<PAGE>
Exhibit 1.1
EXECUTION COPY
$175,000,000
NATURAL MICROSYSTEMS CORPORATION
5% Convertible Subordinated Notes due 2005
CONVERTIBLE DEBT UNDERWRITING AGREEMENT
October 5, 2000
DEUTSCHE BANK SECURITIES INC.
U.S. BANCORP PIPER JAFFRAY INC.
DAIN RAUSCHER INCORPORATED
As Representatives of the Several Underwriters
c/o Deutsche Bank Securities Inc.
One South Street
Baltimore, Maryland 21202
Ladies and Gentlemen:
Natural MicroSystems Corporation, a Delaware corporation (the
"Company"), proposes to sell to the several underwriters (the "Underwriters")
named in Schedule I hereto for whom you are acting as representatives (the
"Representatives") an aggregate of $175,000,000 principal amount of the
Company's 5% Convertible Subordinated Notes due 2005 (the "Firm Securities").
The respective amounts of the Firm Securities to be so purchased by the several
Underwriters are set forth opposite their names in Schedule I hereto. The
Company also proposes to sell at the Underwriters' option an aggregate of up to
$26,250,000 additional principal amount of such Notes (the "Option Securities")
as set forth below. The Firm Securities and the Option Securities (to the extent
the aforementioned option is exercised) are herein collectively called the
"Securities."
The Securities are convertible into shares of the Company's Common
Stock, par value $0.01 per share (the "Common Stock"). The Securities are to be
issued pursuant to the terms of an Indenture to be dated on or about October 11,
2000 (the "Initial Indenture") and the Supplemental Indenture thereto to be
dated on or about October 11, 2000 (the "Supplemental Indenture" and, together
with the Initial Indenture, the "Indenture"), between the Company
<PAGE>
and State Street Bank and Trust Company, as Trustee (the "Trustee"). If you are
the only Underwriters, all references herein to the Representatives shall be
deemed to be references to the Underwriters.
As the Representatives, you have advised the Company (a) that you are
authorized to enter into this Agreement on behalf of the several Underwriters,
and (b) that the several Underwriters are willing, acting severally and not
jointly, to purchase the numbers of Firm Securities set forth opposite their
respective names in Schedule I, plus their pro rata portion of the Option
Securities if you elect to exercise the over-allotment option in whole or in
part for the accounts of the several Underwriters.
In consideration of the mutual agreements contained herein and of the
interests of the parties in the transactions contemplated hereby, the parties
hereto agree as follows:
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents
and warrants to each of the Underwriters as follows:
(a) A registration statement on Form S-3 (File No. 333-44128) with
respect to the Securities and certain other securities of the
Company has been prepared by the Company in conformity with
the requirements of the Securities Act of 1933, as amended
(the "Act") and the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"), and the Rules and Regulations
(the "Rules and Regulations") of the Securities and Exchange
Commission (the "Commission") thereunder and has been filed
with the Commission. The Company has complied with the
conditions for the use of Form S-3 and Rule 415 under the Act
and the registration statement filed by electronic
transmission pursuant to the Commission's Electronic Data
Gathering, Analysis and Retrieval System ("EDGAR") (except as
may be permitted by Regulation S-T under the Act) was
identical to the copy thereof delivered to you. Copies of such
registration statement, including any amendments thereto, the
preliminary prospectuses (meeting the requirements of the
Rules and Regulations) contained therein and the exhibits,
financial statements and schedules, as finally amended,
supplemented and revised, have heretofore been delivered by
the Company to you. Such registration statement, together with
any registration statement filed by the Company pursuant to
Rule 462(b) of the Act, herein referred to as the
"Registration Statement," has become effective under the Act
and no post-effective amendment to the Registration Statement
has been filed as of the date of this Agreement. The
prospectus included in the Registration Statement at the time
it became effective, as thereafter amended and supplemented,
is herein referred to as the "Base Prospectus." Each
preliminary prospectus supplement specifically relating to the
Securities filed with or transmitted for filing to, the
Commission pursuant to Rule 424(b) under the Act, which shall
include the Base Prospectus, is herein referred to as a
"Preliminary
<PAGE>
Prospectus." The prospectus supplement specifically relating
to the Securities and containing pricing information filed
with or transmitted for filing to, the Commission pursuant to
Rule 424(b) under the Act, which shall include the Base
Prospectus, is herein referred to as the "Prospectus." Any
reference herein to the Registration Statement, the Prospectus
or any Preliminary Prospectus shall be deemed to refer to and
include any documents incorporated by reference therein, and,
in the case of any reference herein to the Prospectus or any
Preliminary Prospectus, also shall be deemed to include any
documents incorporated by reference therein, and any
supplements or amendments thereto, filed with the Commission
after the date of filing of the Prospectus or Preliminary
Prospectus, as the case may be, under Rule 424(b) and prior to
the termination of the offering of the Securities by the
Underwriters.
(b) The Company has not distributed and will not distribute, prior
to the later of the Option Closing Date (as defined below) and
the completion of the Underwriters' distribution of the
Securities, any offering material in connection with the
offering and sale of the Securities other than the Preliminary
Prospectus, the Prospectus or the Registration Statement.
(c) This Agreement has been duly authorized, executed and
delivered by, and is a valid and binding agreement of, the
Company, enforceable against the Company in accordance with
its terms, except as rights to indemnification hereunder may
be limited by applicable law and except as the enforcement
hereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to
or affecting the rights and remedies of creditors or by
general equitable principles.
(d) Each of the Initial Indenture and the Supplemental Indenture
has been duly authorized and on the Closing Date, each of the
Initial Indenture and Supplemental Indenture will be duly
executed and delivered by the Company and duly qualified under
the Trust Indenture Act and will constitute a valid and
legally binding instrument, enforceable against the Company in
accordance with its terms, except as the enforcement thereof
may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting the
rights and remedies of creditors or by general equitable
principles.
(e) The Company has been duly organized and is validly existing as
a corporation in good standing under the laws of the State of
Delaware, with corporate power and authority to own or lease
its properties and conduct its business as described in the
Registration Statement and the Prospectus and to enter into
and perform its obligations under this Agreement, the
Indenture and Securities. Each of the subsidiaries of the
Company listed in Exhibit A hereto (collectively, the
"Subsidiaries") has been duly organized and is validly
existing as a corporation
<PAGE>
in good standing under the laws of the jurisdiction of its
incorporation, with corporate power and authority to own or
lease its properties and conduct its business as described in
the Registration Statement and the Prospectus. The
Subsidiaries are the only subsidiaries, direct or indirect, of
the Company and the Company does not own or control, directly
or indirectly, any corporation, association or other entity
other than the Subsidiaries. The Subsidiaries listed on
Exhibit B hereto (collectively, the "Significant
Subsidiaries") and the Company collectively generated more
than 98% of the pro forma combined consolidated revenue of the
Company and the Subsidiaries during the six months ended June
30, 2000, and currently own more than 98% of the consolidated
assets of the Company and the Subsidiaries. The Company and
each of the Subsidiaries are duly qualified to
transact business in all jurisdictions in which the conduct of
their business requires such qualification. The outstanding
shares of capital stock of each of the Subsidiaries have been
duly authorized and validly issued, are fully paid and
non-assessable and are owned by the Company or another
Subsidiary free and clear of all liens, encumbrances and
equities and claims; and no options, warrants or other rights
to purchase, agreements or other obligations to issue or other
rights to convert any obligations into shares of capital stock
or ownership interests in the Subsidiaries are outstanding.
(f) The outstanding shares of Common Stock of the Company have
been duly authorized and validly issued and are fully paid and
non-assessable. The shares of Common Stock initially issuable
upon conversion of the Securities (the "Conversion Shares")
have been duly authorized and reserved for issuance upon
conversion by all necessary corporate action of the Company
and, when issued upon conversion, will be validly issued,
fully paid and nonassessable. None of the outstanding shares
of Common Stock were issued in violation of any preemptive
rights, rights of first refusal or other rights to subscribe
for or purchase securities of the Company. There are no
authorized or outstanding options, warrants, preemptive
rights, rights of first refusal or other rights to purchase,
or equity or debt securities convertible into or exchangeable
or exercisable for, any capital stock of the Company or any of
the Subsidiaries other than those described in the
Registration Statement and the Prospectus. Neither the filing
of the Registration Statement nor the offering or sale of the
Securities as contemplated by this Agreement gives rise to any
rights, other than those which have been waived or satisfied,
for or relating to the registration of any shares of Common
Stock.
(g) The issuance and sale of the Securities by the Company have
been duly authorized and when executed, authenticated and
delivered to and paid for by the Underwriters in accordance
with the terms of this Agreement and the Indenture, the
Securities will be valid and legally binding obligations of
the
<PAGE>
Company, enforceable in accordance with their terms, and
entitled to the benefits provided by the Indenture; and no
preemptive rights of stockholders exist with respect to any of
the Securities or the Conversion Shares or the issue and sale
thereof.
(h) The Conversion Shares have been duly authorized and accepted
for listing on the Nasdaq National Market, subject to official
notice of issuance.
(i) The information set forth under the caption "Capitalization"
in the Prospectus is true and correct. The Securities and the
Conversion Shares conform to the description thereof contained
in the Registration Statement and the Prospectus. The form of
certificates for the Common Stock conforms to the corporate
law of the jurisdiction of the Company's incorporation.
