Leap Wireless International, Inc. Common Stock, $0.0001 par value Underwriting Agreement
Exhibit 1.1
Leap Wireless International, Inc.
Common Stock, $0.0001 par value
Common Stock, $0.0001 par value
May 28, 2009
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Leap Wireless International, Inc., a Delaware corporation (the “Company”), proposes, subject
to the terms and conditions stated herein, to issue and sell to the Xxxxxxx, Sachs & Co. (the
“Underwriter”) an aggregate of 7,000,000 shares (the “Securities”) of common stock, par value
$0.0001 per share (the “Stock”), of the Company.
1. The Company represents and warrants to, and agrees with, the Underwriter that:
(a) An “automatic shelf registration statement” as defined under Rule 405 under the
Securities Act of 1933, as amended (the “Act”) on Form S-3 (File No. 333-157690) in respect
of the Securities has been filed with the Securities and Exchange Commission (the
“Commission”) not earlier than three years prior to the date hereof; such registration
statement, and any post-effective amendment thereto, became effective on filing; and no stop
order suspending the effectiveness of such registration statement or any part thereof has
been issued and no proceeding for that purpose has been initiated or, to the best of the
Company’s knowledge, threatened by the Commission, and no notice of objection of the
Commission to the use of such registration statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Act has been received by the Company (the base
prospectus filed as part of such registration statement, in the form in which it has most
recently been filed with the Commission on or prior to the date of this Agreement, is
hereinafter called the “Basic Prospectus”; any preliminary prospectus (including any
preliminary prospectus supplement) relating to the Securities filed with the Commission
pursuant to Rule 424(b) under the Act is hereinafter called a “Preliminary
Prospectus”; the various parts of such registration statement, including all exhibits
thereto but excluding Form T-1 and including any prospectus supplement relating to the
Securities that is filed with the Commission and deemed by virtue of Rule 430B to be part of
such registration statement, each as amended at the time such part of the registration
statement became effective, are hereinafter collectively called the “Registration
Statement”; the Basic Prospectus, as amended and supplemented immediately prior to the
Applicable Time (as defined in Section 1(c) hereof), is hereinafter called the “Pricing
Prospectus”; the form of the final prospectus relating to the Securities filed with the
Commission pursuant to Rule 424(b) under the Act in accordance with Section 5(a) hereof is
hereinafter called the “Prospectus”; any reference herein to the Basic Prospectus, the
Pricing Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Act, as of the date of such prospectus; any reference to any amendment or
supplement to the Basic Prospectus, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any post-effective amendment to the Registration Statement,
any prospectus supplement relating to the Securities filed with the Commission pursuant to
Rule 424(b) under the Act and any documents filed under the Securities Exchange Act of 1934,
as amended (the “Exchange Act”), and incorporated therein, in each case after the date of
the Basic Prospectus, such Preliminary Prospectus, or the Prospectus, as the case may be;
any reference to any amendment to the Registration Statement shall be deemed to refer to and
include any annual report of the Company filed pursuant to Section 13(a) or 15(d) of the
Exchange Act after the effective date of the Registration Statement that is incorporated by
reference in the Registration Statement; and any “issuer free writing prospectus” as defined
in Rule 433 under the Act relating to the Securities is hereinafter called an “Issuer Free
Writing Prospectus”);
(b) No order preventing or suspending the use of any Preliminary Prospectus or any
Issuer Free Writing Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material respects to the
requirements of the Act and the rules and regulations of the Commission thereunder, and did
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, in the light of the
circumstances under which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company by the
Underwriter expressly for use therein;
(c) For the purposes of this Agreement, the “Applicable Time” is 6:00 a.m. (Eastern
time) on the date of this Agreement. The Pricing Prospectus, when considered together with
the public offering price of the Securities and the number of Securities as set forth on the
cover page of the Prospectus, as of the Applicable Time, did not include any untrue
statement of a material fact or omit to state any material fact necessary in order to make
the statements therein, in the
light of the circumstances under which they were made, not misleading; and each Issuer
Free Writing Prospectus listed on Schedule II(a) hereto does not conflict with the
information contained in the Registration Statement, the Pricing Prospectus or the
Prospectus and each such Issuer Free Writing Prospectus, as supplemented by and taken
together with the Pricing Prospectus, the public offering price of the Securities and the
number of Securities as set forth on the cover page of the Prospectus, as of the Applicable
Time, did not include any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, the representations and
warranties in this Section 1(c) shall not apply to statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company by the
Underwriter;
(d) Each document filed or to be filed pursuant to the Exchange Act and incorporated by
reference in the Pricing Prospectus or the Prospectus complied or will comply when they
became effective or were filed with the Commission, as the case may be, in all material
respects with the Exchange Act and the applicable rules and regulations of the Commission
thereunder;
(e) The Registration Statement conforms, and the Prospectus and any further amendments
or supplements to the Registration Statement and the Prospectus will conform, in all
material respects to the requirements of the Act and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable effective date as to
each part of the Registration Statement and as of the applicable filing date as to the
Prospectus and any amendment or supplement thereto, 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; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by the Underwriter expressly
for use therein;
(f) Neither the Company nor any of its subsidiaries has sustained since the date of the
latest audited financial statements included in the Pricing Prospectus and the Prospectus
any material loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or contemplated in the
Pricing Prospectus and the Prospectus; and, since the respective dates as of which
information is given in the Pricing Prospectus and the Prospectus, there has not been any
change in the capital stock or long-term debt of the Company or any of its subsidiaries or
any material adverse effect on the general affairs, management, current or future
consolidated financial position, stockholders’ equity or results of operations of the
Company and its subsidiaries, taken as a whole (a “Material Adverse Effect”), or any
