Exhibit 1.1
Equinix, Inc.
4.75% Convertible Subordinated Notes
due 2016
Underwriting Agreement
New York, New York
June 9, 2009
To the Representatives
named in Schedule I
hereto of the several
Underwriters named in
Schedule II hereto
Ladies and Gentlemen:
Equinix, Inc., a corporation
organized under the laws of Delaware (the “Company”),
proposes to sell to the several underwriters named in Schedule II
hereto (the “Underwriters”), for whom you (the
“Representatives”) are acting as representatives, the
principal amount of its securities identified in Schedule I hereto
(the “Underwritten Securities”). The Company also
proposes to grant to the Underwriters an option to purchase up to
an additional principal amount of securities set forth in Schedule
II hereto to cover over-allotments (the “Option
Securities”; the Option Securities, together with the
Underwritten Securities, hereinafter called the
“Securities”). The Securities are convertible into
shares of Common Stock, par value $0.001 per share (the
“Common Stock”), of the Company at the conversion rate
set forth in the Final Prospectus. The Securities are to be issued
under an indenture (the “Indenture”) dated as of June
12, 2009, between the Company and U.S. Bank National Association,
as trustee (the “Trustee”). To the extent there are no
additional Underwriters listed on Schedule I other than you, the
term Representatives as used herein shall mean you, as
Underwriters, and the terms Representatives and Underwriters shall
mean either the singular or plural as the context requires. Any
reference herein to the Registration Statement, the Base
Prospectus, any Preliminary Prospectus or the Final Prospectus
shall be deemed to refer to and include the documents incorporated
by reference therein pursuant to Item 12 of Form S-3 which
were filed under the Exchange Act on or before the Effective Date
of the Registration Statement or the issue date of the Base
Prospectus, any Preliminary Prospectus or the Final Prospectus, as
the case may be; and any reference herein to the terms
“amend,” “amendment” or
“supplement” with respect to the Registration
Statement, the Base Prospectus, any Preliminary Prospectus or the
Final Prospectus shall be deemed to refer to and include the filing
of any document under the Exchange Act after the Effective Date of
the Registration Statement or the issue date of the Base
Prospectus, any Preliminary Prospectus or the Final Prospectus, as
the case may be, deemed to be incorporated therein by reference.
Certain terms used herein are defined in Section 20 hereof.
This Agreement, the Indenture and the Securities are referred to
herein collectively as the “Operative
Documents.”
In connection with the offering and
sale of the Securities by the Company pursuant to the terms of this
Agreement, the Company is entering into capped call transactions
with one or more of the Underwriters or affiliates thereof pursuant
to confirmation letters, dated as of the date hereof, subject to an
agreement in the form of the 1992 ISDA Master Agreement
(Multicurrency—Cross Border) (the “Capped Call
Confirmations”).
1. Representations and
Warranties . The Company represents and warrants to, and agrees
with, each Underwriter as set forth below in this
Section 1.
(a) The Company meets the
requirements for use of Form S-3 under the Act and has prepared and
filed with the Commission an automatic shelf registration
statement, as defined in Rule 405. Such Registration Statement,
including any amendments thereto filed prior to the Execution Time,
became effective upon filing. The Company may have filed with the
Commission, as part of an amendment to the Registration Statement
or pursuant to Rule 424(b), one or more preliminary prospectus
supplements relating to the Securities, each of which has
previously been furnished to you. The Company will file with the
Commission a final prospectus supplement relating to the Securities
in accordance with Rule 424(b). As filed, such final prospectus
supplement shall contain all information required by the Act and
the rules thereunder, and, except to the extent the Representatives
shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to you prior to the
Execution Time or, to the extent not completed at the Execution
Time, shall contain only such specific additional information and
other changes (beyond that contained in the Base Prospectus and any
Preliminary Prospectus) as the Company has advised you, prior to
the Execution Time, will be included or made therein. The
Registration Statement, at the Execution Time, meets the
requirements set forth in Rule 415(a)(1)(x).