(j) The Commission has not issued an order preventing or
suspending the use of any Prospectus relating to the proposed
offering of the Securities nor instituted proceedings for that
purpose. The Registration Statement contains, and the
Prospectus and any amendments or supplements thereto will
contain, all statements which are required to be stated
therein by, and will conform, to the requirements of the Act,
the Trust Indenture Act and the Rules and Regulations. The
documents incorporated by reference in the Registration
Statement and the Prospectus, at the time filed with the
Commission, conformed in all material respects to the
requirements of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), or the Act, as applicable, and
the rules and regulations of the Commission thereunder. The
Registration Statement and any amendments thereto do not
contain, and will not contain, any untrue statement of a
material fact and do not omit, and will not omit, to state any
material fact required to be stated therein or necessary to
make the statements therein not misleading. The Prospectus and
any amendments and supplements thereto do not contain, and
will not contain, any untrue statement of material fact; and
do not omit, and will not omit, to state any material fact
required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that
the Company makes no representations or warranties as (A) to
information contained in or omitted from the Prospectus, or
any such amendment or supplement thereto, in reliance upon,
and in conformity with, written information furnished to the
Company by or on behalf of any Underwriter through the
Representatives, specifically for use in the preparation
thereof or (B) to that part of the Registration Statement that
constitutes the Statement of Eligibility (Form T-1) under the
Trust Indenture Act.
(k) The consolidated financial statements of the Company and the
Subsidiaries, together with related notes and schedules as set
forth or incorporated by
<PAGE>
reference in the Registration Statement and the Prospectus,
present fairly the financial position and the results of
operations and cash flows of the Company and the consolidated
Subsidiaries, at the indicated dates and for the indicated
periods. The consolidated financial statements of
InnoMediaLogic (IML) Inc. ("IML") and its subsidiaries,
together with related notes and schedules as set forth or
incorporated by reference in the Registration Statement and
the Prospectus, present fairly the financial position and the
results of operations and cash flows of IML and its
subsidiaries at the indicated dates and for the indicated
periods. In each case, such financial statements and related
schedules have been prepared in accordance with generally
accepted accounting principles, consistently applied
throughout the periods involved, except as disclosed therein,
and all adjustments necessary for a fair presentation of
results for such periods have been made. The pro forma
financial statements and other pro forma financial information
included in the Registration Statement and the Prospectus
present fairly the information shown therein, have been
prepared in accordance with the Commission's rules and
guidelines with respect to pro forma financial statements,
have been properly compiled on the pro forma bases described
therein, and, in the opinion of the Company, the assumptions
used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect to the
transactions or circumstances referred to therein. No other
financial statements or supporting schedules are required to
be included in the Registration Statement or the Prospectus.
The summary financial and statistical data included or
incorporated by reference in the Registration Statement and
Prospectus presents fairly the information shown therein and
such data has been compiled on a basis consistent with the
financial statements presented therein and the books and
records of the Company.
(l) Each of PricewaterhouseCoopers LLP, Ernst & Young LLP and
Rochon Legault, who have certified certain of the financial
statements filed with the Commission as part of, or
incorporated by reference in, the Registration Statement and
the Prospectus, are independent public accountants as required
by the Act and the Rules and Regulations.
(m) Except as disclosed in the Prospectus, there is no action,
suit, claim or proceeding pending or, to the knowledge of the
Company, threatened against the Company or any of the
Subsidiaries before any court or administrative agency or
otherwise which if determined adversely to the Company or any
of its Subsidiaries might result in any material adverse
change in the earnings, business, management, properties,
assets, rights, operations, condition (financial or otherwise)
or prospects of the Company and of the Subsidiaries taken as a
whole or the Company's ability to perform its obligations
under this Agreement, the Securities or the Indenture.
<PAGE>
(n) The Company and the Subsidiaries have good and marketable
title to all of the properties and assets reflected in the
financial statements hereinabove described (or as described in
the Registration Statement and the Prospectus), and such
properties and assets are not subject to any lien, mortgage,
pledge, charge or encumbrance of any kind except those
reflected in such financial statements (or as described in the
Registration Statement and the Prospectus) or which are not
material, individually or in the aggregate, in amount. The
Company and the Subsidiaries occupy their leased properties
under valid and binding leases.
(o) The Company and the Subsidiaries have filed all federal,
state, local and foreign tax returns which have been required
to be filed and have paid all taxes indicated by said returns
and all assessments received by them or any of them to the
extent that such taxes have become due. All tax liabilities
have been adequately provided for in the financial statements
of the Company, and the Company does not know of any actual or
proposed additional material tax assessments.
(p) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, as they may be
amended or supplemented, there has not been any material
adverse change or any development involving a prospective
material adverse change in or affecting the earnings,
business, management, properties, assets, rights, operations,
condition (financial or otherwise), or prospects of the
Company and its Subsidiaries taken as a whole, whether or not
occurring in the ordinary course of business, and there has
not been any material transaction entered into or any material
transaction that is probable of being entered into by the
Company or any Subsidiary, other than transactions in the
ordinary course of business and changes and transactions
described in the Registration Statement and the Prospectus, as
they may be amended or supplemented. The Company and the
Subsidiaries have no material contingent obligations which are
not disclosed in the Company's financial statements and
described in the Registration Statement and the Prospectus.
(q) Neither the Company nor any of the Subsidiaries is or with the
giving of notice or lapse of time or both, will be, in
violation of or in default under its charter or by-laws or
under any agreement, lease, contract, indenture or other
instrument or obligation to which it is a party or by which
it, or any of its properties or assets, is bound and which
default is of material significance in respect of the
business, management, properties, assets, rights, operations,
condition (financial or otherwise) or prospects of the Company
and the Subsidiaries taken as a whole. The execution and
delivery of this Agreement, the Indenture and the Securities
and the consummation of the transactions herein and therein
contemplated and the fulfillment of the terms hereof and
thereof will not conflict with or result in a breach of any of
the terms or provisions of, or constitute a
<PAGE>
default under, any indenture, mortgage, deed of trust or other
agreement or instrument to which the Company or any Subsidiary
is a party or by which its properties or assets are bound, or
of the charter or by-laws of the Company or any order, rule or
regulation applicable to the Company or any Subsidiary of any
court or of any regulatory body or administrative agency or
other governmental body having jurisdiction.
(r) Each approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory,
administrative or other governmental body necessary in
connection with the issue and sale of the Securities and the
execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement, the
Indenture and the Securities and the consummation of the
transactions herein and therein contemplated (except such
additional steps as may be required by the Commission, the
National Association of Securities Dealers, Inc. (the "NASD")
or such additional steps as may be necessary to qualify the
Securities for public offering by the Underwriters under state
securities or blue sky laws) has been obtained or made and is
in full force and effect.
(s) The Company and each of the Subsidiaries holds all material
licenses, certificates and permits from governmental
authorities which are necessary to the conduct of their
respective businesses and are in compliance with the terms
thereof, and all such licenses, certificates and permits are
in full force and effect.
(t) The Company and each of the Subsidiaries are conducting their
business in compliance with all the local, state, federal and
foreign laws, rules and regulations of the jurisdictions in
which the Company and each of the Subsidiaries are conducting
their respective businesses.
(u) The Company and the Subsidiaries own or possess sufficient
trademarks, trade names, service marks, patents, patent
rights, copyrights, licenses, approvals, inventions, know-how
(including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems
or procedures) and other similar rights and intellectual
property necessary to conduct their businesses as now
conducted and proposed to be conducted as described in the
Prospectus and have taken all steps reasonably necessary to
secure assignments of such intellectual property from their
employees and contractors; to the knowledge of the Company
none of the technology employed by the Company or its
Subsidiaries has been obtained or is being used by the Company
or its Subsidiaries in violation of any contractual or
fiduciary obligation binding on the Company, its Subsidiaries
or any of their respective directors or executive officers or,
to the Company's knowledge, any of their respective employees
or
<PAGE>
consultants; and the Company and its Subsidiaries have
taken and will maintain reasonable measures to prevent the
unauthorized dissemination or publication of its confidential
information.
The Company knows of no material infringement by others of
patents, patent rights, trade names, trademarks or copyrights
owned by or licensed to the Company. The Company has good and
marketable title to the patents and patent applications
referred to in the Registration Statement and the Prospectus.
Neither the Company nor any of the Subsidiaries has infringed,
interfered with or misappropriated any patents, patent rights,
trade names, trademarks, copyrights or other intellectual
property rights of others, which infringement, if the subject
of any unfavorable decision, ruling or finding would,
individually or in the aggregate, be reasonably likely to
result in a material adverse change in the earnings, business,
management, properties, assets, rights, operations, condition
(financial or otherwise) or prospects of the Company and the
Subsidiaries taken as a whole.
Except as disclosed in the Prospectus, to the Company's
knowledge, there are no legal or governmental proceedings
pending relating to trademarks, trade names, patent rights,
mask works, copyrights, licenses, trade secrets or other
intellectual property rights of the Company or any of the
Subsidiaries other than the prosecution by the Company and the
Subsidiaries of their patent applications before the United
States Patent Office and appropriate foreign government
agencies, and no proceedings are threatened or contemplated by
governmental authorities or others relating to trademarks,
trade names, patent rights, mask works, copyrights, licenses
or other intellectual property rights of the Company or the
Subsidiaries.
(v) Neither the Company nor, to the Company's knowledge, any of
its affiliates, has taken, directly or indirectly, any action
designed to cause or result in, or which has constituted or
which might reasonably be expected to constitute, the
stabilization or manipulation of the price of the shares of
Common Stock to facilitate the sale or resale of the
Securities. The Company acknowledges that the Underwriters may
engage in stabilizing and passive market making transactions
in the Common Stock on the Nasdaq National Market and in the
Securities in the open market and other activities in
accordance with Regulation M under the Exchange Act.
(w) Neither the Company nor any Subsidiary is, or after the
issuance and sale of, and the receipt of payment for, the
Securities and the application of the net proceeds therefrom
as described in the Registration Statement and the Prospectus
will be, an "investment company" or an entity "controlled" by
an
<PAGE>
"investment company" within the meaning of the Investment
Company Act of 1940, as amended (the "1940 Act"), and the
rules and regulations of the Commission thereunder.
