Draft of 10/24/95
2,000,000 SHARES
ALPHA INDUSTRIES, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
----------------------
_______________, 1995
▇▇▇▇▇▇▇▇▇▇ Securities
▇▇▇▇▇▇▇▇▇▇▇ & Co., Inc.
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇, Inc.
As Representatives of the several Underwriters
c/▇ ▇▇▇▇▇▇▇▇▇▇ Securities
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
SECTION 1. INTRODUCTORY. Alpha Industries, Inc., a Delaware corporation
(the "Company), proposes to issue and sell 2,000,000 shares of its authorized
but unissued Common Stock, $.25 par value per share (the "Common Stock"), to
the several underwriters named in Schedule A hereto (the "Underwriters"), for
which you are acting as representatives (the "Representatives"). Said aggregate
of 2,000,000 shares are herein called the "Firm Common Shares." In addition,
the Company proposes to grant to the Underwriters an option to purchase up to
300,000 additional shares of Common Stock (the "Optional Common Shares"), as
provided in Section 4. The Firm Common Shares and, to the extent such option
is exercised, the Optional Common Shares are hereinafter collectively referred
to as the "Common Shares."
The Underwriters have advised the Company that the Underwriters propose to
make a public offering of their respective portions of the Common Shares on the
effective date of the registration statement hereinafter referred to, or as soon
thereafter as in the Representatives' judgment is advisable.
The Company hereby confirms its agreement with respect to the purchase of the
Common Shares by the Underwriters as follows:
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
hereby represents and warrants to the several Underwriters that:
(a) A registration statement on Form S-3 (File No. 33-______) with
respect to the Common Shares has been prepared by the Company in conformity
with the requirements of the Securities Act of 1933, as amended (the "Act"),
and the rules and regulations (the "Rules and Regulations") of the Securities
and Exchange Commission (the "Commission") thereunder, and has been filed
with the Commission. The Company has prepared and has filed or proposes to
file prior to the effective date of such registration statement an amendment
or amendments to such registration statement, which amendment or amendments
have been or will be similarly prepared. There have been delivered to the
Representatives two signed copies of such registration statement and
amendments, together with two copies of each exhibit filed therewith.
Conformed copies of such registration statement and amendments (but without
exhibits) and copies of the related preliminary prospectus have been
delivered to the Representatives in such reasonable quantities as the
Representatives have requested for each of the Underwriters. The Company will
next file with the Commission one of the following: (i) prior to
effectiveness of such registration statement, a further amendment thereto,
including the form of final prospectus, (ii) a final prospectus in accordance
with Rules 430A and 424(b) of the Rules and Regulations, or (iii) a term
sheet (the "Term Sheet") as described in and in accordance with Rules 434 and
424(b) of the Rules and Regulations. As filed, the final prospectus, if one
is used, or the Term Sheet and Preliminary Prospectus (as hereinafter
defined), if a final prospectus is not used, shall include all Rule 430A
Information (as hereinafter defined) and, except to the extent that the
Representatives shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to the Representatives prior to
the date and time that this Agreement was executed and delivered by the
parties hereto, or, to the extent not completed at such date and time, shall
contain only such specific additional information and other changes (beyond
that contained in the latest Preliminary Prospectus, as hereinafter defined)
as the Company shall have previously advised the Representatives in writing
would be included or made therein.
The term "Registration Statement" as used in this Agreement shall mean
such registration statement at the time such registration statement becomes
effective and, in the event any post-effective amendment thereto becomes
effective prior to the First Closing Date (as hereinafter defined), shall
also mean such registration statement as so amended; provided, however, that
such term shall also include (i) all Rule 430A Information deemed to be
included in such registration statement at the time such registration
statement becomes effective as provided by Rule 430A of the Rules and
Regulations, and (ii) a registration statement, if any, filed pursuant to
Rule 426(b) of the Rules and Regulations relating to the Common Shares. The
term "Preliminary Prospectus" shall mean any preliminary prospectus referred
to in the preceding paragraph and any preliminary prospectus included in the
Registration Statement at the time it becomes effective that omits Rule 430A
Information. The term "Prospectus" as used in this Agreement shall mean
either (i) the prospectus relating to the Common Shares in the form in which
it is first filed with the Commission pursuant to Rule 424(b) of the Rules
and Regulations or, (ii) if a Term Sheet is not used and no filing pursuant
to Rule 424(b) of the Rules and Regulations is required, the form of final
prospectus included in the Registration Statement at the time such
registration statement becomes effective, or (iii) if a Term Sheet is used,
the Term Sheet in the form in which it is first filed with the Commission
pursuant to Rule 424(b) of the Rules and Regulations, together with the
Preliminary Prospectus included in the Registration Statement at the time it
become effective. The term "Rule 430A Information" shall mean information
with respect to the Common Shares and the offering thereof permitted to be
omitted from the Registration Statement when it becomes effective pursuant to
Rule 430A of the Rules and Regulations. Any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference
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therein pursuant to Form S-3 under the Act, as of the date of such
Preliminary Prospectus or Prospectus, as the case may be.
(b) The Commission has not issued any order preventing or suspending the
use of any Preliminary Prospectus, and each Preliminary Prospectus has
conformed in all material respects to the requirements of the Act and the
Rules and Regulations and, as of its date, has not included any untrue
statement of a material fact or omitted to state a material fact necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading; and at the time the Registration Statement
becomes effective, and at all times subsequent thereto up to and including
each Closing Date hereinafter mentioned, the Registration Statement and the
Prospectus, and any amendments or supplements thereto, will contain all
material statements and information required to be included therein by the
Act and the Rules and Regulations and will in all material respects conform
to the requirements of the Act and the Rules and Regulations, and neither the
Registration Statement nor the Prospectus, nor any amendment or supplement
thereto, will include any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, no representation or
warranty contained in this Section 2(b) shall be applicable to information
contained in or omitted from any Preliminary Prospectus, the Registration
Statement, the Prospectus or any such amendment or supplement in reliance
upon and in conformity with written information furnished to the Company by
or on behalf of any Underwriter, directly or through the Representatives,
specifically for use in the preparation thereof. The documents incorporated
by reference in the Prospectus, when they were filed with the Commission,
conformed in all material respects to the requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and
regulations of the Commission thereunder, and none of such documents
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.
(c) The Company does not own or control, directly or indirectly, any
corporation, association or other entity other than the subsidiaries listed
in Exhibit 21 to the Annual Report on Form 10-K of the Company for the fiscal
year ended April 2, 1995. The Company and each of its subsidiaries have been
duly incorporated and are validly existing as corporations in good standing
under the laws of their respective jurisdictions of incorporation, with full
power and authority (corporate and other) to own and lease their properties
and conduct their respective businesses as described in the Prospectus; the
Company owns all of the outstanding capital stock of its subsidiaries free
and clear of all claims, liens, charges and encumbrances, except that Trans-
Tech, Inc. owns, free and clear of all claims, liens, charges and
encumbrances, certain of the outstanding shares of capital stock of Trans-
Tech Europe SARL; the Company and each of its subsidiaries are in possession
of and operating in compliance with all authorizations, licenses, permits,
consents, certificates and orders material to the conduct of their respective
businesses, all of which are valid and in full force and effect; the Company
and each of its subsidiaries are duly qualified to do business and in good
standing as foreign corporations in each jurisdiction in which the ownership
or leasing of properties or the conduct of their respective businesses
requires such qualification, except for jurisdictions in which the failure to
so qualify would not have a material adverse effect on the Company or the
subsidiary; and no proceeding has been instituted in any such jurisdiction
revoking, limiting or curtailing, or seeking to revoke, limit or curtail,
such power and authority or qualification.
(d) The Company has an authorized and outstanding capital stock as set
forth under the heading "Capitalization" in the Prospectus; the issued and
outstanding shares of Common Stock have been duly authorized and validly
issued, are fully paid and nonassessable, are duly listed on the American
Stock Exchange, have been issued in compliance with all federal and state
securities laws,
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were not issued in violation of or subject to any preemptive rights or other
rights to subscribe for or purchase securities, and conform to the
description thereof contained in the Prospectus. All issued and outstanding
shares of capital stock of each subsidiary of the Company have been duly
authorized and validly issued and are fully paid and nonassessable. Except
as disclosed in or contemplated by the Prospectus and the financial
statements of the Company, and the related notes thereto, included or
incorporated by reference in the Prospectus, neither the Company nor any
subsidiary has outstanding any options to purchase, or any preemptive rights
or other rights to subscribe for or to purchase, any securities or
obligations convertible into, or any contracts or commitments to issue or
sell, shares of its capital stock or any such options, rights, convertible
securities or obligations.
(e) The Common Shares to be sold by the Company have been duly authorized
and, when issued, delivered and paid for in the manner set forth in this
Agreement, will be duly authorized, validly issued, fully paid and
nonassessable, and will conform to the description thereof contained in the
Prospectus. No preemptive rights or other rights to subscribe for or
purchase exist with respect to the issuance and sale of the Common Shares by
the Company pursuant to this Agreement. No stockholder of the Company has
any right which has not been waived to require the Company to register the
sale of any shares owned by such stockholder under the Act in the public
offering contemplated by this Agreement. No further approval or authority of
the stockholders or the Board of Directors of the Company will be required
for the issuance and sale of the Common Shares to be sold by the Company as
contemplated herein.