development involving a prospective Material Adverse Effect, otherwise than as set forth or
contemplated in the Pricing Prospectus and the Prospectus and
otherwise than as a result of the issuance of stock upon the exercise of outstanding
warrants, or pursuant to an employee stock purchase plan, or upon the exercise of stock
options or the award of restricted stock or deferred stock units, in each case in the
ordinary course of business pursuant to the Stock Plans (as defined below) as described in
the Pricing Prospectus and the Prospectus;
(g) Each of the Company and its subsidiaries has been duly incorporated or organized
and is validly existing as a corporation or a limited liability company, as applicable, in
good standing under the laws of the jurisdiction in which it is chartered or organized with
full corporate or limited liability company, as applicable, power and authority to own or
lease, as the case may be, and operate its properties and conduct its business as described
in the Pricing Prospectus and the Prospectus;
(h) The Company has an authorized equity capitalization as set forth in the Pricing
Prospectus and the Prospectus and all of the issued and outstanding shares of capital stock
of the Company and each subsidiary have been duly authorized and validly issued and are
fully paid and nonassessable, and, except as otherwise set forth in the Pricing Prospectus
and the Prospectus, all outstanding shares of capital stock of the Company’s subsidiaries
are owned directly or indirectly by the Company free and clear of any security interest,
claim, lien or encumbrance;
(i) The unissued Securities to be issued and sold by the Company to the Underwriter
hereunder have been duly and validly authorized and, when issued and delivered against
payment therefor as provided herein, will be duly and validly issued and fully paid and
non-assessable and will conform to the description of the Securities contained in the
Prospectus, and, except as otherwise set forth in the Pricing Prospectus and the Prospectus,
all outstanding shares of capital stock of the Company’s subsidiaries are owned directly or
indirectly by the Company free and clear of any security interest, claim, lien or
encumbrance;
(j) The issue and sale of the Securities and the compliance by the Company with this
Agreement and the consummation of the transactions herein contemplated will not (i) conflict
with or result in a breach or violation of any of the terms or provisions of, or constitute
a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, except for such conflicts, breaches,
violations or defaults that would not, individually or in the aggregate, affect the ability
of the Company to consummate the transactions herein contemplated or have a Material Adverse
Effect, (ii) result in any violation of the provisions of the Amended and Restated
Certificate of Incorporation or Amended and Restated By-laws of the Company, nor (iii)
result in any violation of any statute or any
order, rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of their properties; and no
consent, approval, authorization, order, registration or qualification of or with any such
court or governmental agency or body is required for the issue and sale of the Securities or
the consummation by the Company of the transactions contemplated by this Agreement, except
(X) the registration under the Act of the Securities, and (Y) such consents, approvals,
authorizations, registrations or qualifications as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution of the Securities by the
Underwriter, and (Z) such consent, approval, authorization, registrations or qualifications
that would not, individually or in the aggregate, affect the ability of the Company to
consummate the transactions herein contemplated or have a Material Adverse Effect;
(k) Neither the Company nor any of its subsidiaries is (i) in violation of its charter
or bylaws or other comparable constituting documents, (ii) in default in the performance or
observance of any obligation, agreement, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it
is a party or by which it or any of its properties may be bound, or (iii) in violation of
any statute, law, rule, regulation, judgment, order or decree of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority having jurisdiction
over the Company or any of its subsidiaries or any of its or their properties, except, in
the case of (ii) or (iii) above, for such defaults or violations as would not, individually
or in the aggregate, have a Material Adverse Effect;
(l) The statements set forth in the Pricing Prospectus and the Prospectus under the
caption “Description of Capital Stock”, insofar as they purport to constitute a summary of
the terms of the Stock, under the caption “Material United States Federal Income Tax
Consequences to Non-U.S. Holders”, insofar as they purport to describe the provisions of the
laws and documents referred to therein, and under the caption “Underwriting”, insofar as
they purport to describe the provisions of this Agreement, are accurate and complete in all
material respects;
(m) Other than as set forth in the Pricing Prospectus and the Prospectus, there are no
legal or governmental proceedings pending to which the Company, any of its subsidiaries or,
to the best of the Company’s knowledge, LCW Wireless, LLC or any of its subsidiaries or
Denali Spectrum, LLC or any of its subsidiaries (each, a “Designated Entity” and
collectively, the “Designated Entities”) is a party or of which any property of the Company,
any of its subsidiaries or, to the best of the Company’s knowledge, any Designated Entity is
the subject, which, if determined adversely to the Company, any of its subsidiaries or any
Designated Entity, would individually or in the aggregate have a Material Adverse Effect;
and, to the best of the Company’s knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(n) The Company is not and, after giving effect to the offering and sale of the
Securities and the application of the proceeds thereof, will not be an “investment company”,
as such term is defined in the Investment Company Act of 1940, as amended (the “Investment
Company Act”);
(o) (A) (i) At the time of filing the Registration Statement, (ii) at the time of the
most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act
(whether such amendment was by post-effective amendment, incorporated report filed pursuant
to Section 13 or 15(d) of the Exchange Act or form of prospectus), and (iii) at the time the
Company or any person acting on its behalf (within the meaning, for this clause only, of
Rule 163(c) under the Act) made any offer relating to the Securities in reliance on the
exemption of Rule 163 under the Act, the Company was a “well-known seasoned issuer” as
defined in Rule 405 under the Act; and (B) at the earliest time after the filing of the
Registration Statement that the Company or another offering participant made a bona fide
offer (within the meaning of Rule 164(h)(2) under the Act) of the Securities, the Company
was not an “ineligible issuer” as defined in Rule 405 under the Act;
(p) PricewaterhouseCoopers LLP, who have certified certain financial statements of the
Company and its consolidated subsidiaries and delivered their report with respect to the