(x) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management's
general or specific authorization; (ii) transactions are
recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting
principles and to maintain accountability for assets; (iii)
access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing
assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(y) The Company and its Subsidiaries, taken as a whole, carry, or
are covered by, insurance from recognized, financially sound
and reputable institutions in such amounts and covering such
risks as is adequate for the conduct of their businesses and
the value of their properties and as is customary for
companies engaged in similar industries.
(z) The Company is in compliance in all material respects with all
presently applicable provisions of the Employee Retirement
Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder
("ERISA"); no "reportable event" (as defined in ERISA) has
occurred with respect to any "pension plan" (as defined in
ERISA) for which the Company would have any liability; the
Company has not incurred and does not expect to incur
liability under (i) Title IV of ERISA with respect to
termination of, or withdrawal from, any "pension plan" or (ii)
Sections 412 or 4971 of the Internal Revenue Code of 1986, as
amended, including the regulations and published
interpretations thereunder (the "Code"); and each "pension
plan" for which the Company would have any liability that is
intended to be qualified under Section 401(a) of the Code is
so qualified in all material respects and nothing has
occurred, whether by action or by failure to act, which would
cause the loss of such qualification.
(aa) To the Company's knowledge, there are no affiliations or
associations between any member of the NASD and any of the
Company's officers or directors.
(bb) Neither the Company nor any of its Subsidiaries nor, to the
Company's knowledge, any employee or agent of the Company or
any Subsidiary, has made any contribution or other payment to
any official of, or candidate for, any federal, state or
foreign office in violation of any law or of a character
required to be disclosed in the Prospectus.
<PAGE>
(cc) There are no costs or liabilities associated with applicable
foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes,
pollutants or contaminants ("Environmental Laws"), including,
without limitation, any capital or operating expenditures
required for clean-up, closure of properties or compliance
with Environmental Laws or any permit, license or approval,
any related constraints on operating activities and any
potential liabilities to third parties, which would be
reasonably expected, singly or in the aggregate, to have a
material adverse effect on the Company and the Subsidiaries,
taken as a whole.
(dd) The Company has reviewed its operations and that of its
Subsidiaries and any third parties with which the Company or
any of its Subsidiaries has a material relationship to
evaluate the extent to which the business or operations of the
Company or any of its Subsidiaries will be affected by the
Year 2000 Problem. As a result of such review, the Company has
no reason to believe, and does not believe, that the Year 2000
Problem will result in a material adverse change in the
earnings, business, management, properties, assets, rights,
operations, condition (financial or otherwise) or prospects of
the Company and of the Subsidiaries taken as a whole or result
in any material loss or interference with the Company's
business or operations. The "Year 2000 Problem" as used herein
means any significant risk that computer hardware or software
used in the receipt, transmission, processing, manipulation,
storage, retrieval, retransmission or other utilization of
data or in the operation of mechanical or electrical systems
of any kind will not, in the case of dates or time periods
occurring after December 31, 1999, function at least as
effectively as in the case of dates or time periods occurring
prior to January 1, 2000.
(ee) No event has occurred or is continuing which constitutes, or
with notice or lapse of time would constitute, an Event of
Default (as defined in the Indenture and the Securities).
(ff) Any certificate signed by an officer of the Company or any of
its Subsidiaries delivered to the Representatives or to
counsel for the Underwriters shall be deemed to be a
representation and warranty hereunder by the Company to each
Underwriter as to the matters covered thereby.
2. PURCHASE, SALE AND DELIVERY OF THE FIRM SECURITIES.
(a) On the basis of the representations, warranties and covenants
herein contained and subject to the conditions herein set
forth, the Company agrees to sell to the Underwriters, and
each Underwriter agrees, severally and not jointly, to
<PAGE>
purchase, at a price of 97% of the principal amount thereof,
plus accrued interest, if any, from October 11, 2000 to the
Closing Date (as defined below), the principal amount of Firm
Securities set forth opposite the name of each Underwriter in
Schedule I hereof, subject to adjustments in accordance with
Section 9 hereof. The Securities will be convertible at the
option of the holder into shares of Common Stock at the
conversion price set forth in the Securities (the "Conversion
Price"), which Conversion Price is subject to adjustment in
certain events as provided in the Securities and the
Indenture. A global security representing the Firm Securities
shall be registered in the name of the nominee of the
Depository Trust Company ("DTC"), Cede & Co., credited to the
accounts of such of its participants as the Representatives
shall request, upon notice to the Company at least 48 hours
prior to the Closing Date, with any transfer taxes payable in
connection with the transfer of the Securities to the
Underwriters duly paid, and deposited with the Trustee as
custodian for DTC on the Closing Date, against payment by or
on behalf of the Underwriters to the account of the Company of
the aggregate purchase price therefor by wire transfer in
federal (same day) funds. Such payment and delivery are to be
made at 10:00 A.M., New York time, on the third business day
after the date of this Agreement, or at such other time and
date not later than five business days thereafter as you and
the Company shall agree upon, such time and date being
referred to as the "Closing Date." As used herein, "business
day" means a day on which the New York Stock Exchange is open
for trading and on which banks in New York are open for
business and are not permitted by law or executive order to be
closed.
(b) In addition, on the basis of the representations and
warranties herein contained and subject to the terms and
conditions herein set forth, the Company hereby grants an
option to the several Underwriters to purchase the Option
Securities at the same price as set forth in the first
paragraph of this Section 2 plus, if the purchase and sale of
any Option Securities takes place after the Closing Date, any
accrued interest from October 11, 2000. The option granted
hereby may be exercised in whole or in part by giving written
notice (i) at any time before the Closing Date and (ii) only
once thereafter within 30 days after the date of this
Agreement, by you, as Representatives of the several
Underwriters, to the Company setting forth the aggregate
principal amount of Option Securities as to which the several
Underwriters are exercising the option and the time and date
at which the Option Securities are to be delivered. The time
and date at which the Option Securities are to be delivered
shall be determined by the Representatives but shall not be
earlier than three nor later than ten full business days after
the exercise of such option, nor in any event prior to the
Closing Date (such time and date being herein referred to as
the "Option Closing Date"). If the date of exercise of the
option is three or more days before the Closing Date, the
notice of exercise shall set the Closing Date as the Option
<PAGE>
Closing Date. The principal amount of Option Securities to be
purchased by each Underwriter shall be in the same proportion
to the aggregate principal amount of Option Securities being
purchased as the principal amount of Firm Securities being
purchased by such Underwriter bears to the aggregate principal
amount of Firm Securities being sold hereunder, adjusted by
you in such manner as to avoid fractional interests. The
option with respect to the Option Securities granted hereunder
may be exercised to cover over-allotments in the sale of the
Firm Securities by the Underwriters and other transactions by
the Underwriters made in connection with the Securities. You,
as Representatives of the several Underwriters, may cancel
such option at any time prior to its expiration by giving
written notice of such cancellation to the Company. To the
extent, if any, that the option is exercised, payment and
delivery of the Option Securities shall be made in the same
manner, and upon the same terms and conditions, set forth in
paragraph (a) of this Section 2, except that reference therein
to the Firm Securities and the Closing Date shall be deemed,
for purposes of paragraph (b), to refer to such Option
Securities and Option Closing Date, respectively.
3. OFFERING BY THE UNDERWRITERS.
It is understood that the several Underwriters are to make a public
offering of the Firm Securities as soon as the Representatives deem it advisable
to do so. The Firm Securities are to be initially offered to the public at the
initial public offering price set forth in the Prospectus. The Representatives
may from time to time thereafter change the public offering price and other
selling terms. To the extent, if at all, that any Option Securities are
purchased pursuant to Section 2 hereof, the Underwriters will offer them to the
public on the foregoing terms.
It is further understood that you will act as the Representatives for
the Underwriters in the offering and sale of the Securities in accordance with a
Master Agreement Among Underwriters entered into by you and the several other
Underwriters.
4. COVENANTS OF THE COMPANY. The Company covenants and agrees with the
several Underwriters that:
(a) The Company will (A) use its best efforts to prepare and
timely file with the Commission under Rule 424(b) of the Rules
and Regulations a Prospectus that includes a prospectus
supplement specifically relating to the Securities and
containing pricing information in a form approved by the
Representatives, (B) not file any amendment to the
Registration Statement or supplement to the Prospectus of
which the Representatives shall not previously have been
advised and furnished with a copy or to which the
Representatives shall have reasonably objected in writing or
which is not in compliance with the Rules and
<PAGE>
Regulations, and (C) file on a timely basis all reports and
any definitive proxy or information statements required to be
filed by the Company with the Commission subsequent to the
date of the Prospectus and prior to the termination of the
offering of the Securities by the Underwriters.
(b) The Company will advise the Representatives promptly (A) of
any amendment or supplement to the Registration Statement or
the Prospectus and furnish the Representatives with copies
thereof, (B) of receipt of any comments from the Commission
relating to the Registration Statement or the Prospectus or
documents incorporated by reference therein, (C) of any
request of the Commission for amendment of the Registration
Statement or for supplement to the Prospectus or for any
additional information, and (D) of the issuance by the
Commission of any stop order suspending the effectiveness of
the Registration Statement or the use of the Prospectus or of
the institution of any proceedings for that purpose. The
Company will use its best efforts to prevent the issuance of
any such stop order preventing or suspending the use of the
Prospectus and to obtain as soon as possible the lifting
thereof, if issued.
(c) The Company will cooperate with the Representatives in
endeavoring to qualify the Securities for sale under the
securities laws of such jurisdictions as the Representatives
may reasonably have designated in writing and will make such
applications, file such documents, and furnish such
information as may be reasonably required for that purpose,
provided 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 where it is not now so qualified
or required to file such a consent. The Company will, from
time to time, prepare and file such statements, reports, and
other documents, as are or may be required to continue such
qualifications in effect for so long a period as the
Representatives may reasonably request for distribution of the
Securities.
