<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 15, 2000
REGISTRATION NO. 333-94365
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------
POST-EFFECTIVE AMENDMENT
NO. 1 TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------
CISCO SYSTEMS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
--------------
CALIFORNIA 77-0059951
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
--------------
170 WEST TASMAN DRIVE
SAN JOSE, CALIFORNIA 95134
(408) 526-4000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
--------------
JOHN T. CHAMBERS
PRESIDENT AND CHIEF EXECUTIVE OFFICER
CISCO SYSTEMS, INC.
255 WEST TASMAN DRIVE
SAN JOSE, CALIFORNIA 95134
(408) 526-4000
(NAME AND ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
--------------
Copy to:
THERESE A. MROZEK, ESQ.
BROBECK, PHLEGER & HARRISON LLP
TWO EMBARCADERO PLACE
2200 GENG ROAD
PALO ALTO, CALIFORNIA 94303
(650) 424-0160
--------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after this registration statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
--------------
<PAGE> 2
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 16. EXHIBITS
1.1 Underwriting Agreement
2.1 Share Purchase Agreement dated as of December 20, 1999 between
Registrant, one of its affiliates, Pirelli S.p.A. and two of its
affiliates*
5.1 Opinion of Brobeck, Phleger & Harrison LLP*
23.1 Consent of PricewaterhouseCoopers LLP*
23.2 Consent of Brobeck, Phleger & Harrison LLP (included in the Opinion of
Brobeck, Phleger & Harrison LLP previously filed as Exhibit 5.1 hereto)
24.1 Power of Attorney*
- ------------
*Previously filed
II-1
<PAGE> 3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933 the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this amendment
to be signed on its behalf by the undersigned, thereunto duly authorized in the
City of Santa Clara, State of California, on this 14th day of February, 2000.
CISCO SYSTEMS, INC.
By /s/ LARRY R. CARTER
----------------------------------
Larry R. Carter,
Senior Vice President,
Chief Financial Officer
and Secretary
Pursuant to the requirements of the Securities Act of 1933, as amended,
this amendment to registration statement has been signed below by the following
persons on behalf of Cisco and in the capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
- ---------- ----- ----
<S> <C> <C>
* President, Chief Executive February 14, 2000
- ------------------------ Officer and Director
John T. Chambers (Principal Executive Officer)
/s/ LARRY R. CARTER Senior Vice President, Finance February 14, 2000
- ------------------------ and Administration, Chief
Larry R. Carter Financial Officer and Secretary
(Principal Financial and
Accounting Officer)
* Chairman of the Board and Director February 14, 2000
- ------------------------
John P. Morgridge
* Vice Chairman and Director February 14, 2000
- ------------------------
Donald T. Valentine
</TABLE>
II-3
<PAGE> 4
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
- ---------- ----- ----
<S> <C> <C>
* Director February 14, 2000
- ------------------------
James F. Gibbons
* Director February 14, 2000
- ------------------------
Steven M. West
* Director February 14, 2000
- ------------------------
Edward R. Kozel
* Director February 14, 2000
- ------------------------
Carol A. Bartz
* Director February 14, 2000
- ------------------------
James C. Morgan
* Director February 14, 2000
- ------------------------
Mary Cirillo
* Director February 14, 2000
- ------------------------
Arun Sarin
*By: /s/ LARRY R. CARTER
------------------------
Larry R. Carter
Attorney-in-fact
</TABLE>
II-4
<PAGE> 5
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Exhibit Title
- ------- -------------
<S> <C>
1.1 Underwriting Agreement
2.1 Share Purchase Agreement dated as of December 20, 1999 by and among
Registrant, one of Registrant's affiliates, Pirelli S.p.A and two of
Pirelli's affiliates*
5.1 Opinion of Brobeck, Phleger & Harrison LLP*
23.1 Consent of PricewaterhouseCoopers LLP*
23.2 Consent of Brobeck, Phleger & Harrison LLP (included in the Opinion
of BPH previously filed as Exhibit 5.1)
24.1 Power of Attorney*
</TABLE>
- -------------
* Previously filed
II-5
<PAGE> 1
EXHIBIT 1.1
================================================================================
CISCO SYSTEMS, INC.
(a California corporation)
11,891,749 Shares of Common Stock
UNDERWRITING AGREEMENT
Dated: February 14, 2000
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
<S> <C>
1. REPRESENTATIONS AND WARRANTIES...................................................... 2
(a) Representations and Warranties by the Company................................ 2
(b) Representations and Warranties by Pirelli.................................... 9
(c) Officer's Certificates....................................................... 11
2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING.......................................... 11
(a) Securities................................................................... 11
(b) Payment...................................................................... 11
(c) Book-Entry Transfer of Securities............................................ 12
3. COVENANTS OF THE COMPANY............................................................ 12
(a) Compliance with Securities Regulations and Commission Requests............... 12
(b) Filing of Amendments......................................................... 12
(c) Delivery of Registration Statements.......................................... 12
(d) Delivery of Prospectuses..................................................... 13
(e) Continued Compliance with Securities Laws.................................... 13
(f) Blue Sky Qualifications...................................................... 13
(g) Rule 158..................................................................... 13
(h) Listing...................................................................... 14
(i) Reporting Requirements....................................................... 14
(j) Opinion of Counsel for Company............................................... 14
(k) Opinion of Counsel for Pirelli............................................... 14
(l) Company Officers' Certificate................................................ 14
(m) Pirelli Attorney-in-Fact's Certificate....................................... 14
(n) Accountant's Comfort Letter.................................................. 14
(o) Bring-down Comfort Letter.................................................... 15
(p) Bring-down Diligence......................................................... 15
(q) Use of United States Currency................................................ 15
4. PAYMENT OF EXPENSES ................................................................ 15
(a) Expenses of the Company...................................................... 15
(b) Expenses of Pirelli.......................................................... 15
(c) Termination of Agreement..................................................... 16
(d) Allocation of Expenses....................................................... 16
5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS............................................. 16
(a) Effectiveness of Registration Statement...................................... 16
(b) Certificate of Pirelli....................................................... 16
(c) No Amendment................................................................. 16
6. INDEMNIFICATION..................................................................... 16
(a) Indemnification of Underwriters and Pirelli by the Company................... 16
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
<S> <C>
(b) Indemnification of Underwriters and the Company by Pirelli................... 18
(c) Indemnification of Company, Directors and Officers and Pirelli by
Underwriters................................................................. 18
(d) Actions against Parties; Notification........................................ 18
(e) Other Agreements with Respect to Indemnification............................. 19
7. CONTRIBUTION........................................................................ 19
8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY...................... 21
9. DEFAULT BY THE SELLING SHAREHOLDER.................................................. 21
10. NOTICES............................................................................. 21
11. PARTIES............................................................................. 21
12. GOVERNING LAW AND TIME.............................................................. 22
13. CONSENT TO JURISDICTION............................................................. 22
14. JUDGMENT CURRENCY................................................................... 22
15. EFFECT OF HEADINGS.................................................................. 23
SCHEDULES
Schedule A - List of Underwriters......................................................... Sch A-1
EXHIBITS
Exhibit A - Form of Opinion of Company's Counsel............................................ A-1
Exhibit B - Form of Opinion for the Selling Shareholders.................................... B-1
</TABLE>
ii
<PAGE> 4
CISCO SYSTEMS, INC.
