursement payment is so held to have been improper, the Underwriter
that received such payment shall promptly return it to the party or
parties that made such payment, together with interest, compounded
daily, determined on the basis of the prime rate (or other commercial
lending rate for borrowers of the highest credit standing) announced
from time to time by ____________________ (the "Prime Rate"). Any such
interim reimbursement payments which are not made to an Underwriter
within 30 days of a request for reimbursement shall bear interest at the
Prime Rate from the date of such request. This indemnity agreement shall
be in addition to any liabilities which the Company or the Selling
Stockholders may otherwise have.
(b) Each Underwriter will indemnify and hold harmless the
Company, its partners, 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
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<PAGE> 21
Company may become subject, under the Act or otherwise (including in settlement
of any litigation, if such settlement is effected with the written consent of
such Underwriter), insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement, any Preliminary Prospectus, the Prospectus, or any amendment or
supplement thereto (including any term sheet within the meaning of Rule 434 of
the Rules and Regulations), or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in the Registration
Statement, any Preliminary Prospectus, the Prospectus, or any such amendment or
supplement, in reliance upon and in conformity with written information
furnished to the Company by you, or by such Underwriter through you,
specifically for use in the preparation thereof, and will reimburse the Company
for any legal or other expenses reasonably incurred by the Company in connection
with investigating or defending against any such loss, claim, damage, liability
or action.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve the indemnifying party from any liability
that it may have to any indemnified party. In case any such action shall be
brought against any indemnified party, and it shall notify the indemnifying
party of the commencement thereof, the indemnifying party shall be entitled to
participate in, and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party of the indemnifying party's
selection so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation; provided, however,
that if, in the sole judgment of the Representatives, it is advisable for the
Underwriters to be represented as a group by separate counsel, the
Representatives shall have the right to employ a single counsel to represent the
Representatives and all Underwriters who may be subject to liability arising
from any claim in respect of which indemnity may be sought by the Underwriters
under subsection (a) of this Section 6, in which event the reasonable fees and
expenses of such separate counsel shall be borne by the indemnifying party or
parties and reimbursed to the Underwriters as incurred (in accordance with the
provisions of Section 6(a)(iii) hereof. Notwithstanding anything contained
herein to the contrary, if indemnity may be sought pursuant to Section 6(a)(ii)
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 the either Section 15 of the Act of Section 20
of the Exchange Act. An indemnifying party shall not be obligated under any
settlement agreement relating to any action under this Section 6 to which it has
not agreed in writing.
21
<PAGE> 22
(d) If the indemnification provided for in this Section 6 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 that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other 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, in each case as set forth in the table on the cover page of
the Prospectus. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company or the Underwriters and the parties'
relevant intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The Company and the Underwriters
agree that it would not be just and equitable if contributions pursuant to this
subsection (d) were to be determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method
of allocation which does not take account of the equitable considerations
referred to in the first sentence of this subsection (d). 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 against 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 that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the 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 6 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 6 shall be in addition to any liability that the
respective Underwriters may otherwise have and shall extend, upon the same terms
and conditions, to each director of the Company (including any person who, with
his consent, is named in the Registration Statement as about to become a
director of the Company), to each officer of the Company who has signed the
Registration Statement and to each person, if any, who controls the Company
within the meaning of the Act.
22
<PAGE> 23
7. Representations and Agreements to Survive Delivery. All
representations, warranties, and agreements of the Company herein or in
certificates delivered pursuant hereto, and the agreements of the several
Underwriters and the Company contained in Section 6 hereof, shall remain
operative and in full force and effect regardless of any investigation made by
or on behalf of any Underwriter or any controlling person thereof, or the
Company or any of its officers, directors, or controlling persons, and shall
survive delivery of, and payment for, the Securities to and by the Underwriters
hereunder.
