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EXHIBIT 1.2
▇▇▇▇▇▇ BROTHERS INC.
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLC
▇. ▇. ▇▇▇▇▇▇ SECURITIES INC.
As Representatives of the Several Underwriters
C/▇ ▇▇▇▇▇▇ BROTHERS INC.
▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Common Stock
TERMS AGREEMENT
Dated: February 1, 2000
To: METRICOM, INC.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Underwriting Agreement dated February 1, 2000.
Dear Sirs:
We (the "Representatives") understand that Metricom, Inc., a Delaware
corporation, (the "Company"), proposes to issue and sell 5,000,000 shares of its
common stock, par value $.001 per share (the "Common Stock"). This Agreement is
a Terms Agreement referred to in the underwriting agreement dated February 1,
2000 (the "Underwriting Agreement"). Terms used herein but not otherwise defined
shall have the meaning ascribed to such terms in the Underwriting Agreement.
Subject to the terms and conditions set forth herein or incorporated by
reference herein, the Underwriters named below (the "Underwriters") offer to
purchase, severally and not jointly, the amount of Common Stock and at the terms
set forth below.
SHARES OF
UNDERWRITER COMMON STOCK
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▇▇▇▇▇▇ Brothers Inc. 1,425,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. 1,425,000
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ 950,000
& ▇▇▇▇▇ Incorporated
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLC 240,000
▇. ▇. ▇▇▇▇▇▇ Securities Inc. 240,000
ABN AMRO Incorporated 60,000
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Bear, ▇▇▇▇▇▇▇ & Co. Inc. 60,000
Credit Suisse First Boston Corporation 60,000
Fidelity Capital Markets, a division of
National Financial Services Corp. 60,000
▇▇▇▇▇▇▇, Sachs & Co. 60,000
ING Barings LLC 60,000
PaineWebber Incorporated 60,000
Warburg Dillon Read LLC 60,000
Ameri-First Securities 30,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Company, L.L.C. 30,000
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Incorporated 30,000
Pacific Crest Securities 30,000
▇▇▇▇ ▇▇▇▇▇ Inc. 30,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc. 30,000
The ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Company, LLC 30,000
Sands Brothers & Co., Ltd. 30,000
TOTAL 5,000,000
TERMS
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TITLE OF SECURITY: Common Stock
CURRENCY: US Dollars
ANNUAL CASH DIVIDEND RATE: None required
PAYABLE: From time to time at discretion of Board of Directors
LIQUIDATION PREFERENCE PER SHARE: N/A
PUBLIC OFFERING PRICE: $87.00 PER SHARE
PURCHASE PRICE: $82.65 PER SHARE
CONCESSION TO SELECTED DEALERS: Up to $2.61 Per Share
REALLOWANCE TO BROKER DEALERS: Up to $0.10 Per Share
LISTING REQUIREMENT: Nasdaq Stock Market
CONVERTIBLE: No
INITIAL CONVERSION PRICE: Not applicable
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OTHER CONVERSION PROVISIONS: Not applicable
DELIVERY DATE AND LOCATION: February 7, 2000 at the offices of Weil,
Gotshal & ▇▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ at 10:00 a.m., New York City time.
ADDITIONAL REPRESENTATIONS, IF ANY: The Company represents, warrants and
agrees as follows:
1. To use the proceeds from the sale of the Common Stock in the
manner described in the Prospectus Supplement relating to the Common
Stock under the caption "Use of Proceeds."
2. Not to take, directly or indirectly, any action designed to,
or that might reasonably be expected to, cause or result in
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Common Stock in
violation of the Exchange Act or any applicable rules of the Nasdaq
National Market. Except as permitted by the Securities Act, neither the
Company nor any of its subsidiaries will distribute any (i) Prospectus,
(ii) Prospectus Supplement, or (iii) other offering material in
connection with the offering and sale of the Common Stock. Neither the
Company nor any of its subsidiaries has (A) taken, directly or
indirectly, any action designed to, or that might reasonably be expected
to, cause or result in stabilization or manipulation of the price of any
security of the Company or any of its subsidiaries to facilitate the
sale or resale of the Common Stock or (B) since the date of the
Preliminary Prospectus Supplement (1) sold, bid for, purchased or paid
any person any compensation for soliciting purchases of the Common Stock
or (2) paid or agreed to pay to any person any compensation for
soliciting another to purchase any other securities of the Company or
any of its subsidiaries.
3. There exist no conditions that would constitute a material
default (or an event which with notice or the lapse of time, or both,
would constitute a material default) under the Underwriting Agreement or
any other Terms Agreement relating thereto or the Common Stock.
4. Each certificate signed by any officer of the Company and
delivered to the Representatives or counsel for the Representatives on
the Delivery Date shall be deemed to be a representation and warranty by
the Company, as the case may be, to the Representatives as to the
matters covered thereby.