(f) The Company has full legal right, power and authority to enter into
this Agreement and perform the transactions contemplated hereby. This
Agreement has been duly authorized, executed and delivered by the Company and
constitutes a valid and binding obligation of the Company in accordance with
its terms. The making and performance of this Agreement by the Company and
the consummation of the transactions herein contemplated will not violate any
provisions of the certificate of incorporation or bylaws, or other
organizational documents, of the Company or any of its subsidiaries, and will
not conflict with, result in the breach or violation of, or constitute,
either by itself or upon notice or the passage of time or both, a default
under any material agreement, mortgage, deed of trust, lease, franchise,
license, indenture, permit or other instrument to which the Company or any of
its subsidiaries is a party or by which the Company or any of its
subsidiaries or any of its respective properties may be bound or affected,
any statute or any authorization, judgment, decree, order, rule or regulation
of any court or any regulatory body, administrative agency or other
governmental body applicable to the Company or any of its subsidiaries or any
of their respective properties. No consent, approval, authorization or other
order of any court, regulatory body, administrative agency or other
governmental body is required for the execution and delivery of this
Agreement or the consummation of the transactions contemplated by this
Agreement, except for compliance with the Act, the Blue Sky and state
securities laws of jurisdictions of the United States and provincial
securities laws of jurisdictions of Canada (collectively, "Blue Sky Laws")
applicable to the public offering of the Common Shares by the several
Underwriters and the clearance of such offering with the National Association
of Securities Dealers, Inc. (the "NASD").
(g) KPMG Peat Marwick LLP, who have expressed their opinion with respect
to the financial statements incorporated by reference in the Prospectus and
the Registration Statement, are independent accountants as required by the
Act and the Rules and Regulations.
(h) The consolidated financial statements of the Company and its
subsidiaries, and the related notes thereto, incorporated by reference in the
Registration Statement and the Prospectus present fairly the financial
position of the Company and its subsidiaries as of the respective dates of
such
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financial statements, and the results of operations and changes in financial
position of the Company and its subsidiaries for the respective periods
covered thereby. Such statements and related notes have been prepared in
accordance with generally accepted accounting principles applied on a
consistent basis as certified by KPMG Peat Marwick LLP. No other financial
statements or schedules are required to be included or incorporated by
reference in the Registration Statement. The selected financial data set
forth in the Prospectus under the captions "Capitalization" and "Selected
Financial Data" fairly present the information set forth therein on the basis
stated in the Registration Statement.
(i) Except as disclosed in the Prospectus, and except as to defaults
which individually or in the aggregate would not be material to the Company,
neither the Company nor any of its subsidiaries is in violation or default of
any provision of its certificate of incorporation or bylaws, or other
organizational documents, or is in breach of or default with respect to any
provision of any agreement, judgment, decree, order, mortgage, deed of trust,
lease, franchise, license, indenture, permit or other instrument to which it
is a party or by which it or any of its properties are bound; and there does
not exist any state of facts which constitutes an event of default on the
part of the Company or any such subsidiary as defined in such documents or
which, with notice or lapse of time or both, would constitute such an event
of default.
(j) There are no contracts or other documents required to be described in
the Registration Statement or to be filed as exhibits to the Registration
Statement by the Act or by the Rules and Regulations which have not been
described or filed as required. The descriptions of contracts in the
Prospectus are accurate and complete; all such contracts are in full force
and effect on the date hereof; and neither the Company nor any of its
subsidiaries, nor to the best of the Company's knowledge, any other party is
in breach of or default under any of such contracts.
(k) There are no legal or governmental actions, suits or proceedings
pending or, to the best of the Company's knowledge, threatened to which the
Company or any of its subsidiaries is or may be a party or of which property
owned or leased by the Company or any of its subsidiaries is or may be the
subject, or related to environmental or discrimination matters, which
actions, suits or proceedings might, individually or in the aggregate,
prevent or adversely affect the transactions contemplated by this Agreement
or have a material adverse effect on the condition (financial or otherwise),
properties, business, results of operations or prospects of the Company and
its subsidiaries, taken as a whole (a "Material Adverse Effect"); and no
labor disturbance by the employees of the Company or any of its subsidiaries
exists or, to the best of the Company's knowledge, is imminent which might be
expected to have a Material Adverse Effect. Neither the Company nor any of
its subsidiaries is a party or subject to the provisions of any material
injunction, judgment, decree or order of any court, regulatory body,
administrative agency or other governmental body.
(l) The Company or the applicable subsidiary has good and marketable
title to all the properties and assets reflected as owned in the financial
statements hereinabove described (or elsewhere in the Prospectus), subject to
no lien, mortgage, pledge, charge or encumbrance of any kind except (i)
those, if any, reflected in such financial statements (or elsewhere in the
Prospectus), or (ii) those which are not material in amount and do not
adversely affect the use made and proposed to be made of such property by the
Company and its subsidiaries. The Company or the applicable subsidiary holds
its leased properties under valid and binding leases, with such exceptions as
are not materially significant in relation to the business of the Company.
Except as disclosed in the Prospectus, the Company owns or leases all such
properties as are necessary to its operations as now conducted or as proposed
to be conducted.
5
(m) Since the respective dates as of which information is given in the
Registration Statement and Prospectus, and except as described in or
specifically contemplated by the Prospectus: (i) the Company and its
subsidiaries have not incurred any material liabilities or obligations,
indirect, direct or contingent, or entered into any material agreement or
other transaction which is not in the ordinary course of business or which
could result in a material reduction in the future earnings of the Company
and its subsidiaries, taken as a whole; (ii) the Company and its subsidiaries
have not sustained any material loss or interference with their respective
businesses or properties from fire, flood, windstorm, accident or other
calamity, whether or not covered by insurance; (iii) the Company has not paid
or declared any dividends or other distributions with respect to its capital
stock and the Company and its subsidiaries are not in default in the payment
of principal or interest on any outstanding debt obligations; (iv) there has
not been any change in the capital stock (other than upon the sale of the
Common Shares hereunder or upon the exercise of outstanding stock options) or
indebtedness material to the Company and its subsidiaries, taken as a whole
(other than in the ordinary course of business); and (v) there has not been
any material adverse change in the condition (financial or otherwise),
business, properties, results of operations or prospects of the Company and
its subsidiaries, taken as a whole.
(n) Except as disclosed in the Prospectus, (i) the Company and its
subsidiaries own or have the right to use (as currently used), free and clear
of all material liens, charges, claims, encumbrances, pledges, security
interests, defects or other like material restrictions of any kind
whatsoever, all patents, patent applications, trademarks, service marks,
trade names, mask works and copyrights, any licenses and rights to the
foregoing, and any registrations of any of the foregoing, used in the conduct
of their respective businesses as previously or presently conducted, or as
proposed to be conducted (collectively, "Intellectual Property Rights"),
without infringing upon or otherwise acting adversely to the right of any
person or entity under or with respect to any of the foregoing, (ii) the
invalidity of any patent, the expiration of any registration of any
Intellectual Property Rights or any other loss of Intellectual Property
Rights would not have a Material Adverse Effect, (iii) there is no claim
being made or, to the best of the Company's knowledge, threatened against the
Company or any of its subsidiaries regarding any of the Intellectual Property
Rights that could have a Material Adverse Effect, and (iv) neither the
Company nor any of its subsidiaries is obligated or under any liability
whatsoever to make any payments by way of royalties, fees or otherwise to any
owner or licensee of, or other claimant to, any patent, trademark, service
▇▇▇▇, trade name, copyright, know-how, technology or other intangible asset,
with respect to the use thereof or in connection with the conduct of its
business or otherwise. The Company and each of its subsidiaries have the
unrestricted right to use (as currently used) all trade secrets, know-how
(including all other unpatented and unpatentable proprietary or confidential
information, systems or procedures), inventions, designs, processes, works of
authorship, computer programs, and technical data and information required
for or material to the development, production, operation and sale of all
services and products sold or proposed to be sold thereby, free and clear of,
and without violating, any material right, lien or claim of others, including
former employers of their respective employees.
(o) The Company has not been advised, and has no reason to believe, that
either it or any of its subsidiaries is not conducting business in compliance
with all applicable laws, rules and regulations of the jurisdictions in which
it is conducting business, including all applicable local, state and federal
environmental laws and regulations, except where failure to be so in
compliance would not have a Material Adverse Effect.
(p) The Company and its subsidiaries have filed all necessary federal,
state and foreign income and franchise tax returns and have paid all taxes
shown as due thereon; and the Company
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has no knowledge of any tax deficiency which has been or might be asserted or
threatened against the Company or its subsidiaries which could have a
Material Adverse Effect.
(q) The Company is not an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
(r) The Company has not distributed and will not distribute prior to the
First Closing Date any offering material in connection with the offering and
sale of the Common Shares other than the Prospectus, the Registration
Statement and the other materials permitted by the Act.
(s) Each of the Company and its subsidiaries maintains insurance of the
types and in the amounts generally deemed adequate for its business,
including insurance covering real and personal property owned or leased by
the Company and its subsidiaries against theft, damage, destruction, acts of
vandalism and all other risks customarily insured against, all of which
insurance is in full force and effect.
(t) Neither the Company nor any of its subsidiaries has at any time
during the last five years (i) made any unlawful contribution to any
candidate for foreign office, or failed to disclose fully any contribution in
violation of law, or (ii) made any payment to any federal or state
governmental officer or official, or other person charged with similar public
or quasi-public duties, other than payments required or permitted by the laws
of the United States or any jurisdiction thereof.
