EXHIBIT (c)(1)
GEOTEK COMMUNICATIONS, INC.
$75,000,000
12% Senior Subordinated Convertible Notes due 2001
PURCHASE AGREEMENT
------------------
March 4, 1996
XXXXX XXXXXX INC.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Geotek Communications, Inc., a Delaware corporation (the
"Company"), proposes, upon the terms and conditions set forth herein, to issue
and sell to you, as the initial purchaser (the "Initial Purchaser"), $67,500,000
principal amount of its 12% Senior Subordinated Convertible Notes due 2001 (the
"Firm Notes"). The Company also proposes, upon the terms and conditions set
forth herein, to issue and sell to the Initial Purchaser up to an additional
$7,500,000 principal amount of its 12% Senior Subordinated Convertible Notes due
2001 (the "Additional Notes"). The Firm Notes and the Additional Notes are
hereinafter collectively referred to as the "Notes." The Notes will be issued
pursuant to the provisions of an Indenture, to be dated as of March 5, 1996 (the
"Indenture"), between the Company and The Bank of New York, as Trustee (the
"Trustee").
The Company wishes to confirm as follows its agreement with
the Initial Purchaser in connection with the purchase and resale of the Notes.
1. Preliminary Offering Memorandum and Offering Memorandum.
The Notes will be offered and sold to the Initial Purchaser without registration
under the Securities Act of 1933, as amended (the "Act"), in reliance on an
exemption pursuant to Section 4(2) under the Act. The Company has prepared a
Preliminary Offering Memorandum, dated February 29, 1996 (the "Preliminary
Offering Memorandum") and an Offering Memorandum, dated March 4, 1996 (the
"Offering Memorandum"), setting forth information regarding the Company and the
Notes. Any references herein to the Preliminary Offering Memorandum and the
Offering Memorandum shall be deemed to include all amendments and supplements
thereto and, unless the context otherwise requires, any information incorporated
by reference therein. The Company hereby confirms that it has authorized the use
of the Preliminary Offering Memorandum and the Offering Memorandum in connection
with the offering and resale of the Notes by the Initial Purchaser.
The Company understands that the Initial Purchaser proposes to
make offers and sales (the "Exempt Resales") of the Notes purchased by the
Initial Purchaser hereunder only on the terms and in the manner set forth in the
Offering Memorandum and Section 2 hereof, as soon as the Initial Purchaser deems
advisable after this Agreement has been executed and delivered, (i) to a limited
number of other institutional "accredited investors" (as defined in Rule
501(a)(1), (2), (3) and (7) under Regulation D ("Regulation D") under the
Act)("Accredited Investors") in private sales exempt from registration under the
Act and (ii) outside the United States to persons other than U.S. persons in
reliance upon Regulation S ("Regulation S") under the Act (such persons
specified in clauses (i) and (ii) being referred to herein as the "Eligible
Purchasers"). As used in this Agreement, the terms "United States" and "U.S.
persons" have the meaning given them in Regulation S.
It is understood and acknowledged that, upon original issuance
thereof, and until such time as the same is no longer required under the
applicable requirements of the Act, the Notes shall bear the legends set forth
in paragraph 6 under the section of the Offering Memorandum entitled "Transfer
Restrictions."
It also is understood and acknowledged that holders (including
subsequent transferees) of the Notes and, if such Notes are subsequently
converted into Common Stock, the Common Stock, will have the registration rights
set forth in the registration rights agreement (the "Registration Rights
Agreement"), to be dated as of the Closing Date (as hereinafter defined), in
substantially the form of Exhibit A hereto. This Agreement, the Indenture and
the Registration Rights Agreement are hereinafter referred to collectively as
the "Operative Documents."
Capitalized terms used herein without definition have the
respective meanings specified therefor in the Offering Memorandum.
2. Agreements to Sell, Purchase and Resell. (a) The Company
hereby agrees, subject to all the terms and conditions set forth herein, to
issue and sell to the Initial Purchaser and, upon the basis of the
representations, warranties and agreements of the Company herein contained and
subject to all the terms and conditions set forth herein, the Initial Purchaser
agrees to purchase from the Company, at a purchase price of 97% of the principal
amount thereof, $67,500,000 aggregate principal amount of the Notes.
(b) The Company also agrees, subject to all the terms and
conditions set forth herein, to sell to the Initial Purchaser, and, upon the
basis of the representations, warranties and agreements of the Company herein
contained and subject to all the terms and conditions set forth herein, the
Initial Purchaser shall have the right to purchase from the Company pursuant to
an option (the "over-allotment option") which may be exercised at any time and
from time to time prior to 9:00 P.M., New York City time, on the 30th day after
the date of the Offering Memorandum (or, if such 30th day shall be a Saturday or
Sunday or a holiday, on the next business day thereafter when the New York Stock
Exchange is open for trading), up to $7,500,000 aggregate principal amount of
Additional Notes at a purchase price per Note equal to 97% of the principal
amount thereof on the date of delivery and payment of the Additional Notes, plus
accrued interest, if any, from the date of issuance of the Firm Notes to the
date of delivery of and payment for the Additional Notes; provided, however,
that such over-allotment option may only be exercised for the purpose of selling
up to $3,000,000 aggregate principal amount of Additional Notes to Vanguard
Cellular Systems, Inc. and/or up to $4,500,000 aggregate principal amount of
Additional Notes to S-C Rig Investments-III, L.P. (or such additional aggregate
principal amount, not to exceed $7,500,000, of Additional Notes as may be agreed
to by the parties hereto or to such other parties as the Company may permit in
its sole discretion).
(c) The Initial Purchaser has advised the Company that it
proposes to offer the Notes for sale upon the terms and conditions set forth in
this Agreement and in the Offering Memorandum. The Initial Purchaser hereby
represents and warrants to, and agrees with, the Company that the Initial
Purchaser (i) is purchasing the Notes pursuant to a private sale exempt from
registration under the Act, (ii) will not solicit offers for, or offer or sell,
the Notes by means of any form of general solicitation or general advertising or
in any manner involving a public offering within the meaning of Section 4(2) of
the Act and (iii) will solicit offers for the Notes only from, and will offer,
sell or deliver the Notes as part of its initial offering only (A) to a limited
number of Accredited Investors that make the representations to and agreements
with the Company specified in Exhibit A to the Offering Memorandum in private
sales exempt from registration under the Act and (B) outside the United States
to persons other than U.S. persons in reliance on Regulation S. The Initial
Purchaser has advised the Company that it will offer the Notes to Eligible
Purchasers at a price initially equal to 100% of the principal amount thereof,
plus accrued interest, if any, from the date of issuance of the Notes. Such
price may be changed by the Initial Purchaser at any time thereafter without
notice.
