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EXHIBIT 1.1
_______________________________________________________________________________
_______________________________________________________________________________
BRIGHTPOINT, INC.
(a Delaware corporation)
3,200,000 Shares of Common Stock
U.S. PURCHASE AGREEMENT
Dated: ___________________, 1997
_______________________________________________________________________________
_______________________________________________________________________________
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Table of Contents
SECTION 1. Representations and Warranties.............................................4
(a) Representations and Warranties by the Company.......................4
(i) Compliance with Registration Requirements.....................4
(ii) Incorporated Documents........................................5
(iii) Independent Accountants......................................5
(iv) Financial Statements..........................................5
(v) No Material Adverse Change in Business........................5
(vi) Good Standing of the Company..................................6
(vii) Good Standing of Subsidiaries................................6
(viii) Capitalization..............................................6
(ix) Authorization of Agreement....................................7
(x) Authorization and Description of Securities...................7
(xi) Absence of Defaults and Conflicts.............................7
(xii) Absence of Labor Dispute.....................................8
(xiii) Absence of Proceedings......................................8
(xiv) Accuracy of Exhibits.........................................8
(xv) Absence of Price Stabilization................................8
(xvi) Possession of Intellectual Property..........................8
(xvii) Absence of Further Requirements.............................9
(xviii) Possession of Licenses and Permits..........................9
(xix) Title to Property............................................9
(xx) Taxes........................................................10
(xxi) Maintenance of Adequate Insurance...........................10
(xxii) Maintenance of Sufficient Internal Controls................10
(xxiii) Compliance with Laws.......................................10
(xxiv) Imports/Exports............................................10
(xxv) Compliance with Cuba Act....................................10
(xxvi) Investment Company Act.....................................11
(xxvii) Environmental Laws.........................................11
(xxviii) Registration Rights.......................................11
(b) Representations and Warranties by the Selling Shareholders.........11
(i) Accurate Disclosure..........................................11
(ii) Authorization of Agreements..................................12
(iii) Good and Marketable Title...................................12
(iv) Due Execution of Power of Attorney and
Custody Agreement............................................12
(v) Absence of Manipulation......................................13
(vi) Absence of Further Requirements..............................13
(vii) Restriction on Sale of Securities...........................13
(viii) Certificates Suitable for Transfer.........................14
(ix) No Association with NASD.....................................14
(c) Officer's Certificates.............................................14
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SECTION 2. Sale and Delivery to Underwriters; Closing.......................14
(a) Initial Securities........................................14
(b) U.S. Option Securities....................................14
(c) Payment...................................................15
(d) Denominations; Registration...............................16
SECTION 3. Covenants of the Company.........................................16
(a) Compliance with Securities Regulations and
Commission Requests.......................................16
(b) Filing of Amendments......................................16
(c) Delivery of Registration Statements.......................16
(d) Delivery of Prospectuses..................................17
(e) Continued Compliance with Securities Laws.................17
(f) Blue Sky Qualifications...................................17
(g) Rule 158..................................................18
(h) Use of Proceeds...........................................18
(i) Listing...................................................18
(j) Restriction on Sale of Securities.........................18
(k) Reporting Requirements....................................18
SECTION 4. Payment of Expenses..............................................18
(a) Expenses..................................................18
(b) Expenses of the Selling Shareholders......................19
(c) Termination of Agreement..................................19
(d) Allocation of Expense.....................................19
SECTION 5. Conditions of U.S. Underwriters' Obligations.....................19
(a) Effectiveness of Registration Statement...................19
(b) Opinion of Counsel for Company............................20
(c) Opinion of Counsel for the Selling Shareholders...........20
(d) Opinion of Counsel for U.S. Underwriters..................20
(e) Officers' Certificate.....................................20
(f) Certificate of Selling Shareholders.......................21
(g) Accountant's Comfort Letter...............................21
(h) Bring-down Comfort Letter.................................21
(i) Approval of Listing.......................................21
(j) No Objection..............................................21
(k) Lock-up Agreements........................................21
(l) Purchase of Initial International Securities..............21
(m) Conditions to Purchase of U.S. Option Securities..........21
(i) Officers' Certificate...............................22
(ii) Certificate of Selling Shareholders.................22
(iii) Opinion of Counsel for Company.....................22
(iv) Opinion of Counsel for the Selling Shareholders.....22
(v) Opinion of Counsel for U.S. Underwriters............22
(vi) Bring-down Comfort Letter...........................22
(n) Additional Documents......................................22
(o) Termination of Agreement..................................23
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SECTION 6. Indemnification ...................................................................................... 23
(a) Indemnification of U.S. Underwriters......................................................... 23
(b) Indemnification of Company, Directors and Officers and Selling Shareholders.................. 24
(c) Actions against Parties; Notification ....................................................... 24
(d) Settlement without Consent if Failure to Reimburse........................................... 25
(e) Other Agreements with Respect to Indemnification ............................................ 25
SECTION 7. Contribution.......................................................................................... 25
SECTION 8. Representations, Warranties and Agreements to Survive Delivery........................................ 26
SECTION 9. Termination of Agreement.............................................................................. 26
(a) Termination; General......................................................................... 26
(b) Liabilities.................................................................................. 27
SECTION 10. Default by One or More of the U.S. Underwriters....................................................... 27
SECTION 11. Default by One or More of the Selling Shareholders or the Company.................................... 28
SECTION 12. Notices............................................................................................... 28
SECTION 13. Parties............................................................................................... 29
SECTION 14. GOVERNING LAW AND TIME................................................................................ 29
SECTION 15. Effect of Headings.................................................................................... 29
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BRIGHTPOINT, INC.
(a Delaware corporation)
3,200,000 Shares of Common Stock
(Par Value $.01 Per Share)
U.S. PURCHASE AGREEMENT
______________________, 1997
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxx & Company
UBS Securities LLC
Sands Brothers & Co., Ltd.
as U.S. Representatives of the several U.S. Underwriters
c/x Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
Brightpoint, Inc., a Delaware corporation (the "Company"), and the
persons listed in Schedule B hereto (the "Selling Shareholders"),
confirm their respective agreements with Xxxxxxx Xxxxx & Co., Xxxxxxx
Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx") and each of
the other U.S. Underwriters named in Schedule A hereto (collectively,
the "U.S. Underwriters," which term shall also include any underwriter
substituted as hereinafter provided in Section 10 hereof), for whom
Xxxxxxx Xxxxx, Xxxxx & Company, UBS Securities LLC and Sands Brothers &
Co., Ltd. are acting as representatives (in such capacity, the "U.S.
Representatives"), with respect to (i) the sale by the Company and the
Selling Shareholders, acting severally and not jointly, and the
purchase by the U.S. Underwriters, acting severally and not jointly, of
the respective numbers of shares of Common Stock, par value $.01 per share,
of the Company ("Common Stock") set forth in Schedules A and B hereto and
(ii) the grant by the Company to the U.S. Underwriters, acting severally and
not jointly, of the option described in Section 2(b) hereof to
purchase all or any part
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of 480,000 additional shares of Common Stock to cover
over-allotments, if any. The aforesaid 3,200,000 shares of Common
Stock (the "Initial U.S. Securities") to be purchased by the U.S.
Underwriters and all or any part of the 480,000 shares of Common Stock
subject to the option described in Section 2(b) hereof (the "U.S. Option
Securities") are hereinafter called, collectively, the "U.S. Securities."
It is understood that the Company and the Selling
Shareholders are concurrently entering into an agreement dated the date
hereof (the "International Purchase Agreement") providing for the
offering by the Company and the Selling Shareholders of an aggregate
of 800,000 shares of Common Stock (the "Initial International
Securities") through arrangements with certain underwriters outside the
United States and Canada (the "International Managers") for which
Xxxxxxx Xxxxx International, Cowen International L.P., UBS Limited and
Sands Brothers & Co., Ltd. are acting as lead managers (the "Lead
Managers") and the grant by the Company to the International Managers,
acting severally and not jointly, of an option to purchase all or any
part of the International Managers' pro rata portion of up to 120,000
additional shares of Common Stock solely to cover over allotments, if any
(the "International Option Securities" and, together with the U.S.
Option Securities, the "Option Securities"). The Initial International
Securities and the International Option Securities are hereinafter
called the "International Securities." It is understood that (a) neither
the Company nor the Selling Shareholders are obligated to sell, and the U.S.
Underwriters are not obligated to purchase, any Initial U.S. Securities
unless all of the Initial International Securities are contemporaneously
purchased by the International Managers, and (b) neither the Company nor the
Selling Shareholders are obligated to sell, and the International Managers
are not obligated to purchase, any Initial International Securities unless
all of the Initial U.S. Securities are contemporaneously purchased by the
U.S. Underwriters.