(a California corporation)
11,891,749 Shares of Common Stock
(Par Value $.001 Per Share)
UNDERWRITING AGREEMENT
February 14, 2000
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
Cisco Systems, Inc., a California corporation (the "COMPANY")
and Pirelli Cable Holding, N.V., a limited company incorporated under the laws
of the Netherlands ("PIRELLI") or the "SELLING SHAREHOLDER"), confirm their
respective agreements with Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner &
Smith Incorporated ("MERRILL LYNCH") and each of the other Underwriters named in
Schedule A hereto, if any (collectively, the "UNDERWRITERS"), for whom Merrill
Lynch is acting as representative (in such capacity, the "REPRESENTATIVE"), with
respect to the sale by the Selling Shareholder and the purchase by the
Underwriters, acting severally and not jointly, of 11,891,749 shares of Common
Stock, par value $.001 per share, of the Company ("COMMON STOCK"). The aforesaid
shares of Common Stock to be purchased by the Underwriters are hereinafter
called the "SECURITIES." The Securities are initially being issued by the
Company to the Selling Shareholder pursuant to the terms of the Share Purchase
Agreement dated as of December 20, 1999 among the Company, Pirelli and the other
parties thereto, as amended by the Addendum to Share Purchase Agreement dated
February 14, 2000 (the "SHARE PURCHASE AGREEMENT").
The Company and Pirelli understand that the Underwriters
propose to make a public offering of the Securities as soon as the
Representative deems advisable after this Agreement has been executed and
delivered.
The Company has filed with the Securities and Exchange
Commission (the "COMMISSION") a registration statement on Form S-3 (No.
333-94365) covering the resale of up to 20,000,000 shares of Common Stock,
including the Securities, under the Securities Act of 1933, as amended (the
"1933 ACT"), including the related preliminary prospectus or prospectuses.
Promptly after execution and delivery of this Agreement, the Company will either
(i) prepare and file a prospectus or prospectus supplement in accordance with
the provisions of
<PAGE> 5
Rule 430A ("RULE 430A") of the rules and regulations of the Commission under the
1933 Act (the "1933 ACT REGULATIONS") and paragraph (b) of Rule 424 ("RULE
424(b)") of the 1933 Act Regulations or (ii) at the request of the
Representative if the Company has elected to rely upon Rule 434 ("RULE 434") of
the 1933 Act Regulations, prepare and file a term sheet (a "TERM SHEET") in
accordance with the provisions of Rule 434 and Rule 424(b). The information
included in such prospectus or in such Term Sheet, as the case may be, that was
omitted from such registration statement at the time it became effective but
that is deemed to be part of such registration statement at the time it became
effective (a) pursuant to paragraph (b) of Rule 430A is referred to as "RULE
430A INFORMATION" or (b) pursuant to paragraph (d) of Rule 434 is referred to as
"RULE 434 INFORMATION." Each prospectus used before such registration statement
became effective, and any prospectus that omitted, as applicable, the Rule 430A
Information or the Rule 434 Information, that was used after such effectiveness
and prior to the execution and delivery of this Agreement, is herein called a
"PRELIMINARY PROSPECTUS." Such registration statement, including the exhibits
thereto, schedules thereto, if any, and the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the 1933 Act, at the time it
became effective and including the Rule 430A Information and the Rule 434
Information, as applicable, is herein called the "REGISTRATION STATEMENT." Any
registration statement filed pursuant to Rule 462(b) of the 1933 Act Regulations
is herein referred to as the "RULE 462(b) REGISTRATION STATEMENT," and after
such filing the term "REGISTRATION STATEMENT" shall include the Rule 462(b)
Registration Statement. The final prospectus, including the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933
Act, in the form first furnished to the Underwriters for use in connection with
the offering of the Securities is herein called the "PROSPECTUS." If Rule 434 is
relied on, the term "PROSPECTUS" shall refer to the preliminary prospectus
supplement subject to completion dated February 11, 2000 together with the Term
Sheet and all references in this Agreement to the date of the Prospectus shall
mean the date of the Term Sheet. For purposes of this Agreement, all references
to the Registration Statement, any preliminary prospectus, the Prospectus or any
Term Sheet or any amendment or supplement to any of the foregoing shall be
deemed to include the copy filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval system ("EDGAR").
All references in this Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated" in
the Registration Statement, any preliminary prospectus or the Prospectus (or
other references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934 (the "1934 ACT") which is
incorporated by reference in the Registration Statement, such preliminary
prospectus or the Prospectus, as the case may be.
1. REPRESENTATIONS AND WARRANTIES. Representations and Warranties by the
Company.
The Company represents and warrants to each Underwriter as of
the date hereof and agrees with each Underwriter, as follows:
2
<PAGE> 6
(i) Compliance with Registration Requirements. The Company meets
the requirements for use of Form S-3 under the 1933 Act. Each of the
Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Company, are contemplated by the Commission, and
any request on the part of the Commission for additional information has
been complied with.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments thereto
became effective and at the Closing Time, the Registration Statement,
the Rule 462(b) Registration Statement and any amendments and
supplements thereto complied and will comply in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations and
did not and will 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 not misleading. Neither the Prospectus
nor any amendments or supplements thereto, at the time the Prospectus or
any such amendment or supplement was issued and at the Closing Time,
included or, as amended or supplemented, if applicable, will include an
untrue statement of a material fact or omitted or will omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
PricewaterhouseCoopers LLP, the Company's independent accountants
("PWC"), has notified the Company that PWC is engaged in discussions
with the Commission following an internal review by PWC, pursuant to an
administrative settlement with the Commission, of PWC's compliance with
auditor independence guidelines. PWC has advised the Company that the
Company is one of the companies affected by such discussions. The
Company is not involved in the discussions between the Commission and
PWC and cannot predict the result of those discussions. If Rule 434 is
used, the Company will comply with the requirements of Rule 434. The
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or Prospectus
made in reliance upon and in conformity with information furnished to
the Company in writing by any Underwriter through Merrill Lynch or by
Pirelli expressly for use in the Registration Statement or Prospectus.
Each preliminary prospectus and the prospectus filed as part of
the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the 1933 Act
Regulations and each preliminary prospectus and the Prospectus delivered
to the Underwriters for use in connection with this offering was
identical to the electronically transmitted copies thereof filed with
the Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
(ii) Incorporated Documents. The documents incorporated or
deemed to be incorporated by reference in the Registration Statement and
the Prospectus, when they became effective or at the time they were or
hereafter are filed with the Commission, complied and will comply in all
material respects with the requirements of the 1934 Act
3
<PAGE> 7
and the rules and regulations of the Commission thereunder (the "1934
ACT REGULATIONS"), as applicable. PWC has notified the Company that PWC
is engaged in discussions with the Commission following an internal
review by PWC, pursuant to an administrative settlement with the
Commission, of PWC's compliance with auditor independence guidelines.
PWC has advised the Company that the Company is one of the companies
affected by such discussions. The Company is not involved in the
discussions between the Commission and PWC and cannot predict the result
of those discussions.
(iii) Independent Accountants. The accountants who certified the
financial statements and supporting schedules included in the
Registration Statement are independent public accountants as required by
the 1933 Act and the 1933 Act Regulations. PWC has notified the Company
that PWC is engaged in discussions with the Commission following an
internal review by PWC, pursuant to an administrative settlement with
the Commission, of PWC's compliance with auditor independence
guidelines. PWC has advised the Company that the Company is one of the
companies affected by such discussions. The Company is not involved in
the discussions between the Commission and PWC and cannot predict the
result of those discussions.