(u) The Company has not taken and will not take, directly or indirectly,
any action designed to or that might be reasonably expected to cause or
result in stabilization or manipulation of the price of the Common Stock to
facilitate the sale or resale of the Common Shares.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE UNDERWRITERS. The
Representatives, on behalf of the several Underwriters, represent and warrant to
the Company that the information set forth in (i) the last paragraph of the
cover page of the Prospectus and (ii) the second paragraph under "Underwriting"
in the Prospectus was furnished to the Company by and on behalf of the
Underwriters for use in connection with the preparation of the Registration
Statement and the Prospectus and is correct in all material respects. The
Representatives represent and warrant that they have been authorized by each of
the other Underwriters as the Representatives to enter into this Agreement on
its behalf and to act for it in the manner herein provided.
SECTION 4. PURCHASE, SALE AND DELIVERY OF COMMON SHARES. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Company agrees to issue and sell
the Firm Common Shares to the Underwriters. Each of the Underwriters agrees,
severally and not jointly, to purchase from the Company the number of Firm
Common Shares set forth opposite the name of such Underwriter in Schedule A
hereto. The purchase price per share to be paid by the several Underwriters to
the Company shall be equal to the initial price to the public per share less an
amount per share equal to the per share underwriting discount. The initial
price to the public, which shall be a fixed price, and the underwriting discount
will be determined by separate agreement between the Company and the
Underwriters in substantially the form set forth as Schedule B hereto. Such
initial price shall not be higher than the last sale price of the Common Stock
reported on the American Stock Exchange immediately prior to such determination.
Delivery of certificates for the Firm Common Shares to be purchased by the
Underwriters shall be made at the offices of ▇▇▇▇▇▇▇▇▇▇ Securities, ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ and payment therefor shall be made
at the offices of Brown, Rudnick, Freed & Gesmer, One Financial
7
Center, Boston, Massachusetts (or such other place as may be agreed upon by the
Company and the Representatives), at such time and date, not later than the
third (or, if the Firm Common Shares are priced, as contemplated by Rule 15c6-
1(c) of the Exchange Act, after 4:30 P.M., Washington, D.C. time, the fourth)
full business day following the first date that any of the Common Shares are
released by the Representatives for sale to the public, as the Representatives
shall designate by at least 48 hours prior notice to the Company (or at such
other time and date, not later than one week after such third or fourth, as the
case may be, full business day as may be agreed upon by the Company and the
Representatives) (the "First Closing Date"); provided, however, that if the
Prospectus is at any time prior to the First Closing Date recirculated to the
public, the First Closing Date shall occur upon the later of the third or
fourth, as the case may be, full business day following the first date that any
of the Common Shares are released by the Representatives for sale to the public
or the date that is 48 hours after the date that the Prospectus has been so
recirculated.
Delivery of certificates for the Firm Common Shares shall be made by or on
behalf of the Company to the Representatives, for the respective accounts of the
Underwriters against payment by the Representatives, for the accounts of the
several Underwriters, of the purchase price therefor by certified or official
bank checks payable in next day funds to the order of the Company. The
certificates for the Firm Common Shares shall be registered in such names and
denominations as the Representatives shall have requested at least two full
business days prior to the First Closing Date, and shall be made available for
checking and packaging on the business day preceding the First Closing Date at a
location in New York, New York, as may be designated by the Representatives.
Time shall be of the essence, and delivery at the time and place specified in
this Agreement is a further condition to the obligations of the Underwriters.
In addition, on the basis of the representations, warranties and agreements
herein contained, but subject to the terms and conditions herein set forth, the
Company hereby grants an option to the several Underwriters to purchase,
severally and not jointly, up to an aggregate of 300,000 Optional Common Shares
at the purchase price per share to be paid for the Firm Common Shares, for use
solely in covering any over-allotments made by the Representatives for the
account of the Underwriters in the sale and distribution of the Firm Common
Shares. The option granted hereunder may be exercised at any time (but not more
than once) within thirty days after the first date that any of the Common Shares
are released by the Representatives for sale to the public, upon notice by the
Representatives to the Company setting forth the aggregate number of Optional
Common Shares as to which the Underwriters are exercising the option, the names
and denominations in which the certificates for such shares are to be registered
and the time and place at which such certificates will be delivered. Such time
of delivery (which may not be earlier than the First Closing Date), being herein
referred to as the "Second Closing Date," shall be determined by the
Representatives, but if at any time other than the First Closing Date shall not
be earlier than three nor later than five full business days after delivery of
such notice of exercise. The number of Optional Common Shares to be purchased
by each Underwriter shall be determined by multiplying the number of Optional
Common Shares pursuant to such notice of exercise by a fraction, the numerator
of which is the number of Firm Common Shares to be purchased by such Underwriter
as set forth opposite its name in Schedule A hereto and the denominator of which
is 2,000,000 (subject to such adjustments to eliminate any fractional share
purchases as the Representatives in their discretion may make). Certificates
for the Optional Common Shares will be made available for checking and packaging
on the business day preceding the Second Closing Date at a location in New York,
New York, as may be designated by the Representatives. The manner of payment
for and delivery of, the Optional Common Shares shall be the same as for the
Firm Common Shares as specified in the two preceding paragraphs. At any time
before lapse of the option, the Representatives may cancel such option by giving
written notice of such cancellation to the Company.
8
The Representatives have advised the Company that each Underwriter has
authorized the Representatives to accept delivery of its Common Shares, to make
payment and to receipt therefor. You, individually and not as the
Representatives of the Underwriters, may (but shall not be obligated to) make
payment for any Common Shares to be purchased by any Underwriter whose funds
shall not have been received by the Representatives by the First Closing Date or
the Second Closing Date, as the case may be, for the account of such
Underwriter, but any such payment shall not relieve such Underwriter from any of
its obligations under this Agreement.
Subject to the terms and conditions hereof, the Underwriters propose to make
a public offering of their respective portions of the Common Shares as soon
after the effective date of the Registration Statement as in the judgment of the
Representatives is advisable and at the public offering price set forth on the
cover page of and on the terms set forth in the final prospectus, if one is
used, or on the first page of the Term Sheet, if one is used.
SECTION 5. COVENANTS OF THE COMPANY. The Company covenants and agrees that:
(a) The Company will use its best efforts to cause the Registration
Statement and any amendment thereof, if not effective at the time and date
that this Agreement is executed and delivered by the parties hereto, to
become effective. If the Registration Statement has become or becomes
effective pursuant to Rule 430A of the Rules and Regulations, or the filing
of the Prospectus or the Term Sheet is otherwise required under Rule 424(b)
of the Rules and Regulations, the Company will file the Prospectus or the
Term Sheet, properly completed, pursuant to the applicable paragraph of Rule
424(b) of the Rules and Regulations within the time period prescribed and
will provide evidence satisfactory to the Representatives of such timely
filing. The Company will promptly advise the Representatives in writing (i)
of the receipt of any comments of the Commission, (ii) of any request of the
Commission for amendment of or supplement to the Registration Statement
(either before or after it becomes effective), any Preliminary Prospectus or
the Prospectus or for additional information, (iii) when the Registration
Statement shall have become effective and (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or of the institution of any proceedings for that purpose. If the
Commission shall enter any such stop order at any time, the Company will use
its best efforts to obtain the lifting of such order at the earliest possible
moment. The Company will not file any amendment or supplement to the
Registration Statement (either before or after it becomes effective), any
Preliminary Prospectus, the Term Sheet or the Prospectus of which the
Representatives have not been furnished with a copy a reasonable time prior
to such filing or to which the Representatives reasonably object or which is
not in compliance with the Act and the Rules and Regulations.
(b) The Company will prepare and file with the Commission, promptly upon
the Representatives' reasonable request, any amendments or supplements to the
Registration Statement or the Prospectus which in the Representatives'
reasonable judgment may be necessary or advisable to enable the several
Underwriters to continue the distribution of the Common Shares and will use
its best efforts to cause the same to become effective as promptly as
possible. The Company will fully and completely comply with the provisions
of Rule 430A of the Rules and Regulations with respect to information omitted
from the Registration Statement in reliance upon such Rule.
(c) If at any time within the nine-month period referred to in Section
10(a)(3) of the Act during which a prospectus relating to the Common Shares
is required to be delivered under the Act any event occurs, as a result of
which the Prospectus, including any amendments or supplements, would include
an untrue statement of a material fact, or omit to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading, or if it is necessary at
9
any time to amend the Prospectus, including any amendments or supplements, to
comply with the Act or the Rules and Regulations, the Company will promptly
advise the Representatives thereof and will promptly prepare and file with
the Commission, at its own expense, an amendment or supplement which will
correct such statement or omission or an amendment or supplement which will
effect such compliance and will use its best efforts to cause the same to
become effective as soon as possible; and, in case any Underwriter is
required to deliver a prospectus after such nine-month period, the Company
upon request, but at the expense of such Underwriter, will promptly prepare
such amendment or amendments to the Registration Statement and such
Prospectus or Prospectuses as may be necessary to permit compliance with the
requirements of Section 10(a)(3) of the Act.
(d) As soon as practicable, but not later than 45 days after the end of
the first quarter ending after one year following the "effective date of the
Registration Statement" (as defined in Rule 158(c) of the Rules and
Regulations), the Company will make generally available to its security
holders an earnings statement (which need not be audited) covering a period
of 12 consecutive months beginning after the effective date of the
Registration Statement which will satisfy the provisions of the last
paragraph of Section 11(a) of the Act.
