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Exhibit 1.1
$50,000,000
RADISYS
CORPORATION
2.75% Convertible Senior
Notes due 2013
UNDERWRITING
AGREEMENT
February 6,
2008
C REDIT S
UISSE S ECURITIES (USA)
LLC,
Eleven Madison Avenue
New York, New York 10010-3629
Dear Sirs:
1. Introductory .
RadiSys Corporation, an Oregon corporation (the “
Company ”), agrees with Credit Suisse Securities (USA)
LLC (“ Credit Suisse ” or the “
Underwriter ”) to issue and sell to the Underwriter
$50,000,000 principal amount (the “ Firm Securities
”) of its 2.75% Convertible Senior Notes due 2013 (the
“ Securities ”) and also agrees to issue and
sell to the Underwriter, at the option of the Underwriter, an
aggregate of not more than $5,000,000 additional principal amount
(the “ Optional Securities ”) of its Securities
as set forth below, all to be issued under an indenture, dated as
of February 6, 2008 and as supplemented through the First
Closing Date (the “ Indenture ”), between the
Company and The Bank of New York Trust Company, N.A., as Trustee.
The Firm Securities and the Optional Securities are herein
collectively called the “ Offered Securities
”.
2. Representations and
Warranties of the Company . The Company represents and warrants
to, and agrees with, the Underwriter that:
(a) Filing and
Effectiveness of Registration Statement; Certain Defined Terms
. The Company has filed with the Commission a registration
statement on Form S-3 (No. 333-146977), including a related
prospectus or prospectuses, covering the registration of the
Offered Securities under the Act, which has become effective.
“ Registration Statement ” at any particular
time means such registration statement in the form then filed with
the Commission, including any amendment thereto, any document
incorporated by reference therein and all 430B Information and all
430C Information with respect to such registration statement, that
in any case has not been superseded or modified. “
Registration Statement ” without reference to a time
means the Registration Statement as of the Effective Time. For
purposes of this definition, 430B Information shall be considered
to be included in the Registration Statement as of the time
specified in Rule 430B.
For purposes of this
Agreement:
“ 430B
Information ” means information included in a prospectus
then deemed to be a part of the Registration Statement pursuant to
Rule 430B(e) or retroactively deemed to be a part of the
Registration Statement pursuant to Rule 430B(f).
“ 430C
Information ” means information included in a prospectus
then deemed to be a part of the Registration Statement pursuant to
Rule 430C.
“ Act ”
means the Securities Act of 1933, as amended.
“ Applicable
Time ” means 4:00 P.M. (Eastern time) on the date of this
Agreement.
“ Closing Date
” has the meaning defined in Section 3
hereof.
“ Commission
” means the Securities and Exchange Commission.
“ Effective Time
” of the Registration Statement relating to the Offered
Securities means the time of the first contract of sale for the
Offered Securities.
“ Exchange Act
” means the Securities Exchange Act of 1934, as
amended.
“ Final
Prospectus ” means the Statutory Prospectus that
discloses the public offering price, other 430B Information and
other final terms of the Offered Securities and otherwise satisfies
Section 10(a) of the Act.
“ General Use Issuer
Free Writing Prospectus ” means any Issuer Free Writing
Prospectus that is intended for general distribution to prospective
investors, as evidenced by its being so specified in Schedule A to
this Agreement.
“ Issuer Free
Writing Prospectus ” means any “issuer free writing
prospectus,” as defined in Rule 433, relating to the
Offered Securities in the form filed or required to be filed with
the Commission or, if not required to be filed, in the form
retained in the Company’s records pursuant to
Rule 433(g).
“ Limited Use Issuer
Free Writing Prospectus ” means any Issuer Free Writing
Prospectus that is not a General Use Issuer Free Writing
Prospectus.
“ Rules and
Regulations ” means the rules and regulations of the
Commission.
“ Securities
Laws ” means, collectively, the Sarbanes-Oxley Act of
2002 (“ Sarbanes-Oxley ”), the Act, the Exchange
Act, the Trust Indenture Act, the Rules and Regulations, the
auditing principles, rules, standards and practices applicable to
auditors of “issuers” (as defined in Sarbanes-Oxley)
promulgated or approved by the Public Company Accounting Oversight
Board and, as applicable, the rules of the New York Stock Exchange
and the NASDAQ Stock Market (“ Exchange Rules
”).
“ Statutory
Prospectus ” with reference to any particular time means
the prospectus relating to the Offered Securities that is included
in the Registration Statement immediately prior to that time,
including all 430B Information and all 430C Information
with respect to the Registration Statement. For purposes of the
foregoing definition, 430B Information shall be considered to
be included in the Statutory Prospectus only as of the actual time
that form of prospectus (including a prospectus supplement) is
filed with the Commission pursuant to Rule 424(b) and not
retroactively.