(iv) Financial Statements. The financial statements included in
the Registration Statement and the Prospectus, together with the related
schedules and notes, present fairly, in all material respects, the
financial position of the Company and its consolidated subsidiaries at
the dates indicated and the statement of operations, shareholders'
equity and cash flows of the Company and its consolidated subsidiaries
for the periods specified; said financial statements have been prepared
in conformity with United States generally accepted accounting
principles ("GAAP") applied on a consistent basis throughout the periods
involved and comply, in all material respects, with the Commission's
rules applicable thereto. The supporting schedules, if any, included in
the Registration Statement present fairly, in all material respects, in
accordance with GAAP the information required to be stated therein. The
selected financial data and the summary financial information included
in the Prospectus present fairly, in all material respects, the
information shown therein and have been compiled on a basis consistent
with that of the audited financial statements included in the
Registration Statement. PWC has notified the Company that PWC is engaged
in discussions with the Commission following an internal review by PWC,
pursuant to an administrative settlement with the Commission, of PWC's
compliance with auditor independence guidelines. PWC has advised the
Company that the Company is one of the companies affected by such
discussions. The Company is not involved in the discussions between the
Commission and PWC and cannot predict the result of those discussions.
(v) No Material Adverse Change in Business. Since the respective
dates as of which information is given in the Registration Statement and
the Prospectus, except as otherwise stated therein, (A) there has been
no material adverse change in the condition, financial or otherwise,
operations or business of the Company and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of
business (a "MATERIAL ADVERSE EFFECT") and (B) there have been no
transactions entered into by the Company or any of its subsidiaries,
other than those in the ordinary course of business,
4
<PAGE> 8
which are material with respect to the Company and its subsidiaries
considered as one enterprise.
(vi) Good Standing of the Company. The Company has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of California and has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and to enter into and perform
its obligations under this Agreement; and the Company is duly qualified
as a foreign corporation to transact business and is in good standing in
each other jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good
standing would not result in a Material Adverse Effect.
(vii) Good Standing of Subsidiaries. None of the Company's
subsidiaries constitute a "significant subsidiary" as such term is
defined in Rule 1-02 of Regulation S-X other than Cisco Systems
Management B.V. (the "SUBSIDIARY"). The Subsidiary has been duly
organized and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has corporate
power and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus and is duly
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct
of business, except where the failure so to qualify or to be in good
standing would not result in a Material Adverse Effect; except as
otherwise disclosed in the Registration Statement, all of the issued and
outstanding capital stock of the Subsidiary has been duly authorized and
validly issued, is fully paid and non-assessable and is owned by the
Company, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equity;
none of the outstanding shares of capital stock of the Subsidiary was
issued in violation of the preemptive or similar rights of any
securityholder of the Subsidiary.
(viii) Authorization of Agreements. Each of this Agreement and
the Share Purchase Agreement has been duly authorized, executed and
delivered by the Company and the Share Purchase Agreement is the valid,
binding and enforceable agreement of the Company. There have been no
amendments or waivers to the Share Purchase Agreement other than the
Addendum to Share Purchase Agreement dated February 14, 2000.
(ix) Authorization and Description of Securities. The Common
Stock conforms to all statements relating thereto contained in the
Prospectus and such description conforms to the rights set forth in the
instruments defining the same; no holder of the Securities will be
subject to personal liability by reason of being such a holder; and the
issuance of the Securities is not subject to the preemptive or other
similar rights of any securityholder of the Company.
(x) Absence of Defaults and Conflicts. Neither the Company nor
any of its subsidiaries is in violation of its charter or by-laws or in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage,
deed of trust, loan or credit agreement, note, lease or other
5
<PAGE> 9
agreement or instrument to which the Company or any of its subsidiaries
is a party or by which it or any of them may be bound, or to which any
of the property or assets of the Company or any subsidiary is subject in
each case which is material to the business of the Company and its
subsidiaries, taken as a whole (collectively, "AGREEMENTS AND
INSTRUMENTS") except for such defaults that would not result in a
Material Adverse Effect; and the execution, delivery and performance of
this Agreement and the consummation of the transactions contemplated
herein and in the Registration Statement and the issuance and sale of
the Securities and compliance by the Company with its obligations
hereunder have been duly authorized by all necessary corporate action
and do not and will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach of, or
default or Repayment Event (as defined below) under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
material property or assets of the Company or any subsidiary pursuant
to, the Agreements and Instruments, nor will such action result in any
violation of the provisions of the charter or by-laws of the Company or
any applicable law, statute, rule, regulation, judgment, order, writ or
decree of any government, government instrumentality or court, domestic
or foreign, having jurisdiction over the Company or any subsidiary or
any of their assets, properties or operations. As used herein, a
"REPAYMENT EVENT" means any event or condition which gives the holder of
any note, debenture or other evidence of indebtedness (or any person
acting on such holder's behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by the
Company or any subsidiary.
(xi) Absence of Proceedings. There is no action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Company, threatened, against the Company or any
subsidiary, which is required to be disclosed in the Registration
Statement (other than as disclosed therein), or which might reasonably
be expected to result in a Material Adverse Effect, or which might
reasonably be expected to materially and adversely affect the
consummation of the transactions contemplated in this Agreement or the
performance by the Company of its obligations hereunder.
(xii) Accuracy of Exhibits. There are no contracts or documents
which are required to be described in the Registration Statement, the
Prospectus or the documents incorporated by reference therein or to be
filed as exhibits thereto which have not been so described and filed as
required.
(xiii) Possession of Intellectual Property. The Company and its
subsidiaries own or possess, or can acquire on reasonable terms,
adequate patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks, trade names or other
intellectual property (collectively, "INTELLECTUAL PROPERTY") necessary
to carry on the business now operated by them, except such which are not
material to the business of the Company and its subsidiaries taken as a
whole, and neither the Company nor any of its subsidiaries has received
any notice or is otherwise aware of any infringement of or conflict with
asserted rights of others with respect to any Intellectual Property or
of any facts or circumstances which
6
<PAGE> 10
would render any Intellectual Property invalid or inadequate to protect
the interest of the Company or any of its subsidiaries therein, and
which infringement or conflict (if the subject of any unfavorable
decision, ruling or finding) or invalidity or inadequacy, singly or in
the aggregate, would result in a Material Adverse Effect.
(xiv) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Company of
its obligations hereunder, in connection with the offering, issuance or
sale of the Securities hereunder or the consummation of the transactions
contemplated by this Agreement, except (A) such as have been already
obtained or as may be required under the 1933 Act or the 1933 Act
Regulations or state securities laws, (B) such as may be required by any
state securities laws or the securities laws of any foreign
jurisdictions, and (C) the Company must give official notice of issuance
of the Securities to the Nasdaq National Market.
(xv) Possession of Licenses and Permits. The Company and its
subsidiaries possess such permits, licenses, approvals, consents and
other authorizations (collectively, "GOVERNMENTAL LICENSES") issued by
the appropriate federal, state, local or foreign regulatory agencies or
bodies necessary to conduct the business now operated by them, except
where the failure to have such Governmental Licenses would not result in
a Material Adverse Effect; the Company and its subsidiaries are in
compliance with the terms and conditions of all such Governmental
Licenses, except where the failure so to comply would not, singly or in
the aggregate, have a Material Adverse Effect; all of the Governmental
Licenses are valid and in full force and effect, except when the
invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not have a
Material Adverse Effect; and neither the Company nor any of its
subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in a Material Adverse Effect.