(b) On each Effective Date, the
Registration Statement did, and when the Final Prospectus is first
filed in accordance with Rule 424(b) and on the Closing Date (as
defined herein) and on any date on which Option Securities are
purchased, if such date is not the Closing Date (a
“settlement date”), the Final Prospectus (and any
supplement thereto) will, comply in all material respects with the
applicable requirements of the Act, the Exchange Act and the Trust
Indenture Act and the respective rules thereunder; on each
Effective Date and at the Execution Time, the Registration
Statement did not and will not contain any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein
not misleading; on the Effective Date and on the Closing Date the
Indenture did or will comply in all material respects with the
applicable requirements of the Trust Indenture Act and the rules
thereunder; and on the date of any filing pursuant to Rule 424(b)
and on the Closing Date and any settlement date, the Final
Prospectus (together with any supplement thereto) will not include
any untrue statement of a material fact or 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; provided , however , that the Company
makes no representations or warranties as to (i) that part of
the Registration Statement which shall constitute the Statement of
Eligibility and Qualification (Form T-1) under the Trust Indenture
Act of the Trustee or (ii) the information contained in or
omitted from the Registration Statement or the Final Prospectus (or
any supplement thereto) in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of
any Underwriter through the Representatives specifically for
inclusion in the Registration Statement or the Final Prospectus (or
any supplement thereto), it being understood and agreed that the
only such information furnished by or on behalf of any Underwriter
consists of the information described as such in Section 8
hereof.
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(c) (i) The Disclosure Package and
(ii) each electronic road show when taken together as a whole
with the Disclosure Package, does not contain any untrue statement
of a material fact or omit 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 the Disclosure Package based upon and in conformity with
written information furnished to the Company by any Underwriter
through the Representatives specifically for use therein, it being
understood and agreed that the only such information furnished by
or on behalf of any Underwriter consists of the information
described as such in Section 8 hereof.
(d) (i) At the time of filing the
Registration Statement, (ii) at the time of the most recent
amendment thereto for the purposes of complying with
Section 10(a)(3) of the Act (whether such amendment was by
post-effective amendment, incorporated report filed pursuant to
Sections 13 or 15(d) of the Exchange Act or form of prospectus),
(iii) at the time the Company or any person acting on its
behalf (within the meaning, for this clause only, of Rule 163(c))
made any offer relating to the Securities in reliance on the
exemption in Rule 163, and (iv) at the Execution Time (with
such date being used as the determination date for purposes of this
clause (iv)), the Company was or is (as the case may be) a
“well-known seasoned issuer” as defined in Rule 405.
The Company agrees to pay the fees required by the Commission
relating to the Securities within the time required by Rule
456(b)(1) without regard to the proviso therein and otherwise in
accordance with Rules 456(b) and 457(r).
(e) (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 Securities and (ii) as
of the Execution Time (with such date being used as the
determination date for purposes of this clause (ii)), the Company
was not and is not an Ineligible Issuer (as defined in Rule 405),
without taking account of any determination by the Commission
pursuant to Rule 405 that it is not necessary that the Company be
considered an Ineligible Issuer.
(f) Each Issuer Free Writing
Prospectus and the final term sheet prepared and filed pursuant to
Section 5(b) hereto does not include any information that
conflicts with the information contained in the Registration
Statement, including any document incorporated by reference therein
and any prospectus supplement deemed to be a part thereof that has
not been superseded or modified. The foregoing sentence does not
apply to statements in or omissions from any Issuer Free Writing
Prospectus based upon and in conformity with written information
furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood
and agreed that the only such information furnished by or on behalf
of any Underwriter consists of the information described as such in
Section 8 hereof.
(g) The Company has been duly
incorporated and is an existing corporation in good standing under
the laws of State of Delaware, with power and authority (corporate
and other) to own its properties and conduct its business as
described in the Disclosure Package and the Final Prospectus; 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
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property or the conduct of its
business requires such qualification, except to the extent that the
failure to be so qualified or in good standing would not have a
material adverse effect on the condition (financial or other),
business, properties or results of operations of the Company and
the Subsidiaries (as defined below) taken as a whole (each, a
“Company Material Adverse Effect”).