The U.S. Underwriters and the International Managers are
hereinafter collectively called the "Underwriters," the Initial U.S.
Securities and the Initial International Securities are hereinafter
collectively called the "Initial Securities," and the U.S. Securities, and
the International Securities are hereinafter collectively called the
"Securities."
The Underwriters will concurrently enter into an
Intersyndicate Agreement of even date herewith (the
"Intersyndicate Agreement") providing for the coordination of certain
transactions among the Underwriters under the direction of Xxxxxxx Xxxxx
& Co., Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated (in such
capacity, the "Global Coordinator").
The Company and the Selling Shareholders understand that the U.S.
Underwriters propose to make a public offering of the U.S. Securities as
soon as the U.S. Representatives deem advisable after this Agreement has
been executed and delivered.
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (No.
333-29533) covering the registration of the Securities under the
Securities Act of 1933, as amended (the "1933 Act"), including the
related preliminary prospectuses. Promptly after execution and
delivery of this Agreement, the Company will either (i) prepare and
file a prospectus in accordance with the provisions of Rule 430A ("Rule
430A") of the rules and regulations of the Commission under the 1933 Act
(the "1933 Act Regulations") and paragraph (b) of Rule 424 ("Rule
424(b)") of the 1933 Act Regulations or (ii) if the Company has elected
to rely upon Rule 434 ("Rule 434") of the 1933 Act Regulations,
prepare and file a term sheet (a "Term Sheet") in accordance with the
provisions of Rule 434 and Rule
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424(b). Two forms of prospectus are to be used in connection with the
offering and sale of the Securities: one relating to the U.S. Securities
(the "Form of U.S. Prospectus") and one relating to the International
Securities (the "Form of International Prospectus"). The Form of
International Prospectus is identical to the Form of U.S. Prospectus,
except for the front cover and back cover pages and the information
under the caption "Underwriting" and the inclusion in the Form of
International Prospectus of a section under the caption "Certain United
States Tax Considerations for Non-United States Holders." The
information included in any such prospectus or in any such Term Sheet, as
the case may be, that was omitted from such registration
statement at the time it became effective but that is deemed to be part of
such registration statement at the time it became effective (a) pursuant to
paragraph (b) of Rule 430A is referred to as "Rule 430A Information" or
(b) pursuant to paragraph (d) of Rule 434 is referred to as
"Rule 434 Information." Each Form of U.S. Prospectus and Form of
International Prospectus used before such registration statement became
effective, and any prospectus that omitted, as applicable, the rule 430A
Information or the Rule 434 Information, that was used after such
effectiveness and prior to the execution and delivery of this
Agreement, is herein called a "preliminary prospectus." Such
registration statement, including the exhibits thereto, schedules
thereto, if any, and the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the 1933 Act, at the time it became
effective and including the Rule 430A Information and the Rule 434
Information, as applicable, is herein called the "Registration Statement."
Any registration statement filed pursuant to rule 462(b) of the 1933 Act
Regulations is herein referred to as the "Rule 462(b) Registration
Statement," and after such filing the term "Registration
Statement" shall include the Rule 462(b) Registration Statement.
The final Form of U.S. Prospectus and the final Form of International
Prospectus, including the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the 1933 Act, in the forms first
furnished to the Underwriters for use in connection with the offering of
the Securities are herein called the "U.S. Prospectus" and the
"International Prospectus," respectively, and collectively, the
"Prospectus." If Rule 434 is relied on, the terms "U.S.
Prospectus" and "International Prospectus" shall refer to the
preliminary U.S. Prospectus dated July 15, 1997 and preliminary
International Prospectus dated July 15, 1997, respectively, each
together with the applicable Term Sheet, and all references in this
Agreement to the date of such Prospectuses shall mean the date of the
applicable Term Sheet. For purposes of this Agreement, all
references to the Registration Statement, any preliminary prospectus,
the U.S. Prospectus, the International Prospectus or any Term Sheet or
any amendment or supplement to any of the foregoing shall be deemed to
include the copy filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval system ("XXXXX").
All references in this Agreement to financial statements and schedules
and other information which is "contained", "included", or "stated" in
the Registration Statement, any preliminary prospectus or the
Prospectuses (or other references of like import) shall be deemed to
mean and include all such financial statements and schedules and other
information which is incorporated by reference in the Registration
Statement, any preliminary prospectus or the Prospectuses, as the case may
be; and all references in this Agreement to amendments or supplements to the
Registration Statement, any preliminary prospectus or the Prospectuses
shall be deemed to mean and include the filing of any document under
the Securities Exchange Act of 1934, as amended (the "1934 Act")
which is or is deemed to be incorporated by reference in the
Registration Statement, such preliminary prospectus or the Prospectuses, as
the case may be.
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SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company
represents and warrants to each U.S. Underwriter as of the date hereof,
as of the Closing Time referred to in Section 2(c) hereof, and as of each
Date of Delivery (if any) referred to in Section 2(b) hereof, and agrees
with each U.S. Underwriter, as follows:
(i) Compliance with Registration Requirements. The Company
meets the requirements for use of Form S-3 under the 1933 Act. Each
of the Registration Statement and any Rule 462(b) Registration
Statement has become effective under the 1933 Act and no stop order
suspending the effectiveness of the Registration Statement or any Rule
462(b) Registration Statement has been issued under the 1933 Act
and no proceedings for that purpose have been instituted or are
pending or, to the knowledge of the Company, are
contemplated by the Commission, and any request on the part of the
Commission for additional information has been complied with.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments
thereto became effective and at the Closing Time (and, if any U.S.
Option Securities are purchased, at the Date of Delivery), the
Registration Statement, the Rule 462(b) Registration Statement
and any amendments and supplements thereto complied and will comply
in all material respects with the requirements of the 1933 Act and the
1933 Act Regulations and did not and will 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. Neither of the Prospectuses nor any
amendments or supplements thereto, at the time the Prospectuses or
any amendments or supplements thereto were issued and at the Closing
Time (and, if any U.S. Option Securities are purchased, at the
Date of Delivery), included or will include an untrue statement of a
material fact or omitted or will 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. If
Rule 434 is used, the Company will comply with the requirements
of Rule 434. The representations and warranties in this
subsection shall not apply to statements in or omissions from the
Registration Statement or the U.S. Prospectus made in reliance upon
and in conformity with information furnished to the Company in
writing by any U.S. Underwriter through the U.S.
Representatives expressly for use in the Registration Statement
or the U.S. Prospectus.
Each preliminary prospectus and the prospectuses filed as part of
the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the 1933
Act Regulations and each preliminary prospectus and the Prospectuses
delivered to the Underwriters for use in connection with this
offering were identical to the electronically transmitted copies
thereof filed with the Commission pursuant to XXXXX, except to the
extent permitted by Regulation S-T. The Company has delivered to each
U.S. Underwriter, without charge, as many copies of each preliminary
prospectus as such U.S. Underwriter reasonably requested.
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(ii) Incorporated Documents. The documents incorporated or
deemed to be incorporated by reference in the Prospectuses,
at the time they were or hereafter are filed with the Commission,
complied and will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations") and, when read
together with the other information in the Prospectuses, at the
time the Registration Statement become effective, at the time the
Prospectuses were issued and at the Closing Time (and, if any
Option Securities are purchased, at the Date of Delivery), did
not and will 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 light of the
circumstances under which they were made, not misleading.
(iii) Independent Accountants. To the best of the Company's
knowledge, the accountants who certified the financial statements and
supporting schedules included in the Registration Statement are
independent public accountants as required by the 1933 Act and the 1933
Act Regulations.
(iv) Financial Statements. The consolidated financial
statements included in the Registration Statement and the Prospectuses,
together with the related schedules and notes, present fairly the
financial position of the Company as consolidated with its
subsidiaries at the dates indicated and the statement of operations,
stockholders' equity and cash flows of the Company and its
consolidated subsidiaries for the periods specified; said financial
statements have been prepared in conformity with generally
accepted accounting principles ("GAAP") applied on a consistent basis
throughout the periods involved. The supporting schedules included in
the Registration Statement present fairly in accordance with GAAP the
information required to be stated therein. The selected financial
data and the summary financial information included in the
Prospectuses present fairly the information shown therein and
have been compiled on a basis consistent with that of the audited
financial statements included in the Registration Statement.
(v) No Material Adverse Change in Business. Since the respective
dates as of which information is given in the Registration
Statement and the Prospectuses, except as otherwise stated
therein, (A) there has been no material adverse change in the
condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary
course of business (a "Material Adverse Effect"), (B) there have been
no transactions entered into by the Company or any of its
subsidiaries, other than those in the ordinary course of business,
which are material with respect to the Company and its subsidiaries
considered as one enterprise, and (C) there has been no dividend or
distribution of any kind declared, paid or made by the Company on
any class of its capital stock.
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(vi) Good Standing of the Company. The Company has been duly
organized and is validly existing as a corporation in good standing under
the laws of the State of Delaware and has corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the Prospectuses and to enter into and perform its
obligations under this Agreement and the International Purchase
Agreement; and the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each other jurisdiction in
which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure so
to qualify or to be in good standing would not result in a Material Adverse
Effect.
(vii) Good Standing of Subsidiaries. Each "significant subsidiary"
of the Company (as such term is defined in Rule 1-02 of Regulation S-X)
(each a "Subsidiary" and, collectively, the "Subsidiaries") has been duly
organized and is validly existing as a corporation in good standing under
the laws of the jurisdiction of its incorporation, has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectuses and is duly qualified as a
foreign corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except
where the failure so to qualify or to be in good standing would not result
in a Material Adverse Effect; except for RPS Industries Company Limited
of which the Company owns 67% of the issued and outstanding equity
securities and which is not a "significant subsidiary" as defined above or
except as otherwise disclosed in the Registration Statement, all of the
issued and outstanding capital stock of each such Subsidiary has been duly
authorized and validly issued, is fully paid and non-assessable and is
owned by the Company, directly or through subsidiaries, free and clear of
any security interest, mortgage, pledge, lien, encumbrance, claim or
equity; none of the outstanding shares of capital stock of any Subsidiary
was issued in violation of the preemptive or similar rights of any
security holder of such Subsidiary. The only subsidiaries of the Company
are the subsidiaries listed on Exhibit 21 to the Registration Statement.
Except for Wireless L.L.C. of which the Company owns 33% of the issued and
outstanding membership interests or except as described in the
Registration Statement, the Company does not own or control, directly or
indirectly, any interest in any corporation, partnership, limited
liability company, association or other entity.
(viii) Capitalization. The authorized, issued and outstanding
capital stock of the Company is as set forth in the Prospectuses in the
column entitled "Actual" under the caption "Capitalization" (except for
subsequent issuances, if any, pursuant to this Agreement and the
International Purchase Agreement, pursuant to reservations, agreements or
employee benefit plans referred to in the Prospectuses or pursuant to the
exercise of convertible securities or options referred to in the
Prospectuses). The description of the Company's stock option and other
stock plans or arrangements, and the options or other rights granted or
exercised thereunder, as set forth in the Prospectuses, accurately and
fairly describes such plans, arrangements, options and rights in all
material respects. The shares of issued and outstanding capital stock,
including the Securities to be purchased by the Underwriters from the
Selling Shareholders, have been duly authorized and validly issued and
are fully paid and non-assessable; none of the outstanding shares of
capital stock, including the Securities to be purchased by the
Underwriters from the Selling Shareholders, was issued in violation of
the preemptive or other similar rights of any security holder of the
Company.
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(ix) Authorization of Agreement. This Agreement and the International
Purchase Agreement have been duly authorized, executed and delivered
by the Company.
(x) Authorization and Description of Securities. The Securities to
be purchased by the U.S. Underwriters and the International Managers
from the Company have been duly authorized for issuance and sale to
the U.S. Underwriters pursuant to this Agreement and the International
Managers pursuant to the International Purchase Agreement,
respectively, and, when issued and delivered by the Company pursuant
to this Agreement and the International Purchase Agreement against
payment of the consideration set forth herein and therein, will be
validly issued and fully paid and non-assessable; the Common Stock
conforms to all statements relating thereto contained in the
Prospectuses and such description conforms to the rights set forth in
the instruments defining the same; no holder of the Securities will be
subject to personal liability by reason of being such a holder; and
the issuance of the Securities is not subject to the preemptive or
other similar rights of any security holder of the Company.
(xi) Absence of Defaults and Conflicts. Neither the Company nor any
of its subsidiaries is in violation of its charter or by-laws or in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage,
deed of trust, loan or credit agreement, note, lease or other
agreement or instrument to which the Company or any of its
subsidiaries is a party or by which it or any of them may be bound, or
to which any of the property or assets of the Company or any
subsidiary is subject (collectively, "Agreements and Instruments")
except for such defaults that would not result in a Material Adverse
Effect; and the execution, delivery and performance of this Agreement
and the International Purchase Agreement and the consummation of the
transactions contemplated in this Agreement, the International
Purchase Agreement and in the Registration Statement (including the
issuance and sale of the Securities and the use of the proceeds from
the sale of the Securities as described in the Prospectuses under the
caption "Use of Proceeds") and compliance by the Company with its
obligations under this Agreement and the International Purchase
Agreement have been duly authorized by all necessary corporate action
and do not and will not, whether with or without the giving of notice
or passage of time or both, conflict with or constitute a breach of,
or default or Repayment Event (as defined below) under, or result in
the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any subsidiary pursuant to, the
Agreements and Instruments (except for such conflicts, breaches or
defaults or liens, charges or encumbrances that would not result in a
Material Adverse Effect), nor will such action result in any violation
of the provisions of the charter or by-laws of the Company or any
subsidiary or any applicable law, statute, rule, regulation, judgment,
order, writ or decree of any government, government instrumentality
or court, domestic or foreign, having jurisdiction over the Company or
any subsidiary or any of their assets, properties or operations. As
used herein, a "Repayment Event" means any event or condition which
gives the holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holder's behalf) the right
to require the repurchase, redemption or repayment of all or a portion
of such indebtedness by the Company or any subsidiary.
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EXHIBIT 1.1
(xii) Absence of Labor Dispute. No labor dispute with the employees
of the Company or any subsidiary exists or, to the knowledge of the
Company, is imminent, and, to the best of the knowledge of the senior
management of the Company (including heads of divisions), there is not
any existing or imminent labor disturbance by the employees of any of its
or any subsidiary's principal suppliers, manufacturers, customers or
contractors, which, in either case, may reasonably be expected to result
in a Material Adverse Effect.
(xiii) Absence of Proceedings. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending, or, to the knowledge of
the Company, threatened, against or affecting the Company or any
subsidiary, which is required to be disclosed in the Registration Statement
(other than as disclosed therein), or which might reasonably be expected to
result in a Material Adverse Effect, or to materially and adversely affect
the consummation of the transactions contemplated in this Agreement and the
International Purchase Agreement or the performance by the Company of its
obligations hereunder or thereunder; the aggregate of all pending legal or
governmental proceedings to which the Company or any subsidiary is a party
or of which any of their respective property or assets is the subject which
are not described in the Registration Statement, including ordinary
routine litigation incidental to the business, could not reasonably be
expected to result in a Material Adverse Effect.
(xiv) Accuracy of Exhibits. All of the descriptions of contracts or
other documents contained in the Registration Statement are accurate and
complete descriptions of such contracts or other documents. There are no
contracts or documents which are required to be described in the
Registration Statement, the Prospectuses or the documents incorporated by
reference therein or to be filed as exhibits thereto which have not been so
described and filed as required.
(xv) Absence of Price Stabilization. Neither the Company nor any of
its officers or directors has taken or will take, directly or indirectly,
any action designed or intended to stabilize or manipulate the price of
any security of the Company, or which caused or resulted in, or which
might in the future reasonably be expected to cause or result in,
stabilization or manipulation of the price of any security of the Company,
nor has the Company become aware that any of its affiliates has taken,
directly or indirectly, any action designed or intended to stabilize or
manipulate the price of any security of the Company, or which caused or
resulted in, or which might in the future reasonably be expected to cause
or result in stabilization or manipulation of the price of any security of
the Company.