(d) The Initial Purchaser represents and warrants that it has
offered and sold the Notes and agrees that it will offer and sell the Notes (i)
as part of its distribution at any time and (ii) otherwise until 40 days after
the later of the commencement of the offering of the Notes and the Closing Date,
only in accordance with Rule 903 of Regulation S or as otherwise permitted
pursuant to paragraph (c) above. Accordingly, the Initial Purchaser represents
and agrees that neither such Initial Purchaser, its affiliates nor any persons
acting on its or their behalf has engaged or will engage in any directed selling
efforts with respect to the Notes, and it and they have complied and will comply
with the offering restrictions requirement of Regulation S. Such Initial
Purchaser agrees that, at or prior to confirmation of the sale of Notes, it will
have sent to each distributor, dealer or person receiving a selling concession,
fee or other remuneration that purchases Notes from such Initial Purchaser
during the restricted period a confirmation or notice to substantially the
following effect:
"The Securities covered hereby have not been registered under the U.S.
Securities Act of 1933, as amended (the "Securities Act"), and may not
be offered or sold within the United States or to, or for the account
or benefit of, U.S. persons (i) as part of their distribution at any
time or (ii) otherwise until 40 days after the later of the
commencement of the offering thereof and the closing date of the sale,
except in either case in accordance with Regulation S under the
Securities Act. Terms used above and not otherwise defined have the
meaning given to them by Regulation S."
The Initial Purchaser understands that the Company and, for
purposes of the opinions to be delivered to the Initial Purchaser pursuant to
Sections 7(c) and 7(d) hereof, counsel to the Company and counsel to the Initial
Purchaser, will rely upon the accuracy and truth of the foregoing
representations and agreements and the Initial Purchaser hereby consents to such
reliance.
3. Delivery of the Notes and Payment Therefor. Delivery to the
Initial Purchaser of and payment for the Firm Notes shall be made at the offices
of Xxxxx Xxxxxx Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, at 10:00 A.M.,
New York City time, on March 5, 1996 (the "Closing Date"). The place of closing
for the Firm Notes and the Closing Date may be varied by agreement between the
Initial Purchaser and the Company.
Delivery to the Initial Purchaser of and payment for any
Additional Notes to be purchased by the Initial Purchaser shall be made at the
aforementioned office of Xxxxx Xxxxxx Inc. at such time and on such date
specified by the Initial Purchaser (the "Option Closing Date"), which may be the
same as the Closing Date but shall in no event be earlier than the Closing Date
nor earlier than three nor later than ten business days after the Initial
Purchaser gives written notice to the Company of the Initial Purchaser's
determination to purchase the aggregate principal amount of Additional Notes
specified in such notice. The place of closing for any Additional Notes and the
Option Closing Date for such Additional Notes may be varied by agreement between
the Initial Purchaser and the Company.
The Firm Notes will be delivered to the Initial Purchaser
against payment of the purchase price for the Firm Notes therefor by wire
transfer of same day funds, in connection with which the Company shall pay any
reasonable interest or other charges incurred by the Initial Purchaser (which
amounts shall be deducted from such payment). Any Additional Notes that the
Initial Purchaser may elect to purchase will be paid for as provided above. The
Notes will be in definitive or global form and registered in such names and in
such denominations as the Initial Purchaser shall request prior to 1:00 p.m.,
New York City time, on the second business day preceding the Closing Date or any
Option Closing Date, as the case may be. The Notes to be delivered to the
Initial Purchaser shall be made available to the Initial Purchaser in New York
City for inspection and packaging not later than 9:30 a.m., New York City time,
on the business day next preceding the Closing Date or the Option Closing Date,
as the case may be.
4. Agreements of the Company. The Company agrees with the
Initial Purchaser as follows:
(a) The Company will advise the Initial Purchaser promptly
and, if requested by it, will confirm such advice in writing, within the period
of time referred to in paragraph (e) below, of any change in the Company's
condition (financial or otherwise), business, prospects, properties, net worth
or results of operations, or of the happening of any event which makes any
statement made in the Preliminary Offering Memorandum or the Offering Memorandum
untrue or which requires the making of any additions to or changes in the
Preliminary Offering Memorandum or the Offering Memorandum in order to make the
statements therein not misleading in light of the circumstances under which they
were made, or of the necessity to amend or supplement the Preliminary Offering
Memorandum or the Offering Memorandum to comply with any law.
(b) The Company will furnish to the Initial Purchaser, without
charge, as of the date of the Offering Memorandum, such number of copies of the
Offering Memorandum as the Initial Purchaser may reasonably request.
(c) The Company will not make any amendment or supplement to
the Preliminary Offering Memorandum or the Offering Memorandum of which the
Initial Purchaser shall not previously have been advised or to which it shall
reasonably object after being so advised or file any document with the
Securities and Exchange Commission (the "Commission") which upon filing becomes
incorporated by reference into the Preliminary Offering Memorandum ("an
Incorporated Document"), without, in each case, delivering a copy of such
document to the Initial Purchaser prior to such filing.
(d) Prior to the execution and delivery of this Agreement, the
Company has delivered or will deliver to the Initial Purchaser, without charge,
in such quantities as the Initial Purchaser shall have requested or may
hereafter reasonably request, copies of the Preliminary Offering Memorandum. The
Company consents to the use in accordance with the securities or "blue sky" laws
of the jurisdictions in which the Notes are offered by the Initial Purchaser and
by dealers, prior to the date of the Offering Memorandum, of each Preliminary
Offering Memorandum so furnished by the Company. The Company consents to the use
of the Offering Memorandum in accordance with the securities or "blue sky" laws
of the jurisdictions in which the Notes are offered by the Initial Purchaser and
by all dealers to whom Notes may be sold in connection with the offering and
sale of the Notes.
(e) If, at any time prior to completion of the distribution of
the Notes by the Initial Purchaser to Eligible Purchasers, any event shall occur
that in the judgment of the Company or the Initial Purchaser or in the opinion
of counsel for the Initial Purchaser should be set forth in the Offering
Memorandum in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is necessary
to supplement or amend the Offering Memorandum, or to file under the Securities
Exchange Act of 1934, as amended (the "Exchange Act") any document which upon
filing becomes an Incorporated Document, to comply with any law, the Company
will forthwith prepare an appropriate supplement or amendment thereto or file
such document under the Exchange Act, and will expeditiously furnish to the
Initial Purchaser and dealers a reasonable number of copies thereof. In the
event that the Company and the Initial Purchaser agree that the Offering
Memorandum should be amended or supplemented, or that a document should be filed
under the Exchange Act which upon filing becomes an Incorporated Document, the
Company, if requested by the Initial Purchaser, will promptly issue a press
release announcing or disclosing the matters to be covered by the proposed
amendment or supplement or such document unless such announcement or disclosure,
in the opinion of both counsel to the Company and to the Initial Purchaser,
would jeopardize the ability of the Company to rely on an exemption from
registration under the Act in connection with the sale of the Notes hereunder.