(d) The Company will deliver to, or upon the order of, the
Representatives, from time to time, as many copies of any
Preliminary Prospectus as the Representatives may reasonably
request. The Company will deliver to, or upon the order of,
the Representatives during the period when delivery of a
Prospectus is required under the Act, as many copies of the
Prospectus in final form, or as thereafter amended or
supplemented, as the Representatives may reasonably request.
The Company will deliver to the Representatives at or before
the Closing Date, four signed copies of the Registration
Statement and all amendments thereto including all exhibits
filed therewith, and will deliver to the Representatives such
number of copies of the Registration Statement (including such
number of copies of the exhibits filed therewith that may
reasonably be requested), including documents incorporated by
reference therein, and of all amendments thereto, as the
Representatives may reasonably request.
<PAGE>
(e) The Company will comply with the Act and the Rules and
Regulations, the Exchange Act, and the rules and regulations
of the Commission thereunder, and the Trust Indenture Act and
the rules and regulations thereunder so as to permit the
completion of the distribution of the Securities as
contemplated in this Agreement, the Indenture and the
Prospectus. If during the period in which a prospectus is
required by law to be delivered by an Underwriter or dealer,
any event shall occur as a result of which, in the judgment of
the Company or in the reasonable opinion of the Underwriters,
it becomes necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the
circumstances existing at the time the Prospectus is delivered
to a purchaser, not misleading, or, if it is necessary at any
time to amend or supplement the Prospectus to comply with any
law, the Company promptly will either (i) prepare and file
with the Commission an appropriate amendment to the
Registration Statement or supplement to the Prospectus or (ii)
prepare and file with the Commission an appropriate filing
under the Exchange Act which shall be incorporated by
reference in the Prospectus so that the Prospectus as so
amended or supplemented will not, in the light of the
circumstances when it is so delivered, be misleading, or so
that the Prospectus will comply with the law.
(f) The Company will make generally available to its security
holders, as soon as it is practicable to do so, but in any
event not later than 15 months after the effective date of the
Registration Statement, an earning statement (which need not
be audited) in reasonable detail, covering a period of at
least 12 consecutive months beginning after the effective date
of the Registration Statement, which earning statement shall
satisfy the requirements of Section 11(a) of the Act and Rule
158 of the Rules and Regulations and will advise you in
writing when such statement has been so made available.
(g) Prior to the Closing Date, the Company will furnish to the
Underwriters, as soon as they have been prepared by or are
available to the Company, a copy of any unaudited interim
financial statements of the Company for any period subsequent
to the period covered by the most recent financial statements
appearing in the Registration Statement and the Prospectus.
(h) No offering, sale, short sale or other disposition of any
shares of Common Stock of the Company or other securities
convertible into or exchangeable or exercisable for shares of
Common Stock or derivative of Common Stock (or agreement for
such) will be made for a period of 90 days after the date of
this Agreement, directly or indirectly, by the Company
otherwise than hereunder or with the prior written consent of
Deutsche Bank Securities Inc.; provided, however, that this
Section 4(h) shall not apply to (I) the sale of the Securities
to the Underwriters hereunder; (II) the issuance by the
Company of shares of
<PAGE>
Common Stock upon the exercise of an option or warrant or the
conversion of a security outstanding on the date hereof of
which Deutsche Bank Securities Inc. has been advised in
writing; or (III) the issuance of additional options under the
Company's existing stock option plans, provided that such
stock options are not exercisable during such 90 day period,
or additional shares of Common Stock under the Company's
existing employee stock purchase plan.
(i) The Company has caused the persons listed on Exhibit C hereto
to furnish to you, on or prior to the date of this Agreement,
a letter or letters, in substantially the form set forth in
Exhibit D hereto, pursuant to which each such person shall
agree not to offer, sell, sell short or otherwise dispose of
certain of the shares of Common Stock of the Company or other
capital stock of the Company, or other securities convertible,
exchangeable or exercisable for Common Stock or derivative of
Common Stock owned by such person or request the registration
for the offer or sale of any of the foregoing (or as to which
such person has the right to direct the disposition of) for
certain periods after the date of this Agreement, directly or
indirectly, except with the prior written consent of Deutsche
Bank Securities Inc. (the "Lockup Agreements").
(j) The Company shall apply the net proceeds of its sale of the
Securities as set forth in the Prospectus.
(k) The Company shall not invest, or otherwise use the proceeds
received by the Company from its sale of the Securities in
such a manner as would require the Company or any of the
Subsidiaries to register as an investment company under the
1940 Act.
(l) The Company will maintain a transfer agent and, if necessary
under the jurisdiction of incorporation of the Company, a
registrar for the Common Stock.
(m) The Company will reserve and keep available at all times, free
of preemptive rights, shares of Common Stock for the purpose
of enabling the Company to satisfy any obligations to issue
shares of its Common Stock upon conversion of the Securities.
(n) The Company will cause the shares of Common Stock issuable
upon conversion of the Securities to be duly included for
quotation on the Nasdaq National Market on or prior to the
Closing Date and ensure that the shares of Common Stock
issuable upon conversion of the Securities remain included for
quotation on the Nasdaq National Market following the Closing
Date.
(o) The Company will not take, and will use its best efforts to
cause its affiliates
<PAGE>
not to take, directly or indirectly, any action designed to
cause or result in, or that has constituted or might
reasonably be expected to constitute, the stabilization or
manipulation of the price of any securities of the Company.
5. COSTS AND EXPENSES.
The Company will pay all costs, expenses and fees incident to the
performance of the obligations of the Company under this Agreement, including,
without limiting the generality of the foregoing, the following: accounting fees
of the Company; the fees and disbursements of counsel for the Company; the cost
of printing and delivering to, or as requested by, the Underwriters copies of
the Registration Statement, Preliminary Prospectuses, the Prospectus, this
Agreement, the Underwriters' Selling Memorandum, if any, the Underwriters'
Invitation Letter, the Blue Sky Survey and any supplements or amendments
thereto; the filing fees of the Commission; the filing fees and expenses
(including legal fees and disbursements) incident to securing any required
review by the NASD of the terms of the sale of the Securities; all expenses
arising from the listing of the shares of Common Stock issuable upon conversion
of the Securities on the Nasdaq National Market; the fees and expenses of any
Trustee and any agent of any Trustee and the fees and disbursements of counsel
for any Trustee in connection with the Indenture and the Securities; the Listing
Fee of the Nasdaq National Market; and the expenses, including the fees and
disbursements of counsel for the Underwriters, incurred in connection with the
qualification of the Securities under state securities or blue sky laws. Any
transfer taxes imposed on the sale of the Securities to the several Underwriters
will be paid by the Company. The Company shall not, however, be required to pay
for any of the Underwriters expenses (other than those related to qualification
under NASD regulation and state securities or blue sky laws) except that, if
this Agreement shall not be consummated because the conditions in Section 6
hereof are not satisfied, or because this Agreement is terminated by the
Representatives pursuant to Section 11 hereof, or by reason of any failure,
refusal or inability on the part of the Company to perform any undertaking or
satisfy any condition of this Agreement or to comply with any of the terms
hereof on its part to be performed, unless such failure to satisfy said
condition or to comply with said terms be due to the default or omission of any
Underwriter, then the Company shall reimburse the several Underwriters for
reasonable out-of-pocket expenses, including fees and disbursements of counsel,
reasonably incurred in connection with investigating, marketing and proposing to
market the Securities or in contemplation of performing their obligations
hereunder; but the Company shall not in any event be liable to any of the
several Underwriters for damages on account of loss of anticipated profits from
the sale by them of the Securities.
6. CONDITIONS OF OBLIGATIONS OF THE UNDERWRITERS.
The several obligations of the Underwriters to purchase the Firm
Securities on the Closing Date and the Option Securities, if any, on the Option
Closing Date are subject to the accuracy, as of the Closing Date or the Option
Closing Date, as the case may be, of the representations and warranties of the
Company contained herein, and to the performance by
<PAGE>
the Company of its covenants and obligations hereunder and to the following
additional conditions:
(a) The Registration Statement and all post-effective amendments
thereto shall have become effective and any and all filings
required by Rule 424 of the Rules and Regulations shall have
been made, and any request of the Commission for additional
information (to be included in the Registration Statement or
otherwise) shall have been disclosed to the Representatives
and complied with to their reasonable satisfaction. No stop
order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been
issued and no proceedings for that purpose shall have been
taken or, to the knowledge of the Company, shall be
contemplated by the Commission and no injunction, restraining
order, or order of any nature by a federal or state court of
competent jurisdiction shall have been issued as of the
Closing Date or the Option Closing Date, as the case may be,
which would prevent the issuance of the Securities.
(b) The Representatives shall have received on the Closing Date or
the Option Closing Date, as the case may be, the opinion of
Choate, Hall & Stewart, counsel for the Company, dated the
Closing Date or the Option Closing Date, as the case may be,
addressed to the Underwriters (and stating that it may be
relied upon by counsel to the Underwriters) to the effect
that:
(i) The Company has been duly organized and is validly
existing as a corporation in good standing under the
laws of the State of Delaware, with corporate power and
authority to own or lease its properties and conduct its
business as described in the Registration Statement and
the Prospectus; each of the Significant Subsidiaries has
been duly organized and is validly existing as a
corporation in good standing under the laws of the
jurisdiction of its incorporation, with corporate power
and authority to own or lease its properties and conduct
its business as described in the Registration Statement
and the Prospectus; the Company and each of the
Significant Subsidiaries are duly qualified to transact
business in all jurisdictions in which the conduct of
their business requires such qualification, or in which
the failure to qualify would have a materially adverse
effect upon the business of the Company and the
Subsidiaries taken as a whole; and the outstanding
shares of capital stock of each of the Significant
Subsidiaries have been duly authorized and validly
issued and are fully paid and non-assessable and are
owned of record and, to the knowledge of such counsel,
beneficially by the Company or a Subsidiary; and, to
such counsel's knowledge (A) the outstanding shares of
capital stock of each of the Significant Subsidiaries is
owned free and clear of all liens, encumbrances and
equities and claims, (B) there are no outstanding
securities convertible or
<PAGE>
exchangeable into or evidencing the right to purchase or
subscribe for any shares of capital stock of the
Significant Subsidiaries, and (C) there are no
outstanding or authorized options, warrants or rights of
any character obligating the Company or the Significant
Subsidiaries to issue any shares of any Significant
Subsidiary's capital stock or any securities convertible
or exchangeable into or evidencing the right to purchase
or subscribe for any shares of such stock.