(xvi) Possession of Intellectual Property. The Company and its
subsidiaries own or possess, or can acquire on reasonable terms, adequate
patents, patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures), the
trademark "Brightlink" (which is owned by the Company and is subject to
final approval of its pending application in the U.S. Patent and Trademark
Office), the service mark "Brightpoint" and the Brightpoint logo (which
is owned by the Company and is subject to final approval of its pending
application in the U.S. Patent and Trademark Office), trade names or
other intellectual property (collectively, "Intellectual Property")
necessary to carry on the business now operated by them, and neither the
Company nor any of its subsidiaries has received any notice or is
otherwise aware of any infringement of or conflict with asserted rights of
others with respect to any Intellectual Property or of any facts or
circumstances which would render any Intellectual Property invalid or
inadequate to protect the interest of the Company or any of its
subsidiaries therein, and which infringement or conflict (if the subject
of any unfavorable decision, ruling or finding) or invalidity or
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inadequacy, singly or in the aggregate, would result in a Material Adverse
Effect. The Company's business as now conducted and as proposed to be
conducted does not and, to the best of the Company's knowledge, will not
infringe or conflict with in any material respect patents, trademarks,
service marks, trade names, copyrights, trade secrets, licenses or other
intellectual property or franchise right of any person. To the best of the
Company's knowledge, no claim has been made against the Company alleging
the infringement by the Company of any patent, trademark, service mark,
tradename, copyright, trade secret, license in or other intellectual
property right or franchise right of any person.
(xvii) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency
is necessary or required for the performance by the Company of its
obligations hereunder or under the International Purchase Agreement, in
connection with the offering, issuance or sale of the Securities under this
Agreement and the International Purchase Agreement or the consummation of
the transactions contemplated by this Agreement and the International
Purchase Agreement, except such as have been already obtained or as may be
required under the 1933 Act or the 1933 Act Regulations or state securities
laws.
(xviii) Possession of Licenses and Permits. The Company and its
subsidiaries possess such permits, licenses, approvals, consents and
other authorizations (collectively, "Governmental Licenses") issued by the
appropriate federal, state, local or foreign regulatory agencies or bodies
necessary to conduct the business now operated by them; the Company and its
subsidiaries are in compliance with the terms and conditions of all such
Governmental Licenses; all of the Governmental Licenses are valid and in
full force and effect; and neither the Company nor any of its subsidiaries
has received any notice of proceedings relating to the revocation or
modification of any such Governmental Licenses; except, in each case,
where the lack of possession, failure to comply, invalidity, revocation or
modification, as applicable, would not, singly or in the aggregate, result
in a Material Adverse Effect.
(xix) Title to Property. Neither the Company nor any of its
subsidiaries owns any real property. The Company and its subsidiaries have
good and marketable title to all properties owned by them, in each case,
free and clear of all mortgages, pledges, liens, security interests,
claims, restrictions or encumbrances of any kind except such as (a) are
described in the Prospectuses or (b) do not, singly or in the aggregate,
materially affect the value of such property and do not interfere with the
use made and proposed to be made of such property by the Company or any of
its subsidiaries; and all of the leases and subleases material to the
business of the Company and its subsidiaries, considered as one enterprise,
and under which the Company or any of its subsidiaries holds properties
described in the Prospectuses, are in full force and effect, and neither
the Company nor any subsidiary has any notice of any material claim of any
sort that has been asserted by anyone adverse to the rights of the Company
or any subsidiary under any of the leases or subleases
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mentioned above, or affecting or questioning the rights of the Company or
such subsidiary to the continued possession of the leased or subleased
premises under any such lease or sublease.
(xx) Taxes. The Company has filed all necessary federal, state,
local and foreign income, payroll, franchise and other tax returns (after
giving effect to extensions) and has paid all taxes shown as due thereon
or with respect to any of its properties, and there is no tax deficiency
that has been, or to the knowledge of the Company is likely to be,
asserted against the Company or any of its properties or assets that
would result in a Material Adverse Effect.
(xxi) Maintenance of Adequate Insurance. The Company is insured by
insurers of recognized financial responsibility against such losses and
risks and in such amounts as is reasonably prudent in the business in which
it is engaged or proposed to engage after giving effect to the transactions
described in the Prospectuses; and the Company does not have 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 at a cost
that would not result in a Material Adverse Effect.
(xxii) Maintenance of Sufficient Internal Controls. The Company
maintains a system of internal accounting controls sufficient to provide
reasonable assurances that (i) transactions are executed in accordance
with management's general or specific authorization; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain
accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv)
the recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(xxiii) Compliance with Laws. To the best of the Company's
knowledge, neither the Company nor any employee or agent of the Company has
made any payment of funds of the Company or received or retained any funds
in violation of any law, rule or regulation, including, without limitation,
the Foreign Corrupt Practices Act.
(xxiv) Imports/Exports. To the best of the Company's knowledge, the
Company has paid all tariff, custom, import, export and other duties
required to be paid by it (if any) in connection with the exportation of
products from the country of manufacture, the importation of products into
the United States, the exportation of products from the United States and
the importation of products into another country and has provided all
appropriate authorities with the requisite information, all of which, to
the best of the Company's knowledge, is true and correct, necessary for the
proper determination of the foregoing.
(xvv) Compliance with Cuba Act. The Company has complied with, and
is and will be in compliance with, the provisions of that certain Florida
act relating to disclosure of
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doing business with Cuba, codified as Section 517.075 of the Florida
statutes, and the rules and regulations thereunder (collectively, the "Cuba
Act") or is exempt therefrom.
(xxvi) Investment Company Act. The Company is not, and upon the
issuance and sale of the Securities as herein contemplated and the
application of the net proceeds therefrom as described in the Prospectuses
will not be, an "investment company" or an entity "controlled" by an
"investment company" as such terms are defined in the Investment Company
Act of 1940, as amended (the "1940 Act").
(xxvii) Environmental Laws. Except as described in the Registration
Statement and except as would not, singly or in the aggregate, result in a
Material Adverse Effect, (A) to the best of the Company's knowledge,
neither the Company nor any of its subsidiaries is in violation of any
federal, state, local or foreign statute, law, rule, regulation,
ordinance, code, policy or rule of common law or any judicial or
administrative interpretation thereof, including any judicial or
administrative order, consent, decree or judgment, relating to pollution
or protection of human health, the environment (including, without
limitation, ambient air, surface water, groundwater, land surface or
subsurface strata) or wildlife, including, without limitation, laws and
regulations relating to the release or threatened release of chemicals,
pollutants, contaminants, wastes, toxic substances, hazardous
substances, petroleum or petroleum products (collectively, "Hazardous
Materials") or to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of Hazardous
Materials (collectively, "Environmental Laws"), (B) the Company and its
subsidiaries have all permits, authorizations and approvals required under
any applicable Environmental Laws and are each in compliance with their
requirements, (C) there are no pending or, to the best of the Company's
knowledge, threatened administrative, regulatory or judicial actions,
suits, demands, demand letters, claims, liens, notices of noncompliance or
violation, investigation or proceedings relating to any Environmental Law
against the Company or any of its subsidiaries and (D) to the best of the
Company's knowledge, there are no events or circumstances that might
reasonably be expected to form the basis of an order for clean-up or
remediation, or an action, suit or proceeding by any private party or
governmental body or agency, against or affecting the Company or any of
its subsidiaries relating to Hazardous Materials or any Environmental
Laws.
(xxviii) Registration Rights. Except as described in the
Registration Statement, there are no persons with registration
rights or other similar rights to have any securities registered pursuant
to the Registration Statement or otherwise registered by the Company under
the 1933 Act.
(b) Representations and Warranties by the Selling Shareholders. Each
Selling Shareholder severally and not jointly represents and warrants to each
U.S. Underwriter as of the date hereof and as of the Closing Time and agrees
with each U.S. Underwriter, as follows:
(i) Accurate Disclosure. To the actual knowledge of such
Selling Shareholder, the representations and warranties of the Company
contained in Section 1(a) hereof are true and correct in all
material respects; such Selling Shareholder has reviewed and is
familiar with the Registration Statement and the Prospectuses
and, to the actual knowledge of such Selling Shareholders, neither
the Prospectuses nor any amendments or
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supplements thereto includes any untrue statement of a material fact or omits 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; such
Selling Shareholder is not prompted to sell the Securities to be sold by such
Selling Shareholder hereunder or under the International Purchase Agreement by
any information concerning the Company or any subsidiary of the Company which is
not set forth in the Prospectuses and has not otherwise been previously
disclosed by the Company in a filing with the Commission.
(ii) Authorization of Agreements. Each Selling Shareholder has the full
right to enter into this Agreement, the International Purchase Agreement and a
Power of Attorney and Custody Agreement (the "Power of Attorney and Custody
Agreement") and to sell, transfer and deliver the Securities to be sold by such
Selling Shareholder hereunder and under the International Purchase Agreement.
The execution and delivery of this Agreement, the International Purchase
Agreement and the Power of Attorney and Custody Agreement and the sale and
delivery of the Securities to be sold by such Selling Shareholder and the
consummation of the transactions contemplated under this Agreement and the
International Purchase Agreement and compliance by such Selling Shareholder
with its obligations hereunder and thereunder do not and will not, whether
with or without the giving of notice or passage of time or both, conflict with
or constitute a breach of, or default under, or result in the creation or
imposition of any tax, lien, charge or encumbrance upon the Securities to be
sold by such Selling Shareholder or any property or assets of such Selling
Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan
or credit agreement, note, license, lease or other agreement or instrument to
which such Selling Shareholder is a party or by which such Selling Shareholder
may be bound, or to which any of the property or assets of such Selling
Shareholder is subject, nor will such action result in any violation of any
applicable treaty, law, statute, rule, regulation, judgment, order, writ or
decree of any government, government instrumentality or court, domestic or
foreign, having jurisdiction over such Selling Shareholder or any of its
properties.
(iii) Good and Marketable Title. Such Selling Shareholder has and will at
the Closing Time have good and marketable title to the Securities to be sold by
such Selling Shareholder under this Agreement and the International Purchase
Agreement, free and clear of any security interest, mortgage, pledge, lien,
charge, claim, equity or encumbrance of any kind, other than pursuant to this
Agreement and the International Purchase Agreement; and upon delivery of such
Securities and payment of the purchase price therefor as contemplated herein and
therein, assuming each such Underwriter has no notice of any adverse claim, each
of the Underwriters will receive good and marketable title to the Securities
purchased by it from such Selling Shareholder, free and clear of any security
interest, mortgage, pledge, lien, charge, claim, equity or encumbrance of any
kind.
(iv) Due Execution of Power of Attorney and Custody Agreement. Such
Selling Shareholder has duly executed and delivered, in the form heretofore
furnished to the U.S. Representatives, the Power of Attorney and Custody
Agreement with Xxxxxxx X. Xxxxxxxx and Xxxxxx X. Xxxxx, as
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attorneys-in-fact (the "Attorneys-in-Fact") and Xxxxxxx Xxxxx, as custodian
(the "Custodian"); the Custodian is authorized to deliver the Securities to be
sold by such Selling Shareholder under this Agreement and the International
Purchase Agreement and to accept payment therefor; and the Attorney-in-Fact is
authorized to execute and deliver this Agreement and the International Purchase
Agreement and the certificate referred to in Section 5(f) or that may be
required pursuant to Section 5(n) on behalf of such Selling Shareholder,
to sell, assign and transfer to the U.S. Underwriters and the International
Managers the Securities to be sold by such Selling Shareholder under
this Agreement and the International Purchase Agreement, respectively, to
determine, in compliance with the limitations set forth in that certain
Agreement, dated as of June 18, 1997, by and among the Company, Xxxxxx Xxxxx
and Xxxxxx Xxxxx (in the form previously provided to the U.S. Underwriters),
the purchase price to be paid by the U.S. Underwriters and the International
Managers to such Selling Shareholder, as provided in Section 2(a) of this
Agreement and the International Purchase Agreement, to authorize the delivery
of the Securities to be sold by such Selling Shareholder under this
Agreement and the International Purchase Agreement, to accept payment therefor,
and otherwise to act on behalf of such Selling Shareholder in connection with
this Agreement and the International Purchase Agreement.
(v) Absence of Manipulation. Such Selling Shareholder has not taken, and
will not take, directly or indirectly, any action which is designed to or which
has constituted or which might reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities.
(vi) Absence of Further Requirements. No filing with, or consent,
approval, authorization, order, registration, qualification or decree of, any
court or governmental authority or agency, domestic or foreign (other than
filings which will be timely filed by such Selling Shareholder pursuant to the
1934 Act and the 1934 Act Regulations), is necessary or required for the
performance by each Selling Shareholder of its obligations under this
Agreement and the International Purchase Agreement or in the Power of Attorney
and Custody Agreement, or in connection with the sale and delivery of the
Securities under this Agreement and the International Purchase Agreement or
the consummation of the transactions contemplated hereunder or thereunder,
except under the 1933 Act or the 1933 Act Regulations or state securities laws.
(vii) Restriction on Sale of Securities. Except as specifically
contemplated in Sections 10(c) and 11(c), respectively of that certain
Agreement, dated as of June 18, 1997, by and among the Company, Xxxxxx Xxxxx
and Xxxxxx Xxxxx (in the form previously provided to the U.S. Underwriters),
during a period of 120 days from the date of the U.S. Prospectus, such Selling
Shareholder will not, without the prior written consent of Xxxxxxx Xxxxx,
directly or indirectly, (i) offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant for the sale of, or otherwise transfer or
dispose of, directly or indirectly, any share of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock or file any
registration statement under the 1933 Act with respect to any of the foregoing
or (ii) enter into any swap or any other agreement or any transaction that
transfers, in whole or in part, directly or indirectly, the economic consequence
of ownership of the Common Stock, whether any such swap or transaction described
in clause (i) or (ii) above is to be settled by delivery of Common Stock or such
other securities, in cash or otherwise. The foregoing sentence shall not apply
to the sale of the Securities hereunder or under the International Purchase
Agreement.
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(viii) Certificates Suitable for Transfer. Certificates for all of
the Securities to be sold by such Selling Shareholder pursuant to this
Agreement and the International Purchase Agreement, in suitable form for
transfer by delivery or accompanied by duly executed instruments of
transfer or assignment in blank with signatures guaranteed, have been
placed in custody with the Custodian with irrevocable conditional
instructions to deliver such Securities to the U.S. Underwriters and
the International Managers pursuant to this Agreement and the
International Purchase Agreement, respectively.
(ix) No Association with NASD. Neither such Selling Stockholder
nor any of his affiliates directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control
with, or has any other association with (within the meaning of Article I,
Section 1(m) of the By-laws of the National Association of Securities
Dealers, Inc.), any member firm of the National Association of Securities
Dealers, Inc.
(c) Officer's Certificates. Any certificate signed by any officer of the
Company or any of its subsidiaries delivered to the U.S. Representatives or to
counsel for the U.S. Underwriters and the International Managers shall be
deemed a representation and warranty by the Company to each U.S. Underwriter
and each International Manager as to the matters covered thereby; and any
certificate signed by or on behalf of the Selling Shareholders as such and
delivered to the U.S. Representatives or to counsel for the U.S. Underwriters
and the International Managers pursuant to the terms of this Agreement and
the International Purchase Agreement shall be deemed a representation and
warranty by such Selling Shareholder to the U.S. Underwriters and the
International Managers as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Initial Securities. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Company and each Selling Shareholder, severally and not jointly,
agree to sell to each U.S. Underwriter, severally and not jointly, and each
U.S. Underwriter, severally and not jointly, agrees to purchase from the
Company and each Selling Shareholder, at the price per share set forth in
Schedule C, that proportion of the number of Initial U.S. Securities set forth
in Schedule B opposite the name of the Company or such Selling Shareholder,
as the case may be, which number of Initial U.S. Securities set forth in
Schedule A opposite the name of such U.S. Underwriter, plus any additional
number of Initial U.S. Securities which such U.S. Underwriter may become
obligated to purchase pursuant to the provisions of Section 10 hereof, bears
to the total number of Initial U.S. Securities, subject, in each case, to
such adjustments among the U.S. Underwriters as the U.S. Representatives
in their sole discretion shall make to eliminate any sales or purchases of
fractional securities.
(b) U.S. Option Securities. In addition, on the basis of the
representations and warranties herein contained and subject to the terms and
conditions herein set forth, the Company hereby grants an option to the U.S.
Underwriters, severally and not jointly, to purchase up to an additional
480,000 shares of Common Stock at the price per share set forth in Schedule
C, less an amount per share equal to any dividends or distributions declared
by the Company and payable on the Initial U.S. Securities but not payable on
the U.S. Option Securities. The option
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hereby granted will expire 30 days after the date hereof and may be exercised in
whole or in part from time to time only for the purpose of covering
over-allotments which may be made in connection with the offering and
distribution of the Initial U.S. Securities upon notice by the Global
Coordinator to the Company setting forth the number of U.S. Option Securities as
to which the several U.S. Underwriters are then exercising the option and the
time and date of payment and delivery for such U.S. Option Securities. Any such
time and date of delivery (a "Date of Delivery") shall be determined by the
Global Coordinator, but shall not be later than seven full business days after
the exercise of said option, nor in any event prior to the Closing Time, as
hereinafter defined. If the option is exercised as to all or any portion of the
U.S. Option Securities, each of the U.S. Underwriters, acting severally and not
jointly, will purchase that proportion of the total number of U.S. Option
Securities then being purchased which the number of Initial U.S. Securities set
forth in Schedule A opposite the name of such U.S. Underwriter bears to the
total number of Initial U.S. Securities, subject in each case to such
adjustments as the U.S. Representatives in their discretion shall make to
eliminate any sales or purchases of fractional shares.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial U.S. Securities shall be made at the offices of
Xxxxx, Brown & Xxxxx, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx, or at such
other place as shall be agreed upon by the Global Coordinator, the Company and
the Selling Shareholders, at 9:00 A.M. (Eastern time) on the third (fourth, if
the pricing occurs after 4:30 P.M. (Eastern time) on any given day) business day
after the date hereof (unless postponed in accordance with the provisions of
Section 10), or such other time not later than seven business days after such
date as shall be agreed upon by the Global Coordinator, the Company and the
Selling Shareholders (such time and date of payment and delivery being herein
called "Closing Time").