(xvi) Compliance with Cuba Act. The Company has complied with
the provisions of that certain Florida act relating to disclosure of
doing business with Cuba, codified as Section 517.075 of the Florida
statutes, and the rules and regulations thereunder (collectively, the
"CUBA ACT") or is exempt therefrom.
(xvii) Investment Company Act. The Company is not an "investment
company" or an entity "controlled" by an "investment company" as such
terms are defined in the Investment Company Act of 1940, as amended (the
"1940 ACT").
(xviii) Environmental Laws. Except as described in the
Registration Statement and except as would not, singly or in the
aggregate, result in a Material Adverse Effect, (A) neither the Company
nor any of its subsidiaries is in violation of any federal, state, local
or foreign statute, law, rule, regulation, ordinance, code, policy or
rule of common law or any judicial or administrative interpretation
thereof, including any judicial or administrative order, consent, decree
or judgment, relating to pollution or protection of
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human health, the environment (including, without limitation, ambient
air, surface water, groundwater, land surface or subsurface strata) or
wildlife, including, without limitation, laws and regulations relating
to the release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances, petroleum
or petroleum products (collectively, "HAZARDOUS MATERIALS") or to the
manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials (collectively,
"ENVIRONMENTAL LAWS"), (B) the Company and its subsidiaries have all
permits, authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements,
and (C) there are no events or circumstances that might reasonably be
expected to form the basis of an order for clean-up or remediation, or
an action, suit or proceeding by any private party or governmental body
or agency, against the Company or any of its subsidiaries relating to
Hazardous Materials or any Environmental Laws.
(xix) Listing. As of the date of this Agreement, the Securities
shall have been approved for inclusion in the Nasdaq National Market,
upon official notice of issuance.
(xx) Consummation of the Share Purchase Agreement. The
transactions contemplated by the Share Purchase Agreement were
consummated not later than 8:00 A.M. (Eastern Standard Time) on February
15, 2000 and the Company has issued the Securities to the Selling
Shareholder in accordance therewith.
(xxi) Authorization of Share Purchase Agreement. The Company has
the full right, power and authority to enter into the Share Purchase
Agreement. The Company's execution and delivery of the Share Purchase
Agreement and the consummation of the transactions contemplated therein
and compliance by the Company with its obligations thereunder has been
duly authorized by the Company and the Share Purchase Agreement is
enforceable against the Company. The consummation of the transactions
contemplated in the Share Purchase Agreement will not result in any
violation of the provisions of (a) the articles of incorporation or
by-laws of the Company, (b) any applicable treaty, law, statute, rule,
regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any of its properties or (c) any
contract or agreement to which the Company is a party or by which its
properties are bound which violation, in the case of each of (a), (b)
and (c) above, could individually or in the aggregate result in the
termination or rescission of the Share Purchase Agreement or which would
affect the validity of the Securities or which would result in any lien,
charge or other adverse claim on or against the Securities caused by the
Company.
(xxii) Absence of Further Requirements for Share Purchase
Agreement. No filing with, or consent, approval, authorization, order,
registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign (collectively, a "CONSENT"), is
necessary or required for the performance by the Company of its
obligations under the Share Purchase Agreement or in connection with the
Company's consummation of the transactions contemplated by or the Share
Purchase Agreement, except (a) such as may have previously been made or
obtained or (b) where the failure to make or obtain such Consent would
not, in either case, result in the termination or
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<PAGE> 12
rescission of the Share Purchase Agreement or which would affect the
validity of the Securities or which would result in any lien, charge or
other adverse claim on or against the Securities caused by the Company.
(xxiii)Foreign Corporation. The Company is registered and in
good standing as a foreign corporation which is qualified to do business
in the State of New York.
(b) Representations and Warranties by Pirelli. Pirelli represents and
warrants to each Underwriter as of the date hereof and as of the Closing Time
referred to in Section 2(b) hereof and agrees with each Underwriter, as follows:
(i) Authorization of Agreement. Pirelli has the full right,
power and authority to enter into this Agreement and Pirelli has the
full right, power and authority to sell, transfer and deliver the
Securities to be sold by Pirelli hereunder. Pirelli's execution and
delivery of this Agreement and the sale and delivery of the Securities
to be sold by Pirelli and the consummation of the transactions
contemplated herein and compliance by Pirelli with its obligations
hereunder have been duly authorized by Pirelli and do not and will not,
whether with or without the giving of notice or passage of time or both,
conflict with or constitute a breach of, or default under, or result in
the creation or imposition of any tax, lien, charge or encumbrance upon
the Securities to be sold by Pirelli pursuant to any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note,
license, lease or other agreement or instrument to which Pirelli is a
party or by which Pirelli may be bound, or to which any of the property
or assets of Pirelli is subject, nor will such action result in any
violation of the provisions of the charter or by-laws or other
organizational instrument of Pirelli, if applicable, or any applicable
treaty, law, statute, rule, regulation, judgment, order, writ or decree
of any government, government instrumentality or court, domestic or
foreign, having jurisdiction over Pirelli or any of its properties.
(ii) Authorization of Share Purchase Agreement. Pirelli S.p.A.,
a limited company incorporated under the laws of Italy ("PARENT"),
Pirelli Cavi e Sistemi S.p.A., a limited company incorporated under the
laws of Italy ("PIRELLI CAVI") and Pirelli each have the full right,
power and authority to enter into the Share Purchase Agreement. Each of
the Parent, Pirelli Cavi and Pirelli's execution and delivery of the
Share Purchase Agreement and the consummation of the transactions
contemplated therein and compliance by each of the Parent, Pirelli Cavi
and Pirelli with its obligations thereunder have been duly authorized by
each of the Parent, Pirelli Cavi and Pirelli and the Share Purchase
Agreement is enforceable against each of the Parent, Pirelli Cavi and
Pirelli. The consummation of the transactions contemplated in the Share
Purchase Agreement will not result in any violation of the provisions of
(a) the charter or by-laws or other organizational instrument of Parent,
Pirelli Cavi or Pirelli, (b) any applicable treaty, law, statute, rule,
regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over Parent, Pirelli Cavi or Pirelli or any of their
respective properties or (c) any contract or agreement to which they are
a party or by which their respective properties are bound which
violation, in each case, could individually or in the aggregate result
in the termination or rescission of the Share Purchase Agreement or
which would affect the validity of the Securities or which would result
in any lien, charge or other adverse claim on or against the Securities.
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<PAGE> 13
(iii) Good and Marketable Title. Pirelli will on the "CLOSING
DATE" as defined in the Share Purchase Agreement and at the Closing Time
have good and marketable title to the Securities to be sold by Pirelli
hereunder, free and clear of any security interest, mortgage, pledge,
lien, charge, claim, equity or encumbrance of any kind, other than
pursuant to this Agreement; and upon delivery of such Securities and
payment of the purchase price therefor as herein contemplated, assuming
each such Underwriter has no notice of any adverse claim, each of the
Underwriters will receive good and marketable title to the Securities
purchased by it from Pirelli, free and clear of any security interest,
mortgage, pledge, lien, charge, claim, equity or encumbrance of any
kind.