(f) The Company will cooperate with the Initial Purchaser and
with its counsel in connection with the qualification of the Notes for offering
and sale by the Initial Purchaser and by dealers under the securities or "blue
sky" laws of such jurisdictions as the Initial Purchaser may designate and will
file such consents to service of process or other documents necessary or
appropriate in order to effect such qualification; provided, that in no event
shall the Company be obligated to qualify to do business in any jurisdiction
where it is not now so qualified or to take any action which would subject it to
service of process in suits, other than those arising out of the offering or
sale of the Notes, in any jurisdiction where it is not now so subject.
(g) So long as any of the Notes are outstanding, the Company
will furnish to the Initial Purchaser (i) as soon as available, a copy of each
report of the Company mailed to stockholders or filed with the Commission, and
(ii) from time to time such other information concerning the Company as the
Initial Purchaser may reasonably request.
(h) If this Agreement shall terminate or shall be terminated
after execution and delivery pursuant to any provisions hereof (otherwise than
by notice given by the Initial Purchaser terminating this Agreement pursuant to
Section 9 or Section 10 hereof) or if this Agreement shall be terminated by the
Initial Purchaser because of any failure or refusal on the part of the Company
to comply with the terms or fulfill any of the conditions of this Agreement, the
Company agrees to reimburse the Initial Purchaser for all out-of-pocket expenses
(including fees and expenses of its counsel) reasonably incurred by it in
connection herewith, but without any further obligation on the part of the
Company for loss of profits or otherwise.
(i) The Company will apply the net proceeds from the sale of
the Notes to be sold by it hereunder substantially in accordance with the
description set forth in the Offering Memorandum under "Use of Proceeds" and in
a manner that will not result in the Company becoming an "investment company"
within the meaning of the Investment Company Act of 1940, as amended (the
"Investment Company Act").
(j) Except as stated in this Agreement and in the Preliminary
Offering Memorandum and the Offering Memorandum, the Company has not taken, nor
will it take, directly or indirectly, any action designed to or that might
reasonably be expected to cause or result in stabilization or manipulation of
the price of the Notes to facilitate the sale or resale of the Notes. Except as
permitted by the Act, the Company will not distribute any offering material in
connection with the Exempt Resales.
(k) The Company has complied and will comply with all
provisions of Florida Statutes Section 517.075 relating to issuers doing
business with Cuba.
(l) The Company agrees not to sell, offer for sale or solicit
offers to buy or otherwise negotiate in respect of any security (as defined in
the Act) that would be integrated with the sale of the Notes in a manner that
would require the registration under the Act of the sale to the Initial
Purchaser or the Eligible Purchasers of the Notes.
(m) The Company agrees to comply with all of the terms and
conditions of the Registration Rights Agreement.
(n) The Company agrees that, prior to or contemporaneously
with any registration of the Notes pursuant to the Registration Rights
Agreement, or at such earlier time as may be so required, the Indenture shall be
qualified under the Trust Indenture Act of 1939, as amended (the "1939 Act").
The Company agrees to cause to be entered into any necessary supplemental
indentures in connection with such qualification.
(o) The Company shall, and shall use its best efforts to cause
the transfer agent with respect to the Notes and the shares of Common Stock, par
value $.01 per share, of the Company (the "Common Stock") issuable upon
conversion of the Notes (the "Shares") to, refuse to register any transfer of
such securities sold pursuant to Regulation S if such transfer is not made in
accordance with the provisions of Regulation S.
(p) The Company shall not, without the prior consent of the
Initial Purchaser, offer, sell, contract to sell or otherwise dispose of any
securities the offer and sale of which could reasonably be expected to be
integrated with the offer and sale of the Notes offered hereby.
(q) During the period commencing on the first Trading Day
after the 85th day immediately following the issuance of the Notes and ending
upon the close of business on the 10th Trading Day immediately following the
90th day after the issuance thereof, the Company shall not bid for or purchase
any Common Stock or engage in any other activity with respect thereto for the
purpose of creating actual, or apparent, active trading in or raising the price
thereof.
5. Representations and Warranties of the Company. The Company
represents and warrants to the Initial Purchaser that:
(a) The Preliminary Offering Memorandum and the Offering
Memorandum have been prepared by the Company for use by the Initial Purchaser in
connection with the Exempt Resales. No order or decree preventing the use of the
Preliminary Offering Memorandum or the Offering Memorandum, or any order
asserting that the transactions contemplated by this Agreement are subject to
the registration requirements of the Act, has been issued and no proceeding for
that purpose has commenced or is pending or, to the knowledge of the Company, is
contemplated.
(b) The Preliminary Offering Memorandum or the Offering
Memorandum as of their respective dates, and the Offering Memorandum as of the
Closing Date, did not and will not, as the case may be, contain an 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,
except that this representation and warranty does not apply to statements in or
omissions from the Preliminary Offering Memorandum or the Offering Memorandum
made in reliance upon and in conformity with information relating to the Initial
Purchaser or contained under the section entitled "Private Placement" furnished
to the Company in writing by or on behalf of the Initial Purchaser expressly for
use therein.
(c) The Indenture has been duly and validly authorized by the
Company and, upon its execution, delivery and performance by the Company and
assuming due authorization, execution, delivery and performance by the Trustee,
will be a valid, legal and binding agreement of the Company, enforceable in
accordance with its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, moratorium or other similar laws affecting creditors'
rights generally or equitable principles of general applicability (whether such
actions are deemed to be at law or in equity). The Indenture conforms in all
material respects to the description thereof in the Offering Memorandum. No
qualification of the Indenture under the 1939 Act is required in connection with
the offer and sale of the Notes contemplated hereby or in connection with the
Exempt Resales. The Registration Rights Agreement and this Agreement have been
duly and validly authorized by the Company and, upon their respective execution,
delivery and performance by the Company, will be valid, legal and binding
agreements of the Company, enforceable in accordance with their respective
terms, except as (i) enforcement thereof may be limited by bankruptcy,
insolvency, moratorium or other similar laws affecting creditors' rights, (ii)
the availability of equitable remedies may be limited by equitable principles of
general applicability (whether such actions are deemed to be at law or in
equity), and (iii) any rights to indemnity and contributions may be limited by
Federal and state securities laws and public policy considerations.
(d) The Notes have been duly and validly authorized by the
Company and, when executed by the Company and authenticated by the Trustee in
accordance with the Indenture and delivered to the Initial Purchaser against
payment therefor in accordance with the terms hereof, (i) will have been validly
issued and delivered, and will constitute valid and binding obligations of the
Company entitled to the benefits of the Indenture and enforceable in accordance
with their terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, moratorium or other similar laws affecting the enforcement of
creditors' rights generally or equitable principles of general applicability
(whether such actions are deemed to be at law or in equity), and (ii) will
conform in all material respects to the description thereof in the Offering
Memorandum.
(e) The Company has duly authorized and reserved a sufficient
number of shares of Common Stock for issuance upon the conversion of the Notes,
and such shares, when issued and delivered upon conversion of the Notes, will be
validly issued, fully paid and nonassessable and, except as set forth in the
Offering Memorandum, free of any preemptive or similar rights.