8. Substitution of Underwriters.
(a) If any Underwriter or Underwriters shall fail to take up and
pay for the amount of Firm Shares agreed by such Underwriter or Underwriters to
be purchased hereunder, upon tender of such Firm Shares in accordance with the
terms hereof, and the amount of Firm Shares not purchased does not aggregate
more than 10% of the total amount of Firm Shares set forth in Schedule I hereto,
the remaining Underwriters shall be obligated to take up and pay for (in
proportion to their respective underwriting obligations hereunder as set forth
in Schedule I hereto except as may otherwise be determined by you) the Firm
Shares that the withdrawing or defaulting Underwriters agreed but failed to
purchase.
(b) If any Underwriter or Underwriters shall fail to take up and
pay for the amount of Firm Shares agreed by such Underwriter or Underwriters to
be purchased hereunder, upon tender of such Firm Shares in accordance with the
terms hereof, and the amount of Firm Shares not purchased aggregates more than
10% of the total amount of Firm Shares set forth in Schedule I hereto, and
arrangements satisfactory to you for the purchase of such Firm Shares by other
persons are not made within 36 hours thereafter, this Agreement shall terminate.
In the event of any such termination the Company shall not be under any
liability to any Underwriter (except to the extent provided in Section 4(h) and
Section 6 hereof) nor shall any Underwriter (other than an Underwriter who shall
have failed, otherwise than for some reason permitted under this Agreement, to
purchase the amount of Firm Shares agreed by such Underwriter to be purchased
hereunder) be under any liability to the Company (except to the extent provided
in Section 6 hereof).
If Firm Shares to which a default relates are to be purchased by
the non-defaulting Underwriters or by any other party or parties, the
Representatives or the Company shall have the right to postpone the First
Closing Date for not more than seven business days in order that the necessary
changes in the Registration Statement, Prospectus and any other documents, as
well as any other arrangements, may be effected. As used herein, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section 8.
9. Effective Date of this Agreement and Termination.
(a) This Agreement shall become effective at 10:00 a.m., Central
time, on the first full business day following the effective date of the
Registration Statement, or at such earlier time after the effective time of the
Registration Statement as you in your discretion shall first release the
Securities for sale to the public; provided, that if the Registration Statement
is effective at the time this Agreement is executed, this Agreement shall become
effective at such time as you in your discretion shall first release the
Securities for sale to the public. For the
23
<PAGE> 24
purpose of this Section, the Securities shall be deemed to have been released
for sale to the public upon release by you of the publication of a newspaper
advertisement relating thereto or upon release by you of telexes offering the
Securities for sale to securities dealers, whichever shall first occur. By
giving notice as hereinafter specified before the time this Agreement becomes
effective, you, as Representatives of the several Underwriters, or the Company
may prevent this Agreement from becoming effective without liability of any
party to any other party, except that the provisions of Section 4(h) and Section
6 hereof shall at all times be effective.
(b) You, as Representatives of the several Underwriters, shall
have the right to terminate this Agreement by giving notice as hereinafter
specified at any time at or prior to the First Closing Date, and the option
referred to in Section 3(b), if exercised, may be cancelled at any time prior to
the Second Closing Date, if (i) the Company shall have failed, refused or been
unable, at or prior to such Closing Date, to perform any agreement on its part
to be performed hereunder, (ii) any other condition of the Underwriters'
obligations hereunder is not fulfilled, (iii) trading on the New York Stock
Exchange, the American Stock Exchange or the NASDAQ National Market System shall
have been wholly suspended, (iv) minimum or maximum prices for trading shall
have been fixed, or maximum ranges for prices for securities shall have been
required, on the New York Stock Exchange or the American Stock Exchange, by such
Exchange or by order of the Commission or any other governmental authority
having jurisdiction, (v) a banking moratorium shall have been declared by
Federal or New York authorities, or (vi) there has occurred any material adverse
change in the financial markets in the United States or an outbreak of major
hostilities (or an escalation thereof) in which the United States is involved, a
declaration of war by Congress, any other substantial national or international
calamity or any other event or occurrence of a similar character shall have
occurred since the execution of this Agreement that, in your judgment, makes it
impractical or inadvisable to proceed with the completion of the sale of and
payment for the Securities. Any such termination shall be without liability of
any party to any other party except that the provisions of Section 4(h) and
Section 6 hereof shall at all times be effective.