audited consolidated financial statements and schedules included or incorporated by
reference in the Pricing Prospectus and the Prospectus, are independent public accountants
with respect to the Company within the meaning of the Act;
(q) Except as otherwise disclosed in the Prospectus, the Company and its 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
authorizations; (ii) transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting principles in the
United States and to maintain asset accountability; (iii) access to assets is permitted only
in accordance with management’s general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. Except as otherwise disclosed
in the Prospectus: (x) the Company has established and maintains “disclosure controls and
procedures” (as such term is defined in Rule 13a-15(e) under the Exchange Act); (y) such
disclosure controls and procedures have been designed to ensure that material information
relating to the Company and its subsidiaries is made known to the principal executive
officer and principal financial officer of the Company by others within those entities, and
such disclosure controls and procedures are reasonably effective to perform the functions
for which they were established subject to the limitations of any such control system; and
(z) since the date of the most recent evaluation of such disclosure controls and procedures,
there have been no significant changes in the Company’s internal control over financial
reporting or in
other factors that could significantly adversely affect the Company’s internal control
over financial reporting;
(r) The Company and its subsidiaries and their respective officers and directors are in
compliance with Section 402 of the Xxxxxxxx-Xxxxx Act of 2002 and the applicable rules and
regulations thereunder (the “Xxxxxxxx-Xxxxx Act”) related to loans, and the Company has
filed the certifications required by Sections 302 and 906 of the Xxxxxxxx-Xxxxx Act;
(s) The consolidated historical financial statements and schedules of the Company and
its consolidated subsidiaries and other entities required to be consolidated under generally
accepted accounting principles in the United States (collectively, the “Consolidated Group”)
included or incorporated by reference in the Pricing Prospectus and Prospectus present
fairly in all material respects the financial condition, results of operations and cash
flows of the Consolidated Group as of the dates and for the periods indicated, comply as to
form in all material respects with the applicable accounting requirements of Regulation S-X
under the Act and have been prepared in conformity with generally accepted accounting
principles in the United States applied on a consistent basis throughout the periods
involved (except as otherwise noted therein); the selected financial data set forth under
the caption “Selected Financial Data” in the Company’s Annual Report on Form 10-K for the
year ended December 31, 2008, incorporated by reference in the Pricing Prospectus and
Prospectus, fairly present in all material respects, on the basis stated in the Company’s
Annual Report on Form 10-K for the year ended December 31, 2008, incorporated by reference
in the Pricing Prospectus and Prospectus, the information included therein;
(t) There are no stamp or other issuance or transfer taxes or duties or other similar
fees or charges required to be paid in connection with the execution and delivery of this
Agreement or the issuance or sale by the Company of the Securities;
(u) The Company has filed all applicable tax returns that are required to be filed or
has requested extensions thereof (except in any case in which the failure so to file would
not have a Material Adverse Effect and except as set forth in or contemplated in the Pricing
Prospectus and Prospectus (exclusive of any amendment or supplement thereto)) and has paid
all taxes required to be paid by it and any other assessment, fine or penalty levied against
it, to the extent that any of the foregoing is due and payable, except for any such
assessment, fine or penalty that is currently being contested in good faith or as would not
have a Material Adverse Effect and except as set forth in or contemplated in the Pricing
Prospectus and Prospectus (exclusive of any amendment or supplement thereto);
(v) No labor problem or dispute with the employees of the Company or any of its
subsidiaries exists or, to the knowledge of the Company, is threatened,
except as would not have a Material Adverse Effect and except as set forth in or
contemplated in the Pricing Prospectus and Prospectus (exclusive of any amendment or
supplement thereto);
(w) Except as would not have a Material Adverse Effect and except as set forth in or
contemplated in the Pricing Prospectus and Prospectus (exclusive of any amendment or
supplement thereto), (i) the Company and each of its subsidiaries are insured by insurers of
recognized financial responsibility against such losses and risks and in such amounts as are
prudent and customary in the businesses in which they are engaged; (ii) all policies of
insurance and fidelity or surety bonds insuring the Company or any of its subsidiaries or
their respective businesses, assets, employees, officers and directors are in full force and
effect; and (iii) neither the Company nor any of its subsidiaries has any reason to believe
that it will not be able to renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may be necessary to continue
its business;
(x) The Company, each subsidiary and, to the best of the Company’s knowledge, each
Designated Entity possess such valid and current licenses and authorizations issued by the
Federal Communications Commission (the “FCC”) necessary to conduct their respective
businesses as currently conducted, and none of the Company, any subsidiary or, to the best
of the Company’s knowledge, any Designated Entity has received any notice of proceedings
relating to the revocation or modification of, or non-compliance with, any such license or
authorization which, individually or in the aggregate, assuming an unfavorable decision,
ruling or finding, would have a Material Adverse Effect;
(y) Except as would not have a Material Adverse Effect and except as set forth in or
contemplated in the Pricing Prospectus and Prospectus (exclusive of any amendment or
supplement thereto), the Company and its subsidiaries are (i) in compliance with any and all
applicable laws and regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or contaminants
(“Environmental Laws”); (ii) have received and are in compliance with all permits, licenses
or other approvals required of them under applicable Environmental Laws to conduct their
respective businesses; and (iii) have not received notice of any actual or potential
liability under any Environmental Law. Except as set forth in the Pricing Prospectus and
Prospectus, to the knowledge of the Company, neither the Company nor any of its subsidiaries
has been named as a “potentially responsible party” under the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended;
(z) The business of the Company and its subsidiaries, as described in the Pricing
Prospectus and Prospectus, is being conducted in compliance with applicable requirements
under the Federal Communications Act of 1934, as amended, the Telecommunications Act of 1996