(h) Equinix Operating Co., Inc.,
Equinix Australia Pty Ltd, Equinix RP II LLC, CHI 3, LLC, Equinix
Europe Ltd, Equinix (UK) Ltd and Equinix (Services) Ltd (each a
“Subsidiary” and, together, the
“Subsidiaries”) are the direct and indirect
subsidiaries of the Company that are material to the business of
the Company and its subsidiaries taken as a whole. Each of the
Subsidiaries has been duly organized and is an existing business
entity 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
Disclosure Package and the Prospectus; and each Subsidiary is duly
qualified to do business as a foreign 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 to the extent that the failure to be so
qualified or in good standing would not have a Company Material
Adverse Effect; all of the issued and outstanding capital stock or
equity interests, as applicable, of each subsidiary of the Company
has been duly authorized and validly issued and is fully paid and
nonassessable. The Company owns all of the shares of capital stock
or equity interests, as applicable, of each subsidiary of the
Company, directly or through subsidiaries, free from liens,
encumbrances and defects. In addition, each of Equinix Group Ltd,
Equinix (Dusseldorf) GmbH, Equinix (Real Estate) GmbH, Equinix
(Germany) GmbH, Equinix (France) SAS, Equinix (Switzerland) AG,
Equinix (Holdings) BV, Equinix (London) Ltd, Equinix Paris SAS,
Equinix (Netherlands) Holding Coöperatie U.A, Equinix
(Netherlands) BV, Virtu Secure Web Services BV, Equinix Pacific,
Inc., Equinix Pacific Pte Ltd, Equinix Japan KK, Equinix Hong Kong
Ltd, Equinix Asia Pacific Pte Ltd, Equinix Singapore Holdings Pte
Ltd, Equinix Singapore Pte Ltd, SV1 LLC, CHI 3 Procurement, LLC,
LA4 LLC (the “Other Subsidiaries”), individually do not
constitute a “significant subsidiary,” as defined by
Rule 1-02 of Regulation S-X; however, when taken together, do
constitute a “significant subsidiary” as defined by
Rule 1-02 of Regulation S-X. The Subsidiaries are the only
significant subsidiaries of the Company as defined by Rule 1-02 of
Regulation S-X, and all subsidiaries (excluding the Subsidiaries
and the Other Subsidiaries), when taken together, do not constitute
a “significant subsidiary” as defined by Rule 1-02 of
Regulation S-X.
(i) The authorized capital stock of
the Company conforms as to legal matters to the description thereof
contained in, as applicable, the Disclosure Package and the Final
Prospectus. All outstanding shares of capital stock of the Company
have been duly authorized and validly issued, fully paid and
nonassessable and conform as to legal matters to the description
thereof contained in or incorporated by reference into, as
applicable, the Preliminary Prospectus and the Final Prospectus;
and the stockholders of the Company have no preemptive rights with
respect to the Securities. The shares of Common Stock issuable upon
conversion of the Notes have been duly authorized and reserved for
issuance and, when issued and delivered by the Company in
accordance with the terms of the Notes and the Indenture will be
validly issued, fully paid and non-assessable, and the issuance of
such Common Stock will not be subject to any preemptive rights,
rights of first refusal or
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similar rights. Except as set forth
in the Disclosure Package and the Final Prospectus, neither the
Company nor any of the Subsidiaries 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. All outstanding shares of capital stock and options
and other rights to acquire capital stock have been issued in
compliance with the registration and qualification provisions of
all applicable securities laws and were not issued in violation of
any preemptive rights, rights of first refusal or other similar
rights.
(j) Except as disclosed in the
Disclosure Package and the Final Prospectus, 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
any Underwriter for a brokerage commission, finder’s fee or
other like payment as a result of the transactions contemplated by
this Agreement.