(c) If you elect to prevent this Agreement from becoming
effective or to terminate this Agreement as provided in this Section, the
Company shall be notified promptly by you by telephone or telegram, confirmed by
letter. If the Company elects to prevent this Agreement from becoming effective,
you shall be notified by the Company by telephone or telegram, confirmed by
letter.
10. Default by the Company. If the Company shall fail at the First
Closing Date to sell and deliver the number of Securities which it is obligated
to sell hereunder, then this Agreement shall terminate without any liability on
the part of any non-defaulting party.
No action taken pursuant to this Section shall relieve the
Company so defaulting from liability, if any, in respect of such default.
11. Information Furnished by Underwriters. The statements set forth
in (a) the first, second and fourth paragraphs of text under the caption
"Underwriting" concerning the terms of the offering by the Underwriters, (b) the
seventh paragraph of text under the caption "Underwriting" concerning the
release of shares from lock-up agreements, and (c) the fifteenth and sixteenth
paragraphs under the caption "Underwriting" concerning stabilization,
over-allotment and penalty bids
24
<PAGE> 25
in any Preliminary Prospectus and in the Prospectus constitute the written
information furnished by or on behalf of the Underwriters referred to in Section
2 and Section 6 hereof.
12. Notices. Except as otherwise provided herein, all communications
hereunder shall be in writing or by telegraph and, if to the Underwriters, shall
be mailed, telefaxed or delivered to the Representatives c/o U.S. Bancorp Piper
Jaffray, at U.S. Bancorp Center, 800 Nicollet Mall, Minneapolis, Minnesota
55402, Attention: General Counsel (Fax no.: (612) 303-1037) except that notices
given to an Underwriter pursuant to Section 6 hereof shall be sent to such
Underwriter at the address stated in the Underwriters' Questionnaire furnished
by such Underwriter in connection with this offering; if to the Company, shall
be mailed, telefaxed or delivered to it at 1150 Morse Avenue, Sunnyvale,
California 94089 Attention: Chief Financial Officer (Fax no.: (408) 743-9394);
or in each case to such other address as the person to be notified may have
requested in writing. All notices given by telegram shall be promptly confirmed
by letter. Any party to this Agreement may change such address for notices by
sending to the parties to this Agreement written notice of a new address for
such purpose.
13. Persons Entitled to Benefit of Agreement. This Agreement shall inure
to the benefit of and be binding upon the parties hereto and their respective
successors and assigns and the controlling persons, officers and directors
referred to in Section 6. Nothing in this Agreement is intended or shall be
construed to give to any other person, firm or corporation any legal or
equitable remedy or claim under or in respect of this Agreement or any provision
herein contained. The term "successors and assigns" as herein used shall not
include any purchaser, as such purchaser, of any of the Securities from any of
the several Underwriters.
14. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
[Signature Page Follows]
25
<PAGE> 26
Please sign and return to the Company the enclosed duplicates of
this letter whereupon this letter will become a binding agreement between the
Company and the several Underwriters in accordance with its terms.
Very truly yours,
REPEATER TECHNOLOGIES, INC.
By:
--------------------------------------
Name:
Title:
Confirmed as of the date first above mentioned, on behalf of themselves and the
other several Underwriters named in Schedule I hereto.
U.S. BANCORP PIPER JAFFRAY
By:
--------------------------
Managing Director
BANC OF AMERICA SECURITIES LLC
By:
---------------------------
Managing Director
26
<PAGE> 27
SCHEDULE I
<TABLE>
<CAPTION>
Underwriter Number of Firm Shares (1)
----------- ------------------------
<S> <C>
--------------
Total .............................
==============
</TABLE>
(1) The Underwriters may purchase up to an additional __________ Option
Shares, to the extent the option described in Section 3(b) of the
Agreement is exercised, in the proportions and in the manner described
in the Agreement.