(f) All the outstanding shares of capital stock of the Company
have been duly authorized and validly issued, are fully paid and nonassessable
and, except as set forth in the Offering Memorandum, are free of any preemptive
or similar rights and were issued and sold in compliance with all applicable
Federal and state securities laws. The authorized capital stock of the Company
conforms to the description thereof in the Offering Memorandum.
(g) The Company is (i) a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware with all
requisite corporate power and authority to own, lease and operate its
properties, to conduct its business as described in the Offering Memorandum and
to enter into the Operative Documents and (ii) in good standing in each
jurisdiction or place where the nature of its properties or the conduct of its
business requires such registration or qualification, except where the failure
so to register or qualify does not have a material adverse effect on the
condition (financial or otherwise), business, prospects, properties, net worth
or results of operations of the Company and its Subsidiaries (as hereinafter
defined) taken as a whole (a "Material Adverse Effect").
(h) All the Company's subsidiaries (as defined in the Act) are
referred to herein individually as a "Subsidiary" and collectively as the
"Subsidiaries." Each Subsidiary is (i) a corporation duly organized, validly
existing and in good standing in the jurisdiction of its organization, with all
requisite corporate power and authority to own, lease and operate its properties
and to conduct its business as described in the Offering Memorandum, and (ii) in
good standing in each jurisdiction or place where the nature of its properties
or the conduct of its business requires such registration or qualification,
except where the failure so to register or qualify or be in good standing does
not have a Material Adverse Effect. The schedule delivered by the Company to the
Initial Purchaser and dated the date hereof sets forth a true and correct list
of the percentage ownerships by the Company of all of the entities in which it
has an equity or other ownership interest, either directly or through one or
more Subsidiaries, and the entity by which each such interest is held (the
"Subsidiary Schedule"). All of such interests consist solely of capital stock.
Except as set forth on the Subsidiary Schedule, the Company does not, either
directly or through one or more Subsidiaries, hold any equity or other ownership
interest of any entity and the Company does not have any right to acquire any
other equity or other ownership interest of any entity. All of the outstanding
shares of capital stock of each of the entities listed on the Subsidiary
Schedule as being owned by the Company, either directly or through one or more
Subsidiaries, have been duly authorized and validly issued, are fully paid and
nonassessable, and are owned by the Company or the Subsidiary indicated on the
Subsidiary Schedule free and clear of any lien, adverse claim, security interest
or other encumbrance, except as may pertain to the Company's 15% Senior Secured
Discount Notes due 2005.
(i) Neither the Company nor any Subsidiary holds a general
partnership interest in any Limited Partnership.
(j) There are no legal or governmental proceedings pending or,
to the knowledge of the Company, threatened against the Company or any of the
Subsidiaries, to which the Company or any of the Subsidiaries or any of their
respective properties is subject, that are not disclosed in the Offering
Memorandum and which, if adversely decided, could cause a Material Adverse
Effect or materially affect the issuance of the Notes or the consummation of the
transactions contemplated by the Operative Documents. There are no material
agreements, contracts, indentures, leases or other instruments that are not
described in the Offering Memorandum, the failure of which to describe therein
would constitute a material misstatement or the omission of a material fact.
Except as described under "Risk Factors - Dependence on Third Party Providers"
in the Offering Memorandum, neither the Company nor any Subsidiary is involved
in any strike, job action or labor dispute with any group of employees and, to
the Company's knowledge, no such action or dispute is threatened.
(k) Neither the Company nor any of the Subsidiaries is (i) in
violation of its certificate or articles of incorporation or by-laws or other
organizational documents, or of any law, ordinance, administrative or
governmental rule or regulation applicable to the Company or any of the
Subsidiaries or of any decree of any court or governmental agency or body having
jurisdiction over the Company or any of the Subsidiaries, except where any such
violation or violations in the aggregate would not have a Material Adverse
Effect, or (ii) in default in any material respect in the performance of any
obligation, agreement or condition contained in any bond, debenture, note or any
other evidence of indebtedness or in any material agreement, indenture, lease or
other instrument to which the Company or any of the Subsidiaries is a party or
by which any of them or any of their respective properties may be bound, except
for such defaults which in the aggregate would not have a Material Adverse
Effect or as may be disclosed in the Offering Memorandum.
(l) Neither the issuance, offer, sale or delivery by the
Company of the Notes, the issuance and delivery by the Company of the Shares,
the execution, delivery or performance of the Operative Documents by the
Company, nor the consummation by the Company of the transactions contemplated
hereby or thereby, (i) requires any consent, approval, authorization or other
order of, or registration or filing with, any court, regulatory body,
administrative agency or other governmental body, agency or official (except
such as may be required in connection with the registration under the Act of the
Notes or the Shares in accordance with the Registration Rights Agreement, the
qualification of the Indenture under the 1939 Act, compliance with the
securities or "blue sky" laws of various jurisdictions and except as may be
required under any applicable telecommunications law, in the last such case to
the extent described in the Offering Memorandum), or conflicts or will conflict
with or constitutes or will constitute a breach of, or a default under, the
certificate or articles of incorporation or bylaws, or other organizational
documents, of the Company or any of the Subsidiaries or (ii) conflicts or will
conflict with or constitutes or will constitute a breach of, or a default under
any material agreement, indenture, lease or other instrument to which the
Company or any of the Subsidiaries is a party or by which any of them or any of
their respective properties may be bound, or violates or will violate any
statute, law, regulation or filing or judgment, injunction, order or decree
applicable to the Company or any of the Subsidiaries or any of their respective
properties, or will result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of the
Subsidiaries pursuant to the terms of any agreement or instrument to which any
of them is a party or by which any of them may be bound or to which any of the
property or assets of any of them is subject.
(m) The accountants, Coopers & Xxxxxxx, who have certified or
shall certify the financial statements included as part of the Offering
Memorandum (or any amendment or supplement thereto) are independent public
accountants under Rule 101 of the AICPA's Code of Professional Conduct and its
interpretation and rulings.
(n) The financial statements (historical and pro forma),
together with related notes forming part of the Offering Memorandum, present
fairly in all material respects the consolidated financial position, results of
operations and changes in stockholders' equity and cash flows of the Company and
the Subsidiaries on the basis stated in the Offering Memorandum at the
respective dates or for the respective periods to which they apply. Such
financial statements and related notes have been prepared in accordance with
generally accepted accounting principles consistently applied throughout the
periods involved, except as disclosed therein. With respect to the assumptions
used in preparing the pro forma financial information and related notes included
in the Offering Memorandum, the Company has a reasonable basis for such
assumptions. The other financial and statistical information and data set forth
in the Offering Memorandum is accurately presented and, to the extent such
information and data is derived from the financial books and records of the
Company, is prepared on a basis consistent with such financial statements and
the books and records of the Company.
(o) Except as disclosed in the Offering Memorandum, subsequent
to the date as of which such information is given in the Offering Memorandum,
(i) neither the Company nor any of the Subsidiaries has incurred any liability
or obligation, direct or contingent, or entered into any transaction not in the
ordinary course of business, that is material to the Company and the
Subsidiaries taken as a whole and (ii) there has not been (A) any material
change in the capital stock or material increase in the short-term or long-term
debt of the Company or any of the Subsidiaries or (B) any Material Adverse
Change, or any development of which the Company knew or should have known and
which involves or which could reasonably be expected to involve a prospective
Material Adverse Change.
(p) Each of the Company and the Subsidiaries has good and
marketable title to all property (real and personal), other than intellectual
property (which is addressed in (w) below) and other than capital stock (which
is addressed in (h) above), described in the Offering Memorandum as being owned
by it, free and clear of all liens, claims, security interests or other
encumbrances except such as are described in the Offering Memorandum, any
Incorporated Document or exhibit thereto or that do not materially impair or are
not expected to materially impair the ability of the Company to use any such
property, and except for the lien on the license granted by the FCC having a
call sign of WNKL 343, and all the property described in the Offering Memorandum
as being held under lease by each of the Company and the Subsidiaries is held by
it under valid, subsisting and enforceable leases, with only such exceptions as
in the aggregate are not materially burdensome and do not interfere in any
material respect with the conduct of the business of the Company and the
Subsidiaries taken as a whole.
(q) Except as permitted by the Act, the Company has not
distributed and, prior to the later to occur of the Closing Date and completion
of the distribution of the Notes, will not distribute any offering material in
connection with the offering and sale of the Notes other than the Preliminary
Offering Memorandum and the Offering Memorandum, respectively.
(r) Each of the Company and the Subsidiaries have such
permits, licenses, franchises, and other approvals or authorizations of
governmental or regulatory authorities, including, without limitation, all
waivers, licenses and authorizations to develop, implement and operate wireless
telecommunications systems as described, and in such manner as is described, in
the Offering Memorandum (collectively, "Permits"), as are necessary under
applicable law to own their respective properties and to conduct their
respective business in the manner described in the Offering Memorandum, except
to the extent otherwise provided therein. The Company and each of the
Subsidiaries have fulfilled and performed in all material respects all of their
respective material obligations with respect to the Permits and no event has
occurred which allows, or after notice or lapse of time would allow, revocation
or termination thereof or result in any other material impairment of the rights
of the holder of any such Permit, subject in each case to such qualification as
may be set forth in the Offering Memorandum. Except as described in the Offering
Memorandum, (i) there are no legal or governmental proceedings pending or, to
the knowledge of the Company, threatened with respect to any of the Permits and
(ii) neither the Company nor any Subsidiary is in default under any Permit. All
of the management agreements pertaining to the licenses listed on Annex 1 to the
draft opinion of Xxxxxxx, Carton & Xxxxxxx, special counsel to the Company for
telecommunications regulatory matters, a copy of which is included as a part of
Exhibit B hereto, are valid, legal and binding agreements enforceable against
the parties thereto in accordance with their terms, except as (i) enforcement
may be limited by bankruptcy, insolvency, moratorium or other similar laws
affecting creditors' rights and (ii) the availability of equitable remedies may
be limited by equitable principles of general applicability (whether such
actions are deemed to be at law or in equity).
(s) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (i) transactions are
executed in accordance with management's general or specific authorization, (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets, (iii) access to assets is permitted only in
accordance with management's general or specific authorization and (iv) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(t) Neither the Company nor any of the Subsidiaries nor, to
the Company's knowledge, any employee or agent of the Company or any Subsidiary
has made any payment of funds of the Company or any Subsidiary or received or
retained any funds in violation of any law, rule or regulation, which violation
would have a Material Adverse Effect.
(u) The Company and each of the Subsidiaries have filed all
tax returns required to be filed, which returns are true and correct in all
material respects, and neither the Company nor any Subsidiary is in default in
the payment of any taxes which were payable pursuant to said returns or any
assessments with respect thereto, except where the failure to file such returns
and make such payments would not have a Material Adverse Effect.
(v) Except as described in the Offering Memorandum, no holder
of any security of the Company (other than holders of the Notes and the Shares)
has any right to request or demand registration of shares of Common Stock or any
other security of the Company because of the consummation of the transactions
contemplated by this Agreement or the Registration Rights Agreement. Except as
described in or contemplated by the Operative Documents or the Offering
Memorandum or as described in writing to the Initial Purchaser, there are no
outstanding options, warrants or other rights calling for the issuance of, and
there are no commitments, plans or arrangements to issue, any shares of capital
stock of the Company or any security convertible into or exchangeable or
exercisable for capital stock of the Company.
(w) The Company and the Subsidiaries own or possess all
patents, trademarks, trademark registration, service marks, service xxxx
registrations, trade names, copyrights, licenses, inventions, trade secrets and
rights described in the Offering Memorandum as being owned by any of them or,
except as described in the Offering Memorandum, necessary for the current and
contemplated conduct of their respective businesses as described in the Offering
Memorandum (including, without limitation, all such patents, trademarks and
other rights necessary to develop, implement and operate wireless
telecommunications systems as described, and in such markets as are described,
in the Offering Memorandum). Except as described in the Offering Memorandum,
none of the officers of the Company is aware of any claim to the contrary or any
challenge by any other person to the rights of the Company and the Subsidiaries
with respect to any of the foregoing.
(x) The Company is not and, upon the sale of the Notes to be
issued and sold thereby in accordance herewith and the application of the net
proceeds to the Company of such sale as described in the Offering Memorandum
under the caption "Use of Proceeds," will not be an "investment company" or an
entity "controlled" by an "investment company" within the meaning of the
Investment Company Act.
(y) Neither the Company nor any affiliate (as defined in
Rule 501(b) of Regulation D) of the Company has directly, or through any agent
(provided that no representation is made as to the Initial Purchaser or any
person acting on its behalf), (i) sold, offered for sale, solicited offers to
buy or otherwise negotiated in respect of, any security (as defined in the Act)
which is or will be integrated with the offering and sale of the Notes in a
manner that would require the registration of the Notes under the Act or
(ii) engaged in any form of general solicitation or general advertising (within
the meaning of Regulation D) in connection with the offering of the Notes.
(z) Assuming (i) that the representations and warranties in
Section 2 hereof are true, (ii) that the Initial Purchaser complies with the
covenants set forth in Section 2 hereof and (iii) that each person to whom the
Initial Purchaser offers, sells or delivers the Notes is an Accredited Investor
or a person other than a U.S. person outside the United States to whom offers
and sales are being made in reliance on Regulation S under the Act, the purchase
and sale of the Notes pursuant hereto (including the Initial Purchaser's
proposed offering of the Notes on the terms and in the manner set forth in the
Offering Memorandum and Section 2 hereof) is exempt from the registration
requirements of the Act. None of the Company, its Subsidiaries or affiliates or
any person acting on its or their behalf (other than the Initial Purchaser) has
engaged in any directed selling efforts (as that term is defined in Regulation S
under the Act) with respect to the Notes and the Company, its Subsidiaries or
affiliates and any person acting on its or their behalf (other than the Initial
Purchaser) have complied with the offering restrictions requirement of
Regulation S.
(aa) The execution and delivery of this Agreement, the other
Operative Documents and the sale of the Notes to the Initial Purchaser or by the
Initial Purchaser to Eligible Purchasers will not involve any prohibited
transaction within the meaning of Section 406 of the Employee Retirement Income
Security Act of 1974, as amended, or Section 4975 of the Internal Revenue Code
of 1986, as amended. The representation made by the Company in the preceding
sentence is made in reliance upon and subject to the accuracy of, and compliance
with, the representations and covenants made or deemed made by the Eligible
Purchasers as set forth in the Offering Memorandum under the section entitled
"Notice to Investors."
(ab) The Company is not required to obtain stockholder consent
or approval pursuant to the rules of The Nasdaq National Market, the Pacific
Stock Exchange or any other exchange or trading facility in connection with the
offering and sale of the Notes.
6. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless the Initial Purchaser and each person, if any, who
controls the Initial Purchaser within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act (each a "Purchaser Indemnitee") from and against
any and all losses, claims, damages, liabilities and expenses (including,
without limitation, any legal or other expenses reasonably incurred by the
Purchaser Indemnitee in connection with defending or investigating any such
action or claim) arising out of or based upon any untrue statement or alleged
untrue statement of a material fact contained in the Preliminary Offering
Memorandum or the Offering Memorandum or in any amendment or supplement thereto,
or arising out of or based upon any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, except insofar as such losses, claims, damages, liabilities or
expenses arise out of or are based upon any untrue statement or omission or
alleged untrue statement or omission which has been made therein or omitted
therefrom in reliance upon and in conformity with the information relating to
the Initial Purchaser furnished in writing to the Company by or on behalf of the
Initial Purchaser expressly for use in connection therewith; provided, however,
that the indemnification provided for in this paragraph (a) with respect to the
Preliminary Offering Memorandum shall not inure to the benefit of the applicable
Purchaser Indemnitee on account of any such loss, claim, damage, liability or
expense arising from the sale of the Notes by the Initial Purchaser to any
person if the untrue statement or alleged untrue statement or omission or
alleged omission of a material fact contained in the Preliminary Offering
Memorandum was corrected in the Offering Memorandum and the Initial Purchaser
sold Notes to that person without sending or giving at or prior to such sale, a
copy of the Offering Memorandum (as then amended or supplemented) if the Company
has previously furnished sufficient copies thereof to the Initial Purchaser on a
timely basis. The indemnification obligation of the Company set forth in this
paragraph (a) shall be in addition to any liability which the Company may
otherwise have, including, without limitation, any liability for any breach of
any representation, warranty or covenant contained in this Agreement.
(b) If any action, suit or proceeding shall be brought against
any Purchaser Indemnitee in respect of which indemnification may be sought
against the Company, such Purchaser Indemnitee shall promptly notify the parties
against whom indemnification is being sought (the "indemnifying parties"), and
such indemnifying parties shall assume the defense thereof, including the
employment of counsel and payment of all fees and expenses. Such Purchaser
Indemnitee shall have the right to employ separate counsel in any such action,
suit or proceeding and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such Purchaser Indemnitee
unless (i) the indemnifying parties have agreed in writing to pay such fees and
expenses, (ii) the indemnifying parties have failed to assume the defense and
employ counsel or (iii) the named parties to any such action, suit or proceeding
(including any impleaded parties) include both such Purchaser Indemnitee and the
indemnifying parties and such Purchaser Indemnitee shall have been advised by
its counsel that representation of such Purchaser Indemnitee and any
indemnifying party by the same counsel would be inappropriate under applicable
standards of professional conduct (whether or not such representation by the
same counsel has been proposed) due to actual or potential differing interests
between them (in which case the indemnifying party shall not have the right to
assume the defense of such action, suit or proceeding on behalf of the Purchaser
Indemnitee). It is understood, however, that the indemnifying parties shall, in
connection with any one such action, suit or proceeding or separate but
substantially similar or related actions, suits or proceedings in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of only one separate firm of
attorneys (in addition to any local counsel) at any time for the Initial
Purchaser and any other Purchaser Indemnitee not havin actual or potential
differing interests with the Initial Purchaser or among themselves, which firm
shall be designated in writing by the Initial Purchaser. The indemnifying
parties shall not be liable for any settlement of any such action, suit or
proceeding effected without their written consent, but if settled with such
written consent, or if there be a final judgment for the plaintiff in any such
action, suit or proceeding, the indemnifying parties agree to indemnify and hold
harmless the Purchaser Indemnitee, to the extent provided in paragraph (a), from
and against any loss, claim, damage, liability or expense by reason of such
settlement or judgment.
(c) The Initial Purchaser agrees to indemnify and hold
harmless the Company, and its directors and officers, and any person who
controls the Company within the meaning of Section 15 of the Act or Section 20
of the Exchange Act (each a "Company Indemnitee") to the same extent as the
indemnity from the Company to the Initial Purchaser set forth in paragraph (a)
hereof, but only with respect to information relating to the Initial Purchaser
furnished in writing by or on behalf of the Initial Purchaser expressly for use
in the Preliminary Offering Memorandum or the Offering Memorandum or any
amendment or supplement thereto. If any action, suit or proceeding shall be
brought against any Company Indemnitee based on the Preliminary Offering
Memorandum or the Offering Memorandum, or any amendment or supplement thereto,
and in respect of which indemnity may be sought against the Initial Purchaser
pursuant to this paragraph (c), the Initial Purchaser shall have the rights and
duties given to the Company by paragraph (b) above (except that if the Company
shall have assumed the defense thereof the Initial Purchaser shall not be
required to do so, but may employ separate counsel therein and participate in
the defense thereof, but the fees and expenses of such counsel shall be at the
Initial Purchaser's expense), and each Company Indemnitee shall have the rights
and duties given to the Initial Purchaser by paragraph (b) above. The
indemnification obligation of the Initial Purchaser set forth in this paragraph
(c) shall be in addition to any liability which the Initial Purchaser may
otherwise have, including without limitation, any liability for any breach of
any representation, warranty or covenant contained in this Agreement.
(d) If the indemnification provided for in this Section 6 is
unavailable to an indemnified party under paragraphs (a) or (c) hereof in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then an indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Initial Purchaser on the other hand from the
offering of the Notes 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 on the one hand and the Initial Purchaser on the
other in connection with the statements or omissions that resulted in such
losses, claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the Initial Purchaser on the other shall be deemed to be in the
same proportion as the total net proceeds from the offering (before deducting
expenses and after discounts and commissions received by the Initial Purchaser)
received by the Company bear to the total discounts and commissions received by
the Initial Purchaser, in each case as set forth in the table on the cover page
of the Offering Memorandum; provided that, in the event that the Initial
Purchaser shall have purchased any Additional Notes hereunder, any determination
of the relative benefits received by the Company or the Initial Purchaser from
the offering of the Notes shall include the net proceeds (before deducting
expenses and after discounts and commissions received by the Initial Purchaser)
received by the Company, and the discounts and commissions received by the
Initial Purchaser, from the sale of such Additional Notes, in each case computed
on the basis of the respective amounts set forth in the notes to the table on
the cover page of the Offering Memorandum. The relative fault of the Company on
the one hand and the Initial Purchaser on the other hand shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company on the one hand or by the Initial
Purchaser on the other hand and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
(e) The Company and the Initial Purchaser agree that it would
not be just and equitable if contribution pursuant to this Section 6 were
determined by a pro rata allocation or by any other method of allocation that
does not take account of the equitable considerations referred to in paragraph
(d) above. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages, liabilities and expenses referred to in paragraph (d)
above shall be deemed to include, subject to the limitations set forth above,
any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating any claim or defending any such action, suit or
proceeding. Notwithstanding the provisions of this Section 6, the Initial
Purchaser shall not be required to contribute any amount in excess of the amount
by which the total price of the Notes resold by it in the initial placement of
such Notes exceeds the amount of any damages which the Initial Purchaser has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. 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 remedies provided for in this Section 6 are not exclusive
and shall not limit any rights or remedies that may otherwise be available to
any indemnified party at law or in equity.
(f) Any losses, claims, damages, liabilities or expenses for
which an indemnified party is entitled to indemnification or contribution under
this Section 6 shall be paid by the indemnifying party to the indemnified party
as such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 6 and the
representations and warranties of the Company set forth in this Agreement shall
remain operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of any Purchaser Indemnitee or any Company
Indemnitee, (ii) acceptance of any Notes and payment therefor hereunder and
(iii) any termination of this Agreement. A successor to any Purchaser
Indemnitee, or to any Company Indemnitee shall be entitled to the benefits of
the indemnity, contribution and reimbursement agreements contained in this
Section 6.
(g) No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action, suit or proceeding in respect of which any indemnified party
is or could have been a party and indemnity could have been sought hereunder by
such indemnified party, unless such settlement includes an unconditional release
of such indemnified party from all liability on claims that are the subject
matter of such action, suit or proceeding.
7. Conditions of the Initial Purchaser's Obligations. The
obligations of the Initial Purchaser to purchase the Firm Notes hereunder are
subject to the following conditions:
(a) At the time of execution of this Agreement and on the
Closing Date, no order or decree preventing the use of the Offering Memorandum
or any amendment or supplement thereto, or any order asserting that the
transactions contemplated by this Agreement are subject to the registration
requirements of the Act, shall have been issued and no proceedings for that
purpose shall have been commenced or shall be pending or, to the knowledge of
the Company, be contemplated. No stop order suspending the sale of the Notes in
any jurisdiction designated by the Initial Purchaser shall have been issued and
no proceedings for that purpose shall have been commenced or shall be pending
or, to the knowledge of the Company, shall be contemplated.
(b) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any development
involving a prospective change, in or affecting the condition (financial or
otherwise), business, prospects, properties, net worth or results of operations
of the Company or the Subsidiaries not contemplated by the Offering Memorandum
which, in the opinion of the Initial Purchaser, would materially adversely
affect the market for the Notes or (ii) any event or development relating to or
involving the Company, any Subsidiary or any officer or director of the Company
which makes any statement made in the Offering Memorandum untrue or which, in
the opinion of the Company and its counsel or the Initial Purchaser and its
counsel, requires the making of any addition to or change in the Offering
Memorandum in order to state a material fact required by any law to be stated
therein or necessary in order to make the statements therein not misleading, if
amending or supplementing the Offering Memorandum to reflect such event or
development would, in the opinion of the Initial Purchaser, materially adversely
affect the market for the Notes or make it impracticable to market the Notes on
the terms and in the manner contemplated in the Offering Memorandum.
(c) The Initial Purchaser shall have received on the Closing
Date an opinion of (i) Klehr, Harrison, Xxxxxx, Xxxxxxxxx & Xxxxxx, counsel for
the Company, (ii) Xxxxxxx, Carton & Xxxxxxx, special counsel to the Company for
telecommunications regulatory matters and (iii) Xxxxxx Xxxxxx, Esq., General
Counsel of the Company, in form and substance reasonably satisfactory to the
Initial Purchaser and its counsel, in each case dated the Closing Date and
addressed to the Initial Purchaser.
(d) The Initial Purchaser shall have received on the Closing
Date an opinion of Xxxxxxxxxx & Xxxxx, counsel for the Initial Purchaser, dated
the Closing Date and addressed to the Initial Purchaser in form and substance
satisfactory to the Initial Purchaser.
(e) The Initial Purchaser shall have received on each of the
date hereof and the Closing Date letters, each dated the date hereof or the
Closing Date, as the case may be, in form and substance satisfactory to the
Initial Purchaser, from Coopers and Xxxxxxx, the Company's independent public
accountants, containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information (including pro forma
financial information) contained in the Preliminary Offering Memorandum and the
Offering Memorandum.
(f) (i) There shall not have been any change in the capital
stock of the Company nor any material increase in the short-term or long-term
debt of the Company (other than in the ordinary course of business) from that
set forth or contemplated in the Offering Memorandum; (ii) there shall not have
been, since the respective dates as of which information is given in the
Offering Memorandum, except as may otherwise be stated in the Offering
Memorandum, any change resulting in a Material Adverse Effect; (iii) the Company
and the Subsidiaries shall not have any liabilities or obligations, direct or
contingent (whether or not in the ordinary course of business), that are
material to the Company and the Subsidiaries taken as a whole, other than those
reflected in the Offering Memorandum; and (iv) all the representations and
warranties of the Company contained in this Agreement shall be true and correct
in all material respects on and as of the date hereof and on and as of the
Closing Date as if made on and as of the Closing Date, and the Initial Purchaser
shall have received a certificate, dated the Closing Date and signed by the
chief executive officer and the chief accounting officer of the Company (or such
other officers as are acceptable to the Initial Purchaser in its discretion), to
the effect set forth in this Section 7(f) and in Section 7(g) hereof.
(g) The Company shall not have failed at or prior to the
Closing Date to have performed or complied with any of its agreements herein
contained and required to be performed or complied with by it hereunder at or
prior to the Closing Date.
(h) To the extent applicable, there shall not have been any
announcement by any "nationally recognized statistical rating organization," as
defined for purposes of Rule 436(g) under the Act, that (i) it is downgrading
its rating assigned to any class of securities of the Company or (ii) it is
reviewing its ratings assigned to any class of securities of the Company with a
view to possible downgrading, or with negative implications, or direction not
determined.
(i) The Company and the Initial Purchaser shall have entered
into the other Operative Documents.
(j) The Company shall have furnished or caused to be furnished
to the Initial Purchaser such further certificates and documents as the Initial
Purchaser shall have reasonably requested.
All such opinions, certificates, letters and other documents
will be in compliance with the provisions hereof only if they are reasonably
satisfactory in form and substance to the Initial Purchaser and counsel for the
Initial Purchaser.
Any certificate or document signed by any officer of the
Company and delivered to the Initial Purchaser, or to counsel for the Initial
Purchaser, shall be deemed a representation and warranty by the Company to the
Initial Purchaser as to the statements made therein.
The obligations of the Initial Purchaser to purchase any
Additional Notes hereunder are subject to the satisfaction on and as of any
Option Closing Date of the conditions set forth in this Section 7, except that,
if any Option Closing Date is other than the Closing Date, the certificates,
opinions and letters referred to in paragraphs (c) through (f) and paragraph (j)
shall be dated the Option Closing Date in question and the opinions called for
by paragraphs (c) and (d) shall be revised to reflect the sale of Additional
Notes.
8. Expenses. The Company agrees to pay the following costs and
expenses and all other costs and expenses incident to the performance by it of
its obligations hereunder: (i) the preparation, printing or reproduction of the
Preliminary Offering Memorandum and the Offering Memorandum (including financial
statements thereto) and each amendment or supplement to the Preliminary Offering
Memorandum and the Offering Memorandum, this Agreement and the Indenture; (ii)
the printing (or reproduction) and delivery (including postage, air freight
charges and charges for counting and packaging) of such copies of the
Preliminary Offering Memorandum, the Offering Memorandum, any Incorporated
Documents, and all amendments or supplements to any of them as may be reasonably
requested for use in connection with the offering and sale of the Notes; (iii)
the preparation, printing, authentication, issuance and delivery of certificates
for the Notes, including any stamp taxes in connection with the original
issuance and sale of the Notes; (iv) the printing (or reproduction) and delivery
of this Agreement, any preliminary and supplemental "blue sky" memoranda and all
other agreements or documents printed (or reproduced) and delivered in
connection with the offering of the Notes; (v) the qualification of the Notes
for offer and sale under the securities or "blue sky" laws of any states as
provided in Section 4(f) hereof (including the reasonable fees, expenses and
disbursements of counsel for the Initial Purchaser relating to the preparation,
printing or reproduction, and delivery of any preliminary and supplemental blue
sky memoranda and such qualification); (vi) the performance by the Company of
its obligations under the Registration Rights Agreement; and (vii) the fees and
expenses of the Company's accountants, the fees and expenses of counsel
(including local and special counsel) for the Company and the fees and expenses
of the Trustee under the Indenture and its counsel. The Company hereby agrees
that it will pay in full on the Closing Date the fees and expenses referred to
in clause (v) of this Section 8 by delivering to counsel for the Initial
Purchaser on such date a check payable to such counsel in the requisite amount
provided to the Company in writing at least two (2) days prior to such date.
9. Effective Date of Agreement. This Agreement shall become
effective upon the execution and delivery hereof by all the parties hereto.
Until such time as this Agreement shall have become effective, to the extent
that a party hereto, but not the other party hereto, has executed and delivered
this Agreement, such party executing and delivering this Agreement may rescind
such execution and delivery by written notice to the other party hereto.
Any notice under this Section 9 may be given by telegram,
telecopy or telephone and shall be subsequently confirmed by letter.
10. Termination of Agreement. This Agreement shall be subject
to termination in the absolute discretion of the Initial Purchaser, without
liability on the part of the Initial Purchaser to the Company, by notice to the
Company, if prior to the Closing Date or any Option Closing Date (if different
from the Closing Date and then only as to the Additional Notes), as the case may
be, (i) trading in securities generally on the New York Stock Exchange, American
Stock Exchange or The Nasdaq National Market shall have been suspended or
materially limited, (ii) a general moratorium on commercial banking activities
in New York shall have been declared by either Federal or state authorities or
(iii) there shall have occurred any outbreak or escalation of hostilities or
other international or domestic calamity, crisis or change in political,
financial or economic conditions, the effect of which on the financial markets
of the United States is such as to make it, in the judgment of the Initial
Purchaser, impracticable or inadvisable to commence or continue the offering of
the Notes on the terms set forth on the cover page of the Offering Memorandum or
to enforce contracts for the resale of the Notes by the Initial Purchaser.
Notice of such termination may be given to the Company by telegram, telecopy or
telephone and shall be subsequently confirmed by letter.
11. Information Furnished by the Initial Purchaser. The
statements set forth in the stabilization legend on the inside front cover and
under the caption "Private Placement" in the Preliminary Offering Memorandum
and the Offering Memorandum constitute the only information furnished by or on
behalf of the Initial Purchaser as such information is referred to in
Sections 5(b) and 6 hereof.
12. Miscellaneous. Except as otherwise provided in Sections 4,
9 and 10 hereof, notice given pursuant to any provision of this Agreement shall
be in writing and shall be delivered (i) if to the Company, at the office of the
Company at 00 Xxxxx Xxxx, Xxxxxxxx, X.X. 00000, Attention: General Counsel, or
(ii) if to the Initial Purchaser, to Xxxxx Xxxxxx Inc., 000 Xxxxxxxxx Xxxxxx,
Xxx Xxxx, XX 00000, Attention: Manager, Investment Banking Division.
This Agreement has been and is made solely for the benefit of
the Initial Purchaser, the Company, the affiliated persons and their respective
directors and officers referred to in Section 6 hereof and their respective
successors and assigns, to the extent provided herein, and no other person shall
acquire or have any right under or by virtue of this Agreement. Neither the term
"successor" nor the term "successors and assigns" as used in this Agreement
shall include a purchaser from the Initial Purchaser of any of the Notes in his
status as such purchaser.
Neither party hereto may assign any of its rights or delegate
any of its obligations without the consent of the other party hereto.
The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
13. Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all prior agreements, understandings and negotiations, both written
and oral, between the parties with respect to the subject matter of this
Agreement.
14. Applicable Law; Counterparts. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York
applicable to contracts made and to be performed within the State of New York.
This Agreement may be signed in various counterparts which
together constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof
shall have been executed and delivered on behalf of each party hereto.
Please confirm that the foregoing correctly sets forth the
agreement between the Company and the Initial Purchaser.
Very truly yours,
GEOTEK COMMUNICATIONS, INC.
By: /s/ Xxxxx Xxxxx
------------------------
Name: Xxxxx Xxxxx
Title: President
Confirmed and accepted as of
the date first above written:
XXXXX XXXXXX INC.
By: /s/ Xxxx X. Xxxxxxx
----------------------------
Name: Xxxx X.Xxxxxxx
Title: Managing Director
The following is a summary of all omitted Exhibits to the foregoing
Purchase Agreement.
Exhibit A Registration Rights Agreement (filed as Exhibit (c)(3) to
the form 8-K).
Exhibit B Opinion of Xxxxxxx, Carton & Xxxxxxx.
The Registrant hereby agrees to furnish supplementally to the Commission a
copy of Exhibit B upon request of the Commission.