(e) During such period as a prospectus is required by law to be delivered
in connection with sales by an Underwriter or dealer, the Company, at its
expense, but only for the nine-month period referred to in Section 10(a)(3)
of the Act, will furnish to the Representatives or mail to the
Representatives' order copies of the Registration Statement, the Prospectus
(including the Term Sheet), the Preliminary Prospectus and all amendments and
supplements to any such documents in each case as soon as available and in
such quantities as the Representatives may reasonably request, for the
purposes contemplated by the Act.
(f) The Company shall cooperate with the Representatives and ▇▇▇▇▇, ▇▇▇▇
& ▇▇▇▇▇ in order to qualify or register the Common Shares for sale under (or
obtain exemptions from the application of) the Blue Sky Laws of such
jurisdictions of the United States and Canada as the Representatives
reasonably designate, will comply with such laws and will continue such
qualifications, registrations and exemptions in effect so long as reasonably
required for the distribution of the Common Shares. The Company shall not be
required to qualify as a foreign corporation or to file a general consent to
service of process in any such jurisdiction where it is not presently
qualified or where it would be subject to taxation as a foreign corporation.
The Company will advise the Representatives promptly of the suspension of the
qualification or registration of (or any such exemption relating to) the
Common Shares for offering, sale or trading in any jurisdiction or any
initiation or threat of any proceeding for any such purpose, and in the event
of the issuance of any order suspending such qualification, registration or
exemption, the Company, with the Representatives' cooperation, will use its
best efforts to obtain the withdrawal thereof.
(g) During the period of five years hereafter, the Company will furnish
to the Representatives and, upon request of the Representatives, to each of
the other Underwriters: (i) as soon as practicable after the end of each
fiscal year, copies of the Annual Report of the Company containing the
balance sheet of the Company as of the close of such fiscal year and
statements of income, stockholders' equity and cash flows for the year then
ended and the opinion thereon of the Company's independent accountants; (ii)
as soon as practicable after the filing thereof, copies of each proxy
statement, Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current
Report on Form 8-K or other report filed by the Company with the Commission,
the American Stock Exchange or any other securities exchange, or any
over-the-counter market; and (iii) as soon
10
as available, copies of any report or communication of the Company mailed
generally to holders of Common Stock.
(h) During the period of ninety days after the date of the Prospectus,
without the prior written consent of ▇▇▇▇▇▇▇▇▇▇ Securities (which consent may
be withheld at the sole discretion of ▇▇▇▇▇▇▇▇▇▇ Securities), the Company
will not issue, offer, sell, grant options to purchase or otherwise dispose
of any of the Company's equity securities or any other securities convertible
into or exchangeable with its Common Stock or other equity security, other
than (i) the issuance and sale of shares of Common Stock pursuant to
outstanding stock options and warrants disclosed in the Prospectus, (ii) the
issuance of options under the Alpha Industries, Inc. 1986 Long-Term Incentive
Plan and the Alpha Industries, Inc. 1994 Non-Qualified Stock Option Plan for
Non-Employee Directors, each as amended on the date hereof, and (iii) the
issuance of shares of Common Stock under the Alpha Industries, Inc. Employee
Stock Purchase Plan and the Alpha Industries, Inc. Savings and Retirement
Plan, each as amended on the date hereof.
(i) The Company will apply the net proceeds of the sale of the Common
Shares sold by it substantially in accordance with its statements under the
caption "Use of Proceeds" in the Prospectus.
(j) The Company will use its best efforts to qualify or register its
Common Stock for sale in non-issuer transactions under (or obtain exemptions
from the application of) the Blue Sky Laws of the State of California (and
thereby permit market making transactions and secondary trading in the Common
Stock in California), will comply with such Blue Sky Laws and will continue
such qualifications, registrations and exemptions in effect for a period of
five years after the date hereof.
(k) The Company will use its best efforts to list the Firm Common Shares
and, to the extent issued, the Optional Common Shares on the American Stock
Exchange.
The Representatives may, in their sole discretion, waive in writing the
performance by the Company of any one or more of the foregoing covenants or
extend the time for the performance of any of the foregoing covenants.
SECTION 6. PAYMENT OF EXPENSES. Whether or not the transactions
contemplated hereunder are consummated or this Agreement becomes effective or is
terminated, the Company agrees to pay all costs, fees and expenses incurred in
connection with the performance of its obligations hereunder and in connection
with the transactions contemplated hereby, including without limiting the
generality of the foregoing, (i) all expenses incident to the issuance and
delivery of the Common Shares (including all printing and engraving costs), (ii)
all fees and expenses of the registrar and transfer agent of the Common Stock,
(iii) all necessary issue, transfer and other stamp taxes in connection with the
issuance and sale of the Common Shares to the Underwriters, (iv) all fees and
expenses of the Company's counsel and the Company's independent accountants, (v)
all costs and expenses incurred in connection with the preparation, printing,
filing, shipping and distribution of the Registration Statement, each
Preliminary Prospectus and the Prospectus (including the Term Sheet and all
exhibits and financial statements) and all amendments and supplements provided
for herein, this Agreement, the ▇▇▇▇▇▇▇▇▇▇ Securities Master Agreement Among
Underwriters, the ▇▇▇▇▇▇▇▇▇▇ Securities Master Selected Dealers Agreement, any
Underwriters' Questionnaire and any Underwriters' Power of Attorney, (vi) all
filing fees, reasonable attorneys' fees and expenses incurred by the Company or
the Underwriters in connection with qualifying or registering (or obtaining
exemptions from the qualification or registration of) all or any part of the
Common Shares for offer and sale under Blue Sky Laws, including all costs and
expenses incurred in connection with the preparation, printing, filing, shipping
and distribution of all preliminary and
11
supplemental memoranda relating to Blue Sky Laws, (vii) the filing fee of the
NASD and the listing fee of the American Stock Exchange, and (viii) all other
fees, costs and expenses referred to in Item 14 of the Registration Statement.
Except as provided in this Section 6 and Sections 8 and 10, the Underwriters
shall pay all of their own expenses, including the fees and disbursements of
their counsel (excluding those relating to qualification, registration or
exemption under the Blue Sky Laws and the Blue Sky memorandum referred to
above).
SECTION 7. CONDITIONS OF THE OBLIGATIONS OF UNDERWRITERS. The obligations
of the several Underwriters to purchase and pay for the Firm Common Shares on
the First Closing Date and the Optional Common Shares on the Second Closing Date
shall be subject to the accuracy of the representations and warranties on the
part of the Company herein set forth as of the date hereof and as of the First
Closing Date or the Second Closing Date, as the case may be, to the accuracy of
the statements of Company officers made pursuant to the provisions hereof, to
the performance by the Company of its obligations hereunder, and to the
following additional conditions:
(a) The Registration Statement shall have become effective not later than
5 P.M. (or, in the case of a registration statement filed pursuant to Rule
462(b) of the Rules and Regulations relating to the Common Shares, not later
than 10 A.M.), Washington, D.C. time, on the date of this Agreement, or at
such later time as shall have been consented to by the Representatives; if
the filing of the Prospectus, or any supplement thereto, is required pursuant
to Rule 424(b) of the Rules and Regulations, the Prospectus shall have been
filed in the manner and within the time period required by Rule 424(b) of the
Rules and Regulations; and prior to such Closing Date, no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted or
shall be pending or, to the knowledge of the Company or the Representatives,
shall be contemplated by the Commission; and any request of the Commission
for inclusion of additional information in the Registration Statement, or
otherwise, shall have been complied with to the Representatives'
satisfaction.
(b) The Representatives shall be satisfied that since the respective
dates as of which information is given in the Registration Statement and
Prospectus, (i) there shall not have been any change in the capital stock of
the Company or any of its subsidiaries, other than (A) pursuant to the
exercise of outstanding options and warrants disclosed in the Prospectus, (B)
the issuance of Common Stock pursuant to options issued under the Alpha
Industries, Inc. 1986 Long-Term Incentive Plan or the Alpha Industries, Inc.
1994 Non-Qualified Stock Option Plan for Non-Employee Directors, each as
amended on the date hereof, or (C) shares of Common Stock issued under the
Alpha Industries, Inc. Employee Stock Purchase Plan and the Alpha Industries,
Inc. Savings and Retirement Plan, each as amended on the date hereof; (ii)
there shall not have been any change in the indebtedness (other than in the
ordinary course of business) of the Company or any of its subsidiaries that
is material to the Company and its subsidiaries, taken as a whole; (iii)
except as set forth or contemplated by the Registration Statement or the
Prospectus, no material agreement or other transaction shall have been
entered into by the Company or any of its subsidiaries, which is not in the
ordinary course of business or which could result in a material reduction in
the future earnings of the Company and its subsidiaries, taken as a whole;
(iv) no loss or damage (whether or not insured) to the property of the
Company or any of its subsidiaries shall have been sustained which has or
could have a Material Adverse Effect, (v) no legal or governmental action,
suit or proceeding affecting the Company or any of its subsidiaries which is
material to the Company and its subsidiaries or which affects or may affect
the transactions contemplated by this Agreement shall have been instituted or
threatened and (vi) there shall not have been any material change in the
condition (financial or otherwise), business, management, results of
operations or prospects of the Company and its subsidiaries, taken as a
whole, which makes it impractical or inadvisable in the
12
judgment of the Representatives to proceed with the public offering or
purchase the Common Shares as contemplated hereby.