S-1
<PAGE> 28
SCHEDULE II
MATTERS TO BE COVERED IN THE OPINION OF
COOLEY GODWARD LLP,
COUNSEL FOR THE COMPANY
Capitalized terms not defined in this Schedule shall have the meanings ascribed
to them in the Purchase Agreement.
(i) The Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware. The Company is
duly qualified to transact business and is in good standing as a foreign
corporation in each state of the United States where the character of
their activities requires such qualification, except where the failure
to be so qualified would not have a Material Adverse Effect. The Company
has full corporate power and authority to own its properties and conduct
its business as currently being carried on as described in the
Registration Statement and the Prospectus.
(ii) All of the issued and outstanding shares of capital stock of the
Company are duly authorized, validly issued, fully paid and
nonassessable, and conform to the description thereof contained in the
Prospectus under the heading "Description of Capital Stock"; and the
stockholders of the Company have no preemptive rights with respect to
the Securities. Except as disclosed in the Registration Statement and
the Prospectus, to the best of such counsel's knowledge, as of March 31,
2000, there were no (a) outstanding securities of the Company
convertible into or evidencing the right to purchase or subscribe for
any shares of capital stock of the Company, (b) outstanding or
authorized options, warrants, rights or any other agreements of any
character obligating the Company to issue and shares of its capital
stock or (c) any securities convertible into or evidencing the right to
purchase or subscribe for any shares of such capital stock.
(iii) The Registration Statement has become effective under the
Securities Act; any required filing of the Prospectus, and any
supplements thereto, pursuant to Rule 424(b) has been made in the manner
and within the time period required by Rule 424(b), or if the Rule 434
Term Sheet was used, the required filing has been made in the manner and
within the time period required by Rule 434; and, to the best of such
counsel's knowledge, no stop order suspending the effectiveness of the
Registration Statement or suspending or preventing the use of the
Prospectus is in effect and no proceedings for that purpose have been
instituted or are pending or, to such counsel's knowledge, have been
threatened by the Commission.
(iv) The Registration Statement and the Prospectus (except as to
financial statements and schedules, related notes, other financial data
derived therefrom included therein, as to which such counsel need
express no opinion) comply as to form in all material respects with the
requirements of the Securities Act and with the Rules and Regulations.
(v) The registration of the Company's Common Stock under Section 12(g)
of the Exchange Act has become effective.
S-II-1
<PAGE> 29
(vi) The Company is not, and after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as
described in the Prospectus, will not be an "investment company" as such
term is defined in the Investment Company Act.
(vii) Neither the issue and sale by the Company of the Securities as
contemplated by this Agreement nor the execution of this Agreement by
the Company nor the consummation of any other transactions contemplated
by this Agreement will (with or without the passage of time and/or
notice) conflict with, or result in a breach or violation of or
constitute a default under (A) the Certificate of Incorporation or
bylaws of the Company, (B) any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument filed as an exhibit to the
Registration Statement, (C) any statute, law or regulation (other than
state securities and blue sky laws, as to which such counsel need not
express an opinion), or (D) so far as is known to such counsel, any
order, writ, injunction or decree, of any jurisdiction, court or
governmental instrumentality entered against the Company.
(viii) Such counsel does not know of any franchises, contracts, leases
or other documents which in the opinion of such counsel are of a
character required under the Act and the Rules to be described or
referred to in the Registration Statement or the Prospectus or to be
filed as exhibits to the Registration Statement, which are not
described, referred to and filed as required.
(ix) To such counsel's knowledge, there is no pending or overtly
threatened action, suit, investigation or proceeding before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its property or assets of a character required to be
disclosed in the Registration Statement or the Prospectus that is not
disclosed in the Prospectus to the extent required under the Act and the
Rules.
(x) No consent, approval, waiver, license, authorization, order or other
action by or filing with any United States federal or state court or
governmental agency, body or authority is required for the execution and
delivery by the Company of the this Agreement or for the issue and sale
of the Securities by the Company or the consummation of any other
transactions contemplated by this Agreement, except for filings and
other actions required pursuant to the Securities Act and/or the
Exchange Act, as amended, and the Rules and Regulations, required by the
NASD and such as may be required under state securities or blue sky laws
in connection with the purchase and distribution of the Securities by
the Underwriters.