5. All licenses and authorizations issued by the Federal
Communications Commission ("FCC") and state authorities governing
telecommunications matters (the "Licenses") required for the operation
of the business of the Company and its subsidiaries are in full force
and effect there are
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no pending modifications, amendments or revocation proceedings which
would adversely affect the operation of any of the telecommunications
business currently owned by the Company and its subsidiaries (the
"Businesses"). All fees requested by governmental authorities pursuant
to the rules governing Licenses have been paid. No event has occurred
with respect to the Licenses held by the Company, or its subsidiaries,
which, with the giving of notice or the lapse of time or both, would
constitute grounds for revocation of any Licenses. Each of the Company
and its subsidiaries is in compliance in all material respects with the
terms of the Licenses, as applicable, and there is no condition, event
or occurrence existing, nor is there any proceeding being conducted of
which the Company has received notice, nor, to the Company's knowledge,
is there any proceeding threatened, by any governmental authority, which
would cause the termination, suspension, cancellation or non-renewal of
any of the Licenses, or the imposition of any penalty or fine (that is
material to the Company and its subsidiaries, taken as a whole) by any
regulatory authority. No registrations, filings, applications, notices,
transfers, consents, approvals, audits, qualifications, waivers or other
action of any kind is required by virtue of the execution, delivery and
performance of this Terms Agreement or any other agreement relating to
the transactions contemplated hereby by the Company and the consummation
of the transactions contemplated hereby and thereby, and the issuance
and delivery of the Common Stock, to avoid the loss of any such License,
permit, consent, concession or other authorization or any asset,
property or right pursuant to the terms thereof, or the violation or
breach of any applicable law thereto.
6. The Company and its subsidiaries have reviewed the areas
within their business and operations which could reasonably be expected
to have an "Year 2000 Problem" (that is, the risk that computer
applications used by the Company and its subsidiaries may be unable to
recognize and perform properly date-sensitive functions involving
certain dates prior to and any date after December 31, 1999) that would
have a material adverse effect on the Company and have developed a
program to address on a timely basis any such problem, and (ii) based on
such review and program, the "Year 2000 Problem" will not, or is not
reasonably likely to, have a material adverse effect on the Company, and
further, the statements contained under the caption "Risk Factors - We
face risks in connection with the year 2000" in the Preliminary
Prospectus Supplement and the Prospectus Supplement relating to the
Common Stock are true.
REDEMPTION PROVISIONS: None
LOCK-UP PROVISIONS: 90 days, unless otherwise approved by ▇▇▇▇▇▇
Brothers Inc. or ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, Inc.
NUMBER OF OPTION SECURITIES: 750,000 to cover over-allotment
OTHER TERMS AND CONDITIONS:
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1. The respective obligations of the Underwriters hereunder are
subject to the accuracy when made on the Delivery Date, of the
representations and warranties of the Company contained herein and in
the Underwriting Agreement, to the performance by the Company of its
obligations hereunder and thereunder, and to each of the following terms
and conditions:
a. Prior to the applicable Delivery Date, the Company
shall have furnished to the Representatives such further
information, certificates and documents as the Representatives
may reasonably request.
▇. ▇▇▇▇▇▇ Godward LLP shall have furnished to the
Representatives their written opinion, as counsel to the Company,
addressed to the Underwriters and dated the applicable Delivery
Date, in form and substance reasonably satisfactory to the
Representatives, to the effect that:
i) The statements contained in the Prospectus
Supplement under the captions "Management -- Executive
Compensation" and "Principal Stockholders," insofar as
they describe charter documents, contracts, statutes,
rules and regulations and other legal matters, constitute
an accurate summary thereof in all material respects;
ii) The statements contained in the Prospectus
Supplement under the caption "U.S. Federal Income Tax
Consequences to Non-U.S. Holders," insofar as they
describe federal statutes, rules and regulations,
constitute an accurate summary thereof in all material
respects.
2. In accordance with Section 7(a) of the Underwriting Agreement the
Underwriters severally confirm and the Company acknowledges that the statements
with respect to the public offering of the Common Stock by the Underwriters set
forth in the last paragraph on the cover page of, and the information contained
in the paragraphs entitled "Miscellaneous" under the caption "Underwriting" in,
the Prospectus Supplement are correct and constitute the only information
concerning such Underwriters furnished in writing to the Company by or on behalf
of the Underwriters specifically for inclusion in the Registration Statement,
Prospectus and Prospectus Supplement.
3. Notices to Underwriters:
▇▇▇▇▇▇ Brothers Inc.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Legal Department
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▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Legal Department
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Very truly yours,
▇▇▇▇▇▇ Brothers Inc.
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLC
▇. ▇. ▇▇▇▇▇▇ Securities Inc.
For itself and as Representative of the
several Underwriters named above
By ▇▇▇▇▇▇ BROTHERS INC.
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Managing Director
Accepted:
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METRICOM, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President and CEO
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