and the regulations issued thereunder, all relevant rules, regulations and published
policies of the FCC and
any applicable state telecommunications laws and regulations of a state public service
commission or similar state governmental authority (“State PUC”) (collectively, the
“Telecommunications Laws”), except as would not have a Material Adverse Effect. All
licenses and authorizations issued by the FCC required for the operations of the Company,
its subsidiaries and, to the best of the Company’s knowledge, the Designated Entities as
currently conducted as described in the Pricing Prospectus and Prospectus are in full force
and effect. Except for certain license renewal filings made by the Company in the ordinary
course, there are no pending modifications or amendments to any licenses issued by the FCC
to the Company or any of its subsidiaries (the “FCC Licenses”), or, to the best of the
Company’s knowledge, to any licenses issued by the FCC to any Designated Entity (the “DE
Licenses”), or any revocation proceedings pending with respect to any of such FCC Licenses,
or, to the best of the Company’s knowledge, to any of such DE Licenses, in each case, which,
if implemented or adversely decided, would have a Material Adverse Effect. No event has
occurred with respect to such FCC Licenses, or to the best of the Company’s knowledge, to
such DE Licenses, which, with the giving of notice or the lapse of time or both, would
constitute grounds for revocation of any of the FCC Licenses or the DE Licenses,
respectively, other than the expiration of such FCC Licenses or such DE Licenses,
respectively, in accordance with their terms. Except as disclosed in the Pricing Prospectus
and the Prospectus, there is no condition, event or occurrence existing, nor, to the best of
the Company’s knowledge, is there any proceeding being conducted or threatened by any
governmental authority, which would reasonably be expected to cause the termination,
suspension, cancellation, or nonrenewal of any of the FCC Licenses, or, to the best of the
Company’s knowledge, the DE Licenses, or the imposition of any penalty or fine by any
regulatory body with respect to any of the FCC Licenses, or, to the best of the Company’s
knowledge, the DE Licenses, or the Company or its subsidiaries, in each case which would
have a Material Adverse Effect;
(aa) All stock options granted under the Company’s 2004 Stock Option, Restricted Stock
and Deferred Stock Unit Plan, as amended (the “2004 Stock Plan”) and 2009 Employment
Inducement Equity Incentive Plan (the “2009 Stock Plan” and collectively with the 2004 Stock
Plan, the “Stock Plans”) have been granted in compliance with, in all material respects, the
terms of applicable law and the Stock Plans and have (or with respect to any such options
which have been exercised as of the date of this Agreement, had) a per-share exercise price
that is (or with respect to any such options which have been exercised as of the date of
this Agreement, was) at least equal to the fair market value of a share of the Company’s
common stock as of the date the option was granted. Neither the Company nor any of its
subsidiaries has received any notice or inquiry from any court or governmental agency or
body regarding the commencement of any proceeding or investigation regarding stock option
dating practices, and no such proceeding or investigation is pending or, to the best of the
Company’s knowledge, threatened;
(bb) No consent, approval, authorization, order or waiver of, or filing with, the FCC
or any State PUC is required under the Telecommunications Laws to be obtained or made by the
Company or any of its subsidiaries for the issuance and sale of the Securities or the
execution, delivery and performance of this Agreement or the transactions contemplated
herein and therein;
(cc) The execution, delivery and performance of this Agreement by the Company in
accordance with its terms do not and will not violate any of the terms or provisions of, or
constitute a default under, any of the Telecommunications Laws;
(dd) The Company and its subsidiaries each have filed with the FCC and any State PUC
having jurisdiction all necessary reports, documents, instruments, information and
applications required to be filed pursuant to the Telecommunications Laws, except as would
not have a Material Adverse Effect;
(ee) The issuance and sale of the Securities and the compliance by the Company with
this Agreement and the consummation of the transactions herein contemplated will not result
in a transfer of control of the Company within the meaning of the Telecommunications Laws
and the rules and policies of the FCC;
(ff) The Company and each of its subsidiaries, and to the best of the Company’s
knowledge the Designated Entities, are legally qualified to hold the FCC Licenses held by
such entities; and
(gg) Except as disclosed in the Pricing Prospectus and the Prospectus, there is no (a)
outstanding decree, decision, judgment, or order that has been issued by the FCC or by any
State PUC against the Company or any of its subsidiaries, or to the best of the Company’s
knowledge, any Designated Entity, or with respect to the FCC Licenses, or (b) notice of
violation, order to show cause, complaint, investigation or other administrative or judicial
proceeding pending or, to the best of the Company’s knowledge, threatened by or before the
FCC or any State PUC against the Company, any of its subsidiaries, the FCC Licenses or, to
the best of the Company’s knowledge, any Designated Entity, that, assuming an unfavorable
decision, ruling or finding, in the case of each of (a) or (b) above, would have a Material
Adverse Effect.
2. Subject to the terms and conditions herein set forth, the Company agrees to issue and sell
to the Underwriter, and the Underwriter agrees to purchase from the Company, at a purchase price
per share of $37.75, the number of Securities set forth opposite the name of the Underwriter in
Schedule I hereto.
3. Upon the authorization by you of the release of the Securities, the Underwriter proposes to
offer the Securities for sale upon the terms and conditions set forth in the Prospectus at the
price per share set forth on Schedule III.
4. (a) The Securities to be purchased by the Underwriter hereunder, in definitive form, and
in such authorized denominations and registered in such names as
Xxxxxxx, Sachs & Co. may request upon at least forty-eight hours’ prior notice to the Company
shall be delivered by or on behalf of the Company to Xxxxxxx, Xxxxx & Co., through the facilities
of the Depository Trust Company (“DTC”), for the account of the Underwriter, against payment by or
on behalf of the Underwriter of the purchase price therefor by wire transfer of Federal (same-day)
funds to the account specified by the Company to Xxxxxxx, Sachs & Co. at least forty-eight hours in
advance. The Company will cause the certificates representing the Securities to be made available
for checking and packaging at least twenty-four hours prior to the Time of Delivery (as defined
below) at the office of DTC or its designated custodian (the “Designated Office”). The time and
date of such delivery and payment shall be 9:30 a.m., New York City time, on June 2, 2009 or such
other time and date as the Underwriter and the Company may agree upon in writing. Such time and
date are herein called the “Time of Delivery”.
(b) The documents to be delivered at the Time of Delivery by or on behalf of the parties
hereto pursuant to Section 8 hereof, including the cross-receipt for the Securities and any
additional documents requested by the Underwriter pursuant to Section 8(k) hereof, will be
delivered at the offices of Shearman & Sterling LLP, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000 (the
“Closing Location”), and the Securities will be delivered at the Designated Office, all at the Time
of Delivery. A meeting will be held at the Closing Location at 2:00 p.m., New York City time, on
the New York Business Day next preceding the Time of Delivery, at which meeting the final drafts of
the documents to be delivered pursuant to the preceding sentence will be available for review by
the parties hereto. For the purposes of this Section 4, “New York Business Day” shall mean each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in
New York City are generally authorized or obligated by law or executive order to close.
5. The Company agrees with the Underwriter:
(a) To prepare the Prospectus in a form approved by you and to file such Prospectus pursuant
to Rule 424(b) under the Act not later than the Commission’s close of business on the second
business day following the execution and delivery of this Agreement; to make no further amendment
or any supplement to the Registration Statement, the Basic Prospectus or the Prospectus prior to
the Time of Delivery which shall be disapproved by you promptly after reasonable notice thereof; to
advise you, promptly after it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any amendment or supplement to the
Prospectus has been filed and to furnish you with copies thereof; to file promptly all other
material required to be filed by the Company with the Commission pursuant to Rule 433(d) under the
Act; to file promptly all reports and any definitive proxy or information statements required to be
filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a
prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required in
connection with the offering or sale of the Securities; to advise you, promptly after it receives
notice thereof, of the issuance by the Commission of any stop order or of any
order preventing or suspending the use of any Preliminary Prospectus or other prospectus in
respect of the Securities, of any notice of objection of the Commission to the use of the
Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the
Act, of the suspension of the qualification of the Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the Registration Statement or the
Prospectus or for additional information; and, in the event of the issuance of any stop order or of
any such order preventing or suspending the use of any Preliminary Prospectus or other prospectus
relating to the Securities or suspending any such qualification, to promptly use its best efforts
to obtain the withdrawal of such order; and in the event of any such issuance of a notice of
objection, promptly to take such steps including, without limitation, amending the Registration
Statement or filing a new registration statement, at its own expense, as may be necessary to permit
offers and sales of the Securities by the Underwriter (references herein to the Registration
Statement shall include any such amendment or new registration statement);
(b) If required by Rule 430B(h) under the Act, to prepare a form of prospectus in a form
approved by you and to file such form of prospectus pursuant to Rule 424(b) under the Act not later
than may be required by Rule 424(b) under the Act; and to make no further amendment or supplement
to such form of prospectus which shall be disapproved by you promptly after reasonable notice
therereof;
(c) If by the third anniversary (the “Renewal Deadline”) of the initial effective date of the
Registration Statement, any of the Securities remain unsold by the Underwriter, the Company will
file, if it has not already done so and is eligible to do so, a new automatic shelf registration
statement relating to the Securities, in a form satisfactory to you. If at the Renewal Deadline
the Company is no longer eligible to file an automatic shelf registration statement, the Company
will, if it has not already done so, file a new shelf registration statement relating to the
Securities, in a form satisfactory to you and will use its best efforts to cause such registration
statement to be declared effective within 180 days after the Renewal Deadline. The Company will
take all other action necessary or appropriate to permit the public offering and sale of the
Securities to continue as contemplated in the expired registration statement relating to the
Securities. References herein to the Registration Statement shall include such new automatic shelf
registration statement or such new shelf registration statement, as the case may be;
(d) Promptly from time to time to take such action as you may reasonably request to qualify
the Securities for offering and sale under the securities laws of such jurisdictions as you may
request and to comply with such laws so as to permit the continuance of sales and dealings therein
in such jurisdictions for as long as may be necessary to complete the distribution of the
Securities, provided that in connection therewith the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of process in any jurisdiction or to
subject itself to taxation for doing business in any jurisdiction;
(e) Prior to 10:00 a.m., New York City time, on the New York Business Day next succeeding the
date of this Agreement and from time to time, to furnish the Underwriter with written and
electronic copies of the Prospectus in New York City in such quantities as you may reasonably
request, and, if the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule
173(a) under the Act) is required at any time prior to the expiration of nine months after the time
of issue of the Prospectus in connection with the offering or sale of the Securities and if at such
time any event shall have occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the circumstances under
which they were made when such Prospectus (or in lieu thereof, the notice referred to in Rule
173(a) under the Act) is delivered, not misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the Prospectus in order to comply with the
Act or the Exchange Act, to notify you and upon your request to file such document and to prepare
and furnish without charge to the Underwriter and to any dealer in securities as many written and
electronic copies as you may from time to time reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such statement or omission or effect such
compliance; and in case the Underwriter is required to deliver a prospectus (or in lieu thereof,
the notice referred to in Rule 173(a) under the Act) in connection with sales of any of the
Securities at any time nine months or more after the time of issue of the Prospectus, upon your
request but at the expense of the Underwriter, to prepare and deliver to the Underwriter as many
written and electronic copies as you may request of an amended or supplemented Prospectus complying
with Section 10(a)(3) of the Act;
(f) To make generally available to its securityholders as soon as practicable, but in any
event not later than sixteen months after the effective date of the Registration Statement (as
defined in Rule 158(c) under the Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and the rules and regulations
of the Commission thereunder (including, at the option of the Company, Rule 158);
(g) During the period beginning from the date hereof and continuing to and including the date
90 days after the date of this Agreement, not to offer, sell, contract to sell, pledge, grant any
option to purchase, make any short sale or otherwise dispose, except as provided hereunder, of any
securities of the Company that are substantially similar to the Securities, including but not
limited to any options or warrants to purchase shares of Stock or any securities that are
convertible into or exchangeable for, or that represent the right to receive, Stock or any such
substantially similar securities, (in each case other than pursuant to the Company’s employee stock
purchase plan or employee stock option, restricted stock and deferred stock unit plans (as such
plans may be amended from time to time in accordance with the terms thereof) existing on, or upon
the exercise of any stock option or warrants or the conversion or exchange of convertible or
exchangeable securities outstanding as of, the date of this Agreement), in each case, without your
prior written consent;
(h) To pay the required Commission filing fees relating to the Securities within the time
required by Rule 456(b)(1) under the Act without regard to the proviso therein and otherwise in
accordance with Rules 456(b) and 457(r) under the Act;
(i) To use the net proceeds received by it from the sale of the Securities pursuant to this
Agreement in the manner specified in the Pricing Prospectus under the caption “Use of Proceeds”;
(j) To use its best efforts to list the Securities on the Nasdaq Stock Market Inc.’s Global
Select Market (“NASDAQ”); and
(k) Upon request of the Underwriter, to furnish, or cause to be furnished, to the Underwriter
an electronic version of the Company’s trademarks, servicemarks and corporate logo for use on the
website, if any, operated by the Underwriter for the purpose of facilitating the on-line offering
of the Securities (the “License”); provided, however, that the License shall be used solely for the
purpose described above, is granted without any fee and may not be assigned or transferred.
6.
(a) The Company represents and agrees that, without the prior consent of Xxxxxxx, Xxxxx & Co.,
it has not made and will not make any offer relating to the Securities that would constitute a
“free writing prospectus” as defined in Rule 405 under the Act; the Underwriter represents and
agrees that, without the prior consent of the Company, it has not made and will not make any offer
relating to the Securities that would constitute a free writing prospectus; any such free writing
prospectus the use of which has been consented to by the Company and Xxxxxxx, Sachs & Co. is listed
on Schedule II(a) hereto;
(b) The Company has complied and will comply with the requirements of Rule 433 under the Act
applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission or
retention where required and legending; and
(c) The Company agrees that if at any time following issuance of an Issuer Free Writing
Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus
would conflict with the information in the Registration Statement, the Pricing Prospectus or the
Prospectus or would include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the circumstances then
prevailing, not misleading, the Company will give prompt notice thereof to Xxxxxxx, Xxxxx & Co.
and, if requested by Xxxxxxx, Sachs & Co., will prepare and furnish without charge to the
Underwriter an Issuer Free Writing Prospectus or other document which will correct such conflict,
statement or omission; provided, however, that this representation and warranty shall not apply to
any statements or omissions in an Issuer Free Writing Prospectus made in reliance upon and in
conformity with information furnished in writing to the Company by the Underwriter expressly for
use therein.
7. The Company covenants and agrees with the Underwriter that the Company will pay or cause to
be paid the following: (i) the fees, disbursements and expenses of the Company’s counsel and
accountants in connection with the registration of the Securities under the Act and all other
expenses in connection with the preparation, printing, reproduction and filing of the Registration
Statement, the Basic Prospectus, any Preliminary Prospectus, any Issuer Free Writing Prospectus and
the Prospectus and amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriter and dealers; (ii) the cost of printing or producing this Agreement, the
Blue Sky Memorandum, closing documents (including any compilations thereof) and any other documents
in connection with the offering, purchase, sale and delivery of the Securities; (iii) all expenses
in connection with the qualification of the Securities for offering and sale under state securities
laws as provided in Section 5(d) hereof, including the reasonable fees and disbursements of counsel
for the Underwriter in connection with such qualification and in connection with the Blue Sky
survey; (iv) all fees and expenses in connection with listing the Securities on NASDAQ; (v) the
filing fees incident to, and the fees and disbursements of counsel for the Underwriter in
connection with, any required review by the Financial Industry Regulatory Authority, Inc. of the
terms of the sale of the Securities; (vi) the cost of preparing the Securities; (vii) the cost and
charges of any transfer agent or registrar; and (viii) all other reasonable costs and expenses
incident to the performance of its obligations hereunder which are not otherwise specifically
provided for in this Section. It is understood, however, that, except as provided in this Section,
and Sections 9 and 12 hereof, the Underwriter will pay all of their own costs and expenses,
including the fees of its counsel, transfer taxes on resale of any of the Securities by them, and
any advertising expenses connected with any offers they may make.
8. The obligations of the Underwriter hereunder shall be subject, in its discretion, to the
condition that all representations and warranties and other statements of the Company herein are,
at and as of the Time of Delivery, true and correct, the condition that the Company shall have
performed all of its obligations hereunder theretofore to be performed, and the following
additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the
Act within the applicable time period prescribed for such filing by the rules and regulations under
the Act and in accordance with Section 5(a) hereof; all material required to be filed by the
Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the
applicable time period prescribed for such filings by Rule 433; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or, to the best of the Company’s knowledge,
threatened by the Commission and no notice of objection of the Commission to the use of the
Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the
Act shall have been received; no stop order suspending or preventing the use of the Prospectus or
any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and
all requests for additional information on the part of the Commission shall have been complied with
to your reasonable satisfaction;
(b) Shearman & Sterling LLP, counsel for the Underwriter, shall have furnished to you such
written opinion or opinions, dated the Time of Delivery, in form and substance satisfactory to you,
and such counsel shall have received such papers and information as they may reasonably request to
enable them to pass upon such matters;
(c) Xxxxxx & Xxxxxxx LLP, counsel for the Company, shall have furnished to you their written
opinion (substantially in the form attached as Annex II hereto), dated the Time of Delivery, in
form and substance satisfactory to you. In addition, Xxxxxx & Xxxxxxx LLP, counsel for the
Company, shall have furnished to the Underwriter a letter in the form attached as Annex II hereto
dated the Time of Delivery and addressed to the Underwriter in form and substance satisfactory to
the Underwriter.
(d) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30
a.m., New York City time, on the effective date of any post effective amendment to the Registration
Statement filed subsequent to the date of this Agreement and also at the Time of Delivery,
PricewaterhouseCoopers LLP shall have furnished to you a letter or letters, dated the respective
dates of delivery thereof, in form and substance satisfactory to you, to the effect set forth in
Annex I hereto;
(e) (i) Neither the Company nor any of its subsidiaries shall have sustained since the date of
the latest audited financial statements included or incorporated by reference in the Pricing
Prospectus any loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and
(ii) since the date as of which information is given in the Pricing Prospectus there shall not have
been any change in the capital stock or long term debt of the Company or any of its subsidiaries or
any change, or any development involving a prospective change, in or affecting the general affairs,
management, financial position, stockholders’ equity or results of operations of the Company and
its subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Pricing
Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in your
judgment so material and adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Securities on the terms and in the manner contemplated in
the Prospectus;
(f) On or after the Applicable Time (i) no downgrading shall have occurred in the rating
accorded the Company’s debt securities by any “nationally recognized statistical rating
organization”, as that term is defined by the Commission for purposes of Rule 436(g)(2) under the
Act, and (ii) no such organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any of the Company’s debt securities;
(g) On or after the Applicable Time there shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on the New York Stock Exchange
or NASDAQ; (ii) a suspension or material limitation in trading in the Company’s securities on
NASDAQ; (iii) a general moratorium on commercial
banking activities declared by either Federal or New York State authorities or a material
disruption in commercial banking or securities settlement or clearance services in the United
States; (iv) the outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war or (v) the occurrence of 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 (iv) or (v) in your
judgment makes it impracticable or inadvisable to proceed with the public offering or the delivery
of the Securities on the terms and in the manner contemplated in the Prospectus;
(h) The Company shall have complied with the provisions of Section 5(e) hereof with respect to
the furnishing of prospectuses on the New York Business Day next succeeding the date of this
Agreement;
(i) The Securities to be sold at the Time of Delivery shall have been duly listed, subject to
notice of issuance, on NASDAQ;
(j) The Company has obtained and delivered to the Underwriter executed copies of an agreement
from (1) all of the Company’s directors and officers who are subject to filings under Section 16(a)
of the Exchange Act and (2) entities affiliated with MHR Fund Management LLC that beneficially own
the Company’s common stock, substantially to the effect set forth in Section 5(g) hereof in form
and substance satisfactory to you; and
(k) The Company shall have furnished or caused to be furnished to you at the Time of Delivery
certificates of officers of the Company satisfactory to you as to the accuracy of the
representations and warranties of the Company herein at and as of the Time of Delivery, as to the
performance by the Company of all of its obligations hereunder to be performed at or prior to the
Time of Delivery, as to the matters set forth in subsections (a) and (e) of this Section and as to
such other matters as you may reasonably request.
9. (a) The Company will indemnify and hold harmless the Underwriter against any losses,
claims, damages or liabilities, joint or several, to which the Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement, the Basic Prospectus, any Preliminary
Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, any
Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant
to Rule 433(d) under the Act, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse the Underwriter for any legal or other expenses
reasonably incurred by the Underwriter in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, however, that the Company shall not be
liable in any such case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in the Registration
Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the
Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, in
reliance upon and in conformity with written information furnished to the Company by the
Underwriter expressly for use therein.
(b) The Underwriter will indemnify and hold harmless the Company against any losses, claims,
damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or
the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, or
arise out of or are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not misleading, in each
case to the extent, but only to the extent, that such untrue statement or alleged untrue statement
or omission or alleged omission was made in the Registration Statement, the Basic Prospectus, any
Preliminary Prospectus, the Pricing Prospectus or the Prospectus or any such amendment or
supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with
written information furnished to the Company by the Underwriter expressly for use therein; and will
reimburse the Company for any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice
of the commencement of any action, such indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the indemnifying party shall not
relieve it from any liability which it may have to any indemnified party otherwise than under such
subsection. In case any such action shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it shall wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party (who shall not, except with the consent of the indemnified party, be counsel
to the indemnifying party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall not be liable to
such indemnified party under such subsection for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying party shall, without
the written consent of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or claim in respect of
which indemnification or contribution may be sought hereunder (whether or not the indemnified party
is an actual or potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an
unconditional release of the indemnified party from all liability arising out of such action
or claim and (ii) does not include a statement as to or an admission of fault, culpability or a
failure to act, by or on behalf of any indemnified party. In addition, no indemnified party shall,
without the written consent of the indemnifying party (such consent not to be unreasonably
withheld, conditioned or delayed), effect the settlement or compromise of, or consent to the entry
of any judgment with respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder.