(xi) To the best of such counsel's knowledge, 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 Securities 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, except as described in the Registration
Statement and the Prospectus, in any securities being registered
pursuant to any other registration statement filed by the Company under
the Securities Act.
S-II-2
<PAGE> 30
(xii) This Agreement has been duly executed, delivered by the Company
and all corporate authorizations and consents necessary for the
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been given.
(xiii) The statements under the headings "Use of Proceeds," "Business,"
"Certain Transactions" and "Description of Capital Stock," insofar as
such statements describe material contracts, indentures, mortgages, loan
agreements, notes, leases, employment agreements and other agreements or
instruments to which the Company is a party, fairly present and
summarize in all material respects such agreements and instruments to
the extent required by the Act and the Rules.
(xiv) To the best knowledge of such counsel, there is no litigation,
action, suit or governmental proceeding or investigation pending or
threatened to which the Company is a party or to which any property of
the Company is subject or that seeks to restrain, enjoin or prevent the
execution and delivery of this Agreement, or the consummation of the
transactions contemplated thereby, or that questions the legality or
validity of any such transaction or that seeks to recover damages or
obtain other relief in connection with any such transactions, or which
would could be reasonably be expected to have a Material Adverse Effect,
if determined adversely to the Company.
(xv) The statements set forth in the Prospectus describing legal
matters, documents or proceedings under the headings "Management",
"Description of Capital Stock" and "Shares Eligible for Future Sale"
have been reviewed by such counsel and, insofar as they describe legal
matters, documents, proceedings or conclusions and insofar as they
describe the contents of certain provisions of the capital stock of the
Company or of the Company's Certificate of Incorporation or bylaws,
fairly present and summarize in all material respects the information
required under the Act and the Rules to be disclosed with respect to
such legal matters, documents or proceedings.
(xvi) The description of the Option Plans and options that may be
granted thereunder and the options granted otherwise than under such
plans set forth in the Prospectus accurately presents the information
with respect to such plans and options and summarizes such information
to the extent required by the Act and the Rules.
(xvii) The Securities have been duly approved for inclusion on The
Nasdaq National Market, subject to the consummation of the transactions
contemplated by this Agreement and to official notice of issuance.
(xviii) The Common Stock conforms in all material respects to the
description thereof contained in the Prospectus under the heading
"Description of Capital Stock;" no further approval or authority of the
stockholders of the Board of Directors of the Company is required for
the issuance and sale of the Common Stock; and such Common Stock will
have been duly authorized and, when delivered and in accordance with the
terms of this Agreement, will be validly issued, fully paid and
non-assessable.
S-II-3
<PAGE> 31
(xix) The Company has all requisite corporate power and authority to
issue, sell and deliver the Common Stock being issued and sold by it in
accordance with and upon the terms and conditions set forth in this
Agreement; all corporate action required to be taken by the Company for
the due and proper authorization, issuance, sale and delivery of the
Common Stock has been validly and sufficiently taken; the filing of the
Registration Statement and the Prospectus with the Commission has been
duly authorized by and on behalf of the Company and the Registration
Statement has been duly executed by the Company.
(xx) The certificates for the Securities, in the form filed as an
exhibit to the Registration are in due and proper form under Delaware
law.
In addition to the matters set forth above, counsel rendering the
foregoing opinion shall also include a statement to the effect that: (a) during
the course of the preparation of the Registration Statement, such counsel
participated in conferences with the Representatives, counsel to the
Representatives, officers and other representatives of the Company and the
Company's independent public accountants at which the contents of the
Registration Statement and Prospectus were discussed; (b) while such counsel has
not independently verified and is not passing upon the accuracy, completeness or
fairness of the statements made in the Registration Statement and Prospectus,
except as set forth in paragraphs (ii), (ix), (xiii), (xv) and (xviii) above, on
the basis of the foregoing, no facts have come to such counsel's attention that
have caused it to believe that the Registration Statement, as of the time it
became effective, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus, as of its date or the
date hereof, contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, except that such counsel need express no comment with respect to the
financial statements and schedules, related notes, other financial data derived
therefrom included in the Registration Statement and Prospectus.