(ii) The Company has authorized and outstanding capital stock
as set forth in the column entitled "Historical" under
the caption "Capitalization" in the Prospectus; the
authorized shares of the Company's Common Stock have
been duly authorized; the outstanding shares of the
Company's Common Stock have been duly authorized and
validly issued and are fully paid and non-assessable;
the Conversion Shares have been duly and validly
authorized and reserved for issuance upon such
conversion and, when issued upon conversion, in
accordance with the terms of the Supplemental Indenture
will be validly issued, fully paid and nonassessable; no
preemptive rights of stockholders exist with respect to
any of the Securities or the Conversion Shares or the
issue or sale thereof.
(iii) The Securities have been duly authorized, executed,
issued and delivered by the Company authenticated by the
Trustee and, when paid for in accordance with the terms
thereof, will constitute valid and legally binding
obligations of the Company entitled to the benefits
provided by the Indenture, subject, as to enforcement,
to bankruptcy, insolvency, fraudulent transfer,
moratorium, reorganization and similar laws of general
applicability relating to or affecting creditors' rights
and general equity principles; and the Securities, the
Conversion Shares and the Indenture conform in all
material respects to the descriptions thereof in the
Prospectus;
(iv) The Indenture has been duly authorized, executed and
delivered by the Company and, assuming the due
authorization, execution and delivery thereof by the
Trustee, constitutes a valid and legally binding
obligation of the Company, enforceable against the
Company in accordance with its terms, subject, as to its
binding nature and enforceability, to bankruptcy,
insolvency, fraudulent transfer, moratorium,
reorganization and similar 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;
(v) Except as described in or contemplated by the
Prospectus, to the knowledge of such counsel, there are
no outstanding securities of the
<PAGE>
Company convertible or exchangeable into or evidencing
the right to purchase or subscribe for any shares of
capital stock of the Company and there are no
outstanding or authorized options, warrants or rights of
any character obligating the Company to issue any shares
of its capital stock or any securities convertible or
exchangeable into or evidencing the right to purchase or
subscribe for any shares of such stock; and except as
described in the Prospectus, to the knowledge of such
counsel, no holder of any securities of the Company or
any other person has the right, contractual or
otherwise, which has not been satisfied or effectively
waived, to cause the Company to sell or otherwise issue
to them, or to permit them to underwrite the sale of,
any of the Securities or the right to have any Common
Stock or other securities of the Company included in the
Registration Statement or the right, as a result of the
filing of the Registration Statement, to require
registration under the Act of any shares of Common Stock
or other securities of the Company.
(vi) The Registration Statement has become effective under
the Act and, to the knowledge of such counsel, no stop
order proceedings with respect thereto have been
instituted or are pending or threatened under the Act
and any required filing of any Preliminary Prospectus
and the Prospectus pursuant to Rule 424(b) has been made
in accordance Rule 424(b).
(vii) The Registration Statement, the Prospectus and each
amendment or supplement thereto and document
incorporated by reference therein comply as to form in
all material respects with the requirements of the Act,
the Exchange Act and the Trust Indenture Act, as
applicable, and the applicable rules and regulations
thereunder (except that such counsel need express no
opinion as to the financial statements and related
schedules included or incorporated by reference therein
or as to the part of the Registration Statement that
constitutes Form T-1). The conditions for use of Form
S-3 set forth in the General Instructions thereto and
for use of Rule 415 under the Act have been satisfied.
(viii) The statements (i) in the Company's Registration
Statement on Form 8- A dated February 17, 1994,
describing the Common Stock, (ii) in the Company's
Registration Statement on Form 8-A dated January 19,
1999, as amended on June 15, 1999, describing the
Company's preferred share purchase rights, and (iii) in
Item 15 of the Registration Statement, insofar as such
statements constitute a summary of documents referred to
therein or matters of law, fairly summarize in all
material respects the information called for with
respect to such documents and matters.
<PAGE>
(ix) Such counsel does not know of any contracts or documents
required to be filed as exhibits to or incorporated by
reference in the Registration Statement or described in
the Registration Statement or the Prospectus which are
not so filed, incorporated by reference or described as
required, and such contracts and documents as are
summarized in the Registration Statement or the
Prospectus are fairly summarized in all material
respects.
(x) Such counsel knows of no material legal or governmental
proceedings pending or threatened against the Company or
any of the Subsidiaries except as set forth in the
Prospectus.
(xi) The execution and delivery of this Agreement, the
Indenture and the Securities and the consummation of the
transactions herein and therein contemplated do not and
will not conflict with or result in a breach of any of
the terms or provisions of, or constitute a default
under, the charter or by-laws of the Company, or any
agreement or instrument known to such counsel to which
the Company or any of the Subsidiaries is a party or by
which the Company or any of the Subsidiaries may be
bound.
(xii) This Agreement has been duly authorized, executed and
delivered by the Company.
(xiii) No approval, consent, order, authorization,
designation, declaration or filing by or with any
regulatory, administrative or other governmental body is
necessary in connection with the execution and delivery
of this Agreement, the Indenture and the Securities and
the consummation of the transactions herein and therein
contemplated (other than as may be required by the NASD
or as required by state securities and blue sky laws as
to which such counsel need express no opinion) except
such as have been obtained or made, specifying the same.
(xiv) The Company is not, and will not become, as a result of
the consummation of the transactions contemplated by
this Agreement and application of the net proceeds
therefrom as described in the Registration Statement and
the Prospectus, required to register as an investment
company under the 1940 Act.
In rendering such opinion Choate, Hall & Stewart may
rely as to matters governed by the laws of states other than
The Commonwealth of Massachusetts, the General Corporation Law
of the State of Delaware or federal laws on local counsel in
such jurisdictions, provided that in each case Choate, Hall &
Stewart
<PAGE>
shall state that they believe that they and the Underwriters
are justified in relying on such other counsel. In addition to
the matters set forth above, such opinion shall also include a
statement to the effect that nothing has come to the attention
of such counsel which leads them to believe that (i) the
Registration Statement, at the time it became effective under
the Act and as of the Closing Date or the Option Closing Date,
as the case may be, contained an untrue statement of a
material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein
not misleading, and (ii) the Prospectus, or any supplement
thereto, as of its date and as of the Closing Date or the
Option Closing Date, as the case may be, contained an untrue
statement of a material fact or omitted to state a material
fact necessary in order to make the statements, in the light
of the circumstances under which they are made, not misleading
(except that such counsel need express no view as to financial
statements, schedules and statistical information included or
incorporated by reference therein or as to the part of the
Registration Statement that constitutes Form T-1). With
respect to such statement, Choate, Hall & Stewart may state
that their belief is based upon the procedures set forth
therein, but is without independent check and verification.
(c) The Representatives shall have received on the Closing Date or
the Option Closing Date, as the case may be, the opinion of
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.,
intellectual property counsel for the Company, dated the
Closing Date or the Option Closing Date, as the case may be,
addressed to the Underwriters (and stating that it may be
relied upon by counsel to the Underwriters) to the effect
that:
(i) The statements in the portions of the Registration
Statement and the Prospectus headed: "Risk Factors -- We
may not be able to adequately protect our intellectual
property, which may facilitate the development of
competing products by others", "Risk Factors -- Our
products may infringe on the intellectual property
rights of third parties, which may result in lawsuits
and prohibit us from selling our products", "Business -
Intellectual Property and Proprietary Rights", and
"Legal Proceedings" (collectively, the "Intellectual
Property Portion"), insofar as such statements
constitute a summary of documents or proceedings
referred to therein or matters of law, are accurate
summaries and fairly and correctly present, in all
material respects, the information called for with
respect to such documents, proceedings and matters.
(ii) Such counsel has no knowledge of any facts which would
preclude the Company from having clear title to its
patents or patent applications referenced in the
Intellectual Property Portion. To such counsel's
knowledge, the Company owns or possesses sufficient
licenses or other
<PAGE>
rights to use all trademarks, trade names, patents,
copyrights, licenses, trade secrets, know-how and other
intellectual property necessary to conduct the business
now conducted or proposed to be conducted by the Company
as described in the Prospectus and, to such counsel's
knowledge, the Company is in compliance in all material
respects with the terms of any such licenses or rights
and no claims, assertions or allegations with respect to
such licenses or rights have been made to the contrary,
except as disclosed in the Prospectus.
(iii) Except as disclosed in the Prospectus, to such counsel's
knowledge, there are no legal or governmental
proceedings pending relating to trademarks, trade names,
patents, patent applications, mask works, copyrights,
licenses, trade secrets or other intellectual property
rights which could result in any material adverse effect
upon the Company other than the prosecution by the
Company of its patent applications before the United
States Patent and Trademark Office and appropriate
foreign government agencies, and to such counsel's
knowledge no such proceedings have been threatened by
governmental authorities or others.
(iv) Such counsel does not know of any contract or other
document relating to the Company's intellectual property
of a character required to be filed as an exhibit to the
Registration Statement or required to be described in
the Registration Statement or the Prospectus that has
not been filed or described as required.