(d) If the indemnification provided for in this Section 9 is unavailable to or insufficient to
hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriter on the other from the offering of the Securities to which such loss,
claim, damage or liability (or action in respect thereof) relates. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid or payable by such indemnified party in
such proportion as is appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriter on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or liabilities (or actions
in respect thereof), as well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriter on the other shall be deemed to be in
the same proportion as the total net proceeds from the offering (before deducting expenses)
received by the Company bear to the total underwriting discounts and commissions received by the
Underwriter, in each case as set forth in the table on the cover page of the Prospectus. The
relative fault shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission to state a material
fact relates to information supplied by the Company on the one hand or the Underwriter on the other
and the parties’ relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the Underwriter agree that it would not be
just and equitable if contribution pursuant to this subsection (d) were determined by pro rata
allocation or by any other method of allocation which does not take account of the equitable
considerations referred to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this subsection (d), the
Underwriter shall not be required to contribute any amount in excess of the amount by which the
total price at which the Securities underwritten by it and distributed to the public were offered
to the public exceeds the amount of any damages which the Underwriter has otherwise been required
to pay by
reason of such untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(e) The obligations of the Company under this Section 9 shall be in addition to any liability
which the Company may otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls the Underwriter within the meaning of the Act and each broker-dealer
affiliate of the Underwriter; and the obligations of the Underwriter under this Section 9 shall be
in addition to any liability which the Underwriter may otherwise have and shall extend, upon the
same terms and conditions, to each officer and director of the Company and to each person, if any,
who controls the Company within the meaning of the Act.
10. [Intentionally Omitted]
11. The respective indemnities, agreements, representations, warranties and other statements
of the Company and the Underwriter, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf of the Underwriter
or any controlling person of the Underwriter, or the Company, or any officer or director or
controlling person of the Company, and shall survive delivery of and payment for the Securities.
12. If for any reason, the Securities are not delivered by or on behalf of the Company as
provided herein, the Company will reimburse the Underwriter for all out of pocket expenses,
including fees and disbursements of counsel, reasonably incurred by the Underwriter in making
preparations for the purchase, sale and delivery of the Securities, but the Company shall then be
under no further liability to the Underwriter except as provided in Sections 7 and 9 hereof.
13.
All statements, requests, notices and agreements hereunder shall be in writing, and if to the
Underwriter shall be delivered or sent by mail, telex or facsimile transmission to Xxxxxxx, Xxxxx &
Co. at 00 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Registration Department;
and if to the Company shall be delivered or sent by mail, telex or facsimile transmission to the
address of the Company set forth in the Registration Statement, Attention: Secretary. Any such
statements, requests, notices or agreements shall take effect upon receipt thereof.
In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)), the Underwriter is required to obtain, verify and record
information that identifies its clients, including the Company, which information may include the
name and address of its clients, as well as other information that will allow the Underwriter to
properly identify its clients.
14. This Agreement shall be binding upon, and inure solely to the benefit of, the Underwriter,
the Company and, to the extent provided in Sections 9 and 11 hereof, the officers and directors of
the Company and each person who controls the Company or the Underwriter, and their respective
heirs, executors, administrators, successors and assigns, and no other person shall acquire or have
any right under or by virtue of this Agreement. No purchaser of any of the Securities from the
Underwriter shall be deemed a successor or assign by reason merely of such purchase.
15. Time shall be of the essence of this Agreement. As used herein, the term “business day”
shall mean any day when the Commission’s office in Washington, D.C. is open for business.
16. The Company acknowledges and agrees that (i) the purchase and sale of the Securities
pursuant to this Agreement is an arm’s-length commercial transaction between the Company, on the
one hand, and the Underwriter, on the other, (ii) in connection therewith and with the process
leading to such transaction the Underwriter is acting solely as a principal and not the agent or
fiduciary of the Company, (iii) the Underwriter has not assumed an advisory or fiduciary
responsibility in favor of the Company with respect to the offering contemplated hereby or the
process leading thereto (irrespective of whether the Underwriter has advised or is currently
advising the Company on other matters) or any other obligation to the Company except the
obligations expressly set forth in this Agreement and (iv) the Company has consulted its own legal
and financial advisors to the extent it deemed appropriate. The Company agrees that it will not
claim that the Underwriter has rendered advisory services of any nature or respect, or owes a
fiduciary or similar duty to the Company, in connection with such transaction or the process
leading thereto.
17. This Agreement supersedes all prior agreements and understandings (whether written or
oral) between the Company and the Underwriter with respect to the subject matter hereof.
18. This Agreement shall be governed by and construed in accordance with the laws of the State
of New York.
19. The Company and the Underwriter hereby irrevocably waives, to the fullest extent permitted
by applicable law, any and all right to trial by jury in any legal proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby.
20. This Agreement may be executed by any one or more of the parties hereto in any number of
counterparts, each of which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
21. Notwithstanding anything herein to the contrary, the Company is authorized, subject to
applicable law, to disclose to any persons the U.S. federal and state income tax treatment and tax
structure of this transaction and any and all aspects
of this potential transaction that are necessary to support any U.S. federal income tax
benefits expected to be claimed with respect to such transaction, and all materials of any kind
(including tax opinions and other tax analyses) relating to that treatment and structure or those
benefits, without the Underwriter imposing any limitation of any kind. However, any information
relating to the tax treatment and tax structure shall remain confidential (and the foregoing
sentence shall not apply) to the extent necessary to enable any person to comply with securities
laws. For this purpose, “tax structure” is limited to any facts that may be relevant to that
treatment.
If the foregoing is in accordance with your understanding, please sign and return to us
counterparts hereof, and upon the acceptance hereof by you, this letter and such acceptance hereof
shall constitute a binding agreement between the Underwriter and the Company.
| Very truly yours, Leap Wireless International, Inc. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Executive Vice President & Chief Financial Officer |
|||
| Accepted as of the date hereof: Xxxxxxx, Sachs & Co. |
||||
| By: | /s/ Xxxxxxx, Xxxxx & Co. | |||
| (Xxxxxxx, Sachs & Co.) | ||||