Counsel rendering the foregoing opinion may also rely as to questions of
law not involving the laws of the United Stated or of the State of California,
upon opinions of local counsel satisfactory in form and scope to counsel for the
Underwriters. Copies of any opinions so relied upon shall be delivered to the
Representatives and to counsel for the Underwriters and the foregoing opinion
shall also state that counsel knows of no reason the Underwriters are not
entitled to rely upon the opinions of such local counsel.
S-II-4
<PAGE> 32
EXHIBIT A
[FORM OF LOCK-UP AGREEMENT]
U.S. Bancorp Piper Jaffray Inc.
Banc of America Securities LLC
As representatives of the several Underwriters,
c/o U.S. Bancorp Piper Jaffray Inc.
2500 Sand Hill Road, Suite 200
Menlo Park, CA 94025
Ladies and Gentlemen:
This letter is being delivered to you in connection with the
proposed Underwriting Agreement (the "Underwriting Agreement"), between Repeater
Technologies, Inc. (the "Company"), and each of you as representatives of a
group of Underwriters named therein, relating to an underwritten public offering
of Common Stock (the "Common Stock"), of the Company.
In order to induce you and the other Underwriters to enter into
the Underwriting Agreement, the undersigned will not, without the prior written
consent of U.S. Bancorp Piper Jaffray Inc., offer, sell, contract to sell,
pledge or otherwise dispose of, (or enter into any transaction which is designed
to, or might reasonably be expected to, result in the disposition (whether by
actual disposition or effective economic disposition due to cash settlement or
otherwise) by the Company or any affiliate of the Company or any person in
privity with the Company or any affiliate of the Company) directly or
indirectly, including the filing of (or participation in the filing of) a
registration statement with the Securities and Exchange Commission in respect
of, or establish or increase a put equivalent position or liquidate or decrease
a call equivalent position within the meaning of Section 16 of the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Securities and Exchange Commission promulgated thereunder with respect to, any
shares of capital stock of the Company or any securities convertible into, or
exercisable or exchangeable for such capital stock, or publicly announce an
intention to effect any such transaction, for a period of 180 days after the
date of the Underwriting Agreement, other than shares of Common Stock disposed
of as bona fide gifts approved by U.S. Bancorp Piper Jaffray Inc.
The undersigned further authorizes the Company to cause the
transfer agent to decline to transfer and/or to note stop transfer restrictions
on the transfer books and records of the Company with respect to any shares of
Common Stock and any securities convertible into or exercisable or exchangeable
for Common Stock and any securities convertible into or exercisable or
exchangeable for Common Stock for which the undersigned is the record holder
and, in the case of any such shares or securities for which the undersigned is
the beneficial but not the record holder, agrees to cause the record holder to
cause the transfer agent to decline to transfer and/or to note stop transfer
restrictions on such books and records with respect to such shares or
securities.
A-1
<PAGE> 33
The undersigned hereby represents and warrants that the
undersigned has full power and authority to enter into the agreements set forth
herein, and that, upon request, the undersigned will execute any additional
documents necessary or desirable in connection with the enforcement hereof. All
authority herein conferred or agreed to be conferred shall survive the death or
incapacity of the undersigned and any obligations of the undersigned shall be
binding upon the heirs, personal representatives, successors, and assigns of the
undersigned.
If for any reason the Underwriting Agreement shall be terminated
prior to the Closing Date (as defined in the Underwriting Agreement) or if the
Underwriting Agreement is not executed on or before September 30, 2000, the
agreement set forth above shall likewise be terminated.
Yours very truly,
-----------------------------------------
Signature
-----------------------------------------
Print Name
-----------------------------------------
Print Title, if applicable
-----------------------------------------
Additional Signature(s), if Securities
are Jointly Held
-----------------------------------------
Social Security or Taxpayer
Identification Number
A-2