(c) There shall have been furnished to the Representatives, on each
Closing Date, in form and substance satisfactory to the Representatives,
except as otherwise expressly provided below:
(i) An opinion of Brown, Rudnick, Freed & Gesmer, counsel for the
Company, addressed to the Underwriters and dated the First Closing Date or
the Second Closing Date, as the case may be, to the effect that:
(1) Each of the Company and its subsidiaries organized under the
laws of states of the United States (the "U.S. Subsidiaries") has been
duly incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation, is duly
qualified to do business as a foreign corporation and is in good
standing in each of the jurisdictions listed therein, and has full
corporate power and authority to own its properties and conduct its
business as described in the Registration Statement.
(2) The authorized, issued and outstanding capital stock of the
Company is as set forth under the caption "Capitalization" in the
Prospectus; all necessary and proper corporate proceedings have been
taken in order to authorize validly such authorized Common Stock; all
outstanding shares of Common Stock have been duly and validly issued,
are fully paid and nonassessable, were not issued in violation of or
subject to any preemptive rights or other rights to subscribe for or
purchase any securities, and conform to the description thereof
contained in the Prospectus; without limiting the foregoing, there are
no preemptive or other rights to subscribe for or purchase any of the
Common Shares.
(3) All of the issued and outstanding shares of the U.S.
Subsidiaries of the Company have been duly and validly authorized and
issued, are fully paid and nonassessable and, to the best of such
counsel's knowledge, are owned beneficially by the Company free and
clear of all liens, encumbrances, equities, claims, security
interests, voting trusts or other defects of title whatsoever.
(4) The certificates evidencing the Common Shares to be
delivered hereunder are in due and proper form under law, and when
duly countersigned by the Company's transfer agent and registrar, and
delivered to the Representatives or upon the Representatives' order
against payment of the agreed consideration therefor in accordance
with the provisions of this Agreement, the Common Shares represented
thereby will be duly authorized and validly issued, fully paid and
nonassessable, will not have been issued in violation of or subject to
any preemptive rights or other rights to subscribe for or purchase
securities, and will conform in all respects to the description
thereof contained in the Prospectus.
(5) To the best of such counsel's knowledge, there are no
outstanding options, warrants or other rights calling for the issuance
of, and no commitments, plans or arrangements to issue, any shares of
capital stock of the Company or any security convertible into or
exchangeable for capital stock of the Company, except (a) for options
granted under the Alpha Industries, Inc. 1986 Long-Term Incentive Plan
and the Alpha Industries, Inc. 1994 Non-Qualified Stock Option Plan
for Non-Employee Directors,
13
(C) as contemplated by the Alpha Industries, Inc. Employee Stock
Purchase Plan, and (c) as disclosed in or specifically contemplated by
the Prospectus.
(6) The Registration Statement has become effective under the
Act, and, to the best of such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement or
preventing the use of the Prospectus has been issued and no
proceedings for that purpose have been instituted or are pending or
contemplated by the Commission; any required filing of the Prospectus
and any supplement thereto pursuant to Rule 424(b) of the Rules and
Regulations has been made in the manner and within the time period
required by such Rule 424(b).
(7) The Registration Statement, the Prospectus and each
amendment or supplement thereto (except for the financial statements
and schedules and financial and statistical data included therein, as
to which such counsel need express no opinion) comply as to form in
all material respects with the requirements of the Act and the Rules
and Regulations. To the best of such counsel's knowledge, there are no
franchises, leases, contracts, agreements or documents of a character
required to be disclosed in the Registration Statement or Prospectus
or to be filed as exhibits to the Registration Statement which are not
disclosed or filed, as required. To the best of such counsel's
knowledge, there are no legal or governmental actions, suits or
proceedings pending or threatened against the Company which are
required to be described in the Prospectus which are not described as
required.
(8) The documents incorporated by reference in the Prospectus
(except for any financial statements and schedules and financial and
statistical data included in such documents, as to which such counsel
need express no opinion), when they were filed with the Commission,
complied as to form in all material respects with the requirements of
the Exchange Act and the rules and regulations of the Commission
thereunder.
(9) The Company has the corporate power and authority to enter
into this Agreement and to sell and deliver the Common Shares to the
several Underwriters; this Agreement has been duly and validly
authorized by all necessary corporate action by the Company, has been
duly and validly executed and delivered by and on behalf of the
Company, and is a valid and binding agreement of the Company in
accordance with its terms; and no approval, authorization, order,
consent, registration, filing, qualification, license or permit of or
with any court, regulatory, administrative or other governmental body
is required for the execution and delivery of this Agreement by the
Company or the consummation of the transactions contemplated by this
Agreement, except such as have been obtained and are in full force and
effect under the Act and such as may be required under applicable Blue
Sky Laws in connection with the purchase and distribution of the
Common Shares by the Underwriters and the clearance of such offering
with the NASD.
(10) The execution and performance of this Agreement and the
consummation of the transactions herein contemplated will not (a)
conflict with, result in the breach of, or constitute, either by
itself or upon notice or the passage of time or both, a default under,
any of the agreements and other documents constituting exhibits to the
Registration Statement, (b) violate any of the provisions of the
certificate of incorporation or bylaws, or other organizational
documents, of the Company or any of the U.S. Subsidiaries or (c) to
the best of such counsel's knowledge, violate any federal or
Massachusetts statute, rule or regulation or any judgment, decree or
order of any court or governmental body
14
having jurisdiction over the Company or any of the U.S. Subsidiaries
or any property of the Company or any of the U.S. Subsidiaries.
(11) Neither the Company nor any of the U.S. Subsidiaries is in
violation of its certificate of incorporation or bylaws, or other
organizational documents, except where such default would not
materially adversely affect the Company and the U.S. Subsidiaries,
taken as a whole.
(12) To the best of such counsel's knowledge, no holders of
securities of the Company have rights which have not been waived to
the registration of shares of Common Stock or other securities,
because of the filing of the Registration Statement by the Company or
the offering contemplated hereby.
In rendering such opinion, such counsel may rely as to matters of fact on
certificates of officers of the Company and the U.S. Subsidiaries and of
governmental officials, in which case their opinion is to state that they
are so doing and copies of said certificates are to be attached to the
opinion. Such counsel shall also include a statement, satisfactory in
form and substance to you and to ▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇, counsel for the
Underwriters, to the effect that nothing has come to such counsel's
attention that would lead such counsel to believe that (a) at the
effective date of the Registration Statement, the Registration Statement
contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary [in order] to
make the statements therein not misleading or (b) either at the date
thereof or at the applicable Closing Date, the Prospectus contained or
contains any untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
(ii) An opinion of counsel for Alpha Industries GmbH ("Alpha
Germany"), which counsel shall be reasonably satisfactory to the
Representatives, addressed to the Underwriters and dated the First Closing
Date or the Second Closing Date, as the case may be, to the effect that:
(1) Alpha Germany has been duly incorporated and is validly
existing as a corporation in good standing under the laws of Germany.
Alpha Germany has the corporate power and authority to carry on its
business in accordance with its charter or by-laws, or other
organizational documents.
(2) All of the issued and outstanding shares of Alpha Germany
have been duly and validly authorized and issued and are fully paid
and are owned of record by the Company, to the knowledge of such
counsel, free and clear of all liens, encumbrances, equities, claims,
security interests, voting trusts or other defects of title
whatsoever.
(3) Such counsel have not been consulted in connection with any
pending or threatened material legal or governmental actions, suits or
proceedings to which Alpha Germany is a party or of which any property
of Alpha Germany is the subject.
(4) Alpha Germany is not in violation of its charter or by-laws,
or other organizational documents.
15
In rendering such opinion, such counsel may rely as to matters of fact on
certificates of officers of Alpha Germany and of governmental officials,
in which case their opinion is to state that they are so doing and that
copies of said certificates are attached to the opinion.
(iii) An opinion of counsel for Alpha Industries Limited ("Alpha
UK"), which counsel shall be reasonably satisfactory to the
Representatives, addressed to the Underwriters and dated the First Closing
Date or the Second Closing Date, as the case may be, to the effect that:
(1) Alpha UK is a company duly incorporated with limited
liability under the laws of England and is validly existing
thereunder. As at a specified date within three business days of the
date of such opinion, Alpha UK was in good standing, which, for
purposes of such opinion, shall mean that according to a certificate
received from the Registrar of Companies dated as of such specified
date Alpha UK has, according to the documents in the custody of the
Registrar of Companies, been in continuous and unbroken existence
since the date of its incorporation and there are no documents on the
file of Alpha UK kept by the Registrar of Companies showing, nor is
the Registrar of Companies aware of, any proceedings for the winding
up or liquidation of Alpha UK or that Alpha UK is not still in
operation.
(2) All of the issued shares in the share capital of Alpha UK
have been duly and validly authorised and issued, and are fully paid
and nonassessable. For the purposes of such opinion, "nonassessable"
shall mean that the registered holders of the shares are not liable
under English law, by virtue of their shareholding, for the payment of
taxes, duties, wages or other amounts for which Alpha UK is liable.
All of the issued shares of Alpha UK are owned directly by or on trust
for the Company, to the knowledge of such counsel free and clear of
all liens, incumbrances, equities or claims.
(3) Such counsel have not been consulted in connection with any
pending or threatened material legal or governmental actions, suits or
proceedings to which Alpha UK is a party or of which any property of
Alpha UK is the subject.
(4) Alpha UK is not in violation of its charter or by-laws, or
other organizational documents.
In rendering such opinion, such counsel may rely as to matters of fact on
certificates of officers of Alpha UK and of governmental officials, in
which case their opinion is to state that they are so doing and that
copies of said certificates are attached to the opinion.
(iv) An opinion of counsel for Trans-Tech Europe SARL ("Trans-
Tech Europe"), which counsel shall be reasonably satisfactory to the
Representatives, addressed to the Underwriters and dated the First Closing
Date or the Second Closing Date, as the case may be, to the effect that:
(1) Trans-Tech Europe has been duly incorporated and is validly
existing under the laws of France as a legal entity in the form of a
societe anonyme. Trans-Tech Europe has the corporate power and
authority to carry on its business in accordance with its Articles of
Association.
(2) All of the issued and outstanding shares of Trans-Tech
Europe have been duly and validly authorized and issued and are fully
paid and are owned of record by the
16
Company (___ shares) and Trans-Tech, Inc. (___ shares), to the
knowledge of such counsel, free and clear of all liens, encumbrances,
equities, claims, security interests, voting trusts or other defects
of title whatsoever.
(3) Such counsel have not been consulted in connection with any
pending or threatened material legal or governmental actions, suits or
proceedings to which Trans-Tech Europe is a party or of which any
property of Trans-Tech Europe is the subject.
(4) Trans-Tech Europe is not in violation of its charter or by-
laws, or other organizational documents.
In rendering such opinion, such counsel may rely as to matters of fact on
certificates of officers of Trans-Tech Europe and of governmental
officials, in which case their opinion is to state that they are so doing
and that copies of said certificates are attached to the opinion.
(v) Such opinion or opinions of ▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇, counsel for the
Underwriters, dated the First Closing Date or the Second Closing Date, as
the case may be, with respect to the incorporation of the Company, the
sufficiency of all corporate proceedings and other legal matters relating
to this Agreement, the validity of the Common Shares, the Registration
Statement and the Prospectus and other related matters as the
Representatives may reasonably require, and the Company shall have
furnished to such counsel such documents and shall have exhibited to them
such papers and records as they may reasonably request for the purpose of
enabling them to pass upon such matters. In connection with such
opinions, such counsel may rely on representations or certificates of
officers of the Company and its subsidiaries and of governmental
officials.
(vi) A certificate of the Company executed by the President and Chief
Executive Officer and the Vice President, Chief Financial Officer and
Treasurer of the Company, dated the First Closing Date or the Second
Closing Date, as the case may be, to the effect that:
(1) The representations and warranties of the Company set forth
in Section 2 of this Agreement are true and correct as of the date of
this Agreement and as of the First Closing Date or the Second Closing
Date, as the case may be, and the Company has complied with all the
agreements and satisfied all the conditions on its part to be
performed or satisfied on or prior to such Closing Date.
(2) The Commission has not issued any order preventing or
suspending the use of the Prospectus or any Preliminary Prospectus
filed as a part of the Registration Statement or any amendment
thereto; no stop order suspending the effectiveness of the
Registration Statement has been issued; and to the best of the
knowledge of the respective signers, no proceedings for that purpose
have been instituted or are pending or contemplated under the Act.
(3) Each of the respective signers of the certificate has
carefully examined the Registration Statement and the Prospectus; in
his opinion and to the best of his knowledge, the Registration
Statement and the Prospectus and any amendments or supplements thereto
contain all statements required to be stated therein regarding the
Company and its subsidiaries; and neither the Registration Statement
nor the Prospectus nor any amendment or supplement thereto includes
any untrue statement of a material fact
17
or omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading.
(4) Since the initial date on which the Registration Statement
was filed, no agreement, written or oral, transaction or event has
occurred which should have been set forth in an amendment to the
Registration Statement or in a supplement to or amendment of any
prospectus which has not been disclosed in such a supplement or
amendment.
(5) Since the respective dates as of which information is given
in the Registration Statement and the Prospectus, and except as
disclosed in or contemplated by the Prospectus, there has not been any
material adverse change or a development involving a material adverse
change in the condition (financial or otherwise), business,
properties, results of operations, management or prospects of the
Company and its subsidiaries, taken as a whole; and no legal or
governmental action, suit or proceeding is pending or threatened
against the Company or any of its subsidiaries which is material to
the Company and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business, or which
may adversely affect the transactions contemplated by this Agreement.
Since such dates and except as so disclosed, neither the Company nor
any of its subsidiaries has entered into any agreement or other
transaction which is not in the ordinary course of business or which
could result in a material reduction in the future earnings of the
Company and its subsidiaries, taken as a whole, or incurred any
material liability or obligation, direct, contingent or indirect, made
any change in its capital stock, made any material change in its
short-term debt or funded debt or repurchased or otherwise acquired
any of the Company's capital stock; and the Company has not declared
or paid any dividend, or made any other distribution, upon its
outstanding capital stock payable to stockholders of record on a date
prior to the First Closing Date or Second Closing Date.
(6) Since the respective dates as of which information is given
in the Registration Statement and the Prospectus and except as
disclosed in or contemplated by the Prospectus, the Company and its
subsidiaries have not sustained a material loss or damage by strike,
fire, flood, windstorm, accident or other calamity (whether or not
insured).
(7) Each of the respective signers of the certificate has
carefully reviewed the requests for documents and other records
submitted by ▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇ in connection with the public
offering and sale of the Common Shares. The agreements, documents,
records, instruments and other information supplied in response to
such requests were when so supplied, and are as of the date hereof,
accurate and complete in all material respects and represent all of
the material agreements, documents, records, instruments and other
information relating to the items called for by such requests.
(vii) On the date before this Agreement is executed and also on the
First Closing Date and the Second Closing Date a letter addressed to the
Representatives, from KPMG Peat Marwick LLP, independent accountants, the
first one to be dated the day before the date of this Agreement, the
second one to be dated the First Closing Date and the third one (in the
event of a Second Closing) to be dated the Second Closing Date, each in
form and substance satisfactory to the Representatives.
18
(viii) On or before the First Closing Date, letters from each
director and executive officer of the Company, in form and substance
satisfactory to the Representatives, confirming that for a period of
ninety days after the first date that any of the Common Shares are
released by the Representatives for sale to the public, such person will
not directly or indirectly sell or offer to sell or otherwise dispose of
any shares of Common Stock or any right to acquire such shares without the
prior written consent of ▇▇▇▇▇▇▇▇▇▇ Securities, which consent may be
withheld at the sole discretion of ▇▇▇▇▇▇▇▇▇▇ Securities.
All such opinions, certificates, letters and documents shall be in compliance
with the provisions hereof only if they are satisfactory to the
Representatives and to ▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇, counsel for the Underwriters.
The Company shall furnish the Representatives with such manually signed or
conformed copies of such opinions, certificates, letters and documents as the
Representatives request. Any certificate signed by any officer of the
Company and delivered to the Representatives or to counsel for the
Underwriters shall be deemed to be a representation and warranty by the
Company to the Underwriters as to the statements made therein.
If any condition to the Underwriters' obligations hereunder to be satisfied
prior to or at the First Closing Date is not so satisfied, this Agreement at the
Representatives' election will terminate upon notification by the
Representatives to the Company without liability on the part of any Underwriter
or the Company except for the expenses to be paid or reimbursed by the Company
pursuant to Sections 6 and 8 and except to the extent provided in Section 10.
SECTION 8. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. Notwithstanding any
other provisions hereof, if this Agreement shall be terminated by the
Representatives pursuant to Section 7, or if the sale to the Underwriters of
the Common Shares at the First Closing is not consummated because of any
refusal, inability or failure on the part of the Company to perform any
agreement herein or to comply with any provision hereof, the Company agrees to
reimburse the Representatives and the other Underwriters upon demand for all
out-of-pocket expenses that shall have been reasonably incurred by the
Representatives and them in connection with the proposed purchase and the sale
of the Common Shares, including fees and disbursements of counsel, printing
expenses, travel expenses, postage, telegraph charges and telephone charges
relating directly to the offering contemplated by the Prospectus. Any such
termination shall be without liability of any party to any other party except
that the provisions of this Section 8 and Sections 6 and 10 shall at all
times be effective and shall apply.
SECTION 9. EFFECTIVENESS OF REGISTRATION STATEMENT. The Representatives and
the Company will use their respective best efforts to cause the Registration
Statement to become effective, to prevent the issuance of any stop order
suspending the effectiveness of the Registration Statement and, if such stop
order be issued, to obtain as soon as possible the lifting thereof.
SECTION 10. INDEMNIFICATION.
(a) The Company agrees 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, liabilities or expenses, joint
or several, to which such Underwriter or such controlling person may become
subject, under the Act, the Exchange Act, or other federal or state statutory
law or regulation, or at common law or otherwise (including in settlement of
any litigation, if such settlement is effected with the written consent of
the Company), insofar as such losses, claims, damages, liabilities or
expenses (or actions in respect thereof as contemplated below) arise out of
or are based upon 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
19
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state in any of them a material fact required to be stated
therein or necessary to make the statements in any of them not misleading, or
arise out of or are based in whole or in part on any inaccuracy in the
representations and warranties of the Company contained herein or any failure
of the Company to perform its obligations hereunder or under law; and will
reimburse each Underwriter and each such controlling person for any legal and
other expenses as such expenses are reasonably incurred by such Underwriter
or such controlling person in connection with investigating, defending,
settling, compromising or paying any such loss, claim, damage, liability,
expense or action; provided, however, that the Company will not be liable in
any such case to the extent that any such loss, claim, damage, liability or
expense arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in the Registration Statement,
any Preliminary Prospectus, the Prospectus or any amendment or supplement
thereto in reliance upon and in conformity with the information furnished to
the Company pursuant to Section 3. In addition to its other obligations
under this Section 10(a), the Company agrees that, as an interim measure
during the pendency of any claim, action, investigation, inquiry or other
proceeding arising out of or based upon any statement or omission, or any
alleged statement or omission, or any inaccuracy in the representations and
warranties of the Company herein or failure to perform its obligations
hereunder, all as described in this Section 10(a), it will reimburse each
Underwriter on a quarterly basis for all reasonable legal or other expenses
incurred in connection with investigating or defending any such claim,
action, investigation, inquiry or other proceeding, notwithstanding the
absence of a judicial determination as to the propriety and enforceability
of the Company's obligation to reimburse each Underwriter for such expenses
and the possibility that such payments might later be held to have been
improper by a court of competent jurisdiction. To the extent that any such
interim reimbursement payment is so held to have been improper, each
Underwriter shall promptly return it to the Company together with interest,
compounded daily, determined on the basis of the prime rate (or other
commercial lending rate for borrowers of the highest credit standing)
announced from time to time by Bank of America NT&SA, San Francisco,
California (the "Prime Rate"). Any such interim reimbursement payments which
are not made to an Underwriter within thirty days of a request for
reimbursement, shall bear interest at the Prime Rate from the date of such
request. This indemnity agreement will be in addition to any liability which
the Company may otherwise have.
(b) Each Underwriter will severally indemnify and hold harmless the
Company, each of its directors, each of its officers who signed the
Registration Statement and each person, if any, who controls the Company
within the meaning of the Act, against any losses, claims, damages,
liabilities or expenses to which the Company, or any such director, officer
or controlling person may become subject, under the Act, the Exchange Act, or
other federal or state statutory law or regulation, or at common law or
otherwise (including in settlement of any litigation, if such settlement is
effected with the written consent of such Underwriter), insofar as such
losses, claims, damages, liabilities or expenses (or actions in respect
thereof as contemplated below) arise out of or are based upon any untrue or
alleged untrue statement of any material fact contained in the Registration
Statement, any Preliminary Prospectus, the Prospectus, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in the Registration
Statement, any Preliminary Prospectus, the Prospectus, or any amendment or
supplement thereto, in reliance upon and in conformity with the information
furnished to the Company pursuant to Section 3; and will reimburse the
Company, or any such director, officer or controlling person for any legal
and other expenses reasonably incurred by the Company, or any such director,
officer or controlling person in connection with investigating,
20
defending, settling, compromising or paying any such loss, claim, damage,
liability, expense or action. In addition to its other obligations under
this Section 10(b), each Underwriter severally agrees that, as an interim
measure during the pendency of any claim, action, investigation, inquiry or
other proceeding arising out of or based upon any statement or omission, or
any alleged statement or omission, described in this Section 10(b) which
relates to information furnished to the Company pursuant to Section 3, it
will reimburse the Company (and, to the extent applicable, each officer,
director, controlling person) on a quarterly basis for all reasonable legal
or other expenses incurred in connection with investigating or defending any
such claim, action, investigation, inquiry or other proceeding,
notwithstanding the absence of a judicial determination as to the propriety
and enforceability of the Underwriters' obligation to reimburse the Company
(and, to the extent applicable, each officer, director or controlling person)
for such expenses and the possibility that such payments might later be held
to have been improper by a court of competent jurisdiction. To the extent
that any such interim reimbursement payment is so held to have been improper,
the Company (and, to the extent applicable, each officer, director or
controlling person) shall promptly return it to the Underwriters together
with interest, compounded daily, determined on the basis of the Prime Rate.
Any such interim reimbursement payments which are not made to the Company
within thirty days of a request for reimbursement shall bear interest at the
Prime Rate from the date of such request. This indemnity agreement will be
in addition to any liability which such Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 10
of notice of the commencement of any action, such indemnified party will, if
a claim in respect thereof is to be made against an indemnifying party under
this Section 10, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party
will not relieve it from any liability which it may have to any indemnified
party for contribution or otherwise than under the indemnity agreement
contained in this Section 10 or to the extent it is not prejudiced as a
proximate result of such failure. In case any such action is brought against
any indemnified party and such indemnified party seeks or intends to seek
indemnity from an indemnifying party, the indemnifying party will be entitled
to participate in, and, to the extent that it may wish, jointly with all
other indemnifying parties similarly notified, to assume the defense thereof
with counsel reasonably satisfactory to such indemnified party; provided,
however, if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have
reasonably concluded that there may be a conflict between the positions of
the indemnifying party and the indemnified party in conducting the defense of
any such action or that there may be legal defenses available to it and/or
other indemnified parties which are different from or additional to those
available to the indemnifying party, the indemnified party or parties shall
have the right to select separate counsel to assume such legal defenses and
to otherwise participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from the indemnifying
party to such indemnified party of its election so to assume the defense of
such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party under this
Section 10 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed such counsel in connection with the
assumption of legal defenses in accordance with the proviso to the next
preceding sentence (it being understood, however, that the indemnifying party
shall not be liable for the expenses of more than one separate counsel,
approved by the Representatives in the case of Section 10(b), representing
the indemnified parties who are parties to such action) or (ii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of commencement of the action, in each of which cases the
fees and expenses of counsel shall be at the expense of the indemnifying
party.
21
(d) If the indemnification provided for in this Section 10 is required by
its terms but is for any reason held to be unavailable to or otherwise
insufficient to hold harmless an indemnified party under Section 10(a), (b)
or (c) in respect of any losses, claims, damages, liabilities or expenses
referred to herein, then each applicable indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of any
losses, claims, damages, liabilities or expenses referred to herein (i) in
such proportion as is appropriate to reflect the relative benefits received
by the Company and the Underwriters from the offering of the Common Shares or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault
of the Company and the Underwriters in connection with the statements or
omissions or inaccuracies in the representations and warranties herein which
resulted in such losses, claims, damages, liabilities or expenses, as well as
any other relevant equitable considerations. The respective relative
benefits received by the Company and the Underwriters shall be deemed to be
in the same proportion, in the case of the Company, as the total price paid
to the Company for the Common Shares sold by it to the Underwriters (net of
underwriting commissions but before deducting expenses) and, in the case of
the Underwriters, as the underwriting commissions received by them bears to
the total of such amounts paid to the Company and received by the
Underwriters as underwriting commissions. The relative fault of the Company
and the Underwriters 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 or the inaccurate or
the alleged inaccurate representation and/or warranty relates to information
supplied by the Company or the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid or payable by a party as a result of
the losses, claims, damages, liabilities and expenses referred to above shall
be deemed to include, subject to the limitations set forth in Section 10(c),
any legal or other fees or expenses reasonably incurred by such party in
connection with investigating or defending any action or claim. The
provisions set forth in Section 10(c) with respect to notice of commencement
of any action shall apply if a claim for contribution is to be made under
this Section 10(d); provided, however, that no additional notice shall be
required with respect to any action for which notice has been given under
Section 10(c) for purposes of indemnification. The Company and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 10 were determined solely 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. Notwithstanding the provisions of this
Section 10, no Underwriter shall be required to contribute any amount in
excess of the amount of the total underwriting commissions received by such
Underwriter in connection with the Common Shares underwritten by it and
distributed to the public. 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 to contribute pursuant to
this Section 10 are several in proportion to their respective underwriting
commitments and not joint.
(e) It is agreed that any controversy arising out of the operation of the
interim reimbursement arrangements set forth in Sections 10(a) and (b),
including the amounts of any requested reimbursement payments and the method
of determining such amounts, shall be settled by arbitration conducted under
the provisions of the Constitution and Rules of the Board of Governors of the
New York Stock Exchange, Inc. or pursuant to the Code of Arbitration
Procedure of the NASD. Any such arbitration must be commenced by service of
a written demand for arbitration or written notice of intention to arbitrate,
therein electing the arbitration tribunal. In the event the party demanding
arbitration does not make such designation of an arbitration tribunal in such
demand or notice, then
22
the party responding to said demand or notice is authorized to do so. Such
an arbitration would be limited to the operation of the interim reimbursement
provisions contained in Sections 10(a) and (b) and would not resolve the
ultimate propriety or enforceability of the obligation to reimburse expenses
which is created by the provisions of such Sections 10(a) and (b).
SECTION 11. DEFAULT OF UNDERWRITERS. It shall be a condition to this
Agreement and the obligation of the Company to sell and deliver the Common
Shares hereunder, and of each Underwriter to purchase the Common Shares in the
manner as described herein, that, except as hereinafter in this paragraph
provided, each of the Underwriters shall purchase and pay for all the Common
Shares agreed to be purchased by such Underwriter hereunder upon tender to the
Representatives of all such shares in accordance with the terms hereof. If any
Underwriter or Underwriters default in their obligations to purchase Common
Shares hereunder on either the First or Second Closing Date and the aggregate
number of Common Shares which such defaulting Underwriter or Underwriters agreed
but failed to purchase on such Closing Date does not exceed 10% of the total
number of Common Shares which the Underwriters are obligated to purchase on such
Closing Date, the non-defaulting Underwriters shall be obligated severally, in
proportion to their respective commitments hereunder, to purchase the Common
Shares which such defaulting Underwriters agreed but failed to purchase on such
Closing Date. If any Underwriter or Underwriters so default and the aggregate
number of Common Shares with respect to which such default occurs is more than
the above percentage and arrangements satisfactory to the Representatives and
the Company for the purchase of such Common Shares by other persons are not made
within 48 hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting Underwriter or the Company except
for the expenses to be paid by the Company pursuant to Section 6 and except to
the extent provided in Section 10.
