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Exhibit 1.1
DMC STRATEX NETWORKS, INC.
UNDERWRITING AGREEMENT
[Date]
To the Representatives named in Schedule I hereto
of the Underwriters named in Schedule II hereto
Dear Sirs:
DMC Stratex Networks, Inc., a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and sell
to the Underwriters named in Schedule II hereto (the "Underwriters"), the
principal amount set forth in Schedule II hereto of its debt securities
identified on Schedule I hereto (the "Securities"), to be issued under an
indenture, dated as of___________ , as amended or supplemented from time to time
(the "Indenture") between the Company and ___________, as Trustee (the
"Trustee"), less the principal amount of Securities covered by Delayed Delivery
Contracts (as defined in Section 3 hereof), if any, as provided in Section 3
hereof and as may be specified in Schedule II hereto (any Securities to be
covered by Delayed Delivery Contracts being herein sometimes referred to as
"Contract Securities" and the Securities to be purchased by the Underwriters
(after giving effect to the deduction, if any, for Contract Securities) being
herein sometimes referred to as "Underwriters' Securities"). If the firm or
firms listed in Schedule II hereto include only the firm or firms listed in
Schedule I hereto, then the terms "Underwriters" and "Representatives" as used
herein shall each be deemed to refer to such firm or firms.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a "shelf" registration statement on Form S-3, including a
prospectus, relating (among other securities) to the Securities, which
registration statement has become effective, and will promptly file with the
Commission a prospectus supplement specifically relating to the Securities
pursuant to Rule 424 under the Securities Act of 1933, as amended (the "Act").
As used in this Agreement, the term "Registration Statement" means such
registration statement, including exhibits, financial statements, schedules and
documents incorporated by reference therein, as amended to the date hereof. The
term "Basic Prospectus" means the prospectus included in the Registration
Statement. The term "Prospectus" means the Basic Prospectus together with the
prospectus supplement specifically relating to the Securities as filed with the
Commission pursuant to such Rule 424. The term "preliminary prospectus" means
any preliminary prospectus supplement specifically relating to the Securities
together with the Basic Prospectus. Any reference herein to any preliminary
prospectus or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein as of the date of such preliminary
prospectus or the Prospectus, as the case may be.
1. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
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(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect; and no
proceedings for such purpose are pending before or threatened by the Commission.
(b) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Delaware, has the
corporate power and authority to own its property and to conduct its business as
described in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not have
a material adverse effect on the Company and its subsidiaries, taken as a whole.
(c) The authorized capital stock of the Company and the Securities
materially conform as to legal matters to the descriptions thereof contained in
the Prospectus.
(d) This Agreement has been duly authorized, executed and delivered
by the Company.
(e) There has not been any material adverse change, or any
development involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business or operations of the
Company and its subsidiaries, taken as a whole, from that set forth in the
Prospectus.
(f) There are no legal or governmental proceedings pending or
threatened to which the Company or to which any of the properties of the Company
is subject that are required to be described in the Registration Statement or
the Prospectus and are not so described or any statutes, regulations, contracts
or other documents that are required to be described in the Registration
Statement or the Prospectus or to be filed as an exhibit to the Registration
Statement that are not described or filed as required.
(g) The Company has all necessary consents, authorizations,
approvals, orders, certificates and permits of and from, and has made all
declarations and filings with, all federal, state, local and other governmental
authorities, all self-regulatory organizations and all courts and other
tribunals, to own, lease, license and use its properties and assets and to
conduct its business in the manner described in the Prospectus, except to the
extent that the failure to obtain or file would not have a material adverse
effect on the Company.
(h) (i) Each document, if any, filed or to be filed pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in the Prospectus complied or will comply when so
filed in all material respects with the Exchange Act and the applicable rules
and regulations of the Commission thereunder, (ii) each part of the Registration
Statement, when such part became effective, did not contain and each such part,
as amended or supplemented, if applicable, will not contain, any untrue
statement of a material fact or omit to state a material fact required to
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be stated therein or necessary to make the statements therein not misleading,
(iii) the Registration Statement and the Prospectus comply and, as amended or
supplemented, if applicable, will comply in all material respects with the Act
and the Trust Indenture Act of 1939 (the "Trust Indenture Act") and the
applicable rules and regulations of the Commission thereunder and (iv) the
Prospectus does not contain and, as amended or supplemented, if applicable, will
not contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, except that the representations and
warranties set forth in this paragraph (m) do not apply to statements or
omissions in the Registration Statement or the Prospectus based upon information
concerning any Underwriter furnished to the Company in writing by such
Underwriter through you expressly for use therein.