(iv) Due Execution of Power of Attorney. The Selling Shareholder
has duly executed and delivered, in the form heretofore furnished to the
Representative, the Power of Attorney, authorizing each of the persons
named therein to act as attorney-in-fact for the Selling Shareholder
(each an "ATTORNEY-IN-FACT") to execute and deliver this Agreement and
the certificate referred to in Section 5(b) on behalf of the Selling
Shareholder, to sell, assign and transfer to the Underwriters the
Securities to be sold by the Selling Shareholder hereunder, to determine
the purchase price to be paid by the Underwriters to the Selling
Shareholder, as provided in Section 2(a) hereof, to authorize the
delivery of the Securities to be sold by the Selling Shareholder
hereunder, to accept payment therefor, and otherwise to act on behalf of
the Selling Shareholder in connection with this Agreement.
(v) Absence of Manipulation. Neither Pirelli nor any of its
affiliates has taken, and will not take, directly or indirectly, any
action which is designed to or which has constituted or which might
reasonably be expected to cause or result in stabilization or
manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities.
(vi) Absence of Further Requirements. No filing with, or
consent, approval, authorization, order, registration, qualification or
decree of, any court or governmental authority or agency, domestic or
foreign, is necessary or required for the performance by Pirelli of its
obligations hereunder or in the Power of Attorney, or in connection with
the sale and delivery of the Securities hereunder or the consummation of
the transactions contemplated by this Agreement, except such as may have
previously been made or obtained or as may be required under the 1933
Act or the 1933 Act Regulations or state securities laws.
(vii) Absence of Further Requirements for Share Purchase
Agreement. No filing with, or consent, approval, authorization, order,
registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign (collectively, a "CONSENT"), is
necessary or required for the performance by each of the Parent, Pirelli
Cavi and Pirelli of its obligations under the Share Purchase Agreement
or in connection with the consummation of the transactions contemplated
by or the Share Purchase Agreement, except (a) such as may have
previously been made or obtained or (b) where the failure to make or
obtain such Consent would not, in either case, result in the termination
or rescission of the Share Purchase Agreement or which would affect the
10
<PAGE> 14
validity of the Securities or which would result in any lien, charge or
other adverse claim on or against the Securities.
(viii) Book-Entry Transfer. The Securities to be purchased by
each Underwriter hereunder will be represented by one or more definitive
global Securities in book-entry form which will be deposited by or on
behalf of the Selling Shareholder with The Depository Trust Company
("DTC"), for the account of each Underwriter, against payment by or on
behalf of such Underwriter of the purchase price therefor as provided in
Section 2 of this Agreement.
(ix) No Association with NASD. Neither Pirelli nor any of its
affiliates directly, or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with, or has
any other association with (within the meaning of Article I, Section
1(m) of the By-laws of the National Association of Securities Dealers,
Inc.), any member firm of the National Association of Securities
Dealers, Inc.
(c) Officer's Certificates. Any certificate signed by any officer of the
Company or any of its subsidiaries delivered to the Representative or to counsel
for the Underwriters shall be deemed a representation and warranty by the
Company to each Underwriter as to the matters covered thereby; and any
certificate signed by or on behalf of Pirelli as such and delivered to the
Representative or to counsel for the Underwriters pursuant to the terms of this
Agreement shall be deemed a representation and warranty by Pirelli to the
Underwriters as to the matters covered thereby.
2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING.
(a) Securities. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Selling Shareholder agrees to sell to each Underwriter, severally and not
jointly, and each Underwriter, severally and not jointly, agrees to purchase the
Securities from the Selling Shareholder, at the price per share of $130.46875
less a discount of $1.63 per share.
(b) Payment. Payment of the purchase price for the Securities, and
arrangements for the delivery of the Securities to DTC, shall be made at the
offices of Latham & Watkins, 885 Third Avenue, New York, New York or at such
other place as shall be agreed upon by the Representative and the Company and
Pirelli, at 9:00 A.M. (Eastern time) on (i) the third business day after the
date hereof, or (ii) such other time not later than ten business days after such
date as shall be agreed upon by the Representative and the Company and Pirelli
(such time and date of payment and delivery being herein called "CLOSING TIME").
Payment shall be made to Pirelli by wire transfer of
immediately available funds to one or more bank accounts designated by the
Custodian against delivery to DTC in book-entry form for the respective accounts
of the Underwriters for the Securities to be purchased by them. It is understood
that each Underwriter has authorized the Representative, for its account, to
accept delivery of, receipt for, and make payment of the purchase price for, the
Securities which it has agreed to purchase. Merrill Lynch, individually and not
as representative of the Underwriters, may (but shall not be obligated to) make
payment of the purchase price for the
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<PAGE> 15
Securities to be purchased by any Underwriter whose funds have not been received
by the Closing Time but such payment shall not relieve such Underwriter from its
obligations hereunder.
(c) Book-Entry Transfer of Securities. The Securities shall be in
appropriate book-entry form and shall be registered in the name of Cede & Co.,
as nominee of DTC.
3. COVENANTS OF THE COMPANY. The Company covenants with each Underwriter as
follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Company, subject to Section 3(b), will comply with the requirements of Rule 430A
or Rule 434, as applicable, and will notify the Representative immediately, and
confirm the notice in writing, (i) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the
Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt
of any comments from the Commission, (iii) of any request by the Commission for
any amendment to the Registration Statement or any amendment or supplement to
the Prospectus or for additional information, and (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the Securities for
offering or sale in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes. The Company will promptly effect the
filings necessary pursuant to Rule 424(b) and will take such steps as it deems
necessary to ascertain promptly whether the form of prospectus transmitted for
filing under Rule 424(b) was received for filing by the Commission and, in the
event that it was not, it will promptly file such prospectus. The Company will
make every reasonable effort to prevent the issuance of any stop order and, if
any stop order is issued, to obtain the lifting thereof at the earliest possible
moment.
(b) Filing of Amendments. The Company will give the Representative
notice of its intention to file or prepare any amendment to the Registration
Statement (including any filing under Rule 462(b)), any Term Sheet or any
amendment, supplement or revision to either the prospectus included in the
Registration Statement at the time it became effective or to the Prospectus,
whether pursuant to the 1933 Act, the 1934 Act or otherwise, will furnish the
Representative with copies of any such documents a reasonable amount of time
prior to such proposed filing or use, as the case may be, and will not file or
use any such document to which the Representative or counsel for the
Underwriters shall object.
(c) Delivery of Registration Statements. The Company has furnished or
will deliver to the Representative and counsel for the Underwriters, without
charge, signed copies of the Registration Statement as originally filed and of
each amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) and signed copies of all consents and certificates of
experts, and will also deliver to the Representative, without charge, a
conformed copy of the Registration Statement as originally filed and of each
amendment thereto (without exhibits) for each of the Underwriters. The copies of
the Registration Statement and each amendment thereto furnished to the
Underwriters will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
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(d) Delivery of Prospectuses. The Company has delivered to each
Underwriter, without charge, as many copies of each preliminary prospectus as
such Underwriter reasonably requested, and the Company hereby consents to the
use of such copies for purposes permitted by the 1933 Act. The Company will
furnish to each Underwriter, without charge, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such
number of copies of the Prospectus (as amended or supplemented) as such
Underwriter may reasonably request. The Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant to
EDGAR, except to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will comply
with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act
Regulations so as to permit the completion of the distribution of the Securities
as contemplated in this Agreement and in the Prospectus. If at any time when a
prospectus is required by the 1933 Act to be delivered in connection with sales
of the Securities, any event shall occur or condition shall exist as a result of
which it is necessary, in the opinion of counsel for the Underwriters or for the
Company, to amend the Registration Statement or amend or supplement the
Prospectus in order that the Prospectus will not include any untrue statements
of a material fact or omit to state a material fact necessary in order to make
the statements therein not misleading in the light of the circumstances existing
at the time it is delivered to a purchaser, or if it shall be necessary, in the
opinion of such counsel, at any such time to amend the Registration Statement or
amend or supplement the Prospectus in order to comply with the requirements of
the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and
file with the Commission, subject to Section 3(b), such amendment or supplement
as may be necessary to correct such statement or omission or to make the
Registration Statement or the Prospectus comply with such requirements, and the
Company will furnish to the Underwriters such number of copies of such amendment
or supplement as the Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company will use its best efforts, in
cooperation with the Underwriters, to qualify the Securities for offering and
sale under the applicable securities laws of such states and other jurisdictions
as the Representative may designate and to maintain such qualifications in
effect for a period of not less than one year from the later of the effective
date of the Registration Statement and any Rule 462(b) Registration Statement;
provided, however, that the Company shall not be obligated to file any general
consent to service of process or to qualify as a foreign corporation or as a
dealer in securities in any jurisdiction in which it is not so qualified or to
subject itself to taxation in respect of doing business in any jurisdiction in
which it is not otherwise so subject. In each jurisdiction in which the
Securities have been so qualified, the Company will file such statements and
reports as may be required by the laws of such jurisdiction to continue such
qualification in effect for a period of not less than one year from the
effective date of the Registration Statement and any Rule 462(b) Registration
Statement.
(g) Rule 158. The Company will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
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(h) Listing. The Company, during the period when the Prospectus is
required to be delivered under the 1933 Act or the 1934 Act, will effect and use
its best efforts to maintain the quotation of the Securities on the Nasdaq
National Market and will file with the Nasdaq National Market all documents and
notices required by the Nasdaq National Market of companies that have securities
that are traded in the over-the-counter market and quotations for which are
reported by the Nasdaq National Market.
(i) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will
file all documents required to be filed with the Commission pursuant to the 1934
Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
(j) Opinion of Counsel for Company. At the time of the execution of this
Agreement and at Closing Time, the Company shall cause to be delivered to the
Representative the favorable opinions, dated as of the time of the execution of
this Agreement and dated as of the Closing Time, respectively, of Brobeck,
Phleger & Harrison LLP, counsel for the Company, addressed to the Underwriters,
in the form set forth in Exhibit A hereto.
(k) Opinion of Counsel for Pirelli. At the time of the execution of this
Agreement and at Closing Time, the Company shall cause to be delivered to the
Representative the favorable opinions, dated as of the time of the execution of
this Agreement and dated as of the Closing Time, respectively, of Weil, Gotshal
and Manges, U.S. counsel for Pirelli, and DeBrauw Blackstone Westbroek N.V.,
Netherlands counsel for Pirelli, in the form set forth in Exhibit B hereto, and
of Enrico Sylvestri, General counsel for Pirelli, in the form set forth in
Exhibit B-1 hereto.
(l) Company Officers' Certificate . The Company shall cause to be
delivered to the Representative a certificate of a Vice President of the Company
and of the chief financial or chief accounting officer of the Company, dated as
of Closing Time, to the effect that (i) no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been instituted or are pending or are contemplated by the
Commission; (ii) the representations and warranties of the Company contained in
Section 1(a) hereof are true and correct; and (iii) the Company has complied in
all material respects with all agreements and all conditions on its part to be
performed under this Agreement at or prior to the Closing Time.
(m) Pirelli Attorney-in-Fact's Certificate. Pirelli shall cause to be
delivered to the Representative a certificate of an Attorney-in-Fact of Pirelli,
dated as of the Closing Time, to the effect that (i) the representations and
warranties of Pirelli contained in Section 1(b) hereof are true and correct and
(ii) Pirelli has complied in all material respects with all agreements and all
conditions on its part to be performed under this Agreement at or prior to the
Closing Time.
(n) Accountant's Comfort Letter. At the time of the execution of this
Agreement, the Company shall cause to be delivered to the Representative the PWC
letter dated such date, addressed to the Underwriters and Pirelli, in form and
substance satisfactory to the Representative, together with signed or reproduced
copies of such letter for each of the other Underwriters containing statements
and information of the type ordinarily included in
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<PAGE> 18
accountants' "comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in the Registration
Statement and the Prospectus.
(o) Bring-down Comfort Letter. At Closing Time, the Company shall cause
to be delivered to the Representative a PWC letter, addressed to the
Underwriters and Pirelli, dated as of Closing Time, to the effect that they
reaffirm the statements made in the letter furnished pursuant to subsection (n)
of this Section, except that the specified date referred to shall be a date not
more than three business days prior to Closing Time.
(p) Bring-down Diligence. At Closing Time, the Company shall cause a
Vice President of the Company and a financial officer of the Company to be
available for a diligence discussion with the Representative.
(q) Use of United States Currency. The Company shall, notwithstanding
any judgment in a currency other than United States dollars, use United States
dollars to pay any sum due from it to the Underwriters hereunder.
4. PAYMENT OF EXPENSES
(a) Expenses of the Company. The Company will pay or cause to be paid
all expenses incident to the performance of their obligations under this
Agreement, including (i) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the preparation, printing
and delivery to the Underwriters of this Agreement, any Agreement among
Underwriters and such other documents as may be required in connection with the
offering, purchase, sale, issuance or delivery of the Securities, (iii) the
preparation, issuance and delivery of the certificates for the Securities to the
Underwriters, (iv) the fees and disbursements of the Company's counsel,
accountants and other advisors, (v) the printing and delivery to the
Underwriters of copies of each preliminary prospectus, any Term Sheets and of
the Prospectus and any amendments or supplements thereto, (vi) the fees and
expenses of any transfer agent or registrar for the Securities, (vii) the filing
fees incident to, and the reasonable fees and disbursements of counsel to the
Underwriters in connection with, the review by the National Association of
Securities Dealers, Inc. (the "NASD") of the terms of the sale of the
Securities, if any, and (viii) the fees and expenses incurred in connection with
the inclusion of the Securities in the Nasdaq National Market.
(b) Expenses of Pirelli. Pirelli will pay all expenses incident to the
performance of its obligations under, and the consummation of the transactions
contemplated by this Agreement, including (i) any stamp or other duties, capital
duties and stock or other transfer taxes, if any, payable upon the sale,
issuance or delivery of the Securities to the Underwriters, and their transfer
between the Underwriters pursuant to an agreement between such Underwriters,
(ii) any filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection with the qualification of the Securities under
the securities laws and with the preparation of the Blue Sky Survey and any
supplement thereto in accordance with Section 3(f) hereof, (iii) the
preparation, printing and delivery to the Underwriters of copies of the Blue Sky
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<PAGE> 19
Survey and any supplement thereto, and (iv) the fees and disbursements of their
respective counsel and accountants.
(c) Termination of Agreement. If this Agreement is terminated by the
Representative in accordance with the provisions of Section 5 hereof, Pirelli
shall reimburse the Underwriters for all of their out-of-pocket expenses,
including the reasonable fees and disbursements of counsel for the Underwriters.
(d) Allocation of Expenses. The provisions of this Section shall not
affect any agreement that the Company and Pirelli may make for the sharing of
such costs and expenses.
5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of the several
Underwriters hereunder are subject to the accuracy of the representations and
warranties of Pirelli, as of the date of this Agreement and as of the Closing
Time, contained in Section 1 hereof or in certificates of any officer of Pirelli
delivered pursuant to the provisions hereof, and the following further
conditions:
(a) Effectiveness of Registration Statement. The Registration Statement,
including any Rule 462(b) Registration Statement, has become effective and at
Closing Time no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the
reasonable satisfaction of counsel to the Underwriters. A prospectus containing
the Rule 430A Information shall have been filed with the Commission in
accordance with Rule 424(b) (or a post-effective amendment providing such
information shall have been filed and declared effective in accordance with the
requirements of Rule 430A) or, if the Company has elected to rely upon Rule 434,
a Term Sheet shall have been filed with the Commission in accordance with Rule
424(b).
(b) Certificate of Pirelli. At Closing Time, the Representative shall
have received a certificate of an Attorney-in-Fact on behalf of Pirelli, dated
as of Closing Time, to the effect that (i) the representations and warranties of
Pirelli Cable contained in Section 1(b) hereof are true and correct in all
respects with the same force and effect as though expressly made at and as of
Closing Time and (ii) Pirelli Cable has complied in all material respects with
all agreements and all conditions on its part to be performed under this
Agreement at or prior to Closing Time.
(c) No Amendment. The provisions of the Share Purchase Agreement that
relate to or may reasonably be expected to affect the Offering have not been
amended or waived without the prior written consent of the Representative.
6. INDEMNIFICATION.
(a) Indemnification of Underwriters and Pirelli by the Company. The
Company agrees to indemnify and hold harmless each Underwriter and Pirelli and
each person, if any, who controls any Underwriter or Pirelli within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act to the extent and in
the manner set forth in clauses (i), (ii) and (iii) below as follows:
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<PAGE> 20
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the Rule
430A Information and the Rule 434 Information, if applicable, or the
omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact included in any preliminary prospectus or
the Prospectus (or any amendment or supplement thereto), or the omission
or alleged omission therefrom of a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission; provided that (subject to
Section 6(e) below) any such settlement is effected with the written
consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by Merrill Lynch
or Pirelli, in accordance with Section 6(d) below, as the case may be),
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply
to any loss, liability, claim, damage or expense to the extent arising
out of any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through Merrill
Lynch or by Pirelli expressly for use in the Registration Statement (or
any amendment thereto), including the Rule 430A Information and the Rule
434 Information, if applicable, or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto); and provided
further that the Company will not be liable to any Underwriter with
respect to any Prospectus to the extent that the Company shall sustain
the burden of proving that any such loss, liability, claim, damage or
expense resulted from the fact that such Underwriter, in contravention
of a requirement of this Agreement or applicable law, sold Securities to
a person to whom such Underwriter failed to send or give, at or prior to
the Closing Time, a copy of the Prospectus, as then amended or
supplemented if: (i) the Company has previously furnished copies thereof
(sufficiently in advance of the Closing Time to allow for distribution
by the Closing Time) to the Underwriter and the loss, liability, claim,
damage or expense of such Underwriter resulted from an untrue statement
or omission of a material fact contained in or omitted from the
preliminary prospectus which was corrected in the Prospectus as, if
applicable, amended or supplemented prior to the Closing Time and such
Prospectus was required by law to be delivered at or prior to the
written confirmation of sale to such
17
<PAGE> 21
person and (ii) such failure to give or send such Prospectus by the
Closing Time to the party or parties asserting such loss, liability,
claim, damage or expense would have constituted the sole defense to the
claim asserted by such person.
(b) Indemnification of Underwriters and the Company by Pirelli. Pirelli
agrees to indemnify and hold harmless each Underwriter and the Company and each
person, if any, who controls any Underwriter or the Company within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act to the extent and in
the manner set forth in clauses (i), (ii) and (iii) in Section 6(a) above 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 (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information, if applicable, or in any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto), in
reliance upon and in conformity with written information furnished to the
Company by Pirelli expressly for use therein; provided, however, that this
indemnity agreement shall not apply to any loss, liability, claim, damage or
expense to the extent arising out of any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through Merrill
Lynch expressly for use in the Registration Statement (or any amendment
thereto), including the Rule 430A Information and the Rule 434 Information, if
applicable, or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(c) Indemnification of Company, Directors and Officers and Pirelli by
Underwriters. Each Underwriter severally agrees to indemnify and hold harmless
the Company, its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act, and Pirelli, their
respective directors and officers and each person, if any, who controls Pirelli
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
against any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsections (a) and (b) of this Section, as applicable
and as incurred, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Registration Statement (or
any amendment thereto), including the Rule 430A Information and the Rule 434
Information, if applicable, or any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by such Underwriter through Merrill
Lynch expressly for use in the Registration Statement (or any amendment thereto)
or such preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
(d) Actions against Parties; Notification. Each indemnified party shall
give notice in writing as promptly as reasonably practicable to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability hereunder to
the extent it is not materially prejudiced as a result thereof and in any event
shall not relieve it from any liability which it may have otherwise than on
account of this indemnity agreement. In case any such action is brought against
any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to assume the
defense thereof, with counsel reasonably satisfactory to such indemnified party;
provided, however, that if the defendants in any such action include both the
indemnified party
18
<PAGE> 22
and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be one or more legal defenses available to it and/or
other indemnified parties which are different from or additional to those
available to the indemnifying party, the indemnified party shall have the right,
at the expense of the indemnifying party, to employ separate counsel, to defend
such indemnified party in any such action (and the indemnifying party shall not
have the right to direct the defense of such action on behalf of such
indemnified party or parties). After notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof with counsel
reasonably acceptable to the indemnified party, the indemnifying party will not
be liable to such indemnified party under this Section 6 for any legal or other
expenses, other than reasonable costs of investigation, subsequently incurred by
such indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso above or (ii) the indemnifying party does not promptly assume the
defense and retain counsel reasonably satisfactory to the indemnified party or
(iii) the indemnifying party has authorized in writing the employment of counsel
for the indemnified party. Notwithstanding the retention of separate counsel
pursuant to subsections (i), (ii) or (iii) above, in no event shall the
indemnifying parties be liable for fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances. If the indemnified parties are entitled to counsel
at the expense of the indemnifying party, in the case of parties indemnified
pursuant to Sections 6(a) or 6(b) above, counsel to the indemnified parties
shall be selected by Merrill Lynch, and, in the case of parties indemnified
pursuant to Section 6(c) above, counsel to the indemnified parties shall be
selected by mutual agreement of the Company and Pirelli. No indemnifying party
shall, without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(e) Other Agreements with Respect to Indemnification. The provisions of
this Section shall not affect any agreement among the Company and Pirelli with
respect to indemnification.
7. CONTRIBUTION. If the indemnification provided for in Section 6 hereof is for
any reason unavailable to or insufficient to hold harmless an indemnified party
in respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company and Pirelli on the one
hand and the Underwriters on the other hand from the offering of the Securities
pursuant to this Agreement or (ii) if the allocation provided by clause (i) 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
19
<PAGE> 23
relative fault of the Company and Pirelli on the one hand and of the
Underwriters on the other hand in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
The relative benefits received by the Company and Pirelli on
the one hand and the Underwriters on the other hand in connection with the
offering of the Securities pursuant to this Agreement shall be deemed to be in
the same respective proportions as the total net proceeds from the offering of
the Securities pursuant to this Agreement (before deducting expenses) received
by the Company and Pirelli and the total underwriting discount received by the
Underwriters, in each case as set forth on the cover of the Prospectus, or, if
Rule 434 is used, the corresponding location on the Term Sheet bear to the
aggregate of such total net proceeds plus such total underwriting discount.
The relative fault of the Company and Pirelli on the one hand
and the Underwriters on the other hand shall be determined by reference to,
among other things, whether any such untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company or Pirelli or by the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Company, Pirelli and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this Section
7. The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 7 shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, 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
any 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 1933 Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company or Pirelli within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act shall have the same rights to contribution as the Company or
Pirelli Cable, as the case
20
<PAGE> 24
may be. The Underwriters' respective obligations to contribute pursuant to this
Section 7 are several in proportion to the number of Securities set forth
opposite their respective names in Schedule A hereto and not joint.
The provisions of this Section shall not affect any agreement
among the Company and Pirelli with respect to contribution.
8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY. All
representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company or any of its subsidiaries or Pirelli
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
controlling person, or by or on behalf of the Company or Pirelli, and shall
survive delivery of the Securities to the Underwriters.
9. DEFAULT BY THE SELLING SHAREHOLDER.
If the Selling Shareholder shall fail at Closing Time to sell
and deliver the number of Securities which the Selling Shareholder is obligated
to sell hereunder, then the Underwriters may, at option of the Representative,
by notice from the Representative to the Company, terminate this Agreement
without any liability on the fault of any non-defaulting party except that the
provisions of Sections 1, 4, 6, 7 and 8 shall remain in full force and effect.
No action taken pursuant to this Section 9 shall relieve the Selling Shareholder
so defaulting from liability, if any, in respect of such default.
10. NOTICES. All notices and other communications hereunder shall be in writing
and shall be deemed to have been duly given if mailed or transmitted by any
standard form of telecommunication. Notices to the Underwriters shall be
directed to the Representative at 3300 Hillview Avenue, Suite 150, Palo Alto,
California 94304, facsimile no. (650) 849-2106, attention of Matt Pendo, with a
copy to Latham & Watkins, 885 Third Avenue, New York, New York 10022-4802,
facsimile no. (212) 751-4864, attention of Robert A. Zuccaro; notices to the
Company shall be directed to it at 170 West Tasman Drive, San Jose, California
95134-1706, facsimile no. (408) 526-4914, attention of Senior Vice President,
Legal and Government Affairs, with a copy to Brobeck, Phleger & Harrison LLP,
2200 Geng Road, Two Embarcadero Place, Palo Alto, California 94303, facsimile
no. (650) 496-2885, attention of Therese A. Mrozek; and notices to Pirelli shall
be directed to Viale Sarca 222, 20126 Milano, Italy, facsimile no. (39)(02)
6442-3329, attention of Chief Legal Officer, with a copy to Weil, Gotshal and
Manges, One South Place, London EC2M 2WG, England, facsimile no. (44)(171)
903-0990, attention of Douglas Warner.
11. PARTIES. This Agreement shall each inure to the benefit of and be binding
upon the Underwriters, the Company and Pirelli and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any person, firm or corporation, other than the Underwriters,
the Company and Pirelli and their respective successors and the controlling
persons and officers and directors referred to in Sections 6 and 7 and their
heirs and legal representatives, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision herein contained. This
Agreement and all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the Underwriters, the
21
<PAGE> 25
Company and Pirelli and their respective successors, and said controlling
persons and officers and directors and their heirs and legal representatives,
and for the benefit of no other person, firm or corporation. No purchaser of
Securities from any Underwriter shall be deemed to be a successor by reason
merely of such purchase.
12. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED TIMES OF DAY REFER
TO NEW YORK CITY TIME.
13. CONSENT TO JURISDICTION. Each of the parties hereto irrevocably submits to
the non-exclusive jurisdiction of any United States Federal or State court in
The City of New York, County of New York, in any suit or proceeding based on or
arising under this Agreement, and irrevocably agrees that all claims in respect
of such suit or proceeding may be determined in any such court. Each of the
parties hereto to the extent permitted by applicable law, irrevocably and fully
waives the defense of any inconvenient forum to the maintenance of such suit or
proceeding. Pirelli hereby irrevocably designates and appoints CT Corporation
System, 111 Eighth Avenue, 13th Floor, New York, N.Y. 10011 (the "AGENT") as its
authorized Agent upon whom process may be served in any such suit or proceeding.
Pirelli represents that it has notified the Agent of such designation and
appointment and that the Agent has accepted the same in writing. Pirelli further
agrees that, to the extent permitted by applicable law, service of process upon
the Agent shall be deemed in every respect effective service of process upon
Pirelli in any such suit or proceeding. Nothing herein shall affect the right of
the Underwriters or any person controlling an Underwriter to serve process in
any other manner permitted by law. The Company and Pirelli agree that a final
action in any such suit or proceeding shall be conclusive and to the extent
permitted under applicable law may be enforced in other jurisdictions by suit on
the judgment or in any other lawful manner. If the Company and Pirelli has or
may hereafter acquire immunity from jurisdiction or legal process with respect
to itself or its property, the Company and Pirelli hereby irrevocably waive to
the fullest extent permitted under applicable law such immunity in respect of
its obligations hereunder in any action that may be instituted in any State or
Federal Court sitting in The City of New York, County of New York, or in any
competent court in Columbia by the Underwriters or by any persons controlling an
Underwriter. This waiver is intended to be effective upon the execution of this
Agreement without any further act by the Company, before any such court, and the
introduction of a true copy of this Agreement into evidence in any such court
shall, to the fullest extent permitted by applicable law, be conclusive and
final evidence of such waiver.
14. JUDGMENT CURRENCY. If for the purposes of obtaining judgment in any court it
is necessary to convert a sum due hereunder into any currency other than United
States dollars, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be the rate at which, in
accordance with normal banking procedures, the Representatives could purchase
United States dollars with such other currency in New York City on the business
day preceding that on which final judgment is given. The obligation of Pirelli
in respect of any sum due from it to the Underwriters hereunder shall,
notwithstanding any judgment in a currency other than United States dollars, not
be discharged until the first business day, following receipt by the
Underwriters of any sum adjudged to be so due in such other currency, on which
(and only to the extent that) the Underwriters may in accordance with normal
banking procedures purchase United States dollars with such other currency; if
the United States
22
<PAGE> 26
dollars so purchased are less than the sum originally due to the Underwriters
hereunder, Pirelli agrees, as a separate obligation and notwithstanding any such
judgment, to indemnify the Underwriters against such loss. If the United States
dollars so purchased are greater than the sum originally due to the Underwriters
hereunder, the Underwriters severally agree to pay to Pirelli an amount equal to
the excess of the dollars so purchased over the sum originally due to the
Underwriters hereunder.
15. EFFECT OF HEADINGS. The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
23
<PAGE> 27
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Company and the Attorney-in-Fact
for Pirelli Cable a counterpart hereof, whereupon this instrument, along with
all counterparts, will become a binding agreement among the Underwriters, the
Company and Pirelli in accordance with its terms.
Very truly yours,
CISCO SYSTEMS, INC.
By: ________________________________
Title:______________________________
PIRELLI CABLE HOLDING, N.V.
By: ________________________________
As Attorney-in-Fact
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: __________________________
Authorized Signatory
For itself and as Representative of the other Underwriters
named in Schedule A hereto, if any.
24
<PAGE> 28
SCHEDULE A
<TABLE>
<CAPTION>
Number
of
Name of Underwriter Securities
- ------------------- ----------
<S> <C>
Merrill Lynch, Pierce, Fenner & Smith
Incorporated............................................ 11,891,749
----------
Total................................................................... 11,891,749
</TABLE>