In addition to the matters set forth above, such
opinion shall also include a statement to the effect that
nothing has come to the attention of such counsel which leads
them to believe that (i) the Intellectual Property Portion of
the Registration Statement, at the time the Registration
Statement became effective under the Act and as of the Closing
Date or the Option Closing Date, as the case may be, contained
an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading, and (ii) the
Intellectual Property Portion of the Prospectus, or any
supplement to the Prospectus, on the date such Prospectus or
supplement was filed pursuant to the Rules and Regulations and
as of the Closing Date or the Option Closing Date, as the case
may be, contained an untrue statement of a material fact or
omitted to state a material fact necessary in order to make
the statements, in the light of the circumstances under which
they are made, not misleading. With respect to such statement,
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. may state
that their belief is based upon the procedures set forth
therein, but is without independent check and verification.
<PAGE>
(d) The Representatives shall have received from Ropes & Gray,
counsel for the Underwriters, an opinion dated the Closing
Date or the Option Closing Date, as the case may be, with
respect to the incorporation of the Company, the validity of
the Securities delivered on the Closing Date or the Option
Closing Date, as the case may be, the Registration Statement,
the Prospectus and other related matters as the
Representatives may require, and the Company shall have
furnished to such counsel such documents as they request for
the purpose of enabling them to pass upon such matters. In
rendering such opinion, Ropes & Gray may rely as to all
matters governed other than by the laws of The Commonwealth of
Massachusetts, the General Corporation Law of the State of
Delaware, or federal laws on the opinions of counsel referred
to in Paragraph (b) and (c) of this Section 6. In addition to
the matters set forth above, such opinion shall also include a
statement to the effect that nothing has come to the attention
of such counsel which leads them to believe that (i) the
Registration Statement, or any amendment thereto, as of the
time it became effective under the Act as of the Closing Date
or the Option Closing Date, as the case may be, contained an
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading, and (ii) the
Prospectus, or any supplement thereto, on the date it was
filed pursuant to the Rules and Regulations and as of the
Closing Date or the Option Closing Date, as the case may be,
contained an untrue statement of a material fact or omitted to
state a material fact, necessary in order to make the
statements, in the light of the circumstances under which they
are made, not misleading (except that such counsel need
express no view as to financial statements, schedules and
statistical information included or incorporated by reference
therein or as to the part of the Registration Statement that
constitutes Form T-1). With respect to such statement, Ropes &
Gray may state that their belief is based upon the procedures
set forth therein, but is without independent check and
verification.
(e) The Representatives shall have received at or prior to the
Closing Date from Ropes & Gray a memorandum or summary, in
form and substance satisfactory to the Representatives, with
respect to the qualification for offering and sale by the
Underwriters of the Securities under the state securities or
blue sky laws of such jurisdictions as the Representatives may
reasonably have designated to the Company.
(f) You shall have received, (A) a letter of
PricewaterhouseCoopers LLP on each of the date hereof, the
Closing Date and the Option Closing Date, as the case may be,
dated the date hereof, the Closing Date or the Option Closing
Date, as the case may be, and (B) letters of Ernst & Young LLP
on the Closing Date, dated the date hereof and the Closing
Date, and a letter on the Option Closing Date dated the Option
Closing Date, in each case in form and substance
<PAGE>
satisfactory to you, confirming that they are independent
public accountants within the meaning of the Act and the
applicable Rules and Regulations thereunder and stating that
in their opinion the respective financial statements and
schedules examined by them and included in the Registration
Statement and the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the
Act and the related published Rules and Regulations; and
containing such other statements and information as is
ordinarily included in accountants' "comfort letters" to
Underwriters with respect to the financial statements and
certain financial and statistical information contained in the
Registration Statement and the Prospectus.
(g) The Representatives shall have received on the Closing Date or
the Option Closing Date, as the case may be, a certificate or
certificates of the Chief Executive Officer and the Chief
Financial Officer of the Company to the effect that, as of the
Closing Date or the Option Closing Date, as the case may be,
each of them severally represents as follows:
(i) The Registration Statement has become effective under
the Act and no stop order suspending the
effectiveness of the Registration Statement or the
use of the Prospectus has been issued, and no
proceedings for such purpose have been taken or are,
to his knowledge, contemplated by the Commission;
(ii) The representations and warranties of the Company
contained in Section 1 hereof are true and correct as
of the Closing Date or the Option Closing Date, as
the case may be;
(iii) All filings required to have been made pursuant to
Rule 424 under the Act have been made;
(iv) The Company has complied with all the agreements and
satisfied all the conditions on its part to be
performed or satisfied at or prior to such closing
date;
(v) He has carefully examined the Registration Statement
and the Prospectus and, in his opinion, as of the
effective date of the Registration Statement and the
date of the Prospectus, the statements contained in
the Registration Statement and the Prospectus,
respectively, were true and correct, and such
Registration Statement and Prospectus did not omit to
state a material fact required to be stated therein
or necessary in order to make the statements therein
not misleading, and since the effective date of the
Registration Statement and the date of the
Prospectus, no event has occurred which should have
been set forth in a post-effective
<PAGE>
amendment to the Registration Statement or in a
supplement to or an amendment of the Prospectus which
has not been so set forth in such post-effective
amendment or supplement or amendment, as the case may
be; and
(vi) Since the respective dates as of which information is
given in the Registration Statement and the
Prospectus, there has not been any material adverse
change or any development involving a prospective
material adverse change in or affecting the
condition, financial or otherwise, of the Company and
its Subsidiaries taken as a whole or the earnings,
business, management, properties, assets, rights,
operations, condition (financial or otherwise) or
prospects of the Company and the Subsidiaries taken
as a whole, whether or not arising in the ordinary
course of business.
(h) On each of the Closing Date and the Option Closing Date, if
any, the Representatives shall have received a certificate or
certificates of the Secretary of the Company in form and
substance reasonably satisfactory to the Representatives.
(i) The Company shall have furnished to the Representatives such
further certificates and documents confirming the
representations and warranties, covenants and conditions
contained herein and related matters as the Representatives
may reasonably have requested.
(j) The Lockup Agreements described in Section 4(i) shall be in
full force and effect.
(k) The Company and the Trustee shall have executed (i) the
Initial Indenture in a form substantially similar to the form
filed as an exhibit to the Registration Statement and (ii) the
Supplemental Indenture in the form previously furnished to the
Representatives, with such changes as are reasonably requested
by the Representatives and otherwise in form and substance
reasonably satisfactory to the Representatives.
The opinions and certificates mentioned in this Agreement shall be
deemed to be in compliance with the provisions hereof only if they are in all
material respects satisfactory to the Representatives and to Ropes & Gray,
counsel for the Underwriters.
If any of the conditions hereinabove provided for in this Section 6
shall not have been fulfilled when and as required by this Agreement to be
fulfilled, the obligations of the Underwriters hereunder may be terminated by
the Representatives by notifying the Company of such termination in writing, by
telecopy or by telegram at or prior to the Closing Date or
<PAGE>
the Option Closing Date, as the case may be.
In such event, the Company and the Underwriters shall not be under any
obligation to each other (except to the extent provided in Sections 5 and 8
hereof).
7. CONDITIONS OF THE OBLIGATIONS OF THE COMPANY.
The obligations of the Company to sell and deliver the portion of the
Securities required to be delivered as and when specified in this Agreement are
subject to the conditions that at the Closing Date or the Option Closing Date,
as the case may be, no stop order suspending the effectiveness of the
Registration Statement or the use of the Prospectus, shall have been issued and
in effect or proceedings therefor initiated or threatened.
8. INDEMNIFICATION.
(a) The Company agrees:
(i) to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter
within the meaning of the Act, against any losses,
claims, damages or liabilities to which such
Underwriter or any such controlling person may become
subject under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of or are
based upon (A) any untrue statement or alleged untrue
statement of any material fact contained in the
Registration Statement, any Preliminary Prospectus,
the Prospectus or any amendment or supplement
thereto, (B) 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, or (C) any act or failure to act or
any alleged act or failure to act by any Underwriter
in connection with, or relating in any manner to, the
Securities or the offering contemplated hereby, and
which is included as part of or referred to in any
loss, claim, damage, liability or action arising out
of or based upon matters covered by clause (A) or (B)
above (PROVIDED, that the Company shall not be liable
under this clause (C) to the extent that it is
determined in a final judgment by a court of
competent jurisdiction that such loss, claim, damage,
liability or action resulted directly from any such
acts or failures to act undertaken or omitted to be
taken by such Underwriter through its gross
negligence or willful misconduct); provided, however,
that the Company will not be liable in any such case
to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue
statement or alleged untrue statement, or omission or
alleged omission made in any Preliminary Prospectus,
the Prospectus, or such amendment or
<PAGE>
supplement thereto, in reliance upon and in
conformity with written information furnished to the
Company by or through the Representatives
specifically for use in the preparation thereof.
(ii) to reimburse each Underwriter and each such
controlling person upon demand for any legal or other
out-of-pocket expenses reasonably incurred by such
Underwriter or such controlling person in connection
with investigating or defending any such loss, claim,
damage or liability, action or proceeding or in
responding to a subpoena or governmental inquiry
related to the offering of the Securities, whether or
not such Underwriter or controlling person is a party
to any action or proceeding. In the event that it is
finally judicially determined that the Underwriters
were not entitled to receive payments for legal and
other expenses pursuant to this subparagraph, the
Underwriters will promptly return all sums that had
been advanced pursuant hereto.