(i) Since the respective dates as of which information is given in
the Registration Statement and in the Prospectus, there have not been, and prior
to the Time of Delivery (as defined in Section 4 hereof) there will not be, any
changes in the capital stock (other than issuances of Common Stock upon
exercises of options and stock appreciation rights, upon earn-outs of
performance shares and upon conversions of convertible preferred stock) or any
increases in the long-term debt (excluding capital leases) of the Company or any
material adverse change, or any development involving a prospective material
adverse change, in or affecting the general affairs, management, financial
position, shareholders' investment or results of operations of the Company and
its subsidiaries, otherwise than as set forth or contemplated in the Prospectus;
(j) The Company has good and marketable title in fee simple to all
real property and good and marketable title to all personal property owned by
it, free and clear of all liens, encumbrances and defects except such as are
described in the Prospectus or such as do not materially affect the value of
such property and do not interfere with the use made and proposed to be made of
such property by the Company; and any real property and buildings held under
lease by the Company are held by it under valid, subsisting and enforceable
leases with such exceptions as are not material and do not interfere with the
use made and proposed to be made of such property and buildings by the Company;
(k) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company have
been duly and validly authorized and issued and are fully paid and
non-assessable;
(l) The Securities have been duly authorized, and, when issued and
delivered pursuant to this Agreement, and, in the case of any Contract
Securities, pursuant to Delayed Delivery Contracts (as defined in Section 3
hereof) with respect to such Contract Securities, will have been duly executed,
authenticated, issued and delivered and will constitute valid and legally
binding obligations of the Company entitled to the benefits provided by the
Indenture; the Indenture has been duly authorized, executed and delivered and
constitutes a valid and legally binding instrument, enforceable in accordance
with its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or affecting
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creditors' rights and to general equity principles; and the Securities and the
Indenture will conform to the description thereof in the Prospectus; and in the
event any of the Securities are purchased pursuant to Delayed Delivery
Contracts, each of such Delayed Delivery Contracts has been duly authorized by
the Company and, when executed and delivered by the Company and the purchaser
named therein, will constitute a valid and legally binding agreement of the
Company enforceable in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity principles; and
any Delayed Delivery Contract will conform to the description thereof in the
Prospectus; and
(m) The issue and sale of the Securities and the compliance by the
Company with all of the provisions of the Securities, the Indenture, each of the
Delayed Delivery Contracts, if any, and this Agreement and the consummation of
the transactions herein and therein contemplated will not conflict with or
result in a breach of any of the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any of the property or assets of the Company pursuant to the
terms of, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company is a party or by which the Company
is bound or to which any of the property or assets of the Company is subject,
nor will such action result in any violation of the provisions of the Amended
and Restated Certificate of Incorporation or the Bylaws of the Company or any
statute or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company; and no consent, approval
authorization, order, registration or qualification of or with any court or
governmental agency or body is required for the issue and sale of the Securities
or the consummation of the other transactions contemplated by this Agreement or
any Delayed Delivery Contract or the Indenture, except such as have been
obtained, or will have been obtained at the Time of Delivery, under the Act and
the Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities or
Blue Sky laws in connection with the purchase and/or distribution of the
Securities by the Underwriters.
2. Subject to the terms and conditions herein set forth, the Company
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company, at
a purchase price set forth in Schedule I hereto the principal amount of
Securities set forth opposite the name of such Underwriter in Schedule II
hereto, which principal amount shall be subject to reduction pursuant to Section
3 hereof.
3. Upon the authorization by you of the release of the Securities, the
several Underwriters propose to offer the Securities for sale upon the terms and
conditions set forth in the Prospectus. The Company may specify in Schedule I
hereto that the Underwriters are authorized to solicit offers to purchase
Securities from the Company pursuant to delayed delivery contracts (herein
called "Delayed Delivery Contracts"), substantially in the form of Schedule IV
attached hereto, but with such changes therein as the Underwriters and the
Company may authorize or approve. If so specified, the Underwriters will
endeavor to make such arrangements, and as compensation therefor the
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Company will pay to the Underwriters, for their respective accounts, at the time
specified in Section 4 hereof, such commission, if any, as may be set forth in
Schedule I. Delayed Delivery Contracts, if any, are to be with the investors of
the types described in the Prospectus and subject to other conditions therein
set forth. The Underwriters will not have any responsibility in respect of the
validity or performance of any Delayed Delivery Contracts.