“ Trust Indenture
Act ” means the Trust Indenture Act of 1939, as
amended.
“ Underlying
Shares ” shall mean shares of common stock into which the
Securities are convertible.
Unless otherwise specified, a
reference to a “rule” is to the indicated rule under
the Act.
(b) Compliance with
Securities Act Requirements . (i) (A) At the time the
Registration Statement initially became effective, (B) at the
time of each amendment thereto for the purposes of complying with
Section 10(a)(3) of the Act (whether by post-effective
amendment, incorporated report or form of prospectus), (C) at
the Effective Time relating to the Offered Securities and
(D) on each Closing Date, the Registration Statement conformed
and will conform in all respects to the requirements of the Act,
the Trust Indenture Act and the Rules and Regulations and did not
and will not include any 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 and
(ii) (A) on its date, (B) at the time of filing the Final
Prospectus pursuant to Rule 424(b) and (C) on each
Closing Date, the Final Prospectus will conform in all respects to
the requirements of the
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Act, the Trust Indenture Act
and the Rules and Regulations, and will not include any untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading. The
preceding sentence does not apply to statements in or omissions
from any such document based upon written information furnished to
the Company by the Underwriter specifically for use therein, it
being understood and agreed that the only such information is that
described as such in Section 8(b) hereof.
(c) Shelf Registration
Statement . The date of this Agreement is not more than three
years subsequent to the more recent of the initial effective time
of the Registration Statement or December 1, 2005. If,
immediately prior to the third anniversary of the more recent of
the initial effective time of the Registration Statement or
December 1, 2005, any of the Offered Securities remain unsold
by the Underwriter, the Company will prior to that third
anniversary file, if it has not already done so, a new shelf
registration statement relating to the Offered Securities, in a
form satisfactory to Credit Suisse, will use its best efforts to
cause such registration statement to be declared effective within
180 days after that third anniversary, and will take all other
action necessary or appropriate to permit the public offering and
sale of the Offered Securities to continue as contemplated in the
expired registration statement relating to the Offered Securities.
References herein to the Registration Statement shall include such
new shelf registration statement.
(d) Ineligible Issuer
Status . (i) At the earliest time after the filing of the
Registration Statement that the Company or another offering
participant made a bona fide offer (within the meaning of Rule
164(h)(2)) of the Offered Securities and (ii) at the date of
this Agreement, the Company was not and is not an “ineligible
issuer,” as defined in Rule 405, including (x) the
Company or any other subsidiary in the preceding three years not
having been convicted of a felony or misdemeanor or having been
made the subject of a judicial or administrative decree or order as
described in Rule 405 and (y) the Company in the preceding
three years not having been the subject of a bankruptcy petition or
insolvency or similar proceeding, not having had a registration
statement be the subject of a proceeding under Section 8 of
the Act and not being the subject of a proceeding under
Section 8A of the Act in connection with the offering of the
Securities, all as described in Rule 405.
(e) General Disclosure
Package . As of the Applicable Time, neither (i) the
General Use Issuer Free Writing Prospectus(es) issued at or prior
to the Applicable Time and the preliminary prospectus supplement,
dated February 5, 2008, including the base prospectus, dated
November 7, 2007, (which is the most recent Statutory
Prospectus distributed to investors generally), and the other
information, if any, stated in Schedule A to this Agreement to be
included in the General Disclosure Package, all considered together
(collectively, the “ General Disclosure Package
”), nor (ii) any individual Limited Use Issuer Free
Writing Prospectus, when considered together with the General
Disclosure Package, included any untrue statement of a material
fact or omitted to state any material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading. The preceding sentence
does not apply to statements in or omissions from any Statutory
Prospectus or any Issuer Free Writing Prospectus in reliance upon
and in conformity with written information furnished to the Company
by the Underwriter specifically for use therein, it being
understood and agreed that the only such information furnished by
the Underwriter consists of the information described as such in
Section 8(b) hereof.
(f) Issuer Free Writing
Prospectuses . Each Issuer Free Writing Prospectus, as of its
issue date and at all subsequent times through the completion of
the public offer and sale of the Offered Securities or until any
earlier date that the Company notified or notifies Credit Suisse as
described in the next sentence, did not, does not and will not
include any information that conflicted, conflicts or will conflict
with the information then contained in the Registration Statement.
If at
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any time following issuance
of an Issuer Free Writing Prospectus there occurred or occurs an
event or development as a result of which such Issuer Free Writing
Prospectus conflicted or would conflict with the information then
contained in the Registration Statement or as a result of which
such Issuer Free Writing Prospectus, if republished immediately
following such event or development, would include an untrue
statement of a material fact or omitted or would omit to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, (i) the Company has promptly notified or will
promptly notify Credit Suisse and (ii) the Company has
promptly amended or will promptly amend or supplement such Issuer
Free Writing Prospectus to eliminate or correct such conflict,
untrue statement or omission.
(g) Good Standing of the
Company . The Company has been duly incorporated and is
existing and in good standing under the laws of the State of
Oregon, with power and authority (corporate and other) to own its
properties and conduct its business as described in the General
Disclosure Package; and the Company is duly qualified to do
business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification, except for any
jurisdiction where the failure to be so qualified would not,
individually or in the aggregate, have a material adverse effect on
the condition (financial or otherwise), results of operations,
business, properties or prospects of the Company and its
subsidiaries, taken together as a whole (a “ Material
Adverse Effect ”).
(h) Subsidiaries .
Each subsidiary of the Company has been duly organized and is
existing and in good standing under the laws of the jurisdiction of
its organization, with power and authority (corporate and other) to
own its properties and conduct its business as described in the
General Disclosure Package; and each subsidiary of the Company is
duly qualified to do business as a foreign corporation or other
business entity in good standing in all other jurisdictions in
which its ownership or lease of property or the conduct of its
business requires such qualification, except for any such
jurisdiction where the failure to be so qualified would not,
individually or in the aggregate, have a Material Adverse Effect;
all of the issued and outstanding capital stock or similar equity
interests of each subsidiary of the Company has been duly
authorized and validly issued and is fully paid and nonassessable;
and the capital stock or similar equity interests of each
subsidiary owned by the Company, directly or through subsidiaries,
is owned free from liens, encumbrances and defects. Each
significant subsidiary of the Company, as defined under 1-02(w) of
Regulation S-X, is set forth in Schedule D.
(i) Execution and Delivery
of Indenture . The Indenture has been duly authorized and has
been duly qualified under the Trust Indenture Act; the Offered
Securities have been duly authorized and, when the Offered
Securities are delivered and paid for pursuant to this Agreement on
each Closing Date, the Indenture will have been duly executed and
delivered, such Offered Securities will have been duly executed,
authenticated, issued and delivered, will conform to the
information in the General Disclosure Package and to the
description of such Offered Securities contained in the Final
Prospectus and the Indenture and such Offered Securities will
constitute valid and legally binding obligations of the Company,
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors’ rights and to general equity
principles.
(j) Offered Securities
. When the Offered Securities are delivered and paid for pursuant
to this Agreement on each Closing Date, such Offered Securities
will be convertible into the Underlying Shares of the Company in
accordance with the terms of the Indenture; the Underlying Shares
initially issuable upon conversion of such Offered Securities have
been duly authorized and reserved for issuance upon such
conversion, conform to the information in the General Disclosure
Package and to the description of such Underlying Shares contained
in the Final Prospectus; the authorized equity capitalization of
the Company is as set forth in the General Disclosure Package; all
outstanding shares of capital stock of the Company are, and when
issued upon conversion the
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Underlying Shares will be,
duly authorized, validly issued, fully paid and nonassessable; the
stockholders of the Company have no preemptive rights with respect
to the Offered Securities or the Underlying Shares; and none of the
outstanding shares of capital stock of the Company have been issued
in violation of any preemptive or similar rights of any security
holder.
(k) No Finder’s
Fee . Except as disclosed in the General Disclosure Package,
there are no contracts, agreements or understandings between the
Company and any person that would give rise to a valid claim
against the Company or the Underwriter for a brokerage commission,
finder’s fee or other like payment in connection with this
offering.
(l) Registration
Rights . Except as disclosed in the General Disclosure Package
or with respect to the Company’s outstanding convertible
notes due 2023, there are no contracts, agreements or
understandings between the Company and any person granting such
person the right to require the Company to file a registration
statement under the Act with respect to any securities of the
Company owned or to be owned by such person or to require the
Company to include such securities in the securities registered
pursuant to a Registration Statement or in any securities being
registered pursuant to any other registration statement filed by
the Company under the Act (collectively, “ registration
rights ”), and any person to whom the Company has granted
registration rights, other than the holders of the Company’s
outstanding convertible notes due 2023, has agreed not to exercise
such rights until after the expiration of the Lock-Up Period
referred to in Section 5 hereof.
(m) Absence of Further
Requirements . No consent, approval, authorization, or order
of, or filing or registration with, any person (including any
governmental agency or body or any court) is required for the
consummation of the transactions contemplated by this Agreement or
the Indenture in connection with the offering, issuance and sale of
the Offered Securities and Underlying Shares by the Company, except
such as have been obtained, or made and such as may be required
under state securities laws.
(n) Title to Property
. Except as disclosed in the General Disclosure Package, the
Company and its subsidiaries (i) have good and marketable
title to all real properties and all other properties and assets
owned by them, in each case free from liens, charges, encumbrances
and defects that would affect the value thereof or interfere with
the use made or to be made thereof by them and (ii) hold any
leased real or personal property under valid and enforceable leases
with no terms or provisions that would interfere with the use made
or to be made thereof by them, except in the case of each of
clauses (i) and (ii), as would not, individually or in the
aggregate, have a Material Adverse Effect.
(o) Absence of Defaults
and Conflicts Resulting from Transaction . The execution,
delivery and performance of the Indenture and this Agreement, and
the issuance and sale of the Offered Securities and Underlying
Shares and compliance with the terms and provisions thereof will
not result in a breach or violation of any of the terms and
provisions of, or constitute a default or a Debt Repayment
Triggering Event (as defined below) under, or result in the
imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of its subsidiaries pursuant to, the
charter or by-laws of the Company or any of its subsidiaries, any
statute, rule, regulation or order of any governmental agency or
body or any court, domestic or foreign, having jurisdiction over
the Company or any of its subsidiaries or any of their properties,
or any agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the properties of the
Company or any of its subsidiaries is subject; a “ Debt
Repayment Triggering Event ” means any event or condition
that gives, or with the giving of notice or lapse of time would
give, the holder of any note, debenture, or other evidence of
indebtedness (or any person acting on such holder’s behalf)
the right to require the repurchase, redemption or repayment of all
or a portion of such indebtedness by the Company or any of its
subsidiaries.
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(p) Absence of Existing
Defaults and Conflicts . Neither the Company nor any of its
subsidiaries is in violation of its respective charter or by-laws
or in default (or with the giving of notice or lapse of time would
be in default) under any existing obligation, agreement, covenant
or condition contained in any indenture, loan agreement, mortgage,
lease or other agreement or instrument to which any of them is a
party or by which any of them is bound or to which any of the
properties of any of them is subject, except such defaults that
would not, individually or in the aggregate, have a Material
Adverse Effect.
(q) Authorization of
Agreement . This Agreement has been duly authorized, executed
and delivered by the Company.
(r) Possession of Licenses
and Permits . The Company and its subsidiaries possess, and are
in compliance with the terms of, all adequate certificates,
authorizations, franchises, licenses and permits (“
Licenses ”) necessary or material to the conduct of
the business now conducted or proposed in the General Disclosure
Package to be conducted by them and have not received any notice of
proceedings relating to the revocation or modification of any
Licenses that, if determined adversely to the Company or any of its
subsidiaries, would, individually or in the aggregate, have a
Material Adverse Effect.
(s) Absence of Labor
Dispute . No labor dispute with the employees of the Company or
any of its subsidiaries exists or, to the knowledge of the Company,
is imminent that could have a Material Adverse Effect.
(t) Possession of
Intellectual Property . The Company and its subsidiaries own,
possess or can acquire on reasonable terms sufficient trademarks,
trade names, patent rights, copyrights, domain names, licenses,
approvals, trade secrets, inventions, technology, know-how and
other intellectual property and similar rights, including
registrations and applications for registration thereof
(collectively, “ Intellectual Property Rights ”)
necessary or material to the conduct of the business now conducted
or proposed in the General Disclosure Package to be conducted by
them, and the expected expiration of any such Intellectual Property
Rights would not, individually or in the aggregate, have a Material
Adverse Effect. Except as disclosed in the General Disclosure
Package (i) to the Company’s knowledge, there are no
rights of third parties to any of the Intellectual Property Rights
owned by the Company or its subsidiaries; (ii) to the
Company’s knowledge, there is no material infringement,
misappropriation breach, default or other violation, or the
occurrence of any event that with notice or the passage of time
would constitute any of the foregoing, by the Company, its
subsidiaries or third parties of any of the Intellectual Property
Rights of the Company or its subsidiaries; (iii) there is no
pending or, to the Company’s knowledge, threatened action,
suit, proceeding or claim by others challenging the Company’s
or any subsidiary’s rights in or to, or the violation of any
of the terms of, any of their Intellectual Property Rights, and the
Company is unaware of any facts which would form a reasonable basis
for any such claim; (iv) there is no pending or, to the
Company’s knowledge, threatened action, suit, proceeding or
claim by others challenging the validity, enforceability or scope
of any such Intellectual Property Rights, and the Company is
unaware of any facts which would form a reasonable basis for any
such claim; (v) there is no pending or, to the Company’s
knowledge, threatened action, suit, proceeding or claim by others
that the Company or any subsidiary infringes, misappropriates or
otherwise violates or conflicts with any Intellectual Property
Rights or other proprietary rights of others and the Company is
unaware of any other fact which would form a reasonable basis for
any such claim; and (vi) none of the Intellectual Property
Rights used by the Company or its subsidiaries in their businesses
has been obtained or is being used by the Company or its
subsidiaries in violation of any contractual obligation binding on
the Company, any of its subsidiaries in violation of the rights of
any persons, except in each case covered by clauses
(i) – (vi) such as would not, if determined
adversely to the Company or any of its subsidiaries, individually
or in the aggregate, have a Material Adverse Effect.