(b) Each Underwriter severally and not jointly will indemnify and
hold harmless the Company, each of its directors, each of its
officers who have signed the Registration Statement and each
person, if any, who controls the Company within the meaning of
the Act, against any losses, claims, damages or liabilities to
which the Company or any such director, officer, or
controlling person may become subject under the Act or
otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof)
arise out of or are based upon (i) any untrue statement or
alleged untrue statement of any material fact contained in any
Preliminary Prospectus, the Prospectus or any amendment or
supplement thereto, or (ii) the omission or the alleged
omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading in the light of the circumstances under which they
were made; and will reimburse any legal or other expenses
reasonably incurred by the Company or any such director,
officer, or controlling person in connection with
investigating or defending any such loss, claim, damage,
liability, action or proceeding; provided, however, that each
Underwriter will be liable in each case to the extent, but
only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission has been made
in any Preliminary Prospectus, the Prospectus or such
amendment or supplement, in reliance upon and in conformity
with written information furnished to the Company by or
through the Representatives specifically for use in the
preparation thereof. This indemnity agreement will be in
addition to any liability which such Underwriter may otherwise
have.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in
respect of which indemnity may be sought pursuant to this
Section 8, such person (the "indemnified party") shall
promptly
<PAGE>
notify the person against whom such indemnity may be sought
(the "indemnifying party") in writing. No indemnification
provided for in Section 8(a) or (b) shall be available to any
party who shall fail to give notice as provided in this
Section 8(c) if the party to whom notice was not given was
unaware of the proceeding to which such notice would have
related and was materially prejudiced by the failure to give
such notice, but the failure to give such notice shall not
relieve the indemnifying party or parties from any liability
which it or they may have to the indemnified party for
contribution or otherwise than on account of the provisions of
Section 8(a) or (b). In case any such proceeding 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
and shall pay as incurred the fees and disbursements of such
counsel related to such proceeding. In any such proceeding,
any indemnified party shall have the right to retain its own
counsel at its own expense. Notwithstanding the foregoing, the
indemnifying party shall pay as incurred (or within 30 days of
presentation) the fees and expenses of the counsel retained by
the indemnified party in the event (i) the indemnifying party
and the indemnified party shall have mutually agreed to the
retention of such counsel, (ii) the named parties to any such
proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and
representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests
between them, or (iii) the indemnifying party shall have
failed to assume the defense and employ counsel acceptable to
the indemnified party within a reasonable period of time after
notice of commencement of the action. It is understood that
the indemnifying party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be
liable for the reasonable fees and expenses of more than one
separate firm for all such indemnified parties. Such firm
shall be designated in writing by you in the case of parties
indemnified pursuant to Section 8(a) and by the Company in the
case of parties indemnified pursuant to Section 8(b). The
indemnifying party shall not be liable for any settlement of
any proceeding effected without its written consent but if
settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by
reason of such settlement or judgment. In addition, the
indemnifying party will not, without the prior written consent
of the indemnified party, settle or compromise or consent to
the entry of any judgment in any pending or threatened claim,
action or proceeding of which indemnification may be sought
hereunder (whether or not any indemnified party is an actual
or potential party to such claim, action or proceeding) unless
such settlement, compromise or consent includes an
unconditional release of each
<PAGE>
indemnified party from all liability arising out of such
claim, action or proceeding and 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.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified
party under Section 8(a) or (b) above in respect of any
losses, claims, damages or liabilities (or actions or
proceedings 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 or proceedings 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 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 or proceedings 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 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 on the one hand or the Underwriters on the other 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 contributions pursuant to this Section
8(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
Section 8(d). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or
liabilities (or actions or proceedings in respect thereof)
referred to above in this Section 8(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), (i) no Underwriter shall be
required to contribute any amount in
<PAGE>
excess of the underwriting discounts and commissions
applicable to the Securities purchased by such Underwriter,
and (ii) 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 Section 8(d) to contribute are several in
proportion to their respective underwriting obligations and
not joint.
(e) In any proceeding relating to the Registration Statement, any
Preliminary Prospectus, the Prospectus or any supplement or
amendment thereto, each party against whom contribution may be
sought under this Section 8 hereby consents to the
jurisdiction of any court having jurisdiction over any other
contributing party, agrees that process issuing from such
court may be served upon him or it by any other contributing
party and consents to the service of such process and agrees
that any other contributing party may join him or it as an
additional defendant in any such proceeding in which such
other contributing party is a party.
(f) Any losses, claims, damages, liabilities or expenses for which
an indemnified party is entitled to indemnification or
contribution under this Section 8 shall be paid by the
indemnifying party to the indemnified party as such losses,
claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this
Section 8 and the representations and warranties of the
Company set forth in this Agreement shall remain operative and
in full force and effect, regardless of (i) any investigation
made by or on behalf of any Underwriter or any person
controlling any Underwriter, the Company, its directors or
officers or any persons controlling the Company, (ii)
acceptance of any Securities and payment therefor hereunder,
and (iii) any termination of this Agreement. A successor to
any Underwriter, or to the Company, its directors or officers,
or any person controlling the Company, shall be entitled to
the benefits of the indemnity, contribution and reimbursement
agreements contained in this Section 8.
9. DEFAULT BY UNDERWRITERS.
If on the Closing Date or the Option Closing Date, as the case may be,
any Underwriter shall fail to purchase and pay for the portion of the Securities
which such Underwriter has agreed to purchase and pay for on such date
(otherwise than by reason of any default on the part of the Company), you, as
Representatives of the Underwriters, shall use your reasonable efforts to
procure within 36 hours thereafter one or more of the other Underwriters, or any
others, to purchase from the Company such amounts as may be agreed upon and upon
the terms set forth herein, the Firm Securities or Option Securities, as the
case may be, which the defaulting Underwriter or Underwriters failed to
purchase. If during such
<PAGE>
36 hours you, as such Representatives, shall not have procured such other
Underwriters, or any others, to purchase the Firm Securities or Option
Securities, as the case may be, agreed to be purchased by the defaulting
Underwriter or Underwriters, then (a) if the aggregate principal amount of
Securities with respect to which such default shall occur does not exceed 10% of
aggregate principal amount of the Firm Securities or Option Securities, as the
case may be, covered hereby, the other Underwriters shall be obligated,
severally, in proportion to the respective principal amounts of Firm Securities
or Option Securities, as the case may be, which they are obligated to purchase
hereunder, to purchase the Firm Securities or Option Securities, as the case may
be, which such defaulting Underwriter or Underwriters failed to purchase, or (b)
if the aggregate principal amount of Firm Securities or Option Securities, as
the case may be, with respect to which such default shall occur exceeds 10% of
the aggregate principal amount of Firm Securities or Option Securities, as the
case may be, covered hereby, the Company or you, as the Representatives of the
Underwriters, will have the right, by written notice given within the next
36-hour period to the parties to this Agreement, to terminate this Agreement
without liability on the part of the non-defaulting Underwriters or of the
Company except to the extent provided in Section 8 hereof. In the event of a
default by any Underwriter or Underwriters, as set forth in this Section 9, the
Closing Date or Option Closing Date, as the case may be, may be postponed for
such period, not exceeding seven days, as you, as Representatives, may determine
in order that the required changes in the Registration Statement or in the
Prospectus or in any other documents or arrangements may be effected. The term
"Underwriter" includes any person substituted for a defaulting Underwriter. Any
action taken under this Section 9 shall not relieve any defaulting Underwriter
from liability in respect of any default of such Underwriter under this
Agreement.
10. NOTICES.
All communications hereunder shall be in writing and, except as
otherwise provided herein, will be mailed, delivered, telecopied or telegraphed
and confirmed as follows: if to the Underwriters, to Deutsche Bank Securities
Inc., One South Street, Baltimore, Maryland 21202, Attention: Jay S. Eastman;
with a copy to Deutsche Bank Securities Inc., One Bankers Trust Plaza, 130
Liberty Street, New York, New York 10006, Attention: General Counsel; if to the
Company, to Natural MicroSystems Corporation, 100 Crossing Boulevard,
Framingham, Massachusetts 01702, Attention: President, with a copy to Choate,
Hall & Stewart, Exchange Place, 53 State Street, Boston, Massachusetts 02109,
Attention: Richard N. Hoehn, Esq.
11. TERMINATION.
(a) This Agreement may be terminated by you by notice to the
Company at any time prior to the Closing Date if any of the
following has occurred: (i) since the respective dates as of
which information is given in the Registration Statement and
the Prospectus, any material adverse change or any development
involving a prospective material adverse change in or
affecting the condition, financial or
<PAGE>
otherwise, of the Company and its Subsidiaries taken as a
whole or the earnings, business, management, properties,
assets, rights, operations, condition (financial or otherwise)
or prospects of the Company and its Subsidiaries taken as a
whole, whether or not arising in the ordinary course of
business, (ii) any outbreak or escalation of hostilities or
declaration of war or national emergency or other national or
international calamity or crisis or change in economic or
political conditions if the effect of such outbreak,
escalation, declaration, emergency, calamity, crisis or change
on the financial markets of the United States would, in your
reasonable judgment, make it impracticable or inadvisable to
market the Securities or to enforce contracts for the sale of
the Securities, or (iii) suspension of trading in securities
generally on the New York Stock Exchange, the American Stock
Exchange or the Nasdaq National Market or limitation on prices
(other than limitations on hours or numbers of days of
trading) for securities on either such Exchange or the Nasdaq
National Market, (iv) the enactment, publication, decree or
other promulgation of any statute, regulation, rule or order
of any court or other governmental authority which in your
opinion materially and adversely affects or may materially and
adversely affect the business or operations of the Company,
(v) declaration of a banking moratorium by United States or
New York State authorities, (vi) any downgrading, or placement
on any watch list for possible downgrading, in the rating of
the Company's debt securities by any "nationally recognized
statistical rating organization" (as defined for purposes of
Rule 436(g) under the Exchange Act); (vii) the suspension of
trading of the Company's common stock by the Nasdaq National
Market, the Commission, or any other governmental authority
or, (viii) the taking of any action by any governmental body
or agency in respect of its monetary or fiscal affairs which
in your reasonable opinion has a material adverse effect on
the securities markets in the United States; or
(b) This Agreement may be terminated as provided in Sections 6 and
9 of this Agreement.