The principal amount of Contract Securities to be deducted from the principal
amount of Securities to be purchased by each Underwriter as set forth in
Schedule II hereto shall be, in each case, the principal amount of Contract
Securities which the Company has been advised by the Underwriters have been
attributed to such Underwriter, PROVIDED that, if the Company has not been so
advised, the amount of Contract Securities to be so deducted shall be, in each
case, that proportion of Contract Securities which the principal amount of
Securities set forth opposite the name of such Underwriter in Schedule II hereto
bears to the total principal amount of the Securities set forth in Schedule II
hereto (rounded as the Underwriters may determine). The total principal amount
of Underwriters' Securities to be purchased by all the Underwriters hereunder
shall be the total principal amount of Securities set forth in Schedule II
hereto less the principal amount of the Contract Securities. The Company will
deliver to the Underwriters not later than 3:30 p.m., New York City time, on the
third business day preceding the Time of Delivery (or such other time and date
as the Underwriters and the Company may agree upon in writing) a written notice
setting forth the principal amount of Contract Securities.
4. Underwriters' Securities to be purchased by each Underwriter hereunder
shall be delivered by or on behalf of the Company to you for the account of such
Underwriter, against payment by such Underwriter or on its behalf of the
purchase price therefor in same-day funds, at the office of , at 9:30 a.m., New
York City time, on [CLOSING DATE], or at such other time and date as you and the
Company may agree upon in writing, such time and date being herein called the
"Time of Delivery". The Underwriters' Securities will be delivered by the
Company to you in the form of global Securities, representing all of the
Securities, which will be deposited by you on behalf of the Underwriters, with
The Depository Trust Company, or its nominee, for credit to the respective
accounts of the Underwriters.
Concurrently with the delivery of any Contract Securities to the purchasers
thereof pursuant to Delayed Delivery Contracts, the Company will deliver to the
Underwriters for their respective accounts a check payable to the order of [LEAD
UNDERWRITER] in the amount of any compensation payable by the Company to the
Underwriters in respect of any Delayed Delivery Contracts as provided in Section
3 hereof and in Schedule I hereto.
5. The Company agrees with each of the Underwriters:
(a) To make no further amendment or supplement to the Registration
Statement or to the Prospectus prior to the Time of Delivery to which you
reasonably object promptly after reasonable notice thereof; to advise you
promptly of any such amendment or supplement after the Time of Delivery and
furnish you with copies thereof
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and to file promptly all reports and definitive proxy or information statements
required to be filed by the Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the
Prospectus and for so long as the delivery of a prospectus is required in
connection with the offering or sale of the Securities; to advise you, promptly
after it receives notice thereof, of the time when any amendment to the
Registration Statement has become effective or any supplement to the Prospectus
or any amended Prospectus has been filed, of the issuance by the Commission of
any stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus, of the suspension of the qualification
of the Securities for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Registration Statement or of
the Prospectus or for additional information; and in the event of the issuance
of any stop order preventing or suspending the use of any Preliminary Prospectus
or the Prospectus or suspending any such qualification, to use promptly its best
efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Securities for offering and sale under the
securities laws of such jurisdictions as you may request and to comply with such
laws so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution,
PROVIDED that in connection therewith the Company shall not be required to
qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction;
(c) To furnish the Underwriters with copies of the Prospectus in such
quantities as you may from time to time reasonably request, and if the delivery
of a prospectus is required at any time prior to the expiration of nine months
after the time of issue of the Prospectus and if at such time any event shall
have occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other reason it shall be necessary
to amend or supplement the Prospectus or to file under the Exchange Act any
document incorporated by reference in the Prospectus in order to comply with the
Act, the Exchange Act or the Trust Indenture Act, to notify you and upon your
request to file such document and to prepare and furnish without charge to each
Underwriter and to any dealer in securities as many copies as you may from time
to time reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect such
compliance; and in case any Underwriter is required to deliver a prospectus in
connection with sales of any of the Securities at any time nine months or more
after the time of issue of the Prospectus, upon your request but at the expense
of such Underwriter, to prepare and deliver to such Underwriter as many copies
as you may request of an amended or supplemented Prospectus complying with
Section 10(a)(3) of the Act;
(d) To make generally available to its security holders as soon as
practicable, but in any event not later than eighteen months after the effective
date of the
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Registration Statement, an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a) of the
Act; and
(e) During the period beginning from the date hereof and continuing
to and including the later of the Time of Delivery or such earlier time as you
may notify the Company, not to offer, sell, contract to sell or otherwise
dispose of, except as provided hereunder, any securities of the Company that are
substantially similar to the Securities.
6. The Company covenants and agrees with the several Underwriters that
the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
(except as otherwise expressly provided in Section 5(c) hereof) amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing this Agreement, the
Indenture, any Delayed Delivery Contracts, and the Blue Sky and Legal Investment
Memoranda; (iii) all expenses in connection with the qualification of the
Securities for offering and sale under state securities laws as provided in
Section 5(b) hereof, including the fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky and legal investment surveys; (iv) any fees charged by securities
rating services for rating the Securities; (v) the cost of preparing the
Securities; (vi) the fees and expenses of the Trustees and any agent of the
Trustee and the fees and disbursements of counsel for the Trustee and any such
agent in connection with the Indenture and the Securities; and (vii) all of the
other costs and expenses incident to the performance of its obligations
hereunder and under any Delayed Delivery Contracts which are not otherwise
specifically provided for in this Section. It is understood, however, that,
except as provided in this Section, Section 8 and Section 11 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees of
their counsel, transfer taxes on resale of any of the Securities by them, and
any advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters hereunder shall be subject, in
their discretion, to the condition that all representations and warranties and
other statements of the Company herein are, at and as of the Time of Delivery,
materially true and correct, the condition that the Company shall have performed
all of its material obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceeding for that purpose shall have
been initiated or threatened by the Commission; and all requests for additional
information on the part of the Commission shall have been complied with to your
reasonable satisfaction;
(b) ________________, counsel for the Underwriters, shall have
furnished to you such opinion or opinions, dated the Time of Delivery, with
respect to the incorporation of the Company, the validity of the Indenture, the
Securities, the Delayed
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Delivery Contracts, if any, the Registration Statement, the Prospectus, and
other related matters as you may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to enable
them to pass upon such matters;
(c) You shall have received on the Closing Date an opinion of
Morrison & Foerster LLP, dated the Closing Date, to the effect that
(i) the Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the State of Delaware, has
the corporate power and authority to own its property and to conduct its
business as described in the Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction in which the conduct of
its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the Company and its
subsidiaries taken as a whole;
(ii) the authorized capital stock of the Company and the
Securities materially conform as to legal matters to the descriptions thereof
contained in the Prospectus;
(iii) this Agreement has been duly authorized, executed and
delivered by the Company;
(iv) such counsel does not know of any legal or governmental
proceeding pending or threatened to which the Company is a party or to which any
of the properties of the Company is subject that are required to be described in
the Registration Statement or the Prospectus and are not so described or of any
statutes, regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not described or filed as
required; and
(v) This Agreement has been duly authorized, executed and
delivered by the Company; and in the event any of the Securities are to be
purchased pursuant to Delayed Delivery Contracts, each of the Delayed Delivery
Contracts has been duly authorized, executed and delivered by the Company and,
assuming such contract has been duly executed and delivered by the purchaser
named therein, constitutes a valid and legally binding agreement of the Company
enforceable in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity principles; and
any Delayed Delivery Contracts conform to the description thereof in the
Prospectus;
(vi) The Securities have been duly authorized; the Underwriters'
Securities have been duly executed, authenticated, issued and delivered and
constitute valid and legally binding obligations of the Company entitled to the
benefits provided by the Indenture; the Contract Securities, if any, when
executed,
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authenticated, issued and delivered pursuant to the Indenture and the Delayed
Delivery Contracts, if any, will constitute valid and legally binding
obligations of the Company entitled to the benefits provided by the Indenture;
and the Securities and the Indenture conform to the descriptions thereof in the
Prospectus;
(vii) The Indenture has been duly authorized, executed and
delivered by the parties thereto and constitutes a valid and legally binding
instrument, enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general equity
principles; and the Indenture has been duly qualified under the Trust Indenture
Act;
(viii) The issue and sale of the Securities and the compliance by
the Company with all of the provisions of the Securities, the Indenture, each of
the Delayed Delivery Contracts and this Agreement and the consummation of the
transactions herein and therein contemplated will not conflict with or result in
a material breach of any of the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any of the property or assets of the Company or any of its
subsidiaries pursuant to the terms of, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument known to such counsel to which
the Company or any of its subsidiaries is a party or by which the Company or any
of its subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, nor will such action result in
any violation of the provisions of the Amended and Restated Certificate of
Incorporation or the Bylaws of the Company or any statute or any order, rule or
regulation applicable to the Company and known to such counsel of any court or
governmental agency or body having jurisdiction over the Company or any of its
properties; and no consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body is required
for the issue and sale of the Securities or the consummation of the other
transactions contemplated by this Agreement or the Indenture or any of the
Delayed Delivery Contracts, except such as have been obtained under the Act and
the Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities or
Blue Sky laws in connection with the purchase and/or distribution of the
Securities by the Underwriters;
(ix) The documents incorporated by reference in the Prospectus
(other than the financial statements and related schedules therein, as to which
such counsel need express no opinion), when they were filed with the Commission,
complied as to form in all material respects with the requirements of the
Exchange Act and the rules and regulations of the Commission thereunder; and
such counsel have no reason to believe that any of such documents, when they
were so filed, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which they
were made when such documents were so filed, not misleading; and
(x) The Registration Statement and the Prospectus and any
further amendments and supplements thereto made by the Company prior to the Time
of
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Delivery (other than the financial statements therein, as to which such counsel
need express no opinion) comply as to form in all material respects with the
requirements of the Act and the Trust Indenture Act and the rules and
regulations thereunder; such counsel have no reason to believe that the
Registration Statement contained as of its effective date or that the Prospectus
contained as of the date of the supplement comprising a part thereof, or that
either the Registration Statement or the Prospectus contains as of the Time of
Delivery (or that any further amendment or supplement thereto made by the
Company prior to the Time of Delivery contained as of its date or contains as of
the Time of Delivery) an untrue statement of material fact or that the
Registration Statement omitted as of such effective date, or that the Prospectus
omits as of the Time of Delivery to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and such
counsel does not know of any contracts or other documents of a character
required to be filed as an exhibit to the Registration Statement or required to
be incorporated by reference into the Prospectus or required to be described in
the Registration Statement or in the Prospectus which are not filed or
incorporated by reference or described as required.
With respect to subparagraphs (ix) and (x) of paragraph (c) above, Morrison &
Foerster LLP may state that its opinion and belief are based on its
participation in the preparation of the Registration Statement and the
Prospectus and any amendments or supplements thereto and documents incorporated
therein by reference and review and discussion of the contents thereof, but are
without independent check or verification, except as specified.
(d) At the Time of Delivery, Arthur Andersen LLP shall have furnished
to you a letter or letters, dated the Time of Delivery, in form and substance
satisfactory to you, to the effect set forth in Schedule III hereto;
(e) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss or interference
with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action,
order or decree, other than as set forth or contemplated in the Prospectus; and
(ii) since the respective dates as of which information is given in the
Prospectus there shall not have been any decrease in the capital stock or any
increase in the long-term debt (excluding capital leases) of the Company or any
of its subsidiaries or a change, or any development involving a prospective
change, in or affecting the general affairs, management, financial position,
shareholders' investment or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the Prospectus, the
effect of which, in any such case described in clause (i) or (ii), is in your
judgment so material and adverse as to make it impracticable or inadvisable to
proceed with the public offering or the delivery of the Securities on the terms
and in the manner contemplated in the Prospectus;
(f) On or after the date of this Agreement, there shall not have
occurred any of the following: (i) a suspension or material limitation in
trading in securities generally on the New York Stock Exchange; (ii) a general
moratorium on commercial banking activities in New York declared by either
Federal or New York State
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authorities; or (iii) an outbreak or escalation of hostilities involving the
United States or the declaration by the United States of a national emergency or
war, the effect of any such event specified in this clause (iii) in your
judgment makes it impractical or inadvisable to proceed with the public offering
or the delivery of the Underwriters' Securities on the terms and in the manner
contemplated by the Prospectus; and
(g) On or after the date of this Agreement (i) no downgrading shall
have occurred in the rating accorded the Company's debt securities by any
"nationally recognized statistical rating organization", as that term is defined
by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such
organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any of the Company's
debt securities the effect of which, in any event specified in clause (i) or
(ii), in your judgment makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Securities on the terms and in the manner
contemplated in the Prospectus; and
(h) The Company shall have furnished or caused to be furnished to you
at the Time of Delivery certificates of officers of the Company satisfactory to
you as to the accuracy of the representations and warranties of the Company
herein at and as of the Time of Delivery and as to the performance by the
Company of all of its obligations hereunder to be performed at or prior to the
Time of Delivery and the Company also shall have furnished to you a certificate
of officers of the Company satisfactory to you as to the matters set forth in
subsections (a), (f) and (h) of this Section.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement in the form in which it was initially declared effective, or the
Prospectus, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such action or claim; PROVIDED, HOWEVER, that the Company shall not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in any Preliminary Prospectus, the
Registration Statement or such Prospectus or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through you expressly for use therein.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the
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Registration Statement in the form in which it was initially declared effective,
or the Prospectus, or any amendment or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in any Preliminary Prospectus, the Registration Statement or such Prospectus or
any such amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through you expressly
for use therein; and will reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or defending
any such action or claim.
(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 it from any liability which it may have to
any indemnified party otherwise than under such subsection. 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 therein 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 (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) 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. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law or if the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), 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
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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' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this subsection (d) were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Securities underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company under this Section 8 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 8 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Underwriters' Securities which it has agreed to purchase hereunder, you
may in your discretion arrange for you or another party or other parties to
purchase such Underwriters' Securities on the terms contained herein. If
within thirty-six hours after such default by any Underwriter you do not
arrange for the purchase of such Underwriters' Securities, then the Company
shall be entitled to a further period of thirty-six hours within which to
procure another party or other parties satisfactory to you to purchase such
Underwriters' Securities on such terms. In the event that, within the
respective prescribed periods, you notify the Company that you have so
arranged for the purchase of such Underwriters' Securities, or the Company
notifies you that it has so arranged for the purchase of such Underwriters'
Securities, you or the Company shall
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<PAGE>
have the right to postpone the Time of Delivery for a period of not more than
seven days, in order to effect whatever changes may thereby be made necessary in
the Registration Statement or the Prospectus, or in any other documents or
arrangements, and the Company agrees to file promptly any amendments to the
Registration Statement or the Prospectus which in your opinion may thereby be
made necessary. The term "Underwriter" as used in this Agreement shall include
any person substituted under the Section with like effect as if such person had
originally been a party to this Agreement with respect to such Securities.
(b) If, after giving effect to any arrangements for the purchase of
the Underwriters' Securities of a defaulting Underwriter or Underwriters by you
and the Company as provided in subsection (a) above, the aggregate principal
amount of such Underwriters' Securities which remains unpurchased does not
exceed one-tenth of the aggregate principal amount of all the Securities, then
the Company shall have the right to require each non-defaulting Underwriter to
purchase the principal amount of Underwriters' Securities which such Underwriter
agreed to purchase hereunder and, in addition, to require each non-defaulting
Underwriter to purchase its pro rata share (based on the principal amount of
Securities which such Underwriter agreed to purchase hereunder) of the
Underwriters' Securities of such defaulting Underwriter or Underwriters for
which such arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(c) If after giving effect to any arrangements for the purchase of
the Underwriters' Securities of a defaulting Underwriter or Underwriters by you
and the Company as provided in subsection (a) above the aggregate principal
amount of Underwriters' Securities which remains unpurchased exceeds one-tenth
of the aggregate principal amount of all the Securities, or if the Company shall
not exercise the right described in subsection (b) above to require
non-defaulting Underwriters to purchase Underwriters' Securities of a defaulting
Underwriter or Underwriters, then this Agreement shall thereupon terminate,
without liability on the part of any non-defaulting Underwriter or the Company,
except for the expenses to be borne by the Company and the Underwriters as
provided in Section 6 hereof and the indemnity and contribution agreements in
Section 8 hereof; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Underwriters, as set forth
in this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Securities.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
the Company shall not then be under any liability to any Underwriter except as
provided in Section 6 and Section 8 hereof; but if for any other reason the
Underwriters' Securities are not delivered by or on behalf of the Company as
provided herein, the Company will
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reimburse the Underwriters through you for all out-of-pocket expenses approved
in writing by you, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of the Securities, but the Company shall then be under no further
liability to any Underwriter except as provided in Section 6 and Section 8
hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the Company shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by [LEAD UNDERWRITER] on behalf of you as the
Representatives and may assume that such statement, request, notice or agreement
has been duly authorized by such Underwriter.
All statements, requests, notices and agreements hereunder shall be in
writing or by telegram if promptly confirmed in writing, and if to the
Underwriters, shall be sufficient in all respects if delivered or sent by
registered mail to you as the Representatives in care of
[NAME AND ADDRESS OF LEAD UNDERWRITER], Attention: ______________; and if to
the Company, shall be sufficient in all respects if delivered or sent by
registered mail to DMC Stratex Networks, Inc., 170 Rose Orchard Way, San
Jose, California 95134, Attention: Chief Financial Officer; PROVIDED,
HOWEVER, that any notice to an Underwriter pursuant to Section 8(c) hereof
shall be delivered or sent by registered mail to such Underwriter at its
address set forth in its Underwriters' Questionnaire or telex constituting
such Questionnaire delivered to the Company.
13. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company and, to the extent provided in Sections 8 and
10 hereof, the officers and directors of the Company and each person who
controls the Company or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Securities from any Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
14. Time shall be of the essence of this Agreement.
15. This Agreement shall be construed in accordance with the laws of the
State of California, without regard to conflict of laws principles.
16. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
If the foregoing is in accordance with your understanding, please sign and
return to us two counterparts hereof, and upon the acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof shall
constitute a binding agreement between each of the Underwriters and the Company.
It is understood that your acceptance of this letter on behalf of each of
the Underwriters is pursuant to the authority set forth in a form of a telex,
copies of which, to
15
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the extent practicable and upon request, shall be submitted to the Company for
examination, but without warranty on your part as to the authority of the
senders thereof.
Very truly yours,
DMC STRATEX NETWORKS, INC.
By:_____________________________________
Name:___________________________________
Its:____________________________________
ACCEPTED AND AGREED TO BY:
[REPRESENTATIVE(S)]
By:_____________________________________
Name:___________________________________
Its:____________________________________
On behalf of each of the Underwriters
16
<PAGE>
SCHEDULE I
Underwriting Agreement dated [PRICING DATE]
Registration Statement No.[____________]
Representatives:
Description of Securities:
Title:
Maturity:
Interest Rate:
Interest Payment Dates:
Aggregate principal amount and currency:
Purchase price and currency: $plus accrued interest from
[INITIAL INTEREST ACCRUAL DATE]
Sinking fund provisions: [The Securities shall not be entitled to any
sinking fund.]
Redemption provisions: [The Securities are not redeemable prior to
maturity.]
Other provisions: [Defeasance provisions set forth in Articles Four
and Fifteen of the Indenture shall apply to the Securities]
Closing Date, Time and Location: [CLOSING DATE] at 9:30 a.m. at the office
of _____________________________________.
17
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SCHEDULE II
PRINCIPAL AMOUNT OF
UNDERWRITER SECURITIES TO BE PURCHASED
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SCHEDULE III
Pursuant to Section 7(d) of the Underwriting Agreement, the accountants shall
furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect to the
Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules examined by them and included or
incorporated by reference in the Registration Statement or Prospectus
comply as to form in all material respects with the applicable
accounting requirements of the Act or the Exchange Act, as applicable,
and the related published rules and regulations thereunder; and, if
applicable, they have made a review in accordance with standards
established by the American Institute of Certified Public Accountants of
the consolidated interim financial statements, selected financial data,
pro forma financial information and/or condensed financial statements
derived from audited financial statements of the Company for the periods
specified in such letter, as indicated in their reports thereon, copies
of which have been furnished to the Representatives;
(iii) In their opinion, the unaudited selected financial information with
respect to the consolidated results of operations and financial position
of the Company for the five most recent fiscal years included in the
Prospectus and included or incorporated by reference in Item 6 of the
Company's Annual Report on Form 10-K for the most recent fiscal year
agrees with the corresponding amounts (after restatement where
applicable) in the audited consolidated financial statements for such
fiscal years which were included or incorporated by reference in the
Company's Annual Reports on Form 10-K for such fiscal years;
(iv) On the basis of limited procedures, not constituting an examination in
accordance with generally accepted auditing standards, consisting of a
reading of the unaudited financial statements and other information
referred to below, a reading of the latest available interim financial
statements of the Company and its subsidiaries, inspection of the minute
books of the Company and its subsidiaries since the date of the latest
audited financial statements included or incorporated by reference in
the Prospectus, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such letter,
nothing came to their attention that caused them to believe that:
(A) the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of
changes in financial position included or incorporated by
reference in the Company's Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus do not comply as to
form in all material respects with the applicable accounting
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requirements of the Exchange Act as its applies to Form 10-Q and
the related published rules and regulations thereunder or are
not in conformity with generally accepted accounting principles
for interim financial statements applied on a basis
substantially consistent with the basis for the audited
consolidated statements of income, consolidated balance sheets
and consolidated statements of changes in financial position
included or incorporated by reference in the Company's Annual
Report on Form 10-K for the most recent fiscal year;
(B) any other unaudited income statement data and balance sheet
items included in the Prospectus do not agree with the
corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any
such unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements
included or incorporated by reference in the Company's Annual
Report on Form 10-K for the most recent fiscal year;
(C) the unaudited financial statements which were not included in
the Prospectus but from which were derived the unaudited
condensed financial statements referred to in Clause (A) and any
unaudited income statement data and balance sheet items included
in the Prospectus and referred to in Clause (B) were not
determined on a basis substantially consistent with the basis
for the audited financial statements included or incorporated by
reference in the Company's Annual Report on Form 10-K for the
most recent fiscal year;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the
Prospectus do not comply as to form in all material respects
with the applicable accounting requirements of the Act and the
published rules and regulations thereunder;
(E) as of a specified date not more than five days prior to the date
of such letter, when compared with amounts shown in the latest
balance sheet included or incorporated by reference in the
Prospectus, there have been
- any changes in the consolidated capital stock (other than
issuances of capital stock upon the exercise of stock options,
pursuant to performance shares or restricted stock awards and
upon the conversion of convertible securities, in each case
which were outstanding on the date of the latest balance sheet
included or incorporated by reference in the Prospectus), or
- any increase in the consolidated long-term debt (excluding
capital leases) of the Company and its subsidiaries, or
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- any decrease in consolidated working capital greater than 1.5%
of the Company's most recent fiscal year-end total consolidated
assets (treating all commercial paper as a current liability),
or
- any decreases in consolidated shareholders' investment greater
than 0.5% of the Company's most recent fiscal year-end total
consolidated assets (excluding decreases resulting from normally
recurring dividends), or
- any decreases or increases in other items specified by the
Representatives
in each case except for changes, increases or decreases which the Prospectus
discloses have occurred or may occur or which are described in such letter; and
(F) for the period from the date of the latest financial statements
included or incorporated by reference in the Prospectus to the
specified date referred to in Clause (E), when compared with the
comparable period of the preceding year and with any other
period of corresponding length specified by the Representatives,
there were
- any decreases in consolidated net sales or earnings before
income taxes and extraordinary charges, or
- any decreases in the total or per share amounts of consolidated
net income or other items specified by the Representatives, or
- any increases in any items specified by the Representatives
in each case except for increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such letter; and
(v) In addition to the examination referred to in their report(s) included
or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (iii) and (iv) above, they have carried out
certain specified procedures, not constituting an examination in
accordance with generally accepted auditing standards, with respect to
certain amounts, percentages and financial information specified by the
Representatives which are derived from the general accounting records of
the Company and its subsidiaries, which appear in the Prospectus
(excluding documents incorporated by reference), or in Part II of, or in
exhibits and schedules to, the Registration Statement specified by the
Representatives or in documents incorporated by reference in the
Prospectus specified by the Representatives, and have compared certain
of such amounts, percentages and financial information with the
accounting records of the Company and its subsidiaries and have found
them to be in agreement.
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SCHEDULE IV
DELAYED DELIVERY CONTRACT
DMC STRATEX NETWORKS, INC.
C/O
ATTENTION:
Dear Sirs:
The undersigned hereby agrees to purchase from DMC STRATEX NETWORKS,
INC.(hereinafter called the "Company"), and the Company agrees to sell to the
undersigned, $principal amount of the Company's (hereinafter called the
"Securities"), offered by the Company's Prospectus dated and Prospectus
Supplement dated ____________, receipt of a copy of which is hereby
acknowledged, at a purchase price of _____% of the principal amount thereof,
plus accrued interest from the date from which interest accrues as set forth
below, and on the further terms and conditions set forth in this contract.
The undersigned will purchase the Securities from the Company on
___________, (the "Delivery Date") and interest on the Securities so purchased
will accrue from ________________.
Payment for the Securities which the undersigned has agreed to purchase
on the Delivery Date shall be made to the Company or its order by certified or
official bank check in New York Clearing House funds at the office of , or by
wire transfer to a bank account specified by the Company, on the Delivery Date
upon delivery to the undersigned of the Securities then to be purchased by the
undersigned in definitive fully registered form and in such denominations and
registered in such names as the undersigned may designate by written or
telegraphic communication addressed to the Company not less than five full
business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for the Securities on the Delivery Date shall be subject to the condition that
the purchase of the Securities to be made by the undersigned shall not on the
Delivery Date be prohibited under the laws of the jurisdiction to which the
undersigned is subject. The obligation of the undersigned to take delivery of
and make payment for the Securities shall not be affected by the failure of any
purchaser to take delivery of and make payment for the Securities pursuant to
other contracts similar to this contract.
The undersigned understands that underwriters (the "Underwriters") are
also purchasing Securities from the Company, but that the obligations of the
undersigned hereunder are not contingent on such purchases. [PROMPTLY AFTER
COMPLETION OF THE SALE TO THE UNDERWRITERS THE COMPANY WILL MAIL OR DELIVER TO
THE UNDERSIGNED AT ITS ADDRESS SET FORTH BELOW NOTICE TO SUCH EFFECT,
ACCOMPANIED BY A COPY OF THE OPINION OF
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<PAGE>
COUNSEL FOR THE COMPANY DELIVERED TO THE UNDERWRITERS IN CONNECTION THEREWITH.]
The undersigned represents and warrants that, as of the date of this
contract, the undersigned is not prohibited from purchasing the Securities
hereby agreed to be purchased by it under the laws of the jurisdiction to which
the undersigned is subject.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
This contract may be executed by either of the parties hereto in any
number of counterparts, each of which shall be deemed to be an original, but all
such counterparts shall together constitute one and the same instrument.
It is understood that the acceptance by the Company of any Delayed
Delivery Contract (including this contract) is in the Company's sole discretion
and that, without limiting the foregoing, acceptances of such contracts need not
be on a first-come, first-served basis. If this contract is acceptable to the
Company, it is requested that the Company sign the form of acceptance below and
mail or deliver one of the counterparts hereof to the undersigned at its address
set forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered by the Company.
Yours very truly,
By:__________________________________________
(Signature)
_____________________________________________
(Name and Title)
_____________________________________________
(Address)
Accepted: _________________,
DMC STRATEX NETWORKS, INC.
By:___________________________
Name:_________________________
Its:__________________________
23