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(u) Environmental Laws
. Except as disclosed in the General Disclosure Package, neither
the Company nor any of its subsidiaries is in violation of any
statute, any rule, regulation, decision or order of any
governmental agency or body or any court, domestic or foreign,
relating to the use, disposal or release of hazardous or toxic
substances or relating to the protection or restoration of the
environment or human exposure to hazardous or toxic substances
(collectively, “ environmental laws ”), owns or
operates any real property contaminated with any substance that is
subject to any environmental laws, is liable for any off-site
disposal or contamination pursuant to any environmental laws, or is
subject to any claim relating to any environmental laws, which
violation, contamination, liability or claim would, individually or
in the aggregate, have a Material Adverse Effect; and the Company
is not aware of any pending investigation which might lead to such
a claim.
(v) Accurate
Disclosure . The statements in the General Disclosure Package
and the Final Prospectus under the headings “Material U.S.
Federal Income Tax Considerations”, “Description of the
Notes”, “Description of Capital Stock”,
“Capped Call Transaction” and
“Underwriting”, insofar as such statements summarize
legal matters, agreements, documents or proceedings discussed
therein, are accurate and fair summaries of such legal matters,
agreements, documents or proceedings and present the information
required to be shown.
(w) Absence of
Manipulation . The Company has not taken, directly or
indirectly, any action that is designed to or that has constituted
or that would reasonably be expected to cause or result in the
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Offered
Securities.
(x) Statistical and
Market-Related Data . Any third-party statistical and
market-related data included or incorporated by reference in a
Registration Statement, a Statutory Prospectus or the General
Disclosure Package are based on or derived from sources that the
Company believes to be reliable and accurate.
(y) Internal Controls and
Compliance with the Sarbanes-Oxley Act . Except as set forth in
the General Disclosure Package, the Company, its subsidiaries and
the Company’s Board of Directors (the “ Board
”) are in compliance in all material respects with
Sarbanes-Oxley and all applicable rules under the Exchange Act. The
Company maintains a system of internal controls, including, but not
limited to, disclosure controls and procedures, internal controls
over accounting matters and financial reporting and legal and
regulatory compliance controls (collectively, “ Internal
Controls ”) that are sufficient to provide reasonable
assurances that (i) transactions are executed in accordance
with management’s general or specific authorizations,
(ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with U.S.
Generally Accepted Accounting Principles and to maintain
accountability for assets, (iii) access to assets is permitted
only in accordance with management’s general or specific
authorization and (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. The
Internal Controls are, or upon consummation of the offering of the
Offered Securities will be, overseen by the Audit Committee (the
“ Audit Committee ”) of the Board in accordance
with Exchange Rules. The Company has not publicly disclosed or
reported to the Audit Committee or the Board, and within the next
90 days the Company does not reasonably expect to publicly disclose
or report to the Audit Committee or the Board, a significant
deficiency, material weakness, change in Internal Controls or fraud
involving management or other employees who have a significant role
in Internal Controls (each, an “ Internal Control
Event ”), any violation of, or failure to comply with,
the Securities Laws, or any matter which, if determined adversely,
would have a Material Adverse Effect.
(z) Absence of Accounting
Issues . A member of the Audit Committee has confirmed to the
Chief Executive Officer or the Chief Financial Officer that, except
as set forth in the General
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Disclosure Package, the Audit
Committee is not reviewing or investigating, and neither the
Company’s independent auditors nor its internal auditors have
recommended that the Audit Committee review or investigate,
(i) adding to, deleting, changing the application of, or
changing the Company’s disclosure with respect to, any of the
Company’s material accounting policies; (ii) any matter
which could result in a restatement of the Company’s
financial statements for a
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