12. SUCCESSORS.
This Agreement has been and is made solely for the benefit of the
Underwriters and the Company and their respective successors, executors,
administrators, heirs and assigns, and the officers, directors and controlling
persons referred to herein, and no other person will have any right or
obligation hereunder. No purchaser of any of the Securities from any Underwriter
shall be deemed a successor or assign merely because of such purchase.
13. INFORMATION PROVIDED BY UNDERWRITERS.
The Company and the Underwriters acknowledge and agree that the only
information furnished or to be furnished by any Underwriter to the Company for
inclusion in any
<PAGE>
Prospectus or the Registration Statement consists of the information set forth
in the last paragraph on the front cover page (relating to the Underwriters'
expected delivery of the Securities) and the information set forth in the table
after the first paragraph and fifth, sixth, and seventh paragraphs under the
caption "Underwriting" in the Prospectus.
14. MISCELLANEOUS.
The reimbursement, indemnification and contribution agreements
contained in this Agreement and the representations, warranties and covenants in
this Agreement shall remain in full force and effect regardless of (a) any
termination of this Agreement, (b) any investigation made by or on behalf of any
Underwriter or controlling person thereof, or by or on behalf of the Company or
its directors or officers, and (c) delivery of and payment for the Securities
under this Agreement.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of Maryland.
<PAGE>
If the foregoing letter is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicates hereof,
whereupon it will become a binding agreement among the Company and the several
Underwriters in accordance with its terms.
Very truly yours,
NATURAL MICROSYSTEMS CORPORATION
By: /s/ Robert Schechter
--------------------------------
Name: Robert P. Schechter
Title: President and CEO
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
DEUTSCHE BANK SECURITIES INC.
U.S. BANCORP PIPER JAFFRAY INC.
DAIN RAUSCHER INCORPORATED
As Representatives of the several
Underwriters listed on Schedule I
By: DEUTSCHE BANK SECURITIES INC.
By: /s/ Michael Halloran
-------------------------------------
Authorized Officer
<PAGE>
SCHEDULE I
SCHEDULE OF UNDERWRITERS
PRINCIPAL AMOUNT OF FIRM
UNDERWRITER SECURITIES TO BE PURCHASED
Deutsche Bank Securities Inc. $113,750,000
U.S. Bancorp Piper Jaffray Inc. 39,375,000
Dain Rauscher Incorporated 21,875,000
------------
TOTAL $175,000,000
<PAGE>
EXHIBIT A
SUBSIDIARIES
Natural MicroSystems Asia Ltd.
Natural MicroSystems Japan K.K.
Natural MicroSystems Singapore Pte Ltd.
Natural MicroSystems Telecom Europe S.A.
Natural MicroSystems Europe S.A.
Natural MicroSystems Europe GmbH
Natural MicroSystems Limited
Natural MicroSystems Italia
Natural MicroSystems Latin America S.A.
Natural MicroSystems Australia Pty Ltd.
Natural MicroSystems International, Inc.
Natural MicroSystems Europe, Inc.
Natural MicroSystems FSC Ltd.
Natural MicroSystems Securities Corporation
Natural MicroSystems Korea, Inc.
Natural MicroSystems Brasil Ltda.
Natural MicroSystems NV
Via DSP, Inc.
QWES.com, Inc.
InnoMediaLogic (IML) Inc.
3044009 Nova Scotia ULC
3044010 Nova Scotia Inc.
3758982 Canada Inc.
NMS Sweden AB
<PAGE>
EXHIBIT B
SIGNIFICANT SUBSIDIARIES
NMS International, Inc. (Delaware)
NMS Europe, Inc. (Delaware)
Natural MicroSystems Telecom Europe S.A. (France)
Natural MicroSystems Europe S.A. (France)
Natural MicroSystems Securities Corporation (Massachusetts)
Natural MicroSystems Asia Ltd. (Hong Kong)
QWES.com, Inc. (California)
InnoMediaLogic (IML) Inc.
<PAGE>
EXHIBIT C
LOCKUP AGREEMENT SIGNATORIES
Robert P. Schechter
Zenas W. Hutcheson, III
W. Frank King, Ph.D.
Pamela D. A. Reeve
Ronald W. White
Robert E. Hult
George D. Kontopidis, Ph.D.
Dorothy A. Terrell
R. Brough Turner
Allen P. Carney
Ofer Gneezy
William E. Foster
Charles J. Walker
<PAGE>
EXHIBIT D
FORM OF LOCKUP AGREEMENT
NATURAL MICROSYSTEMS CORPORATION
100 CROSSING BOULEVARD
FRAMINGHAM, MASSACHUSETTS 01702-5406
___________, 2000
Deutsche Bank Securities Inc.
1 South Street
Baltimore, Maryland 21202
Ladies and Gentlemen:
The undersigned understands that Deutsche Bank Securities Inc., also
known as Deutsche Banc Alex. Brown ("Alex. Brown"), together with U.S. Bancorp
Piper Jaffray Inc. and Dain Rauscher Incorporated as representatives (the
"Representatives") of the several underwriters (the "Equity Underwriters")
propose to enter into an Equity Underwriting Agreement with Natural MicroSystems
Corporation (the "Company"), providing for a public offering by the Equity
Underwriters, including the Representatives, of common stock, par value $.01 per
share (the "Common Stock"), of the Company (the "Equity Public Offering"), and
Alex. Brown, together with the Representatives of the several underwriters (the
"Debt Underwriters," and together with the Equity Underwriters, the
"Underwriters"), propose to enter into a Convertible Debt Underwriting Agreement
with the Company, providing for a public offering by the Debt Underwriters,
including the Representatives, of convertible subordinated notes of the Company
(the "Debt Public Offering," and together with the Equity Public Offering, the
"Public Offerings"), pursuant to prospectus supplements (the "Prospectus
Supplements") to the Registration Statement on Form S-3 filed August 18, 2000
with the Securities and Exchange Commission (the "SEC").
In consideration of the agreements by the Underwriters to make the
Public Offerings and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the undersigned agrees that,
without the prior written consent of Alex. Brown, the undersigned will not
directly or indirectly offer, sell, pledge, contract to sell (including any
<PAGE>
short sale), enter into any Hedging Transaction (as defined below) relating to,
grant any option to purchase or otherwise dispose of (each of the foregoing
referred to as a "Disposition") (i) any Locked-up Shares (as defined below)
during the period commencing with the date of this letter agreement and ending
on the 29th day after the date of the final Prospectus Supplements (the
"Supplement Date"), (ii) more than 1/3 of the Locked-up Shares during the period
commencing on the 30th day after the Supplement Date and ending on the 59th day
after the Supplement Date, and (iii) more than 2/3 of the Locked-up Shares
(including the shares disposed of pursuant to clauses (ii) above) during the
period commencing on the 60th day after the Supplement Date and ending on the
89th day after the Supplement Date. For purposes of this letter agreement,
"Locked-up Shares" shall mean any shares of Common Stock, including, without
limitation, Common Stock that may be issued upon exercise of a stock option or
warrant, in each case beneficially owned by the undersigned on the date hereof
in accordance with the rules and regulations of the SEC. The foregoing
restriction is expressly intended to preclude the undersigned from engaging in
any Hedging Transaction or other transaction which is designed to or reasonably
expected to lead to or result in a Disposition which would exceed the permitted
Disposition levels contained in clauses (i) through (iii) above, even if the
securities would be disposed of by someone other than the undersigned. "Hedging
Transaction" means any short sale (whether or not against the box) or any
purchase, sale or grant of any right (including, without limitation, any put or
call option) with respect to any security (other than a broad-based market
basket or index) that includes, relates to or derives any significant part of
its value from the Common Stock.
Notwithstanding the foregoing, the undersigned may transfer any or all
of the Locked-up Shares by gift, will or intestacy; provided, however, that in
any such case it shall be a condition to the transfer that the transferee
execute an agreement stating that the transferee is receiving and holding the
Locked-up Shares subject to the provisions of this letter agreement, and there
shall be no further transfer of such Locked-up Shares except in accordance with
this letter agreement.
Without limiting the restrictions herein, any Disposition by the
undersigned shall remain at all times subject to applicable securities laws,
including without limitation the resale restrictions imposed by Rule 144
promulgated under the Securities Act of 1933.
The undersigned agrees that the Company may, and that the undersigned
will, (i) with respect to any shares for which the undersigned is the record
holder, cause the transfer agent for the Company to note stop transfer
instructions with respect to such shares on the transfer books and records of
the Company and (ii) with respect to any shares for which the undersigned is the
beneficial holder but not the record holder, cause the record holder of such
shares to cause the transfer agent for the Company to note stop transfer
instructions with respect to such shares on the transfer books and records of
the Company.
The undersigned hereby agrees that, to the extent that the terms of
this letter agreement
<PAGE>
conflict with or are in any way inconsistent with any agreement providing
registration rights to which the undersigned and the Company may be a party,
this letter agreement supersedes such registration rights agreement.
The undersigned understands that the Company, the Underwriters and the
Representatives will proceed with the Public Offerings in reliance on this
letter agreement.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to enter into this letter agreement. All authority
herein conferred or agreed to be conferred shall survive the death or incapacity
of the undersigned and any obligations of the undersigned shall be binding upon
the heirs, personal representatives, successors and assigns of the undersigned.
Very truly yours,
---------------------------------
Name:
---------------------------------
(Social Security or Taxpayer
Identification No.)
----------------------------------
----------------------------------
----------------------------------
Address
Number of shares owned or Certificate numbers:
subject to warrants, options
or convertible securities:
