ARRIS GROUP, INC. $240,000,000 Principal Amount
Exhibit 1.1
ARRIS GROUP, INC.
$240,000,000 Principal Amount
2.00% Convertible Senior Notes due 2026
November 6, 2006
November
6, 2006
UBS Securities LLC
Deutsche Bank Securities Inc.
as Managing Underwriters
Deutsche Bank Securities Inc.
as Managing Underwriters
c/o
|
UBS Securities LLC | |
| 000 Xxxx Xxxxxx | ||
| Xxx Xxxx, Xxx Xxxx 00000-0000 | ||
| Deutsche Bank Securities Inc. | ||
| 00 Xxxx Xxxxxx | ||
| Xxx Xxxx, Xxx Xxxx 00000 |
Ladies and Gentlemen:
ARRIS GROUP, INC., a Delaware corporation (the “Company”), proposes to issue and sell
to the underwriters named in Schedule A annexed hereto (the “Underwriters”)
$240,000,000 aggregate principal amount of its 2.00% Convertible Senior Notes due 2026 (the “Firm
Notes”). In addition, solely for the purpose of covering over-allotments, the Company proposes
to grant to the Underwriters the option to purchase from the Company up to an additional
$36,000,000 aggregate principal amount of the Company’s 2.00% Convertible Senior Notes due 2026 (the
“Additional Notes”). The Firm Notes and the Additional Notes are hereinafter collectively
sometimes referred to as the “Notes.” UBS Securities LLC and Deutsche Bank Securities Inc.
are acting as representatives (the “Representatives”) of the Underwriters.
The Notes are to be issued pursuant to an indenture (the “Indenture”) to be dated as
of November 13, 2006, between the Company and The Bank of New York, as trustee (the
“Trustee”). The Notes will be convertible in accordance with their terms and the terms of
the Indenture into cash and, if applicable, shares of the common stock (the “Common Stock”)
of the Company, $0.01 par value per share (the “Shares”).
The Notes and the Shares are described in the Prospectus which is referred to below.
The Company has prepared and filed, in accordance with the provisions of the Securities Act of
1933, as amended, and the rules and regulations thereunder (collectively, the “Act”), with
the Securities and Exchange Commission (the “Commission”) a registration statement on Form
S-3 (File No. 333-138445) under the Act (the “registration statement”), including a
prospectus, which registration statement incorporates by reference documents which the Company has
filed, or will file, in accordance with the provisions of the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder (collectively, the “Exchange Act”). Such
registration statement has become effective under the Act.
Except where the context otherwise requires, “Registration Statement,” as used
herein, means the registration statement, as amended at the time of such registration statement’s
effectiveness for purposes of Section 11 of the Act, as such section applies to the respective
Underwriters (the “Effective Time”), including (i) all documents filed as a part thereof or
incorporated or deemed to be incorporated by reference therein, (ii) any information contained or
incorporated by reference in a prospectus filed with the Commission pursuant to Rule 424(b) under
the Act, to the extent such information is deemed, pursuant to Rule 430B or Rule 430C under the
Act, to be part of the registration statement at the Effective Time, and (iii) any registration
statement filed to register the offer and sale of Notes pursuant to Rule 462(b) under the Act.
The Company has furnished to you, for use by the Underwriters and by dealers in connection
with the offering of the Notes, copies of one or more preliminary prospectus supplements relating
to the Notes. Except where the context otherwise requires, “Pre-Pricing Prospectus,” as
used herein, means each such preliminary prospectus supplement, in the form so furnished, and the
documents incorporated by reference therein, including any basic prospectus (whether or not in
preliminary form) furnished to you by the Company and attached to or used with such preliminary
prospectus supplement. Except where the context otherwise requires, “Basic Prospectus,” as
used herein, means any such basic prospectus and any basic prospectus furnished to you by the
Company and attached to or used with the Prospectus Supplement (as defined below).
Except where the context otherwise requires, “Prospectus Supplement,” as used herein,
means the final prospectus supplement, relating to the Notes, filed by the Company with the
Commission pursuant to Rule 424(b) under the Act on or before the second business day after the
date hereof (or such earlier time as may be required under the Act), in the form furnished by the
Company to you for use by the Underwriters and by dealers in connection with the offering of the
Notes.
Except where the context otherwise requires, “Prospectus,” as used herein, means the
Prospectus Supplement together with the Basic Prospectus attached to or used with the Prospectus
Supplement.
“Permitted Free Writing Prospectuses,” as used herein, means the documents listed on
Schedule B attached hereto and each “road show” (as defined in Rule 433 under the Act), if
any, related to the offering of the Notes contemplated hereby that is a “written communication” (as
defined in Rule 405 under the Act). The Underwriters have not offered or sold and will not offer
or sell, without the Company’s consent, any Notes by means of any “free writing prospectus” (as
defined in Rule 405 under the Act) that is required to be filed by the Underwriters with the
Commission pursuant to Rule 433 under the Act, other than a Permitted Free Writing Prospectus.
“Disclosure Package,” as used herein, means any Pre-Pricing Prospectus or Basic
Prospectus, in either case together with any combination of one or more of the Permitted Free
Writing Prospectuses, if any.
Any reference herein to the registration statement, the Registration Statement, any
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Basic Prospectus, any Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus or any
Permitted Free Writing Prospectus shall be deemed to refer to and include the documents, if any,
incorporated by reference, or deemed to be incorporated by reference, therein (the
“Incorporated Documents”), including, unless the context otherwise requires, the documents,
if any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms
“amend,” “amendment” or “supplement” with respect to the Registration
Statement, any Basic Prospectus, any Pre-Pricing Prospectus, the Prospectus Supplement, the
Prospectus or any Permitted Free Writing Prospectus shall be deemed to refer to and include the
filing of any document under the Exchange Act on or after the initial effective date of the
Registration Statement, or the date of such Basic Prospectus, such Pre-Pricing Prospectus, the
Prospectus Supplement, the Prospectus or such Permitted Free Writing Prospectus, as the case may
be, and deemed to be incorporated therein by reference.
As used in this Agreement, “business day” shall mean a day on which the New York Stock
Exchange (the “NYSE”) is open for trading. The terms “herein,” “hereof,” “hereto,”
“hereinafter” and similar terms, as used in this Agreement, shall in each case refer to this
Agreement as a whole and not to any particular section, paragraph, sentence or other subdivision of
this Agreement. The term “or,” as used herein, is not exclusive.
The Company and the Underwriters agree as follows:
1. Sale and Purchase. Upon the basis of the representations and warranties and
subject to the other terms and conditions herein set forth, the Company agrees to issue and sell to
the respective Underwriters and each of the Underwriters, severally and not jointly, agrees to
purchase from the Company the aggregate principal amount of Firm Notes set forth opposite the name
of such Underwriter in Schedule A attached hereto, subject to adjustment in accordance with
Section 8 hereof, in each case at a purchase price of 97.375% of the principal amount thereof.
In addition, the Company hereby grants to the several Underwriters the option (the
“Over-Allotment Option”) to purchase, and upon the basis of the representations and
warranties and subject to the terms and conditions herein set forth, the Underwriters shall have
the right to purchase, severally and not jointly, from the Company, ratably in accordance with the
aggregate principal amount of Firm Notes to be purchased by each of them, all or a portion of the
Additional Notes as may be necessary to cover over-allotments made in connection with the offering
of the Firm Notes, at the Purchase Price, plus accrued
interest, if any, from the “time of purchase” (as hereinafter defined) to the “additional time of
purchase” (as hereinafter defined), such accrued interest to be calculated in the same manner and
at the same rate at which interest accrues on the Notes in accordance with their terms and the
terms of the Indenture. The Over-Allotment Option may be exercised by the Representatives on
behalf of the several Underwriters at any time and from time to time on or before the thirtieth day
following the date of the Prospectus Supplement by written notice to the Company. Such notice
shall set forth the aggregate principal amount of Additional Notes as to which the Over-Allotment
Option is being exercised and the date and time when the Additional Notes are to be delivered (any
such date and time being herein referred to as an “additional time of purchase”);
provided, however, that no additional time of purchase shall be earlier than the
“time of purchase” (as defined below) nor earlier than the second business day after the date on
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which the Over-Allotment Option shall have been exercised nor later than the tenth business day
after the date on which the Over-Allotment Option shall have been exercised. The principal amount
of Additional Notes to be sold to each Underwriter shall be the principal amount which bears the
same proportion to the aggregate principal amount of Additional Notes being purchased as the
principal amount of Firm Notes set forth opposite the name of such Underwriter on Schedule
A hereto bears to the aggregate principal amount of Firm Notes, subject to adjustment in
accordance with Section 8 hereof.
2. Payment and Delivery. Payment of the purchase price for the Firm Notes shall be
made to the Company by Federal Funds wire transfer, against delivery of the Firm Notes to you
through the facilities of The Depository Trust Company (“DTC”) for the respective accounts
of the Underwriters. Such payment and delivery shall be made at 10:00 A.M., New York City time, on
November 13, 2006 (unless another time shall be agreed to by you and the Company or unless
postponed in accordance with the provisions of Section 8 hereof). The time at which such payment
and delivery are to be made is hereinafter sometimes called the “time of purchase.”
Electronic transfer of the Firm Notes shall be made to you at the time of purchase in such names
and in such denominations as you shall specify.
Payment of the purchase price for the Additional Notes shall be made at the additional time of
purchase in the same manner and at the same office and time of day as the payment for the Firm
Notes. Electronic transfer of the Additional Notes shall be made to you at the additional time of
purchase in such names and in such denominations as you shall specify.
For the purpose of expediting the checking of the certificates for the Notes by you, the
Company agrees to make such certificates available to you for such purpose at least one full
business day preceding the time of purchase or the additional time of purchase, as the case may be.
Deliveries of the documents described in Section 6 hereof with respect to the purchase of the
Notes shall be made at the offices of Xxxxx Xxxx & Xxxxxxxx at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, at 9:00 A.M., New York City time, on the date of the closing of the purchase of the
Firm Notes or the Additional Notes, as the case may be.
3. Representations and Warranties of the Company. The Company represents and warrants
to and agrees with each of the Underwriters that:
(a) the Registration Statement has heretofore become effective under the Act or, with
respect to any registration statement to be filed to register the offer and sale of Notes
pursuant to Rule 462(b) under the Act, will be filed with the Commission and become
effective under the Act no later than 10:00 P.M., New York City time, on the date of
determination of the public offering price for the Notes; no stop order of the Commission
preventing or suspending the use of any Basic Prospectus, any Pre-Pricing Prospectus, the
Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus, or the
effectiveness of the Registration Statement, has been issued, and no proceedings for such
purpose have been instituted or, to the Company’s knowledge, are contemplated by the
Commission;
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(b) the Registration Statement complied when it became effective, complies as of the
date hereof and, as amended or supplemented, at the time of purchase, each additional time
of purchase, if any, and at all times during which a prospectus is required by the Act to be
delivered (whether physically or through compliance with Rule 172 under the Act or any
similar rule) in connection with any sale of Notes, will comply, in all material respects,
with the requirements of the Act; the conditions to the use of Form S-3 in connection with
the offering and sale of the Notes as contemplated hereby have been satisfied; the
Registration Statement constitutes an “automatic shelf registration statement” (as defined
in Rule 405 under the Act); the Company has not received, from the Commission, a notice,
pursuant to Rule 401(g)(2), of objection to the use of the automatic shelf registration
statement form; as of the determination date applicable to the Registration Statement (and
any amendment thereof) and the offering contemplated hereby, the Company is a “well-known
seasoned issuer” as defined in Rule 405 under the Act; the Registration Statement meets, and
the offering and sale of the Notes as contemplated hereby complies with, the requirements of
Rule 415 under the Act (including, without limitation, Rule 415(a)(5) under the Act); the
Registration Statement did not, as of the Effective Time, 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; each Pre-Pricing Prospectus complied, at the
time it was filed with the Commission, and complies as of the date hereof, in all material
respects with the requirements of the Act; at no time during the period that begins on the
earlier of the date of such Pre-Pricing Prospectus and the date such Pre-Pricing Prospectus
was filed with the Commission and ends at the time of purchase did or will any Pre-Pricing
Prospectus, as then amended or supplemented, include an 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, and at no time during
such period did or will any Pre-Pricing Prospectus, as then amended or supplemented,
together with any combination of one or more of the then issued Permitted Free Writing
Prospectuses, if any, include an 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; each Basic Prospectus complied or
will comply, as of its date and the date it was or will be filed with the Commission,
complies as of the date hereof (if filed with the Commission on or prior to the date hereof)
and, at the time of purchase, each additional time of purchase, if any, and at all times
during which a prospectus is required by the Act to be delivered (whether physically or
through compliance with Rule 172 under the Act or any similar rule) in connection with any
sale of Notes, will comply, in all material respects, with the requirements of the Act; at
no time during the period that begins on the earlier of the date of such Basic Prospectus
and the date such Basic Prospectus was filed with the Commission and ends at the time of
purchase did or will any Basic Prospectus, as then amended or supplemented, include an
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, and at no time during such period did or will any Basic Prospectus, as then
amended or supplemented, together with any combination of one or more of the then issued
Permitted Free Writing Prospectuses,
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if any, include an 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; each of the Prospectus Supplement and the Prospectus
will comply, as of the date that it is filed with the Commission, the date of the Prospectus
Supplement, the time of purchase, each additional time of purchase, if any, and at all times
during which a prospectus is required by the Act to be delivered (whether physically or
through compliance with Rule 172 under the Act or any similar rule) in connection with any
sale of Notes, in all material respects, with the requirements of the Act (in the case of
the Prospectus, including, without limitation, Section 10(a) of the Act); at no time during
the period that begins on the earlier of the date of the Prospectus Supplement and the date
the Prospectus Supplement is filed with the Commission and ends at the later of the time of
purchase, the latest additional time of purchase, if any, and the end of the period during
which a prospectus is required by the Act to be delivered (whether physically or through
compliance with Rule 172 under the Act or any similar rule) in connection with any sale of
Notes did or will any Prospectus Supplement or the Prospectus, as then amended or
supplemented, include an 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; at no time during the period that begins on the
date of such Permitted Free Writing Prospectus and ends at the time of purchase did or will
any Permitted Free Writing Prospectus include an 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 representation or warranty in this Section 3(b)
with respect to any statement contained in the Registration Statement, any Pre-Pricing
Prospectus, the Prospectus or any Permitted Free Writing Prospectus in reliance upon and in
conformity with information concerning an Underwriter and furnished in writing by or on
behalf of such Underwriter through you to the Company expressly for use in the Registration
Statement, such Pre-Pricing Prospectus, the Prospectus or such Permitted Free Writing
Prospectus; each Incorporated Document, at the time such document was filed, or will be
filed, with the Commission or at the time such document became or becomes effective, as
applicable, complied or will comply, in all material respects, with the requirements of the
Exchange Act and did not or will not, as applicable, include an 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;
(c) prior to the execution of this Agreement, the Company has not, directly or
indirectly, offered or sold any Notes by means of any “prospectus” (within the meaning of
the Act) or used any “prospectus” (within the meaning of the Act) in connection with the
offer or sale of the Notes, in each case other than the Pre-Pricing Prospectuses and the
Permitted Free Writing Prospectuses, if any; the Company has not, directly or indirectly,
prepared, used or referred to any Permitted Free Writing Prospectus except in compliance
with Rule 163 or with Rules 164 and 433 under the Act; assuming that such Permitted Free
Writing Prospectus is so sent or given after the Registration Statement was filed with the
Commission (and after such Permitted Free Writing Prospectus was, if required pursuant to
Rule 433(d) under the Act, filed with the Commission), the sending or giving,
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by any Underwriter, of any Permitted Free Writing Prospectus will satisfy the
provisions of Rule 164 and Rule 433 (without reliance on subsections (b), (c) and (d) of
Rule 164); the conditions set forth in one or more of subclauses (i) through (iv),
inclusive, of Rule 433(b)(1) under the Act are satisfied, and the registration statement
relating to the offering of the Notes contemplated hereby, as initially filed with the
Commission, includes a prospectus that, other than by reason of Rule 433 or Rule 431 under
the Act, satisfies the requirements of Section 10 of the Act; neither the Company nor the
Underwriters are disqualified, by reason of subsection (f) or (g) of Rule 164 under the Act,
from using, in connection with the offer and sale of the Notes, “free writing prospectuses”
(as defined in Rule 405 under the Act) pursuant to Rules 164 and 433 under the Act; the
Company is not an “ineligible issuer” (as defined in Rule 405 under the Act) as of the
eligibility determination date for purposes of Rules 164 and 433 under the Act with respect
to the offering of the Notes contemplated by the Registration Statement; the parties hereto
agree and understand that the content of any and all “road shows” (as defined in Rule 433
under the Act) related to the offering of the Notes contemplated hereby is solely the
property of the Company;
(d) in accordance with Rule 2710(b)(7)(C)(i) of the National Association of Securities
Dealers, Inc. (the “NASD”), the Notes have been registered with the Commission on
Form S-3 under the Act pursuant to the standards for such Form S-3 in effect prior to
October 21, 1992;
(e) as of the date of this Agreement, the Company has an authorized and outstanding
capitalization as set forth in the Registration Statement, the Pre-Pricing Prospectuses and
the Prospectus under “Capitalization” and “Description of capital stock” (and any similar
sections or information, if any, contained in any Permitted Free Writing Prospectus), and,
as of the time of purchase and any additional time of purchase, as the case may be, the
Company shall have an authorized and outstanding capitalization as set forth in the
Registration Statement, the Pre-Pricing Prospectuses and the Prospectus under
“Capitalization” and “Description of capital stock” (and any similar sections or
information, if any, contained in any Permitted Free Writing Prospectus) (subject, in each
case, to the issuance of shares of Common Stock upon exercise of stock options and rights
disclosed as outstanding in the Registration Statement (excluding the exhibits thereto),
each Pre-Pricing Prospectus and the Prospectus and the grant of options under existing stock
option plans described in the Registration Statement (excluding the exhibits thereto), each
Pre-Pricing Prospectus and the Prospectus); all of the issued and outstanding shares of
capital stock, including the Common Stock, of the Company have been duly authorized and
validly issued and are fully paid and non-assessable, have been issued in compliance with
all applicable securities laws and were not issued in violation of any preemptive right,
resale right, right of first refusal or similar right; upon issuance, the Shares will be
duly listed, and admitted and authorized for trading, on the Nasdaq Global Select Market
(the “NASDAQ”);
(f) the Company has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of Delaware, with full corporate power and
authority to own, lease and operate its properties and conduct its business as
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described in the Registration Statement, the Pre-Pricing Prospectuses, the Prospectus
and the Permitted Free-Writing Prospectuses, if any, to execute and deliver this Agreement,
the Indenture and the Notes and to issue, sell and deliver the Notes and the Shares issuable
upon conversion of the Notes as contemplated by this Agreement, the Indenture and the Notes;
(g) the Company is duly qualified to do business as a foreign corporation and is in
good standing in each jurisdiction where the ownership or leasing of its properties or the
conduct of its business requires such qualification, except where the failure to be so
qualified and in good standing would not, individually or in the aggregate, either (i) have
a material adverse effect on the business, properties, financial condition, results of
operations or prospects of the Company and the Subsidiaries (as defined below) taken as a
whole, (ii) prevent or materially interfere with consummation of the transactions
contemplated by this Agreement, the Indenture or the Notes or (iii) result in the delisting
of shares of Common Stock from the NASDAQ (the occurrence of any such effect or any such
prevention or interference or any such result described in the foregoing clauses (i), (ii)
and (iii) being herein referred to as a “Material Adverse Effect”);
(h) the Company has no subsidiaries (as defined under the Act) other than those
identified in Exhibit 21 to the Company’s Quarterly Report
on Form 10-Q for the quarter ended
June 30, 2006 and those immaterial subsidiaries permitted to be
excluded from such schedule pursuant to Item 601(b)(21)(ii) of
Regulation S-K under the Act (collectively, the “Subsidiaries”); except as described in the
Registration Statement, the Pre-Pricing Prospectuses and the Prospectus, the Company owns
all of the issued and outstanding capital stock of each of the Subsidiaries; other than the
capital stock of the Subsidiaries and other investments that are not material to the
Company, the Company does not own, directly or indirectly, any shares of stock or any other
equity interests or long-term debt securities of any corporation, firm, partnership, joint
venture, association or other entity, except as described in the Registration Statement, the
Pre-Pricing Prospectuses and the Prospectus; complete and correct copies of the charters and
the bylaws of the Company and each Subsidiary that is a “significant subsidiary” within the
meaning of Rule 1-02(w) of Regulation S-X under the Exchange Act (each, a “Significant
Subsidiary”) and all amendments thereto have been delivered to you, and no changes
therein will be made on or after the date hereof through and including the time of purchase
or, if later, any additional time of purchase; each Subsidiary has been duly incorporated
and is validly existing as a corporation in good standing under the laws of the jurisdiction
of its incorporation, with full corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Registration Statement, the
Pre-Pricing Prospectuses, the Prospectus and the Permitted Free-Writing Prospectuses, if
any; each Subsidiary is duly qualified to do business as a foreign corporation and is in
good standing in each jurisdiction where the ownership or leasing of its properties or the
conduct of its business requires such qualification, except where the failure to be so
qualified and in good standing would not, individually or in the aggregate, have a Material
Adverse Effect; all of the outstanding shares of capital stock of each of the Subsidiaries
have been duly authorized and validly issued, are fully paid and non-assessable, have been
issued in compliance with all applicable securities laws, were not issued in violation of
any preemptive right, resale right, right of first refusal or similar right and are owned by
the Company subject to no
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security interest, other encumbrance or adverse claims; no options, warrants or other
rights to purchase, agreements or other obligations to issue or other rights to convert any
obligation into shares of capital stock or ownership interests in the Subsidiaries are
outstanding; and the Company has no Significant Subsidiaries;
(i) this Agreement has been duly authorized, executed and delivered by the Company;
(j) the Indenture has been duly qualified under the Trust Indenture Act of 1939, as
amended (the “Trust Indenture Act”) and has been duly authorized by the Company and,
when executed and delivered by the Company and the Trustee, will be a legal, valid and
binding agreement of the Company, enforceable in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting creditors’ rights generally and general principles of equity;
(k) the Notes have been duly authorized by the Company and, when executed and delivered
by the Company and duly authenticated in accordance with the terms of the Indenture and
delivered to and paid for by the Underwriters in accordance with the terms hereof, will
constitute legal, valid and binding obligations of the Company, enforceable in accordance
with their terms, except as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally
and general principles of equity, and will be entitled to the benefits of the Indenture; the
Shares issuable upon conversion of the Notes have been duly authorized and validly reserved
for issuance upon conversion of the Notes, and, upon conversion of the Notes in accordance
with their terms and the terms of the Indenture, will be issued free of statutory and
contractual preemptive rights, resale rights, rights of first refusal and similar rights and
free of any voting restrictions (and will be free of any restriction, pursuant to the
Company’s charter or bylaws or any agreement or other instrument to which the Company is a
party, upon the transfer thereof) (other than such as would affect an “acquiring person”
holding such Shares issuable upon conversion pursuant to the Rights Agreement dated as of
October 3, 2002 between the Company and The Bank of New York (the “Rights Plan”)),
and are sufficient in number to meet the current conversion requirements (assuming all
conditions to such conversion have been satisfied) based on the product of (i) the
Conversion Rate (as defined in the Indenture) in effect as of the time of purchase and as of
each additional time of purchase and (ii) the aggregate principal amount, expressed in
thousands of dollars, of Notes to be outstanding immediately after such time of purchase or
additional time of purchase, as applicable; such Shares, when so issued upon such conversion
in accordance with the terms of the Notes and of the Indenture, will be duly and validly
issued and fully paid and nonassessable; and the certificates for such Shares will be in due
and proper form;
(l) the terms of the Notes, the Indenture and the capital stock of the Company,
including the Shares, conform in all material respects to each description thereof contained
in the Registration Statement, the Pre-Pricing Prospectuses, the
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Prospectus and the Permitted Free-Writing Prospectuses, if any;
(m) neither the Company nor any of the Subsidiaries is in breach or violation of or in
default under (nor has any event occurred which, with notice, lapse of time or both, would
result in any breach or violation of, constitute a default under or give the holder of any
indebtedness (or a person acting on such holder’s behalf) the right to require the
repurchase, redemption or repayment of all or a part of such indebtedness under) (A) its
charter or bylaws, or (B) any indenture, mortgage, deed of trust, bank loan or credit
agreement or other evidence of indebtedness, or any license, lease, contract or other
agreement or instrument to which it is a party or by which it or any of its properties may
be bound or affected, or (C) any federal, state, local or foreign law, regulation or rule,
or (D) any rule or regulation of any self-regulatory organization or other non-governmental
regulatory authority (including, without limitation, the rules and regulations of the
NASDAQ), or (E) any decree, judgment or order applicable to it or any of its properties,
except, in clause (C), (D) or (E), as would not individually or in the aggregate have a
Material Adverse Effect;
(n) the execution, delivery and performance of this Agreement, the Indenture and the
Notes and the consummation of the transactions contemplated hereby and thereby, including
the issuance of the Notes and the issuance of the Shares issuable upon conversion of the
Notes as described in the Registration Statement, the Pre-Pricing Prospectuses, the
Prospectus and the Permitted Free-Writing Prospectuses, if any, will not conflict with,
result in any breach or violation of or constitute a default under (nor constitute any event
which, with notice, lapse of time or both, would result in any breach or violation of,
constitute a default under or give the holder of any indebtedness (or a person acting on
such holder’s behalf) the right to require the repurchase, redemption or repayment of all or
a part of such indebtedness under) (or result in the creation or imposition of a lien,
charge or encumbrance on any property or assets of the Company or any Subsidiary pursuant
to) (A) the charter or bylaws of the Company or any of the Subsidiaries, or (B) any
indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of
indebtedness, or any license, lease, contract or other agreement or 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 affected, or (C) any federal, state, local or foreign
law, regulation or rule, or (D) any rule or regulation of any self-regulatory organization
or other non-governmental regulatory authority (including, without limitation, the rules and
regulations of the NASDAQ), or (E) any decree, judgment or order applicable to the Company
or any of the Subsidiaries or any of their respective properties;
(o) no approval, authorization, consent or order of or filing with any federal, state,
local or foreign governmental or regulatory commission, board, body, authority or agency, or
of or with any self-regulatory organization or other non-governmental regulatory authority
(including, without limitation, the NASDAQ), or approval of the stockholders of the Company,
is required in connection with the issuance and sale of the Notes or the issuance of Shares
upon conversion of the Notes or the consummation of the transactions as contemplated by this
Agreement, the Indenture or the Notes, other than (i)
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as have been obtained from NASDAQ, and (ii) as may be required under the securities or
blue sky laws of the various jurisdictions in which the Notes are being offered by the
Underwriters;
(p) except as described in the Registration Statement (excluding the exhibits thereto),
each Pre-Pricing Prospectus and the Prospectus, (i) no person has the right, contractual or
otherwise, to cause the Company to issue or sell to it any shares of Common Stock or shares
of any other capital stock or other equity interests of the Company, (ii) no person has any
preemptive rights, resale rights, rights of first refusal or other rights to purchase any
shares of Common Stock or shares of any other capital stock of or other equity interests in
the Company and (iii) no person has the right to act as an underwriter or initial purchaser
or as a financial advisor to the Company in connection with the offer and sale of the Notes;
no person has the right, contractual or otherwise, to cause the Company to register under
the Act any shares of Common Stock or shares of any other capital stock of or other equity
interests in the Company, or to include any such shares or interests in the Registration
Statement or the offering contemplated thereby;
(q) except as would not, individually or in the aggregate, have a Material Adverse
Effect, each of the Company and the Subsidiaries has all necessary licenses, authorizations,
consents and approvals and has made all necessary filings required under any applicable law,
regulation or rule, and has obtained all necessary licenses, authorizations, consents and
approvals from other persons, in order to conduct their respective businesses; neither the
Company nor any of the Subsidiaries is in violation of, or in default under, or has received
notice of any proceedings relating to revocation or modification of, any such license,
authorization, consent or approval or any federal, state, local or foreign law, regulation
or rule or any decree, order or judgment applicable to the Company or any of the
Subsidiaries, except where such violation, default, revocation or modification would not,
individually or in the aggregate, have a Material Adverse Effect;
(r) there are no actions, suits, claims, investigations or proceedings pending or, to
the Company’s knowledge, threatened or contemplated to which the Company or any of the
Subsidiaries or any of their respective directors or officers is or would be a party or of
which any of their respective properties is or would be subject at law or in equity, before
or by any federal, state, local or foreign governmental or regulatory commission, board,
body, authority or agency, or before or by any self-regulatory organization or other
non-governmental regulatory authority (including, without limitation, the NASDAQ), except
any such action, suit, claim, investigation or proceeding which, if resolved adversely to
the Company or any Subsidiary, would not, individually or in the aggregate, have a Material
Adverse Effect;
(s) Ernst & Young LLP, whose report on the consolidated financial statements of the
Company and the Subsidiaries is included or incorporated by reference in the Registration
Statement, each Pre-Pricing Prospectus and the Prospectus, are independent registered public
accountants as required by the Act and by the rules of the Public Company Accounting
Oversight Board;
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(t) the financial statements included or incorporated by reference in the Registration
Statement, the Pre-Pricing Prospectuses, the Prospectus and the Permitted Free-Writing
Prospectuses, if any, together with the related notes and schedules, present fairly the
consolidated financial position of the Company and the Subsidiaries as of the dates
indicated and the consolidated results of operations, cash flows and changes in
stockholders’ equity of the Company for the periods specified and have been prepared in
compliance with the requirements of the Act and Exchange Act and in conformity with U.S.
generally accepted accounting principles applied on a consistent basis during the periods
involved; the other financial and statistical data contained or incorporated by reference in
the Registration Statement, the Pre-Pricing Prospectuses, the Prospectus and the Permitted
Free-Writing Prospectuses, if any, are accurately and fairly presented and prepared on a
basis consistent with the financial statements and books and records of the Company; there
are no financial statements (historical or pro forma) that are required to be included or
incorporated by reference in the Registration Statement, any Pre-Pricing Prospectus or the
Prospectus that are not included or incorporated by reference as required; the Company and
the Subsidiaries do not have any material liabilities or obligations, direct or contingent
(including any off-balance sheet obligations), not described in the Registration Statement,
the Pre-Pricing Prospectuses and the Prospectus (other than liabilities incurred in the
ordinary course of business consistent with past practices subsequent to the date of the
last balance sheet incorporated by reference in the Registration Statement, any Pre-Pricing
Prospectus or the Prospectus, as applicable); and all disclosures contained or incorporated
by reference in the Registration Statement, the Pre-Pricing Prospectuses, the Prospectus and
the Permitted Free-Writing Prospectuses, if any, regarding “non-GAAP financial measures” (as
such term is defined by the rules and regulations of the Commission) comply with Regulation
G of the Exchange Act and Item 10 of Regulation S-K under the Act;
(u) subsequent to the respective dates as of which information is given in the
Registration Statement, the Pre-Pricing Prospectuses, the Prospectus and the Permitted
Free-Writing Prospectuses, if any, in each case excluding any amendments or supplements to
the foregoing made after the execution of this Agreement, there has not been (i) any
material adverse change, or any development involving a prospective material adverse change,
in the business, properties, management, financial condition or results of operations of the
Company and the Subsidiaries taken as a whole, (ii) any transaction that is material to the
Company and the Subsidiaries taken as a whole, (iii) any obligation or liability, direct or
contingent (including any off-balance sheet obligations), incurred by the Company or any
Subsidiary, which is material to the Company and the Subsidiaries taken as a whole, (iv) any
change in the capital stock or outstanding indebtedness of the Company or any Subsidiaries
or (v) any dividend or distribution of any kind declared, paid or made on the capital stock
of the Company or any Subsidiary;
(v) the Company has obtained for the benefit of the Underwriters the agreement (a
“Lock-Up Agreement”), in the form set forth as Exhibit A hereto, of each of
its directors and “officers” (within the meaning of Rule 16a-1(f) under the Exchange Act),
each of whom is identified in Exhibit A-1 hereto;
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(w) neither the Company nor any Subsidiary is and, after giving effect to the offering
and sale of the Notes and the application of the proceeds thereof, neither of them will be
an “investment company” as such term is defined in the Investment Company Act of 1940, as
amended (the “Investment Company Act”);
(x) the Company and each of the Subsidiaries have good and marketable title to all
property (real and personal) described in the Registration Statement, the Pre-Pricing
Prospectuses, the Prospectus and the Permitted Free-Writing Prospectuses, if any, as being
owned by any of them, free and clear of all liens, claims, security interests or other
encumbrances; all the property described in the Registration Statement, the Pre-Pricing
Prospectuses, the Prospectus and the Permitted Free-Writing Prospectuses, if any, as being
held under lease by the Company or a Subsidiary is held thereby under valid, subsisting and
enforceable leases;
(y) the Company and the Subsidiaries own, or have obtained valid and enforceable
licenses for, or other rights to use, the inventions, patent applications, patents,
trademarks (both registered and unregistered), tradenames, service names, copyrights, trade
secrets and other proprietary information described in the Registration Statement, the
Pre-Pricing Prospectuses, the Prospectus and the Permitted Free-Writing Prospectuses, if
any, as being owned or licensed by them or which are necessary for the conduct of their
respective businesses as currently conducted or as proposed to be conducted (including the
commercialization of products or services described in the Registration Statement, the
Pre-Pricing Prospectuses, the Prospectus and the Permitted Free-Writing Prospectuses, if
any, as under development), (collectively, “Intellectual
Property”), except as disclosed in the Registration Statement,
the Pre-Pricing Prospectuses and the Prospectus and except where the failure to own, license or have such rights
would not, individually or in the aggregate, have a Material Adverse Effect; (i) there are no third parties who have or, to the
Company’s knowledge, will be able to establish rights to any Intellectual Property, except
for, and to the extent of, the ownership rights of the owners of the Intellectual Property
which the Registration Statement, the Pre-Pricing Prospectuses and the Prospectus disclose
is licensed to the Company; (ii) to the Company’s knowledge, there is no infringement by
third parties of any Intellectual Property that would be expected to result in a Material
Adverse Effect; (iii) except as described in the Registration Statement, the Pre-Pricing
Prospectuses and the Prospectus, there is no pending or, to the Company’s knowledge,
threatened action, suit, proceeding or claim by others challenging the Company’s rights in
or to any Intellectual Property, and the Company is unaware of any facts which could form a
reasonable basis for any such action, suit, proceeding or claim; (iv) except as described in
the Registration Statement, the Pre-Pricing Prospectuses and the Prospectus, there is no
pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by
others challenging the validity, enforceability or scope of any Intellectual Property, and
the Company is unaware of any facts which could form a reasonable basis for any such action,
suit, proceeding or claim; (v) except as described in the Registration Statement, the
Pre-Pricing Prospectuses and the Prospectus, there is no pending or, to the Company’s
knowledge, threatened action, suit, proceeding or claim by others that the Company or any
Subsidiary infringes or otherwise violates, or would, upon the commercialization of
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any product or service described in the Registration Statement, the Pre-Pricing
Prospectuses, the Prospectus and the Permitted Free-Writing Prospectuses, if any, as under
development, infringe or violate, any patent, trademark, tradename, service name, copyright,
trade secret or other proprietary rights of others, and the Company is unaware of any facts
which could form a reasonable basis for any such action, suit, proceeding or claim; and (vi)
the Company and the Subsidiaries have complied in all material respects with the terms of
each agreement pursuant to which Intellectual Property has been licensed to the Company or
any Subsidiary, and all such agreements are in full force and effect;
(z)
Except as would not individually or in the aggregate have a Material
Adverse Effect, no labor disturbance by or dispute with employees of the Company or any of its
Subsidiaries exists or, to the best knowledge of the Company, is contemplated or threatened;
(aa) the Company and the Subsidiaries and their respective properties, assets and
operations are in compliance with, and the Company and each of the Subsidiaries hold all
permits, authorizations and approvals required under, Environmental Laws (as defined below),
except to the extent that failure to so comply or to hold such permits, authorizations or
approvals would not, individually or in the aggregate, have a Material Adverse Effect; there
are no past, present or, to the Company’s knowledge, reasonably anticipated future events,
conditions, circumstances, activities, practices, actions, omissions or plans that could
reasonably be expected to give rise to any material costs or liabilities to the Company or
any Subsidiary under, or to interfere with or prevent compliance by the Company or any
Subsidiary with, Environmental Laws; except as would not, individually or in the aggregate,
have a Material Adverse Effect, neither the Company nor any of the Subsidiaries (i) is the
subject of any investigation, (ii) has received any notice or claim, (iii) is a party to or
affected by any pending or, to the Company’s knowledge, threatened action, suit or
proceeding, (iv) is bound by any judgment, decree or order or (v) has entered into any
agreement, in each case relating to any alleged violation of any Environmental Law or any
actual or alleged release or threatened release or cleanup at any location of any Hazardous
Materials (as defined below) (as used herein, “Environmental Law” means any federal,
state, local or foreign law, statute, ordinance, rule, regulation, order, decree, judgment,
injunction, permit, license, authorization or other binding requirement, or common law,
relating to health, safety or the protection, cleanup or restoration of the environment or
natural resources, including those relating to the distribution, processing, generation,
treatment, storage, disposal, transportation, other handling or release or threatened
release of Hazardous Materials, and “Hazardous Materials” means any material
(including, without limitation, pollutants, contaminants, hazardous or toxic substances or
wastes) that is regulated by or may give rise to liability under any Environmental Law);
(bb) all tax returns required to be filed by the Company or any of the Subsidiaries
have been timely filed or are covered by routine extensions, and all taxes and other
assessments of a similar nature (whether imposed directly or through withholding) including
any interest, additions to tax or penalties applicable thereto due or claimed to be due from
such entities have been timely paid, other than those being
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contested in good faith and for which adequate reserves have been provided;
(cc) the Company and each of the Subsidiaries maintain insurance covering their
respective properties, operations, personnel and businesses as the Company reasonably deems
adequate; such insurance insures against such losses and risks to an extent which is
adequate in accordance with customary industry practice to protect the Company and the
Subsidiaries and their respective businesses; all such insurance is fully in force on the
date hereof and will be fully in force at the time of purchase and each additional time of
purchase, if any; neither the Company nor any Subsidiary has reason to believe that it will
not be able to renew any such insurance as and when such insurance expires;
(dd) neither the Company nor any Subsidiary has sent or received any communication
regarding termination of, or intent not to renew, any of the contracts or agreements
referred to or described in the Registration Statement, the Pre-Pricing Prospectuses, the
Prospectus and the Permitted Free-Writing Prospectuses, if any, or filed as an exhibit to
any Incorporated Document, and no such termination or non-renewal has been threatened by the
Company or any Subsidiary or, to the Company’s knowledge, any other party to any such
contract or agreement;
(ee) the Company and each of the Subsidiaries maintain a system of internal accounting
controls sufficient to provide reasonable assurance 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;
(ff) the Company has established and maintains and evaluates “disclosure controls and
procedures” (as such term is defined in Rule 13a-15 and 15d-15 under the Exchange Act) and
“internal control over financial reporting” (as such term is defined in Rule 13a-15 and
15d-15 under the Exchange Act); such disclosure controls and procedures are designed to
ensure that material information relating to the Company, including its consolidated
subsidiaries, is made known to the Company’s Chief Executive Officer and its Chief Financial
Officer by others within those entities, and such disclosure controls and procedures are
effective to perform the functions for which they were established; the Company’s
independent auditors and the Audit Committee of the Board of Directors of the Company have
been advised of: (i) all significant deficiencies, if any, in the design or operation of
internal controls which could adversely affect the Company’s ability to record, process,
summarize and report financial data; and (ii) all fraud, if any, whether or not material,
that involves management or other employees who have a role in the Company’s internal
controls; all material weaknesses, if any, in internal controls have been identified to the
Company’s independent auditors; since the date of the most recent evaluation of such
disclosure controls and procedures and internal
-15-
controls, there have been no significant changes in internal controls or in other
factors that could significantly affect internal controls, including any corrective actions
with regard to significant deficiencies and material weaknesses; the principal executive
officers (or their equivalents) and principal financial officers (or their equivalents) of
the Company have made all certifications required by the Xxxxxxxx-Xxxxx Act of 2002 (the
“Xxxxxxxx-Xxxxx Act”) and any related rules and regulations promulgated by the
Commission, and the statements contained in each such certification are complete and
correct; the Company, the Subsidiaries and the Company’s directors and officers are each in
compliance in all material respects with all applicable effective provisions of the
Xxxxxxxx-Xxxxx Act and the rules and regulations of the Commission and the NASDAQ
promulgated thereunder;
(gg) each “forward-looking statement” (within the meaning of Section 27A of the Act or
Section 21E of the Exchange Act) contained or incorporated by reference in the Registration
Statement, the Pre-Pricing Prospectuses, the Prospectus and the Permitted Free-Writing
Prospectuses, if any, has been made or reaffirmed with a reasonable basis and in good faith;
(hh) all statistical or market-related data included or incorporated by reference in
the Registration Statement, the Pre-Pricing Prospectuses, the Prospectus and the Permitted
Free-Writing Prospectuses, if any, are based on or derived from sources that the Company
believes to be reliable and accurate, and the Company has obtained the written consent to
the use of such data from such sources to the extent required;
(ii) 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 (including, without limitation, the Foreign Corrupt Practices Act of 1977), which
payment, receipt or retention of funds is of a character required to be disclosed in the
Registration Statement, any Pre-Pricing Prospectus or the Prospectus;
(jj) no Subsidiary is currently prohibited, directly or indirectly, from paying any
dividends to the Company, from making any other distribution on such Subsidiary’s capital
stock, from repaying to the Company any loans or advances to such Subsidiary from the
Company or from transferring any of such Subsidiary’s property or assets to the Company or
any other Subsidiary of the Company, except as described in the Registration Statement
(excluding the exhibits thereto), each Pre-Pricing Prospectus and the Prospectus;
(kk) the issuance and sale of the Notes as contemplated hereby will not cause any
holder of any shares of capital stock, securities convertible into or exchangeable or
exercisable for capital stock or options, warrants or other rights to purchase capital stock
or any other securities of the Company to have any right to acquire any shares of preferred
stock of the Company (except as contemplated by the Rights Plan);
-16-
(ll) the Company has not received any notice from the NASDAQ regarding the delisting of
the Common Stock from the NASDAQ;
(mm) except pursuant to this Agreement, neither the Company nor any of the Subsidiaries
has incurred any liability for any finder’s or broker’s fee or agent’s commission in
connection with the execution and delivery of this Agreement, the Indenture or the Notes or
the consummation of the transactions contemplated hereby or thereby;
(nn) neither the Company nor any of the Subsidiaries nor any of their respective
directors, officers, affiliates or controlling persons has taken, directly or indirectly,
any action designed, or which has constituted or might reasonably be expected to cause or
result in the stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Notes or the Shares issuable upon conversion of the
Notes; and
(oo) to the Company’s knowledge, there are no affiliations or associations between (i)
any member of the NASD and (ii) the Company or any of the Company’s officers, directors or
5% or greater security holders or any beneficial owner of the Company’s unregistered equity
securities that were acquired at any time on or after the 180th day immediately preceding
the date the Registration Statement was initially filed with the Commission, except as
disclosed in the Registration Statement (excluding the exhibits thereto), the Pre-Pricing
Prospectuses and the Prospectus.
In addition, any certificate signed by any officer of the Company or any of the Subsidiaries
and delivered to any Underwriter or counsel for the Underwriters in connection with the offering of
the Notes shall be deemed to be a representation and warranty by the Company, as to matters covered
thereby, to each Underwriter.
4. Certain Covenants of the Company. The Company hereby agrees with each of the
Underwriters:
(a) to furnish such information as may be required and otherwise to cooperate in
qualifying the Notes and the Shares for offering and sale under the securities or blue sky
laws of such states or other jurisdictions as you may designate and to maintain such
qualifications in effect so long as you may request for the distribution of the Notes and
the Shares; provided, however, that the Company shall not be required to
qualify as a foreign corporation or to consent to the service of process under the laws of
any such jurisdiction (except service of process with respect to the offering and sale of
the Notes and the Shares); and to promptly advise you of the receipt by the Company of any
notification with respect to the suspension of the qualification of the Notes and the Shares
for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for
such purpose;
(b) to make available to the Underwriters in New York City, as soon as practicable
after this Agreement becomes effective, and thereafter from time to time to
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furnish to the Underwriters, as many copies of the Prospectus (or of the Prospectus as
amended or supplemented if the Company shall have made any amendments or supplements thereto
after the effective date of the Registration Statement) as the Underwriters may request for
the purposes contemplated by the Act; in case any Underwriter is required to deliver
(whether physically or through compliance with Rule 172 under the Act or any similar rule),
in connection with the sale of the Notes, a prospectus after the nine-month period referred
to in Section 10(a)(3) of the Act, or after the time a post-effective amendment to the
Registration Statement is required pursuant to Item 512(a) of Regulation S-K under the Act,
the Company will prepare, at its expense, promptly upon request such amendment or amendments
to the Registration Statement and the Prospectus as may be necessary to permit compliance
with the requirements of Section 10(a)(3) of the Act or Item 512(a) of Regulation S-K under
the Act, as the case may be;
(c) if, at the time this Agreement is executed and delivered, it is necessary or
appropriate for a post-effective amendment to the Registration Statement, or a Registration
Statement under Rule 462(b) under the Act, to be filed with the Commission and become
effective before the Notes may be sold, the Company will use its best efforts to cause such
post-effective amendment or such Registration Statement to be filed and become effective,
and will pay any applicable fees in accordance with the Act, as soon as possible; and the
Company will advise you promptly and, if requested by you, will confirm such advice in
writing, (i) when such post-effective amendment or such Registration Statement has become
effective, and (ii) if Rule 430A under the Act is used, when the Prospectus is filed with
the Commission pursuant to Rule 424(b) under the Act (which the Company agrees to file in a
timely manner in accordance with such Rules);
(d) if, at any time during the period when a prospectus is required by the Act to be
delivered (whether physically or through compliance with Rule 172 under the Act or any
similar rule) in connection with any sale of Notes, the Registration Statement shall cease
to comply with the requirements of the Act with respect to eligibility for the use of the
form on which the Registration Statement was filed with the Commission or the Registration
Statement shall cease to be an “automatic shelf registration statement” (as defined in Rule
405 under the Act) or the Company shall have received, from the Commission, a notice,
pursuant to Rule 401(g)(2), of objection to the use of the form on which the Registration
Statement was filed with the Commission, to (i) promptly notify you, (ii) promptly file with
the Commission a new registration statement under the Act, relating to the Notes, or a
post-effective amendment to the Registration Statement, which new registration statement or
post-effective amendment shall comply with the requirements of the Act and shall be in a
form satisfactory to you, (iii) use its best efforts to cause such new registration
statement or post-effective amendment to become effective under the Act as soon as
practicable, (iv) promptly notify you of such effectiveness and (v) take all other action
necessary or appropriate to permit the public offering and sale of the Notes to continue as
contemplated in the Prospectus; all references herein to the Registration Statement shall be
deemed to include each such new registration statement or post-effective amendment, if any
(for purposes of this Section 4(d) and Sections 4(g) and 4(i), unless the Representatives
notify the Company otherwise,
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the Company may assume that the initial distribution of the Notes is complete 10 days
after the latest possible date on which the last additional time of purchase hereunder could
occur);
(e) if the third anniversary of the initial effective date of the Registration
Statement (within the meaning of Rule 415(a)(5) under the Act) shall occur at any time
during the period when a prospectus is required by the Act to be delivered (whether
physically or through compliance with Rule 172 under the Act or any similar rule) in
connection with any sale of Notes, to file with the Commission, prior to such third
anniversary, a new registration statement under the Act relating to the Notes, which new
registration statement shall comply with the requirements of the Act (including, without
limitation, Rule 415(a)(6) under the Act) and shall be in a form satisfactory to you; such
new registration statement shall constitute an “automatic shelf registration statement” (as
defined in Rule 405 under the Act); provided, however, that if the Company
is not then eligible to file an “automatic shelf registration statement” (as defined in Rule
405 under the Act), then such new registration statement need not constitute an “automatic
shelf registration statement” (as defined in Rule 405 under the Act), but the Company shall
use its best efforts to cause such new registration statement to become effective under the
Act as soon as practicable, but in any event within 180 days after such third anniversary
and promptly notify you of such effectiveness; the Company shall take all other action
necessary or appropriate to permit the public offering and sale of the Notes to continue as
contemplated in the Prospectus; all references herein to the Registration Statement shall be
deemed to include each such new registration statement, if any;
(f) to advise you promptly, confirming such advice in writing, of any request by the
Commission for amendments or supplements to the Registration Statement, any Pre-Pricing
Prospectus, the Prospectus or any Permitted Free Writing Prospectus or for additional
information with respect thereto, or of notice of institution of proceedings for, or the
entry of a stop order, suspending the effectiveness of the Registration Statement and, if
the Commission should enter a stop order suspending the effectiveness of the Registration
Statement, to use its best efforts to obtain the lifting or removal of such order as soon as
possible; to advise you promptly of any proposal to amend or supplement the Registration
Statement, any Pre-Pricing Prospectus or the Prospectus, and to provide you and
Underwriters’ counsel copies of any such documents for review and comment a reasonable
amount of time prior to any proposed filing and to file no such amendment or supplement to
which you shall object in writing;
(g) subject to Section 4(f) hereof, to file promptly all reports and documents and any
preliminary or definitive proxy or information statement required to be filed by the Company
with the Commission in order to comply with the Exchange Act for so long as a prospectus is
required by the Act to be delivered (whether physically or through compliance with Rule 172
under the Act or any similar rule) in connection with any sale of Notes; and to provide you,
for your review and comment, with a copy of such reports and statements and other documents
to be filed by the Company pursuant to Section 13, 14 or 15(d) of the Exchange Act during
such period a reasonable amount of time prior to any proposed filing, and to file no such
report, statement or document to which you shall
-19-
have reasonably objected in writing; and to promptly notify you of such filing;
(h) to pay the fees applicable to the Registration Statement in connection with the
offering of the Notes within the time required by Rule 456(b)(1)(i) under the Act (without
reliance on the proviso to Rule 456(b)(1)(i) under the Act) and in compliance with Rule
456(b) and Rule 457(r) under the Act;
(i) to advise the Underwriters promptly of the happening of any event within the period
during which a prospectus is required by the Act to be delivered (whether physically or
through compliance with Rule 172 under the Act or any similar rule) in connection with any
sale of Notes, which event could require the making of any change in the Prospectus then
being used so that the Prospectus would not include an 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 are made, not misleading, and to advise the
Underwriters promptly if, during such period, it shall become necessary to amend or
supplement the Prospectus to cause the Prospectus to comply with the requirements of the
Act, and, in each case, during such time, subject to Section 4(f) hereof, to prepare and
furnish, at the Company’s expense, to the Underwriters promptly such amendments or
supplements to such Prospectus as may be necessary to reflect any such change or to effect
such compliance;
(j) to make generally available to its security holders, and to deliver to you, an
earnings statement of the Company (which will satisfy the provisions of Section 11(a) of the
Act) covering a period of twelve months beginning after the effective date of the
Registration Statement (as defined in Rule 158(c) under the Act) as soon as is reasonably
practicable after the termination of such twelve-month period but in any case not later than
March 1, 2008;
(k) to furnish to you as early as practicable prior to the time of purchase and any
additional time of purchase, as the case may be, but not later than two business days prior
thereto, a copy of the latest available unaudited interim and monthly consolidated financial
statements, if any, of the Company and the Subsidiaries which have been read by the
Company’s independent registered public accountants, as stated in their letter to be
furnished pursuant to Section 6(b) hereof;
(l) to apply the net proceeds from the sale of the Notes in the manner set forth under
the caption “Use of proceeds” in the Prospectus Supplement;
(m) to pay all costs, expenses, fees and taxes in connection with (i) the preparation
and filing of the Registration Statement, each Basic Prospectus, each Pre-Pricing
Prospectus, the Prospectus Supplement, the Prospectus, each Permitted Free Writing
Prospectus and any amendments or supplements thereto, and the printing and furnishing of
copies of each thereof to the Underwriters and to dealers (including costs of mailing and
shipment), (ii) the registration, issue, sale and delivery of the Notes and the Shares
including any stock or transfer taxes and stamp or similar duties payable upon the sale,
issuance or delivery of the Notes or the Shares, and all other costs related to the
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preparation, issuance, execution, authentication and delivery of the Notes and the
Shares, (iii) the producing, word processing and/or printing of this Agreement, the
Indenture and the Notes, any dealer agreements, any Powers of Attorney and any closing
documents (including compilations thereof) and the reproduction and/or printing and
furnishing of copies of each thereof to the Underwriters and (except closing documents) to
dealers (including costs of mailing and shipment), (iv) the qualification of the Notes and
the Shares for offering and sale under state or foreign laws and the determination of their
eligibility for investment under state or foreign law (including the legal fees and filing
fees and other disbursements of counsel for the Underwriters) and the printing and
furnishing of copies of any blue sky surveys or legal investment surveys to the Underwriters
and to dealers, (v) any listing of the Notes or the Shares on any securities exchange or
qualification of the Shares for quotation on the NASDAQ and any registration thereof under
the Exchange Act, (vi) any filing for review of the public offering of the Notes and the
Shares by the NASD, including the legal fees and filing fees and other disbursements of
counsel to the Underwriters relating to NASD matters, (vii) the fees and disbursements of
any transfer agent or registrar for the Shares, (viii) the costs and expenses of the Company
relating to presentations or meetings undertaken in connection with the marketing of the
offering and sale of the Notes and the Shares to prospective investors and the Underwriters’
sales forces, including, without limitation, expenses associated with the production of road
show slides and graphics, fees and expenses of any consultants engaged in connection with
the road show presentations, travel, lodging and other expenses incurred by the officers of
the Company and any such consultants, and the cost of any aircraft chartered in connection
with the road show, (ix) any fees payable to investment rating agencies with respect to the
rating of the Notes; (x) the costs and charges of the Trustee and any transfer agent,
registrar or depositary; (xi) the fees and expenses, if any, incurred in connection with the
admission of the Notes for trading in any appropriate market system, (xii) the costs and
expenses of qualifying the Notes for inclusion in the book-entry settlement system of the
DTC, (xiii) the fees, disbursements and expenses of the Company’s counsel and the Company’s
accountants in connection with the issuance and sale of the Notes and (xiv) the performance
of the Company’s other obligations hereunder;
(n) to comply with Rule 433(d) under the Act (without reliance on Rule 164(b) under the
Act) and with Rule 433(g) under the Act;
(o) beginning on the date hereof and ending on, and including, the date that is 90 days
after the date of the Prospectus Supplement (the “Lock-Up Period”), without the
prior written consent of the Representatives, not to (i) issue, sell, offer to sell,
contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise
dispose of or agree to dispose of, directly or indirectly, or establish or increase a put
equivalent position or liquidate or decrease a call equivalent position within the meaning
of Section 16 of the Exchange Act and the rules and regulations of the Commission
promulgated thereunder, with respect to, any Common Stock, any debt securities of the
Company or any other securities of the Company that are substantially similar to Common
Stock or the Notes, or any securities convertible into or exchangeable or exercisable for,
or any warrants or other rights to purchase, the foregoing, (ii) file or cause to become
effective a
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registration statement under the Act relating to the offer and sale of any Common
Stock, any debt securities of the Company or any other securities of the Company that are
substantially similar to Common Stock or the Notes, or any securities convertible into or
exchangeable or exercisable for, or any warrants or other rights to purchase, the foregoing,
(iii) enter into any swap or other arrangement that transfers to another, in whole or in
part, any of the economic consequences of ownership of Common Stock, any debt securities of
the Company or any other securities of the Company that are substantially similar to Common
Stock or the Notes, or any securities convertible into or exchangeable or exercisable for,
or any warrants or other rights to purchase, the foregoing, whether any such transaction is
to be settled by delivery of Common Stock or such other securities, in cash or otherwise or
(iv) publicly announce an intention to effect any transaction specified in clause (i), (ii)
or (iii), except, in each case, for (A) the issuance of the Notes as contemplated by this
Agreement, (B) the issuance of Shares upon conversion of the Notes, (C) issuances of Common
Stock upon the exercise of options or warrants disclosed as outstanding in the Registration
Statement, the Pre-Pricing Prospectuses and the Prospectus, (D) the issuance of employee
stock options not exercisable during the Lock-Up Period pursuant to stock option plans
described in the Registration Statement, the Pre-Pricing Prospectuses and the Prospectus,
(E) any required issuance of preferred stock or Common Stock pursuant to the Rights Plan and
(F) the offer and sale of shares of Common Stock to the equity holders (the “Target
Stockholders”) of any other corporation or other entity (a “Target”), as
consideration for the acquisition by the Company of such Target, so long as any Target
Stockholder that is a director, “officer” (within the meaning of Rule 16a-1(f) under the
Exchange Act) or “affiliate” (within the meaning of Rule 144 under the Act) of
the Target delivers a Lock-Up Agreement to the Representatives, duly executed by such Target
Stockholder; provided, however, that if (a) during the period that begins on
the date that is fifteen (15) calendar days plus three (3) business days before the last day
of the Lock-Up Period and ends on the last day of the Lock-Up Period, the Company issues an
earnings release or material news or a material event relating to the Company occurs; or (b)
prior to the expiration of the Lock-Up Period, the Company announces that it will release
earnings results during the sixteen (16) day period beginning on the last day of the Lock-Up
Period, then the restrictions imposed by this Section 4(o) shall continue to apply until the
expiration of the date that is fifteen (15) calendar days plus three (3) business days after
the date on which the issuance of the earnings release or the material news or material
event occurs; provided, further, that the immediately preceding proviso
shall not apply if (i) the safe harbor provided by Rule 139 under the Act is available in
the manner contemplated by Rule 2711(f)(4) of the NASD; and (ii) within the 3 business days
preceding the 15th calendar day before the last day of the Lock-Up Period, the Company
delivers (in accordance with Section 12) to the Representatives a certificate, signed by the
Chief Financial Officer or Chief Executive Officer of the Company, certifying on behalf of
the Company that the Company’s shares of Common Stock are “actively traded securities,”
within the meaning of Rule 2711(f)(4) of the NASD;
(p) not, at any time at or after the execution of this Agreement, to, directly or
indirectly, offer or sell any Notes by means of any “prospectus” (within the meaning of the
Act), or use any “prospectus” (within the meaning of the Act) in connection with the
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offer or sale of the Notes, in each case other than the Prospectus;
(q) not to, and to cause the Subsidiaries not to, take, directly or indirectly, any
action designed, or which will constitute, or has constituted, or might reasonably be
expected to cause or result in the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Notes or the Shares issuable
upon conversion of the Notes;
(r) to use its best efforts to cause the Shares issuable upon conversion of the Notes
to be listed on the NASDAQ and to maintain such listing;
(s) to maintain a transfer agent and, if necessary under the jurisdiction of
incorporation of the Company, a registrar for the Common Stock;
(t) to at all times reserve and keep available, free of preemptive rights, shares of
Common Stock in an amount sufficient to satisfy the Company’s obligations to issue Shares
upon conversion of the Notes; and
(u) to (i) use its best efforts to cause the Notes, and the Shares issuable upon
conversion of the Notes, to be included in the book-entry settlement system of the DTC and
(ii) comply with all of its obligations set forth in the representations letter of the
Company to the DTC relating to such inclusion.
5. Reimbursement of the Underwriters’ Expenses. If the Notes are not delivered for
any reason other than the termination of this Agreement pursuant to Section 7(2) or the fifth
paragraph of Section 8 hereof or the default by one or more of the Underwriters in its or their
respective obligations hereunder, the Company shall, in addition to paying the amounts described in
Section 4(m) hereof, reimburse the Underwriters for all of their out-of-pocket expenses, including
the fees and disbursements of their counsel.
6. Conditions of the Underwriters’ Obligations. The several obligations of the
Underwriters hereunder are subject to the accuracy of the representations and warranties on the
part of the Company on the date hereof, at the time of purchase and, if applicable, at the
additional time of purchase, the performance by the Company of its obligations hereunder and to the
following additional conditions precedent:
(a) The Company shall furnish to you at the time of purchase and, if applicable, at the
additional time of purchase, an opinion of Xxxxxxxx Xxxxxxx LLP, counsel for the Company,
addressed to the Underwriters, and dated the time of purchase or the additional time of
purchase, as the case may be, with executed copies for each Underwriter, and in form and
substance satisfactory to the Representatives, in the form set forth in Exhibit B
hereto.
(b) You shall have received from Ernst & Young LLP letters dated, respectively, the
date of this Agreement, the date of the Prospectus Supplement, the time of purchase and, if
applicable, the additional time of purchase, and addressed to the
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Underwriters (with executed copies for each of the Underwriters) in the forms
satisfactory to the Representatives, which letters shall cover, without limitation, the
various financial disclosures contained in the Registration Statement, the Pre-Pricing
Prospectuses, the Prospectus and the Permitted Free-Writing Prospectuses, if any.
(c) You shall have received at the time of purchase and, if applicable, at the
additional time of purchase, the favorable opinion of Xxxxx Xxxx & Xxxxxxxx, counsel for the
Underwriters, dated the time of purchase or the additional time of purchase, as the case may
be, in form and substance reasonably satisfactory to the Representatives.
(d) No Prospectus or amendment or supplement to the Registration Statement or the
Prospectus shall have been filed to which you shall have reasonably objected in writing.
(e) The Registration Statement and any registration statement required to be filed,
prior to the sale of the Notes, under the Act pursuant to Rule 462(b) shall have been filed
and shall have become effective under the Act. The Prospectus Supplement shall have been
filed with the Commission pursuant to Rule 424(b) under the Act at or before 5:30 P.M., New
York City time, on the second full business day after the date of this Agreement (or such
earlier time as may be required under the Act).
(f) Prior to and at the time of purchase, and, if applicable, the additional time of
purchase, (i) no stop order with respect to the effectiveness of the Registration Statement
shall have been issued under the Act or proceedings initiated under Section 8(d) or 8(e) of
the Act; (ii) the Registration Statement and all amendments thereto shall not 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; (iii) none of the
Pre-Pricing Prospectuses or the Prospectus, and no amendment or supplement thereto, shall
include an 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 are
made, not misleading; (iv) no Disclosure Package, and no amendment or supplement thereto,
shall include an 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 are made, not misleading; and (v) none of the Permitted Free Writing
Prospectuses, if any, shall include an 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 are made, not misleading.
(g) The Company will, at the time of purchase and, if applicable, at the additional
time of purchase, deliver to you a certificate of its Chief Executive Officer and its Chief
Financial Officer, dated the time of purchase or the additional time of purchase, as the
case may be, in the form attached as Exhibit C hereto.
(h) The Company will, at the time of purchase and, if applicable, at the additional
time of purchase, deliver to you a certificate of its Chief Financial Officer, dated the
time of purchase or the additional time of purchase, as the case may be, in the
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form attached as Exhibit D hereto.
(i) You shall have received copies, duly executed by the Company and the Trustee, of
the Indenture.
(j) You shall have received each of the signed Lock-Up Agreements referred to in
Section 3(v) hereof, and each such Lock-Up Agreement shall be in full force and effect at
the time of purchase and the additional time of purchase, as the case may be.
(k) The Company shall have furnished to you such other documents and certificates as to
the accuracy and completeness of any statement in the Registration Statement, any
Pre-Pricing Prospectus, the Prospectus or any Permitted Free Writing Prospectus as of the
time of purchase and, if applicable, the additional time of purchase, as you may reasonably
request.
(l) The Notes shall be included in the book-entry settlement system of the DTC, subject
only to notice of issuance at or prior to the time of purchase.
(m) The Shares shall have been approved for listing on the NASDAQ, subject only to
notice of issuance.
(n) There shall exist no event or condition which would constitute a default or an
event of default under the Notes or the Indenture.
(o) The NASD shall not have raised any objection with respect to the fairness or
reasonableness of the underwriting, or other arrangements of the transactions, contemplated
hereby.
7. Effective Date of Agreement; Termination. This Agreement shall become effective
when the parties hereto have executed and delivered this Agreement.
The obligations of the several Underwriters hereunder shall be subject to termination in the
absolute discretion of the Representatives, if (1) since the time of execution of this Agreement or
the earlier respective dates as of which information is given in the Registration Statement, the
Pre-Pricing Prospectuses, the Prospectus and the Permitted Free-Writing Prospectuses, if any, there
has been any change or any development involving a prospective change in the business, properties,
management, financial condition or results of operations of the Company and the Subsidiaries taken
as a whole, the effect of which change or development is, in the sole judgment of the
Representatives, so material and adverse as to make it impractical or inadvisable to proceed with
the public offering or the delivery of the Notes on the terms and in the manner contemplated in the
Registration Statement, the Pre-Pricing Prospectuses, the Prospectus and the Permitted Free-Writing
Prospectuses, if any, or (2) since the time of execution of this Agreement, there shall have
occurred: (A) a suspension or material limitation in trading in securities generally on the NYSE,
the American Stock Exchange or the NASDAQ; (B) a suspension or material limitation in trading in
the Company’s securities on the NASDAQ; (C) a general moratorium on commercial banking activities
declared by either federal or New York
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State authorities or a material disruption in commercial banking or securities settlement or
clearance services in the United States; (D) an outbreak or escalation of hostilities or acts of
terrorism involving the United States or a declaration by the United States of a national emergency
or war; or (E) any other calamity or crisis or any change in financial, political or economic
conditions in the United States or elsewhere, if the effect of any such event specified in clause
(D) or (E), in the sole judgment of the Representatives, makes it impractical or inadvisable to
proceed with the public offering or the delivery of the Notes on the terms and in the manner
contemplated in the Registration Statement, the Pre-Pricing Prospectuses, the Prospectus and the
Permitted Free-Writing Prospectuses, if any, or (3) since the time of execution of this Agreement,
there shall have occurred any downgrading, or any notice or announcement shall have been given or
made of: (A) any intended or potential downgrading or (B) any watch, review or possible change that
does not indicate an affirmation or improvement in the rating accorded any securities of or
guaranteed by the Company or any Subsidiary by any “nationally recognized statistical rating
organization,” as that term is defined in Rule 436(g)(2) under the Act.
If the Representatives elect to terminate this Agreement as provided in this Section 7, the
Company and each other Underwriter shall be notified promptly in writing.
If the sale to the Underwriters of the Notes, as contemplated by this Agreement, is not
carried out by the Underwriters for any reason permitted under this Agreement, or if such sale is
not carried out because the Company shall be unable to comply with any of the terms of this
Agreement, the Company shall not be under any obligation or liability under this Agreement (except
to the extent provided in Sections 4(m), 5 and 9 hereof), and the Underwriters shall be under no
obligation or liability to the Company under this Agreement (except to the extent provided in
Section 9 hereof) or to one another hereunder.
8. Increase in Underwriters’ Commitments. Subject to Sections 6 and 7 hereof, if any
Underwriter shall default in its obligation to take up and pay for the Notes to be purchased by it
hereunder at the time of purchase or an additional time of purchase (otherwise than for a failure
of a condition set forth in Section 6 hereof or a reason sufficient to justify the termination of
this Agreement under the provisions of Section 7 hereof) (the “Defaulted Notes”) and if the
aggregate principal amount of the Defaulted Notes which all Underwriters so defaulting shall have
agreed but failed to take up and pay for at such time does not exceed 10% of the total aggregate
principal amount of Notes to be purchased at such time, the non-defaulting Underwriters (including
the Underwriters, if any, substituted in the manner set forth below) shall take up and pay for (in
addition to the aggregate principal amount of Notes they are obligated to purchase at such time
pursuant to Section 1 hereof) the aggregate principal amount of Defaulted Notes agreed to be
purchased by all such defaulting Underwriters at such time, as hereinafter provided. Such
Defaulted Notes shall be taken up and paid for by such non-defaulting Underwriters, acting
severally and not jointly, in such amount or amounts as you may designate with the consent of each
Underwriter so designated or, in the event no such designation is made, such Notes shall be taken
up and paid for by all non-defaulting Underwriters pro rata in proportion to the aggregate
principal amount of Firm Notes set forth opposite the names of such non-defaulting Underwriters in
Schedule A.
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Without relieving any defaulting Underwriter from its obligations hereunder, the Company
agrees with the non-defaulting Underwriters that it will not sell any Firm Notes hereunder unless
all of the Firm Notes are purchased by the Underwriters (or by substituted Underwriters selected by
you with the approval of the Company or selected by the Company with your approval). Without
relieving any defaulting Underwriter from its obligations hereunder, the Company agrees with the
non-defaulting Underwriters that it will not sell any Additional Notes hereunder at an additional
time of purchase unless all of the Additional Notes to be purchased by the Underwriters at such
additional time of purchase (as set forth in the related written notice referred to in the second
paragraph of Section 1 hereof) are purchased by the Underwriters (or by substituted Underwriters
selected by you with the approval of the Company or selected by the Company with your approval).
If a new Underwriter or Underwriters are substituted by the Underwriters or by the Company for
a defaulting Underwriter or Underwriters in accordance with the foregoing provision, the Company or
you shall have the right to postpone the time of purchase for a period not exceeding five business
days in order that any necessary changes in the Registration Statement and the Prospectus and other
documents may be effected.
The term “Underwriter” as used in this Agreement shall refer to and include any Underwriter
substituted under this Section 8 with like effect as if such substituted Underwriter had originally
been named in Schedule A hereto.
If the aggregate principal amount of Defaulted Notes which the defaulting Underwriter or
Underwriters agreed to purchase at the time of purchase or an additional time of purchase, as the
case may be, exceeds 10% of the total aggregate principal amount of Notes which all Underwriters
agreed to purchase hereunder at such time, and if neither the non-defaulting Underwriters nor the
Company shall make arrangements within the five business day period stated above for the purchase
of all the Firm Notes which the defaulting Underwriter or Underwriters agreed to purchase hereunder
at such time, this Agreement, or, in the case of a default with respect to any Additional Notes,
the obligations of the Underwriters to purchase, and of the Company to sell, the Additional Notes
that otherwise were to be purchased by the Underwriters at such additional time of purchase, shall
terminate without further act or deed and without any liability with respect thereto on the part of
the Company to any Underwriter and without any liability with respect thereto on the part of any
non-defaulting Underwriter to the Company; provided, however, that, for avoidance
of doubt, in the case of such a termination on account of a default with respect to any Additional
Notes, this Agreement shall not terminate as to the Firm Notes or any Additional Notes purchased by
the Underwriters from the Company pursuant hereto prior to such termination. Nothing in this
paragraph, and no action taken hereunder, shall relieve any defaulting Underwriter from liability
in respect of any default of such Underwriter under this Agreement.
9. Indemnity and Contribution.
(a) The Company agrees to indemnify, defend and hold harmless each Underwriter, its
partners, directors and officers, and any person who controls any Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange
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Act, and the successors and assigns of all of the foregoing persons, from and against
any loss, damage, expense, liability or claim (including the reasonable cost of
investigation) which, jointly or severally, any such Underwriter or any such person may
incur under the Act, the Exchange Act, the common law or otherwise, insofar as such loss,
damage, expense, liability or claim arises out of or is based upon (i) any untrue statement
or alleged untrue statement of a material fact contained in the Registration Statement (or
in the Registration Statement as amended by any post-effective amendment thereof by the
Company) or arises out of or is based upon any omission or alleged omission to state a
material fact required to be stated therein or necessary to make the statements therein not
misleading, except insofar as any such loss, damage, expense, liability or claim arises out
of or is based upon any untrue statement or alleged untrue statement of a material fact
contained in, and in conformity with information concerning such Underwriter furnished in
writing by or on behalf of such Underwriter through you to the Company expressly for use in,
the Registration Statement or arises out of or is based upon any omission or alleged
omission to state a material fact in the Registration Statement in connection with such
information, which material fact was not contained in such information and which material
fact was required to be stated in such Registration Statement or was necessary to make such
information not misleading or (ii) any untrue statement or alleged untrue statement of a
material fact included in any Prospectus (the term Prospectus for the purpose of this
Section 9 being deemed to include any Basic Prospectus, any Pre-Pricing Prospectus, the
Prospectus Supplement, the Prospectus and any amendments or supplements to the foregoing),
in any Permitted Free Writing Prospectus, in any “issuer information” (as defined in Rule
433 under the Act) of the Company or in any Prospectus together with any combination of one
or more of the Permitted Free Writing Prospectuses, if any, or arises out of or is based
upon any omission or alleged omission 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, except, with respect to such Prospectus or Permitted Free Writing Prospectus,
insofar as any such loss, damage, expense, liability or claim arises out of or is based upon
any untrue statement or alleged untrue statement of a material fact contained in, and in
conformity with information concerning such Underwriter furnished in writing by or on behalf
of such Underwriter through you to the Company expressly for use in, such Prospectus or
Permitted Free Writing Prospectus or arises out of or is based upon any omission or alleged
omission to state a material fact in such Prospectus or Permitted Free Writing Prospectus in
connection with such information, which material fact was not contained in such information
and which material fact was necessary in order to make the statements in such information,
in the light of the circumstances under which they were made, not misleading.
(b) Each Underwriter severally agrees to indemnify, defend and hold harmless the
Company, 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, and the successors and
assigns of all of the foregoing persons, from and against any loss, damage, expense,
liability or claim (including the reasonable cost of investigation) which, jointly or
severally, the Company or any such person may incur under the Act, the Exchange Act, the
common law or otherwise, insofar as such loss, damage, expense, liability or
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claim arises out of or is based upon (i) any untrue statement or alleged untrue
statement of a material fact contained in, and in conformity with information concerning
such Underwriter furnished in writing by or on behalf of such Underwriter through you to the
Company expressly for use in, the Registration Statement (or in the Registration Statement
as amended by any post-effective amendment thereof by the Company), or arises out of or is
based upon any omission or alleged omission to state a material fact in such Registration
Statement in connection with such information, which material fact was not contained in such
information and which material fact was required to be stated in such Registration Statement
or was necessary to make such information not misleading or (ii) any untrue statement or
alleged untrue statement of a material fact contained in, and in conformity with information
concerning such Underwriter furnished in writing by or on behalf of such Underwriter through
you to the Company expressly for use in, a Prospectus or a Permitted Free Writing
Prospectus, or arises out of or is based upon any omission or alleged omission to state a
material fact in such Prospectus or Permitted Free Writing Prospectus in connection with
such information, which material fact was not contained in such information and which
material fact was necessary in order to make the statements in such information, in the
light of the circumstances under which they were made, not misleading.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against
a person (an “indemnified party”) in respect of which indemnity may be sought
against the Company or an Underwriter (as applicable, the “indemnifying party”)
pursuant to subsection (a) or (b), respectively, of this Section 9, such indemnified party
shall promptly notify such indemnifying party in writing of the institution of such
Proceeding and such indemnifying party shall assume the defense of such Proceeding,
including the employment of counsel reasonably satisfactory to such indemnified party and
payment of all fees and expenses; provided, however, that the omission to so
notify such indemnifying party shall not relieve such indemnifying party from any liability
which such indemnifying party may have to any indemnified party or otherwise, unless and to
the extent that the indemnifying party was not otherwise notified of the Proceeding and such
omission to so notify materially prejudices the indemnifying party. The indemnified party
or parties shall have the right to employ its or their own counsel in any such case, but the
fees and expenses of such counsel shall be at the expense of such indemnified party or
parties unless the employment of such counsel shall have been authorized in writing by the
indemnifying party in connection with the defense of such Proceeding or the indemnifying
party shall not have, within a reasonable period of time in light of the circumstances,
employed counsel to defend such Proceeding or such indemnified party or parties shall have
reasonably concluded that there may be defenses available to it or them which are different
from, additional to or in conflict with those available to such indemnifying party (in which
case such indemnifying party shall not have the right to direct the defense of such
Proceeding on behalf of the indemnified party or parties), in any of which events such fees
and expenses shall be borne by such indemnifying party and paid as incurred (it being
understood, however, that such indemnifying party shall not be liable for the expenses of
more than one separate counsel (in addition to any local counsel) in any one Proceeding or
series of related Proceedings in the same jurisdiction representing the indemnified parties
who are parties to such Proceeding). The
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indemnifying party shall not be liable for any settlement of any Proceeding effected
without its written consent but, if settled with its written consent, such indemnifying
party agrees to indemnify and hold harmless the indemnified party or parties from and
against any loss or liability by reason of such settlement. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as contemplated by the
second sentence of this Section 9(c), then the indemnifying party agrees that it shall be
liable for any settlement of any Proceeding effected without its written consent if (i) such
settlement is entered into more than 60 business days after receipt by such indemnifying
party of the aforesaid request, (ii) such indemnifying party shall not have fully reimbursed
the indemnified party in accordance with such request prior to the date of such settlement
and (iii) such indemnified party shall have given the indemnifying party at least 30 days’
prior notice of its intention to settle. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any pending or threatened
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 Proceeding and does not include an admission of fault or
culpability or a failure to act by or on behalf of such indemnified party.
(d) If the indemnification provided for in this Section 9 is unavailable to an
indemnified party under subsections (a) and (b) of this Section 9 or insufficient to hold an
indemnified party harmless in respect of any losses, damages, expenses, liabilities or
claims referred to therein, then each applicable indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of such losses, damages,
expenses, liabilities or claims (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters 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 of the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, damages, expenses, liabilities or
claims, as well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on the other shall be deemed to
be in the same respective proportions as the total proceeds from the offering (net of
underwriting discounts and commissions but before deducting expenses) received by the
Company, and the total discounts and commissions received by the Underwriters, bear to the
gross proceeds to the Company from the offering of the Notes (before deducting underwriting
discounts and commissions and other expenses). The relative fault of the Company on the one
hand and of the Underwriters on the other shall be determined by reference to, among other
things, whether the untrue statement or alleged untrue statement of a material fact or
omission or alleged omission relates to information supplied by the Company or by the
Underwriters and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The amount paid or payable by
a party as a result of the losses, damages,
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expenses, liabilities and claims referred to in this subsection shall be deemed to
include any legal or other fees or expenses reasonably incurred by such party in connection
with investigating, preparing to defend or defending any Proceeding.
(e) The Company and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this Section 9 were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations referred to in
subsection (d) above. Notwithstanding the provisions of this Section 9, no Underwriter
shall be required to contribute any amount in excess of the amount by which the total price
at which the Notes resold by it in the initial placement of such Notes were offered to
investors exceeds the amount of any damage which such Underwriter has otherwise been
required to pay by reason of such untrue statement 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 Underwriters’ obligations to contribute
pursuant to this Section 9 are several in proportion to the respective principal amount of
Notes they have agreed to purchase hereunder and not joint.
(f) The indemnity and contribution agreements contained in this Section 9 and the
covenants, warranties and representations of the Company contained in this Agreement shall
remain in full force and effect regardless of any investigation made by or on behalf of any
Underwriter, its partners, directors or officers or any person (including each partner,
officer or director of such person) who controls any Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, or by or on behalf of the Company,
its directors or officers or any person who controls the Company within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, and shall survive any termination
of this Agreement or the issuance and delivery of the Notes. The Company and each
Underwriter agree promptly to notify each other of the commencement of any Proceeding
against it and, in the case of the Company, against any of the Company’s officers or
directors in connection with the issuance and sale of the Notes, or in connection with the
Registration Statement, any Basic Prospectus, any Pre-Pricing Prospectus, the Prospectus or
any Permitted Free Writing Prospectus.
10. Information
Furnished by the Underwriters. The statements set forth
(x) under the caption “Underwriting — Commissions and
Discounts” in the Prospectus, only insofar as such statements
relate to selling concession and reallowance amounts, and
(y) under the first through fourth paragraphs under the caption
“Underwriting — Price Stabilization, Short Positions” in the Prospectus, only insofar as such statements
relate to over-allotment and stabilization activities that may be undertaken by the Underwriters,
constitute the only information furnished by or on behalf of the Underwriters as such information
is referred to in Sections 3 and 9 hereof.
11. Tax Disclosure. Notwithstanding any other provision of this Agreement, from the
commencement of discussions with respect to the transactions contemplated hereby, the Company (and
each employee, representative or other agent of the Company) may disclose to any and all persons,
without limitation of any kind, the tax treatment and tax structure (as such terms are used in
Sections 6011, 6111 and 6112 of the U.S. Code and the Treasury Regulations
-31-
promulgated thereunder) of the transactions contemplated by this Agreement and all materials
of any kind (including opinions or other tax analyses) that are provided relating to such tax
treatment and tax structure.
12. Notices. Except as otherwise herein provided, all statements, requests, notices
and agreements shall be in writing or by telegram or facsimile and, if to the Underwriters, shall
be sufficient in all respects if delivered or sent to UBS Securities LLC, 000 Xxxx Xxxxxx, Xxx
Xxxx, XX 00000-0000, Attention: Syndicate Department and Deutsche Bank Securities Inc., 00 Xxxx
Xxxxxx, Xxx Xxxx, XX 00000, Attention: Syndicate Department; and if to the Company, shall be
sufficient in all respects if delivered or sent to the Company at the offices of the Company at
0000 Xxxxxxxxx Xxxxx, Xxxxxxx, XX 00000, Fax 000-000-0000, Attention: President.
13. Governing Law; Construction. This Agreement and any claim, counterclaim or
dispute of any kind or nature whatsoever arising out of or in any way relating to this Agreement
(“Claim”), directly or indirectly, shall be governed by, and construed in accordance with,
the laws of the State of New York. The section headings in this Agreement have been inserted as a
matter of convenience of reference and are not a part of this Agreement.
14. Submission to Jurisdiction. Except as set forth below, no Claim may be commenced,
prosecuted or continued in any court other than the courts of the State of New York located in the
City and County of New York or in the United States District Court for the Southern District of New
York, which courts shall have jurisdiction over the adjudication of such matters, and the Company
consents to the jurisdiction of such courts and personal service with respect thereto. The Company
hereby consents to personal jurisdiction, service and venue in any court in which any Claim arising
out of or in any way relating to this Agreement is brought by any third party against any
Underwriter or any indemnified party. Each Underwriter and the Company (on its behalf and, to the
extent permitted by applicable law, on behalf of its stockholders and affiliates) waive all right
to trial by jury in any action, proceeding or counterclaim (whether based upon contract, tort or
otherwise) in any way arising out of or relating to this Agreement. The Company agrees that a
final judgment in any such action, proceeding or counterclaim brought in any such court shall be
conclusive and binding upon the Company and may be enforced in any other courts to the jurisdiction
of which the Company is or may be subject, by suit upon such judgment.
15. Parties at Interest. The Agreement herein set forth has been and is made solely
for the benefit of the Underwriters and the Company and to the extent provided in Section 9 hereof
the controlling persons, partners, directors and officers referred to in such Section, and their
respective successors, assigns, heirs, personal representatives and executors and administrators.
No other person, partnership, association or corporation (including a purchaser, as such purchaser,
from any of the Underwriters) shall acquire or have any right under or by virtue of this Agreement.
16. No Fiduciary Relationship. The Company hereby acknowledges that the Underwriters
are acting solely as underwriters in connection with the purchase and sale of the Company’s
securities. The Company further acknowledges that the Underwriters are acting
-32-
pursuant to a contractual relationship created solely by this Agreement entered into on an
arm’s length basis, and in no event do the parties intend that the Underwriters act or be
responsible as a fiduciary to the Company, its management, stockholders or creditors or any other
person in connection with any activity that the Underwriters may undertake or have undertaken in
furtherance of the purchase and sale of the Company’s securities, either before or after the date
hereof. The Underwriters hereby expressly disclaim any fiduciary or similar obligations to the
Company, either in connection with the transactions contemplated by this Agreement or any matters
leading up to such transactions, and the Company hereby confirms its understanding and agreement to
that effect. The Company and the Underwriters agree that they are each responsible for making
their own independent judgments with respect to any such transactions and that any opinions or
views expressed by the Underwriters to the Company regarding such transactions, including, but not
limited to, any opinions or views with respect to the price or market for the Company’s securities,
do not constitute advice or recommendations to the Company. The Company hereby waives and
releases, to the fullest extent permitted by law, any claims that the Company may have against the
Underwriters with respect to any breach or alleged breach of any fiduciary or similar duty to the
Company in connection with the transactions contemplated by this Agreement or any matters leading
up to such transactions.
17. Counterparts. This Agreement may be signed by the parties in one or more
counterparts which together shall constitute one and the same agreement among the parties.
18. Successors and Assigns. This Agreement shall be binding upon the Underwriters and
the Company and their successors and assigns and any successor or assign of any substantial portion
of the Company’s and any of the Underwriters’ respective businesses and/or assets.
19. Miscellaneous. UBS Securities LLC (“UBS”), an indirect, wholly owned
subsidiary of UBS AG, is not a bank and is separate from any affiliated bank, including any U.S.
branch or agency of UBS AG. Because UBS is a separately incorporated entity, it is solely
responsible for its own contractual obligations and commitments, including obligations with respect
to sales and purchases of securities. Securities sold, offered or recommended by UBS are not
deposits, are not insured by the Federal Deposit Insurance Corporation, are not guaranteed by a
branch or agency, and are not otherwise an obligation or responsibility of a branch or agency.
[The Remainder of This Page Intentionally Left Blank; Signature Page Follows]
-33-
If the foregoing correctly sets forth the understanding between the Company and the several
Underwriters, please so indicate in the space provided below for that purpose, whereupon this
Agreement and your acceptance shall constitute a binding agreement between the Company, the
Underwriters, severally.
| Very truly yours, ARRIS GROUP, INC. |
||||
| By: | /s/ Xxxxx X. Xxxxx | |||
| Name: Xxxxx X. Xxxxx | ||||
| Title: Chief Financial Officer | ||||
Accepted and agreed to as of the date
first above written, on behalf of
itself and the other several
Underwriters named in Schedule A
hereto:
first above written, on behalf of
itself and the other several
Underwriters named in Schedule A
hereto:
UBS Securities LLC
By: |
/s/ Xxxxx St. Xxxx | |||
| Title: Managing Director | ||||
By: |
/s/ Antal Runneboom | |||
| Title: Executive Director | ||||
| Deutsche Bank Securities Inc. | ||||
By: |
/s/ Xxxx X. Xxxx | |||
| Title: Director | ||||
By: |
/s/ Xxxxxxx Xxxx | |||
| Title: Managing Director | ||||
SCHEDULE A
| Principal | ||||
| Amount of | ||||
| Underwriters | Firm Notes | |||
UBS SECURITIES LLC |
180,000,000 | |||
DEUTSCHE BANK SECURITIES INC. |
60,000,000 | |||
Total |
$ | 240,000,000 | ||
SCHEDULE B
Permitted Free Writing Prospectuses
1. Final
term sheet dated November 6, 2006
EXHIBIT A
Lock-Up Agreement
To be dated on or before
November 6, 2006
November 6, 2006
UBS Securities LLC
Deutsche Bank Securities Inc.
Together with the other Underwriters
named in Schedule A to the Underwriting Agreement
referred to herein
Deutsche Bank Securities Inc.
Together with the other Underwriters
named in Schedule A to the Underwriting Agreement
referred to herein
c/o
|
UBS Securities LLC | |
| 000 Xxxx Xxxxxx | ||
| Xxx Xxxx, Xxx Xxxx 00000-0000 | ||
| Deutsche Bank Securities Inc. | ||
| 00 Xxxx Xxxxxx | ||
| Xxx Xxxx, Xxx Xxxx 00000 |
Ladies and Gentlemen:
This Lock-Up Agreement is being delivered to you in connection with the proposed Underwriting
Agreement (the “Underwriting Agreement”) to be entered into by ARRIS GROUP, INC., a
Delaware corporation (the “Company”), and you and the other Underwriters named in Schedule
A to the Underwriting Agreement, with respect to the offering (the “Offering”) of
convertible notes (the “Notes”) of the Company. Capitalized terms used herein without
definition shall have the respective meanings ascribed to them in the Underwriting Agreement.
In order to induce you to enter into the Underwriting Agreement, the undersigned agrees that,
for a period (the “Lock-Up Period”) beginning on the date hereof and ending on, and
including, the date that is 90 days after the date of the final prospectus relating to the
Offering, the undersigned will not, without the prior written consent of UBS Securities LLC and
Deutsche Bank Securities Inc., (i) sell, offer to sell, contract or agree to sell, hypothecate,
pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or
indirectly, or file (or participate in the filing of) a registration statement with the Securities
and Exchange Commission (the “Commission”) in respect of, or establish or increase a put
equivalent position or liquidate or decrease a call equivalent position within the meaning of
Section 16 of the Securities Exchange Act of 1934, as amended, and the rules and regulations of the
Commission promulgated thereunder (the “Exchange Act”) with respect to, any common stock
(the “Common Stock”), $0.01 par value per share, of the Company, any debt securities of the
Company or any other securities of the Company that are substantially similar to Common Stock or
the Notes, or any securities convertible into or exchangeable or exercisable for, or any warrants
or other rights to purchase, the foregoing, (ii) enter into any swap or other arrangement that
transfers to another, in whole or in part, any of the economic consequences of ownership of Common
Stock, any debt
A-1
securities of the Company or any other securities of the Company that are substantially similar to
Common Stock or the Notes, or any securities convertible into or exchangeable or exercisable for,
or any warrants or other rights to purchase, the foregoing, whether any such transaction is to be
settled by delivery of Common Stock or such other securities, in cash or otherwise or (iii)
publicly announce an intention to effect any transaction specified in clause (i) or (ii). The
foregoing sentence shall not apply to (a) bona fide gifts, provided the recipient thereof agrees in
writing with the Underwriters to be bound by the terms of this Lock-Up Agreement, (b) dispositions
to any trust for the direct or indirect benefit of the undersigned and/or the immediate family of
the undersigned, provided that such trust agrees in writing with the Underwriters to be bound by
the terms of this Lock-Up Agreement or (c) dispositions pursuant to a written contract, instruction
or plan satisfying the requirements of Rule 10b5-1(c)(1) under the Securities Exchange Act of 1934
that the undersigned entered into prior to October 1, 2006.* For purposes of this
paragraph, “immediate family” shall mean the undersigned and the spouse, any lineal descendent,
father, mother, brother or sister of the undersigned.
In addition, the undersigned hereby waives any rights the undersigned may have to require
registration of Common Stock in connection with the filing of any registration statement to be
filed with the Commission by the Company. The undersigned further agrees that, for the Lock-Up
Period, the undersigned will not, without the prior written consent of UBS Securities LLC and
Deutsche Bank Securities Inc., make any demand for, or exercise any right with respect to, the
registration of Common Stock or any securities convertible into or exercisable or exchangeable for
Common Stock, or warrants or other rights to purchase Common Stock or any such securities.
Notwithstanding the above, if (a) during the period that begins on the date that is fifteen
(15) calendar days plus three (3) business days before the last day of the Lock-Up Period and ends
on the last day of the Lock-Up Period, the Company issues an earnings release or material news or a
material event relating to the Company occurs; or (b) prior to the expiration of the Lock-Up
Period, the Company announces that it will release earnings results during the sixteen (16) day
period beginning on the last day of the Lock-Up Period, then the restrictions imposed by this
Lock-Up Agreement shall continue to apply until the expiration of the date that is fifteen (15)
calendar days plus three (3) business days after the date on which the issuance of the earnings
release or the material news or material event occurs; provided, however, that this
paragraph shall not apply if (i) the safe harbor provided by Rule 139 under the Securities Act of
1933, as amended, is available in the manner contemplated by Rule 2711(f)(4) of the National
Association of Securities Dealers, Inc. (the “NASD”); and (ii) within the 3 business days
preceding the 15th calendar day before the last day of the Lock-Up Period, the Company delivers (in
accordance with the notice provisions of the Underwriting Agreement) to UBS Securities LLC a
certificate, signed by the Chief Financial Officer or Chief Executive Officer of the Company,
certifying on behalf of the Company that the Company’s shares of Common Stock are “actively traded
securities,” within the meaning of Rule 2711(f)(4) of the NASD.
| * | The phrase “that the undersigned entered into
prior to October 1, 2006” need not appear in the letters to be delivered
by Messrs. Xxxxx and Xxxxxx. |
A-2
The undersigned hereby confirms that the undersigned has not, directly or indirectly, taken,
and hereby covenants that the undersigned will not, directly or indirectly, take, any action
designed, or which has constituted or will constitute or might reasonably be expected to cause or
result in the stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of Notes or the shares of Common Stock issuable upon conversion of
the Notes.
* * *
A-3
If (i) the Company notifies you in writing that it does not intend to proceed with the
Offering, (ii) the registration statement filed with the Commission with respect to the Offering is
withdrawn or (iii) for any reason the Underwriting Agreement shall be terminated prior to the “time
of purchase” (as defined in the Underwriting Agreement), this Lock-Up Agreement shall be terminated
and the undersigned shall be released from its obligations hereunder.
| Yours very truly, | ||||
X-0
XXXXXXX X-0
LIST OF PARTIES TO EXECUTE LOCK-UP AGREEMENTS
| Name | Position | |
1. Xxxx X. Best
|
Director | |
2. Xxxxx X. Xxxxx
|
Director | |
3. X. X. Xxx Xxxxx
|
Director | |
4. Xxxxxxx X. Xxxxxxx
|
Director | |
5. Xxxxxxx X. Xxxxxxx
|
Director | |
6. Xxxx X. Xxxxx
|
Director | |
7. Xxxxxx X. Xxxxxxxxx
|
Chairman, President and Chief Executive Officer | |
8. Xxxxxxxx X.
Xxxxxxxx
|
Executive Vice President of Strategic Planning, Administration, and Chief Counsel | |
9. Xxxxx X. Xxxxx
|
President, Broadband | |
10. Xxxxx X. Xxxxx
|
Executive Vice President, Chief Financial Officer and Chief Information Officer | |
11. Xxxxxx X. Xxxxxxx
|
President, Worldwide Sales | |
12. Xxxxxx Xxxxxx
|
President, New Business Ventures | |
13. Xxxxxx Xxxxxxx
|
President, TeleWire | |
13. Xxx Xxxxx
|
Vice President and Controller | |
14. Xxxx Xxxxxx
|
Vice President and Treasurer |