In the event that Common Shares to which a default relates are to be
purchased by the non-defaulting Underwriters or by another party or parties, the
Representatives or the Company shall have the right to postpone the First or
Second Closing Date, as the case may be, for not more than five business days in
order that the necessary changes in the Registration Statement, Prospectus and
any other documents, as well as any other arrangements, may be effected. As
used in this Agreement, the term "Underwriter" includes any party substituted
for an Underwriter under this Section 11. Nothing herein will relieve a
defaulting Underwriter from liability for its default.
SECTION 12. EFFECTIVE DATE. This Agreement shall become effective
immediately as to Sections 6, 8, 10, 13 and 14 and, as to all other
provisions, (i) if at the time of execution of this Agreement the Registration
Statement has not become effective, at 2 P.M., California time, on the first
full business day following the effectiveness of the Registration Statement, or
(ii) if at the time of execution of this Agreement the Registration Statement
has been declared effective, at 2 P.M., California time, on the first full
business day following the date of execution of this Agreement; but this
Agreement shall nevertheless become effective at such earlier time after the
Registration Statement becomes effective as the Representatives may determine on
and by notice to the Company or by release of any of the Common Shares for sale
to the public. For purposes of this Section 12, the Common Shares shall be
deemed to have been so released upon the release for publication of any
newspaper advertisement relating to the Common Shares or upon the release by the
Representatives of telegrams (i) advising Underwriters that the Common Shares
are released for public offering or (ii) offering the Common Shares for sale to
securities dealers, whichever may occur first.
SECTION 13. TERMINATION. Without limiting the right to terminate this
Agreement pursuant to any other provision hereof:
23
(a) This Agreement may be terminated by the Company by notice to the
Representatives or by the Representatives by notice to the Company at any
time prior to the time this Agreement shall become effective as to all its
provisions, and any such termination shall be without liability on the part
of the Company to any Underwriter (except for the expenses to be paid or
reimbursed by the Company pursuant to Sections 6 and 8 and except to the
extent provided in Section 10) or of any Underwriter to the Company (except
to the extent provided in Section 10).
(b) This Agreement may also be terminated by the Representatives prior to
the First Closing Date by notice to the Company (i) if additional material
governmental restrictions, not in force and effect on the date hereof, shall
have been imposed upon trading in securities generally or minimum or maximum
prices shall have been generally established on the New York Stock Exchange
or the American Stock Exchange or in the over-the-counter market by the NASD,
or trading in securities generally shall have been suspended on either such
Exchange or in the over-the-counter market by the NASD, or a general banking
moratorium shall have been established by federal, New York, Massachusetts or
California authorities, (ii) if an outbreak of major hostilities or other
national or international calamity or any substantial change in political,
financial or economic conditions shall have occurred or shall have
accelerated or escalated to such an extent, as, in the judgment of the
Representatives, to affect adversely the marketability of the Common Shares,
(iii) if any adverse event shall have occurred or shall exist which makes
untrue or incorrect in any material respect any statement or information
contained in the Registration Statement or Prospectus or which is not
reflected in the Registration Statement or Prospectus but should be reflected
therein in order to make the statements or information contained therein not
misleading in any material respect, or (iv) if there shall be any action,
suit or proceeding pending or threatened, or there shall have been any
development or prospective development involving particularly the business or
properties or securities of the Company or any of its subsidiaries or the
transactions contemplated by this Agreement, which, in the reasonable
judgment of the Representatives, may materially and adversely affect the
Company's business or earnings and makes it impracticable or inadvisable to
offer or sell the Common Shares. Any termination pursuant to this Section
13(b) shall be without liability on the part of any Underwriter to the
Company or on the part of the Company to any Underwriter, except for expenses
to be paid or reimbursed by the Company pursuant to Sections 6 and 8 and
except to the extent provided in Section 10.
(c) This Agreement shall also terminate at 5 P.M., California time, on
the tenth full business day after the Registration Statement shall have
become effective if the initial public offering price of the Common Shares
shall not then as yet have been determined as provided in Section 4. Any
termination pursuant to this Section 13(c) shall be without liability on the
part of any Underwriter to the Company or on the part of the Company to any
Underwriter, except for expenses to be paid or reimbursed by the Company
pursuant to Sections 6 and 8 and except to the extent provided in Section 10.
SECTION 14. REPRESENTATIONS AND INDEMNITIES TO SURVIVE DELIVERY. The
respective indemnities, agreements, representations, warranties and other
statements of the Company, of its officers and of the several Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of any Underwriter
or the Company or any of its or their partners, officers or directors or any
controlling person, as the case may be, and will survive delivery of and payment
for the Common Shares sold hereunder and any termination of this Agreement.
SECTION 15. NOTICES. All communications hereunder shall be in writing and,
if sent to the Representatives shall be mailed, delivered or telegraphed and
confirmed to the Representatives in care of ▇▇▇▇▇▇▇▇▇▇ Securities at ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇
24
▇. ▇▇▇▇▇, with a copy to ▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, and if sent to the Company
shall be mailed, delivered or telegraphed and confirmed to the Company at ▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, Attention: Chief Financial Officer, with a
copy to Brown, Rudnick, Freed & Gesmer, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. London. The Company or the
Representatives may change the address for receipt of communications hereunder
by giving notice to the others.
SECTION 16. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto, including any substitute Underwriters pursuant
to Section 11, and to the benefit of the officers and directors and controlling
persons referred to in Section 10, and in each case their respective
successors, personal representatives and assigns, and no other person will have
any right or obligation hereunder. No such assignment shall relieve any party
of its obligations hereunder. The term "successors" shall not include any
purchaser of the Common Shares as such from any of the Underwriters merely by
reason of such purchase.
SECTION 17. REPRESENTATION OF UNDERWRITERS. You will act as the
Representatives for the several Underwriters in connection with all dealings
hereunder, and any action under or in respect of this Agreement taken by the
Representatives jointly or by ▇▇▇▇▇▇▇▇▇▇ Securities, on behalf of the
Representatives, will be binding upon all the Underwriters.
SECTION 18. PARTIAL UNENFORCEABILITY. The invalidity or unenforceability of
any section, paragraph or provision of this Agreement shall not affect the
validity or enforceability of any other section, paragraph or provision hereof.
If any section, paragraph or provision of this Agreement is for any reason
determined to be invalid or unenforceable, there shall be deemed to be made such
minor changes (and only such minor changes) as are necessary to make it valid
and enforceable.
SECTION 19. APPLICABLE LAW. This Agreement shall be governed by and
construed in accordance with the internal laws (and not the laws pertaining to
conflicts of laws) of the State of California.
SECTION 20. GENERAL. This Agreement constitutes the entire agreement of the
parties to this Agreement and supersedes all prior written or oral and all
contemporaneous oral agreements, understandings and negotiations with respect to
the subject matter hereof. This Agreement may be executed in counterparts, each
of which shall be an original and both of which shall constitute one and the
same document. In this Agreement, the singular and the plural include one
another. The section headings in this Agreement are for the convenience of the
parties only and will not affect the construction or interpretation of this
Agreement. Unless otherwise provided, references to "Sections" shall be to
sections of this Agreement. The words "herein" and "hereof" and other words of
similar import refer to this Agreement as a whole and not to any particular part
of this Agreement. The word "including" as used herein shall not be construed
so as to exclude any other thing not referred to or described. This Agreement
may be amended or modified, and the observance of any term of this Agreement may
be waived, only by a writing signed by the Company and the Representatives.
* * *
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to us the enclosed copies hereof, whereupon it will
become a binding agreement between the Company and the several Underwriters,
including the Representatives, all in accordance with its terms.
Very truly yours,
25
Alpha Industries, Inc.
By:___________________________________________
President and Chief Executive Officer
The foregoing Underwriting Agreement is hereby
confirmed and accepted in San Francisco, California,
as of the date first above written.
▇▇▇▇▇▇▇▇▇▇ Securities
▇▇▇▇▇▇▇▇▇▇▇ & Co., Inc.
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇, Inc.
As Representatives of the several
Underwriters named in Schedule A hereto
By: ▇▇▇▇▇▇▇▇▇▇ Securities
By:__________________________________
26
SCHEDULE A
Number of Firm
Common Shares
Name of Underwriter to be Purchased
------------------- ---------------
▇▇▇▇▇▇▇▇▇▇ Securities ..................................
▇▇▇▇▇▇▇▇▇▇▇ & Co., Inc. ................................
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇, Inc. ...........................
---------
TOTAL ................................ 2,000,000
=========
27
Schedule B
PRICE DETERMINATION AGREEMENT
This Agreement is being delivered pursuant to Section 4 of the
Underwriting Agreement dated _________________, 1995 between Alpha Industries,
Inc. and the several Underwriters named in Schedule A thereto. Capitalized
terms used but not defined herein shall have the respective meanings ascribed to
them in such Underwriting Agreement.
The Company and the Underwriters hereby confirm their agreement that
the initial public offering price of the Common Shares shall be $____ per share,
that the underwriting discount shall be $____ per share, and that the purchase
price to be paid by the several Underwriters for the Common Shares to be
purchased from the Company shall be $____ per share.
This Agreement may be executed in counterparts, each of which shall be
an original and both of which shall constitute one and the same document.
Dated: ________________, 1995
Alpha Industries, Inc.
By:____________________________________________
Title:
▇▇▇▇▇▇▇▇▇▇ Securities
▇▇▇▇▇▇▇▇▇▇▇ & Co., Inc.
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇, Inc.
As Representatives of the several Underwriters
By: ▇▇▇▇▇▇▇▇▇▇ Securities
By:_________________________________________
28