(k) Except as disclosed in the
Disclosure Package and the Final Prospectus or as have been validly
waived, there are no contracts, agreements or understandings
involving the Company granting to any 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 the Registration Statement or
in any securities being registered pursuant to any other
registration statement filed by the Company under the
Act.
(l) The Indenture has been duly
authorized, executed and delivered, has been duly qualified under
the Trust Indenture Act, and constitutes a legal, valid and binding
instrument enforceable against the Company in accordance with its
terms (subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other laws
affecting creditors’ rights generally from time to time in
effect and to general principles of equity, including, without
limitation, concepts of materiality, reasonableness, good faith and
fair dealing, regardless of whether considered in a proceeding in
equity or at law) and the Securities will be convertible into
Common Stock in accordance with their terms; the Securities have
been duly authorized and, when executed and authenticated in
accordance with the provisions of the Indenture and delivered to
and paid for by the Underwriters pursuant to this Agreement, will
constitute legal, valid and binding obligations of the Company
entitled to the benefits of the Indenture; and the statements set
forth under the headings “Description of Notes” and
“Description of Capital Stock” in the Preliminary
Prospectus and the Final Prospectus, insofar as such statements
purport to summarize certain provisions of the Securities, the
Indenture, and the Common Stock, provide a fair summary of such
provisions.
(m) The statements set forth in the
Preliminary Prospectus and the Final Prospectus, insofar as such
statements purport to summarize certain provisions of the Capped
Call Confirmations, provide a fair summary of such
provisions.
(n) No consent, approval,
authorization, or order of, or filing with, any governmental agency
or body or any court is required to be obtained or made by the
Company for the
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consummation of the transactions
contemplated by this Agreement and each of the other Operative
Documents, except such as have been obtained and made under the
Act, the Exchange Act, the Trust Indenture Act, or state securities
or blue sky laws in connection with the offer and sale of the
Securities.
(o) The execution and delivery by
the Company of, and performance by the Company of its obligations
under, this Agreement and each of the other Operative Documents,
and the consummation of the transactions contemplated herein and
therein will not result in a material breach or material violation
of any of the terms and provisions of, or constitute a material
default under, any statute, any rule, regulation or order of any
governmental agency or body or any court, domestic or foreign,
having jurisdiction over the Company or any of the Subsidiaries or
any of their properties, or any agreement or instrument to which
the Company or any such Subsidiary is a party or by which the
Company or any such Subsidiary is bound or to which any of the
properties of the Company or any such Subsidiary is subject (except
a breach or violation that would not have a Material Adverse Effect
on the execution and delivery by the Company of, and performance by
the Company of its obligations under, this Agreement and each of
the other Operative Documents, and the consummation of the
transactions contemplated herein and therein), or the charter or
by-laws of the Company or any such Subsidiary.
(p) This Agreement has been duly
authorized, executed and delivered by the Company.
(q) Except as disclosed in the
Disclosure Package and the Final Prospectus, the Company and the
Subsidiaries have good and marketable title to all real properties
and all other properties and assets owned by them, in each case
free from liens, encumbrances and defects that would materially
affect the value thereof or materially interfere with the use made
or to be made thereof by them; and the Company and its Subsidiaries
hold any leased real or personal property under valid and
enforceable leases with no exceptions that would materially
interfere with the use made or to be made thereof by
them.
(r) The Company and the Subsidiaries
possess adequate certificates, authorities or permits issued by
appropriate governmental agencies or bodies necessary to conduct
the business now operated by them and have not received any notice
of proceedings relating to the revocation or modification of any
such certificate, authority or permit that, if determined adversely
to the Company or any of its subsidiaries, would individually or in
the aggregate have a Company Material Adverse Effect.
(s) No labor dispute with the
employees of the Company or any of the Subsidiaries exists or, to
the knowledge of the Company, is imminent that might have a Company
Material Adverse Effect.
(t) The Company and the Subsidiaries
own, possess or can acquire on reasonable terms, adequate
trademarks, trade names and other rights to inventions, know-how,
patents, copyrights, confidential information and other
intellectual property (collectively, the “Intellectual
Property Rights”) necessary to conduct the business now
operated by them, or presently employed by them, and have not
received any notice of infringement of or
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conflict with asserted rights of
others with respect to any Intellectual Property Rights that, if
determined adversely to the Company or any of the Subsidiaries,
would individually or in the aggregate have a Company Material
Adverse Effect.
(u) Except as disclosed in the
Disclosure Package and the Final Prospectus, neither the Company
nor any of the Subsidiaries (A) 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, the “Environmental Laws”), (B) owns
leases or operates any real property contaminated with any
substance that is subject to any Environmental Laws, (C) is
liable for any off-site disposal or contamination pursuant to any
Environmental Laws, or (D) is subject to any claim relating to
any Environmental Laws, in each case which violation,
contamination, liability or claim would individually or in the
aggregate have a Company Material Adverse Effect; and the Company
is not aware of any pending or threatened investigation which is
reasonably expected to lead to such a claim. Except as disclosed in
the Disclosure Package and the Final Prospectus, there are no costs
or liabilities associated with Environmental Laws (including,
without limitation, any capital or operating expenditures required
for clean-up, closure of properties or compliance with
Environmental Laws or any permit, license or approval, any related
constraints on operating activities and any potential liabilities
to third parties) that might have a Company Material Adverse
Effect.
(v) Except as disclosed in the
Disclosure Package and the Final Prospectus, there are no pending
actions, suits or proceedings against or affecting the Company, any
of the Subsidiaries or any of their respective properties that, if
determined adversely to the Company or any of its Subsidiaries,
would individually or in the aggregate have a Company Material
Adverse Effect, or would materially and adversely affect the
ability of the Company to perform its obligations under any
Operative Document, or which are otherwise material in the context
of the transactions contemplated by any Operative Document; and no
such actions, suits or proceedings are threatened or, to the
Company’s knowledge, contemplated.
(w) The financial statements of the
Company included in the Preliminary Prospectus, the Final
Prospectus and the Registration Statement present fairly the
financial position of the Company and its consolidated subsidiaries
as of the dates shown and their consolidated statements of
operations and cash flows for the periods shown, and such financial
statements have been prepared in conformity with the generally
accepted accounting principles in the United States applied on a
consistent basis and the schedules included in the Registration
Statement present fairly the information required to be stated
therein.
(x) Except as disclosed in the
Disclosure Package and the Final Prospectus, since the date of the
latest audited financial statements included in the Disclosure
Package and the Final Prospectus (i) there has not occurred
any Company Material Adverse Effect, or any development or event
that would reasonably be expected to involve a prospective Company
Material Adverse Effect, and (ii) there has been no dividend
or distribution of any kind declared, paid or made by the Company
on any class of its capital stock.
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(y) Neither the Company nor any of
the Subsidiaries is currently in breach of, or in default under,
any other written agreement or instrument to which it or its
property is bound or affected except to the extent that such breach
or default would not have a Company Material Adverse
Effect.
(z) The documents incorporated by
reference into the Disclosure Package and the Final Prospectus,
when they were filed (or, if any amendment with respect to any such
document was filed, when such amendment was filed), conformed in
all material respects with the requirements of the Exchange Act;
and any further such documents incorporated by reference will, when
they are filed, conform in all material respects with the
requirements of the Exchange Act.
(aa) The Company and each of the
Subsidiaries is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as
are prudent and customary in the businesses in which they are
engaged; neither the Company nor any such Subsidiary has been
refused any insurance coverage sought or applied for; and neither
the Company nor any such Subsidiary has any reason to believe,
absent a significant change in overall insurance market conditions,
that it will not be able to renew its existing insurance coverage
as and when such coverage expires or to obtain similar coverage
from similar insurers as may be necessary to continue its business
at a cost that would not have a Company Material Adverse
Effect.
(bb) The accountants who certified
the financial statements and supporting schedules included in the
Registration Statement are independent registered public
accountants as required by the Act.
(cc) The Company and each of the
Subsidiaries maintain a system of internal accounting controls
sufficient to provide reasonable assurance that:
(A) transactions are executed in accordance with
management’s general or specific authorizations;
(B) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset
accountability; (C) access to assets is permitted only in
accordance with management’s general or specific
authorization; and (D) 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
Company and its subsidiaries’ internal controls over
financial reporting are effective and the Company and its
subsidiaries are not aware of any material weakness in their
internal controls over financial reporting.
(dd) Neither the Company nor any of
its subsidiaries nor, to the knowledge of the Company, any
director, officer, agent, employee or affiliate of the Company or
any of its subsidiaries is aware of or has taken any action,
directly or indirectly, that would result in a violation by such
persons of the Foreign Corrupt Practices Act of 1977, as amended,
and the rules and regulations thereunder (the “FCPA”),
including, without limitation, making use of the mails or any means
or instrumentality of interstate commerce corruptly in furtherance
of an offer, payment, promise to pay or authorization of the
payment of any money, or other property, gift, promise to give, or
authorization of the giving of anything of value to any
“foreign official” (as such term is defined in the
FCPA) or any foreign political
8
party or official thereof or any
candidate for foreign political office, in contravention of the
FCPA; and the Company, its subsidiaries and, to the knowledge of
the Company, its affiliates have conducted their businesses in
compliance with the FCPA and have instituted and maintain policies
and procedures designed to ensure, and which are reasonably
expected to continue to ensure, continued compliance
therewith.
(ee) The operations of the Company
and its subsidiaries are and have been conducted at all times in
compliance with applicable financial recordkeeping and reporting
requirements and the money laundering statutes and the rules and
regulations thereunder and any related or similar rules,
regulations or guidelines, issued, administered or enforced by any
governmental agency (collectively, the “Money Laundering
Laws”) and no action, suit or proceeding by or before any
court or governmental agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries with respect to
the Money Laundering Laws is pending or, to the best knowledge of
the Company, threatened.
(ff) Neither the Company nor any of
its subsidiaries nor, to the knowledge of the Company, any
director, officer, agent, employee or affiliate of the Company or
any of its subsidiaries is currently subject to any sanctions
administered by the Office of Foreign Assets Control of the U.S.
Treasury Department (“OFAC”); and the Company will not
directly or indirectly use the proceeds of the offering, or lend,
contribute or otherwise make available such proceeds to any
subsidiary, joint venture partner or other person or entity, for
the purpose of financing the activities of any person currently
subject to any U.S. sanctions administered by OFAC.
(gg) None of the Company nor any of
the Subsidiaries has taken, directly or indirectly, any action
designed to, or that might reasonably be expected to, cause or
result in stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Securities. Except as permitted by the Act and the Investment
Company Act, the Company has not distributed any registration
statement, preliminary prospectus, prospectus or other offering
material in connection with the offering and sale of the
Securities.
(hh) The Company is subject to the
reporting requirements of either Section 13 or
Section 15(d) of the Exchange Act and files reports with the
Commission on the Electronic Data Gathering, Analysis and Retrieval
(“EDGAR”) system.
(ii) The Company is not and, after
giving effect to the offering and sale of the Securities and the
application of the proceeds thereof as described in the Disclosure
Package and the Final Prospectus, will not be, an “investment
company” as defined in the Investment Company Act.
Any certificate signed by any
officer of the Company and delivered to the Representatives or
counsel for the Underwriters in connection with the offering of the
Securities shall be deemed a representation and warranty by the
Company, as to matters covered thereby, to each
Underwriter.
2. Purchase and Sale .
(a) Subject to the terms and conditions and in reliance upon
the representations and warranties herein set forth, the Company
agrees to sell to each
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Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at the
purchase price set forth in Schedule I hereto the principal amount
of the Securities set forth opposite such Underwriter’s name
in Schedule II hereto.
(b) Subject to the terms and
conditions and in reliance upon the representations and warranties
herein set forth, the Company hereby grants an option to the
several U