In addition, in the event that any or all of the U.S. Option Securities are
purchased by the U.S. Underwriters, payment of the purchase price for, and
delivery of certificates for, such U.S. Option Securities shall be made at the
above-mentioned offices, or at such other place as shall be agreed upon by the
Global Coordinator and the Company, on each Date of Delivery as specified in the
notice from the Global Coordinator to the Company.
Payment shall be made to the Company and the Selling Shareholders by wire
transfer of immediately available funds to bank accounts designated by the
Company and the Custodian pursuant to each Selling Shareholder's Power of
Attorney and Custody Agreement, as the case may be, against delivery to the U.S.
Representatives for the respective accounts of the U.S. Underwriters of
certificates for the Securities to be purchased by them. It is understood that
each U.S. Underwriter has authorized the U.S. Representatives, for its account,
to accept delivery of, receipt for, and make payment of the purchase price for,
the Initial U.S. Securities and the U.S. Option Securities, if any, which it has
agreed to purchase. Xxxxxxx Xxxxx, individually and not as representative of
the U.S. Underwriters, may (but shall not be obligated to) make payment of the
purchase price for the Initial U.S. Securities or the U.S. Option Securities, if
any, to be purchased by any U.S. Underwriter whose funds have not been received
by the Closing Time or the relevant Date of Delivery, as the case may be, but
such payment shall not relieve such U.S. Underwriter from its obligations
hereunder.
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(d) Denominations; Registration. Certificates for the Initial U.S.
Securities and the U.S. Option Securities, if any, shall be in such
denominations and registered in such names as the U.S. Representatives may
request in writing at least two full business days before the Closing Time or
the relevant Date of Delivery, as the case may be. The certificates for the
Initial U.S. Securities and the U.S. Option Securities, if any, will be made
available for examination and packaging by the U.S. Representatives in
the City of New York not later than 10:00 A.M. (Eastern time) on the business
day prior to the Closing Time or the relevant Date of Delivery, as the case may
be.
SECTION 3. Covenants of the Company. The Company covenants with each
U.S. Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Company, subject to Section 3(b), will comply with the requirements of Rule 430A
or Rule 434, as applicable, and will notify the Global Coordinator
immediately, and confirm the notice in writing, (i) when any post-effective
amendment to the Registration Statement shall become effective, or any
supplement to the Prospectuses or any amended Prospectuses shall have been
filed, (ii) of the receipt of any comments from the Commission, (iii) of any
request by the Commission for any amendment to the Registration Statement or
any amendment or supplement to the Prospectuses or for additional
information, and (iv) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or of any
order preventing or suspending the use of any preliminary prospectus, or of
the suspension of the qualification of the Securities for offering or sale in
any jurisdiction, or of the initiation or threatening of any proceedings for
any of such purposes. The Company will promptly effect the filings
necessary pursuant to Rule 424(b) and will take such steps as it deems
necessary to ascertain promptly whether the forms of prospectus transmitted
for filing under Rule 424(b) was received for filing by the Commission
and, in the event that it was not, it will promptly file such prospectuses.
The Company will make every reasonable effort to prevent the issuance of any
stop order and, if any stop order is issued, to obtain the lifting thereof at
the earliest possible moment.
(b) Filing of Amendments. The Company will give the Global Coordinator
notice of its intention to file or prepare any amendment to the
Registration Statement (including any filing under Rule 462(b)), any Term
Sheet or any amendment, supplement or revision to either the prospectuses
included in the Registration Statement at the time it became effective or to
the Prospectuses, will furnish the Global Coordinator with copies of any such
documents a reasonable amount of time prior to such proposed filing or use,
as the case may be, and will not file or use any such document to which the
Global Coordinator or counsel for the U.S. Underwriters shall object.
(c) Delivery of Registration Statements. The Company has furnished or
will deliver to the U.S. Representatives and counsel for the U.S. Underwriters,
without charge, signed copies of the Registration Statement as originally
filed and of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated or deemed to
be incorporated by reference therein) and signed copies of all consents and
certificates of experts, and will also deliver to the U.S. Representatives,
without charge, a conformed copy of the Registration Statement as originally
filed and of each amendment thereto (without exhibits) for each of the U.S.
Underwriters. The copies of the Registration Statement and each amendment
thereto furnished to
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the U.S. Underwriters will be identical to the electronically transmitted
copies thereof filed with the Commission pursuant to XXXXX, except to the
extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company hereby consents to the
use of the copies of each preliminary prospectus previously delivered
to the U.S. Underwriters for purposes permitted by the 1933 Act. The
Company will furnish to each U.S. Underwriter, without charge,
during the period when the U.S. Prospectus is required to be delivered
under the 1933 Act or the 1934 Act, such number of copies of the U.S.
Prospectus (as amended or supplemented) as such U.S. Underwriter may
reasonably request. The U.S. Prospectus and any amendments or supplements
thereto furnished to the U.S. Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission
pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will
comply with the 1933 Act and the 1933 Act Regulations so as to permit the
completion of the distribution of the Securities as contemplated in this
Agreement, the International Purchase Agreement and in the
Prospectuses. If at any time when a prospectus is required by the
1933 Act to be delivered in connection with sales of the Securities, any
event shall occur or condition shall exist as a result of which it is
necessary, in the opinion of counsel for the U.S. Underwriters or for
the Company, to amend the Registration Statement or amend or supplement the
Prospectuses in order that the Prospectuses will not include any untrue
statements of a material fact or omit to state a material fact necessary
in order to make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or if
it shall be necessary, in the opinion of such counsel, at any such time
to amend the Registration Statement or amend or supplement the
Prospectuses in order to comply with the requirements of the 1933 Act or
the 1933 Act Regulations, the Company will promptly prepare and file
with the Commission, subject to Section 3(b), such amendment or
supplement as may be necessary to correct such statement or omission or to
make the Registration Statement or the Prospectuses comply with such
requirements, and the Company will furnish to the U.S. Underwriters such
number of copies of such amendment or supplement as the U.S. Underwriters
may reasonably request.
(f) Blue Sky Qualifications. The Company will use its best efforts,
in cooperation with the U.S. Underwriters, to qualify the Securities
for offering and sale under the applicable securities laws of such
states and other jurisdictions (domestic or foreign) as the Global
Coordinator may designate and to maintain such qualifications in effect
for a period of not less than one year from the later of the effective
date of the Registration Statement and any Rule 462(b) Registration
Statement; provided, however, that the Company shall not be obligated
to file any general consent to service of process or to qualify as a
foreign corporation or as a dealer in securities in any jurisdiction
in which it is not so qualified or to subject itself to taxation in
respect of doing business in any jurisdiction in which it is not otherwise
so subject. In each jurisdiction in which the Securities have been so
qualified, the Company will file such statements and reports as may be
required by the laws of such jurisdiction to continue such qualification
in effect for a period of not less than one year from the effective
date of the Registration Statement and any Rule 462(b) Registration
Statement.
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(g) Rule 158. The Company will timely file such reports pursuant
to the 1934 Act as are necessary in order to make generally
available to its security holders as soon as practicable an
earnings statement for the purposes of, and to provide the benefits
contemplated by, the last paragraph of Section 11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds received
by it from the sale of the Securities in the manner specified in the
Prospectuses under "Use of Proceeds".
(i) Listing. The Company will use its best efforts to effect the
listing of the Securities on the Nasdaq National Market.
(j) Restriction on Sale of Securities. Except as described in the
Registration Statement, during a period of 120 days from the date of the
Prospectuses, the Company will not, without the prior written consent of
Xxxxxxx Xxxxx, (i) directly or indirectly, offer, pledge, sell, contract
to sell, sell any option or contract to purchase, purchase any option or
contract to sell, grant any option, right or warrant to purchase or
otherwise transfer or dispose of any share of Common Stock or any
securities convertible into or exercisable or exchangeable for Common
Stock or file any registration statement under the 1933 Act with respect
to any of the foregoing or (ii) enter into any swap or any other
agreement or any transaction that transfers, in whole or in part,
directly or indirectly, the economic consequence of ownership of the
Common Stock, whether any such swap or transaction described in clause
(i) or (ii) above is to be settled by delivery of Common Stock or such
other securities, in cash or otherwise. The foregoing sentence shall not
apply to (A) the sale of the Securities hereunder or under the
International Purchase Agreement, (B) any shares of Common Stock issued
by the Company upon the exercise of an option or warrant outstanding on
the date hereof and referred to in the Prospectuses or (C) any
shares of Common Stock issued or options to purchase Common Stock granted
pursuant to existing employee benefit plans of the Company referred to in
the Prospectuses.
(k) Reporting Requirements. The Company, during the period when the
Prospectuses are required to be delivered under the 1933 Act or the 1934
Act, will file all documents required to be filed with the Commission
pursuant to the 1934 Act within the time periods required by the 1934 Act
and the 1934 Act Regulations.
SECTION 4. Payment of Expenses. (a) Expenses. The Company will pay
or cause to be paid all expenses incident to the performance of its
obligations under this Agreement, including (i) the preparation,
printing and filing of the Registration Statement (including financial
statements and exhibits) as originally filed and of each amendment
thereto, (ii) the preparation, printing and delivery to the U.S.
Underwriters of this Agreement, any Agreement among U.S. Underwriters and
such other documents as may be required in connection with the offering,
purchase, sale, issuance or delivery of the Securities, (iii) the
preparation, issuance and delivery of the certificates for the
Securities to the U.S. Underwriters, including any stock or other
transfer taxes and any stamp or other duties payable upon the sale,
issuance or delivery of the Securities to the U.S. Underwriters and the
transfer of the Securities between the U.S. Underwriters and the
International Managers, (iv) the fees and disbursements of the Company's
counsel, accountants and other advisors, (v) the qualification of the
Securities under securities laws in accordance with the provisions of
Section 3(f) hereof, including filing fees and the
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reasonable fees and disbursements of counsel for the U.S. Underwriters
in connection therewith and in connection with the preparation of the Blue
Sky Survey and any supplement thereto, in an amount not to exceed $5,000,
(vi) the printing and delivery to the U.S. Underwriters of copies of each
preliminary prospectus, any Term Sheets and of the Prospectuses and any
amendments or supplements thereto, (vii) the preparation, printing and
delivery to the U.S. Underwriters of copies of the Blue Sky Survey and any
supplement thereto, (viii) the fees and expenses of any transfer agent or
registrar for the Securities, (ix) the filing fees incident to the review
by the National Association of Securities Dealers, Inc. (the "NASD") of the
terms of the sale of the Securities and (x) the fees and expenses incurred
in connection with the inclusion of the Securities in the Nasdaq National
Market.
(b) Expenses of the Selling Shareholders. The Selling Shareholders
will pay all expenses incident to the performance of their respective
obligations under, and the consummation of the transactions contemplated by
this Agreement, including (i) any stamp duties, capital duties and stock
transfer taxes, if any, payable upon the sale of the Securities to the
U.S. Underwriters and (ii) the fees and disbursements of their respective
counsel and accountants.
(c) Termination of Agreement. If this Agreement is terminated
by the U.S. Representatives in accordance with the provisions of Section
5, Section 9(a)(i) or Section 11 hereof, the Company shall reimburse the
U.S. Underwriters for all of their out-of-pocket expenses to third parties,
including the reasonable fees and disbursements of counsel for the U.S.
Underwriters.
SECTION 5. Conditions of U.S. Underwriters' Obligations. The
obligations of the several U.S. Underwriters hereunder are subject to
the accuracy of the representations and warranties of the Company and the
Selling Shareholders contained in Section 1 hereof or in certificates of
any officer of the Company or any subsidiary of the Company or on behalf
of any Selling Shareholder delivered pursuant to the provisions hereof, to
the performance by the Company of its covenants and other obligations
hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective and at Closing Time no stop order suspending the effectiveness of
the Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission, and any
request on the part of the Commission for additional information shall
have been complied with to the reasonable satisfaction of counsel to the
U.S. Underwriters. A prospectus containing the Rule 430A Information
shall have been filed with the Commission in accordance with Rule 424(b)
(or a post-effective amendment providing such information shall have
been filed and declared effective in accordance
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with the requirements of Rule 430A) or, if the Company has elected to rely
upon Rule 434, a Term Sheet shall have been filed with the Commission
in accordance with Rule 424(b).
(b) Opinion of Counsel for Company. At Closing Time, the U.S.
Representatives shall have received the favorable opinion, dated as of
Closing Time, of Xxxxxx Xxxxxxxxxx LLP, counsel for the Company, in form
and substance satisfactory to counsel for the U.S. Underwriters, together
with signed or reproduced copies of such letter for each of the other
U.S. Underwriters to the effect set forth in Exhibit A hereto and to such
further effect as counsel to the U.S. Underwriters may reasonably request.
(c) Opinion of Counsel for the Selling Shareholders. At Closing
Time, the U.S. Representatives shall have received the favorable opinion,
dated as of Closing Time, of Xxxxxxx & Xxxxxxx & Xxxxx, as counsel to
Xxxxxx Xxxxx, and Xxxxx, Xxxxxxxx, Xxxxxx, Xxxxxxxxx & Xxxxxx, as
counsel to Xxxxxx Xxxxx, in form and substance satisfactory to counsel for
the U.S. Underwriters, together with signed or reproduced copies of such
letter for each of the other U.S. Underwriters to the effect set forth in
Exhibit B hereto and to such further effect as counsel to the U.S.
Underwriters may reasonably request.
(d) Opinion of Counsel for U.S. Underwriters. At Closing Time, the
U.S. Representatives shall have received the favorable opinion, dated as
of Closing Time, of Xxxxx, Xxxxx & Xxxxx, counsel for the U.S. Underwriters,
together with signed or reproduced copies of such letter for each of the
other U.S. Underwriters with respect to the matters set forth in clauses (i)
(solely as to existence and good standing), (ii), (v), (vi) (solely as to
preemptive or other similar rights arising by operation of law or under the
charter or by-laws of the Company), (viii) through (x), inclusive, (xii),
(xiv) (solely as to the information in the Prospectus under "Description of
Capital Stock--Common Stock") and the penultimate paragraph of Exhibit A
hereto. In giving such opinion such counsel may rely, as to all matters
governed by the laws of jurisdictions other than the law of the State of
New York, the federal law of the United States and the General Corporation
Law of the State of Delaware, upon the opinions of counsel satisfactory to
the U.S. Representatives. Such counsel may also state that, insofar as such
opinion involves factual matters, they have relied, to the extent they deem
proper, upon certificates of officers of the Company and its subsidiaries,
certificates on behalf of the Selling Shareholders and certificates of
public officials.
(e) Officers' Certificate. At Closing Time, there shall not have
been, since the date hereof or since the respective dates as of which
information is given in the Prospectuses, any material adverse change in
the condition, financial or otherwise, or in the earnings, business affairs
or business prospects of the Company and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of business,
and the U.S. Representatives shall have received a certificate of the
President or a Vice President of the Company and of the chief financial or
chief accounting officer of the Company, dated as of Closing Time, to the
effect that (i) there has been no such material adverse change, (ii) the
representations and warranties in Section 1(a) hereof are true and correct
with the same force and effect as though expressly made at and as of
Closing Time, (iii) the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or
prior to Closing Time, and (iv) no stop order suspending the
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effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are pending or, to
the best of the Company's knowledge, are contemplated by the Commission.
(f) Certificate of Selling Shareholders. At Closing Time, the U.S.
Representatives shall have received a certificate of an Attorney-in-Fact on
behalf of each Selling Shareholder, dated as of Closing Time, to the
effect that (i) the representations and warranties of each Selling
Shareholder contained in Section 1(b) hereof are true and correct in all
respects with the same force and effect as though expressly made at and as
of Closing Time and (ii) each Selling Shareholder has complied in all
material respects with all agreements and all conditions on its part to be
performed under this Agreement at or prior to Closing Time.
(g) Accountant's Comfort Letter. At the time of the execution
of this Agreement, the U.S. Representatives shall have received from Ernst
& Young a letter dated such date, in form and substance satisfactory to the
U.S. Representatives, together with signed or reproduced copies of such
letter for each of the other U.S. Underwriters containing statements and
information of the type ordinarily included in accountants' "comfort
letters" to U.S. Underwriters with respect to the financial statements
and certain financial information contained in the Registration
Statement and the Prospectuses.
(h) Bring-down Comfort Letter. At Closing Time, the U.S.
Representatives shall have received from Ernst & Young LLP a letter, dated as
of Closing Time, to the effect that they reaffirm the statements made in
the letter furnished pursuant to subsection (g) of this Section, except
that the specified date referred to shall be a date not more than
three business days prior to Closing Time.
(i) Approval of Listing. At Closing Time, the Securities shall
have been approved for inclusion in the Nasdaq National Market, subject
only to official notice of issuance.
(j) No Objection. The NASD has confirmed that it has not raised
any objection with respect to the fairness and reasonableness of
the underwriting terms and arrangements.
(k) Lock-up Agreements. At the date of this Agreement, the U.S.
Representatives shall have received an agreement substantially in
the form of Exhibit C hereto signed by the persons listed on Schedule D
hereto.
(l) Purchase of Initial International Securities.
Contemporaneously with the purchase by the U.S. Underwriters of the
Initial U.S. Securities under this Agreement, the International
Managers shall have purchased the Initial International
Securities under the International Purchase Agreement.
(m) Conditions to Purchase of U.S. Option Securities. In the event
that the U.S. Underwriters exercise their option provided in Section
2(b) hereof to purchase all or any portion of the U.S. Option Securities,
the representations and warranties of the Company contained herein and
the statements in any certificates furnished by the Company or any
subsidiary of the Company hereunder shall be true and correct as of
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each Date of Delivery and, at the relevant Date of Delivery, the U.S.
Representative(s) shall have received:
(i) Officers' Certificate. A certificate, dated such Date of
Delivery, of the President or a Vice President of the Company and of
the chief financial or chief accounting officer of the Company
confirming that the certificate delivered at the Closing Time
pursuant to Section 5(e) hereof remains true and correct as of such
Date of Delivery.
(ii) Opinion of Counsel for Company. The favorable opinion of
Xxxxxx Xxxxxxxxxx, counsel for the Company, in form and substance
satisfactory to counsel for the U.S. Underwriters, dated such Date
of Delivery, relating to the U.S. Option Securities to be
purchased on such Date of Delivery and otherwise to the same
effect as the opinion required by Section 5(b) hereof.
(iii) Opinion of Counsel for U.S. Underwriters. The favorable
opinion of Xxxxx, Xxxxx & Xxxxx, counsel for the U.S. Underwriters,
dated such Date of Delivery, relating to the U.S. Option Securities
to be purchased on such Date of Delivery and otherwise to the same
effect as the opinion required by Section 5(d) hereof.
(iv) Bring-down Comfort Letter. A letter from Xxxxx & Young
LLP, in form and substance satisfactory to the U.S. Representatives and
dated such Date of Delivery, substantially in the same form
and substance as the letter furnished to the U.S. Representatives
pursuant to Section 5(g) hereof, except that the "specified date" in
the letter furnished pursuant to this paragraph shall be a date not
more than five days prior to such Date of Delivery.
(n) Additional Documents. At Closing Time and at each Date of
Delivery, counsel for the U.S. Underwriters shall have been furnished
with such documents and opinions as they may reasonably require for the
purpose of enabling them to pass upon the issuance and sale of the
Securities as herein contemplated, or in order to evidence the accuracy of
any of the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company
and the Selling Shareholders in connection with the issuance and sale of
the Securities as
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herein contemplated shall be reasonably satisfactory in form and substance
to the U.S. Representatives and counsel for the U.S. Underwriters.
(o) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be
fulfilled, this Agreement, or, in the case of any condition to the
purchase of U.S. Option Securities on a Date of Delivery which is after the
Closing Time, the obligations of the several U.S. Underwriters to purchase
the relevant U.S. Option Securities, may be terminated by the U.S.
Representatives by notice to the Company and the Selling Shareholders at
any time at or prior to Closing Time or such Date of Delivery, as the
case may be, and such termination shall be without liability of any party
to any other party except as provided in Section 4 and except that
Sections 6, 7 and 8 shall survive any such termination and remain
in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of U.S. Underwriters. The Company and the
Selling Shareholders, severally and not jointly, agree to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
U.S. Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act to the extent and in the manner set forth in
clauses (i), (ii) and (iii) below.
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained
in the Registration Statement (or any amendment thereto),
including the Rule 430A Information and the Rule 434 Information, if
applicable, or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact included in
any preliminary prospectus or the Prospectuses (or any amendment or
supplement thereto), or the omission or alleged omission therefrom of
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, that, with respect to each Selling Shareholder,
such indemnity shall be soley with respect to untrue statements or
omissions, or alleged untrue statements or omissions, in reliance upon
or in conformity with written information furnished to the Company by
such Selling Shareholder in connection with the Registration Statement
(or any amendment thereto), such preliminary prospectus or the
Prospectuses (or any amendment thereto);
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission; provided that, with respect to each Selling Shareholder,
such indemnity shall be limited to the statements or omissions set
forth in the proviso to Section 6(a)(i); and provided further that
(subject to Section 6(d) below) any such settlement is effected with
the written consent of the Company and the Selling Shareholders; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by
Xxxxxxx Xxxxx), reasonably incurred in investigating,
preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or
(ii) above; provided that, with respect to each Selling Shareholder,
such indemnity shall be limited to the statements or omissions set
forth in the proviso to Section 6(a)(i);
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provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished to the
Company by any U.S. Underwriter through the U.S. Representatives expressly
for use in the Registration Statement (or any amendment thereto), including
the Rule 430A Information and the Rule 434 Information, if applicable, or any
preliminary prospectus or the Prospectuses (or any amendment or supplement
thereto); provided, further, however, that as to any preliminary prospectus,
any preliminary prospectus supplement, the Prospectus or any amendment or
supplement thereto, this indemnity agreement shall not inure to the benefit
of any U.S. Underwriter on account of any loss, liability, claim, damage or
expense arising from the fact that such U.S. Underwriter sold Securities to a
person as to whom it shall be established that there was not sent or given,
at or prior to the written confirmation of such sale, a copy of the U.S.
Prospectus or of the U.S. Prospectus as then amended or supplemented in any
case where such delivery is required by the 1933 Act if the Company has
previously furnished copies thereof in sufficient quantity to such U.S.
Underwriter and the loss, claim, damage or liability of such U.S. Underwriter
results from an untrue statement or omission of a material fact contained in
such preliminary prospectus, preliminary prosectus supplement, U.S.
Prospectus or amendment or supplement thereto, which was corrected in the
U.S. Prospectus or in the U.S. Prospectus as then amended or supplemented.
(b) Indemnification of Company, Directors and Officers and Selling
Shareholders. Each U.S. Underwriter severally agrees to indemnify and hold
harmless the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act, and each Selling Shareholder against any and all loss,
liability, claim, damage and expense described in the indemnity contained in
subsection (a) of this Section, as incurred, but only with respect
to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto),
including the Rule 430A Information and the Rule 434 Information, if
applicable, or any preliminary prospectus or the Prospectuses (or any
amendment or supplement thereto) in reliance upon and in conformity
with written information furnished to the Company by such U.S.
Underwriter through the U.S. Representatives expressly for use in
the Registration Statement (or any amendment thereto) or such
preliminary prospectus or the Prospectuses (or any amendment or supplement
thereto).
(c) Actions against Parties; Notification. Each
indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it
in respect of which indemnity may be sought hereunder, but failure to so
notify an indemnifying party shall not relieve such indemnifying party
from any liability hereunder to the extent it is not materially
prejudiced as a result thereof and in any event shall not relieve it from
any liability which it may have otherwise than on account of this
indemnity agreement. In the case of parties indemnified pursuant to
Section 6(a) above, counsel to the indemnified parties shall be selected
by Xxxxxxx Xxxxx, and, in the case of parties indemnified pursuant to
Section 6(b) above, counsel to the indemnified parties shall be selected
by the Company or the relevant Selling Shareholder. An indemnifying
party may participate at its own expense in the defense of any such action;
provided, however, that counsel to the indemnifying party shall not
(except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable
for fees and expenses of more than one counsel (in addition to any
local counsel) separate from their own counsel for all indemnified
parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the
prior written consent of the indemnified parties, settle or compromise
or consent to the entry of any judgment with respect to any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever in respect of
which indemnification or contribution could be sought under this
Section 6 or Section 7 hereof (whether or not the indemnified parties
are actual or potential parties thereto), unless such settlement,
compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim
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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.
(d) Settlement without Consent if Failure to Reimburse. If at any
time an indemnified party shall have requested an indemnifying party
to reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of
the nature contemplated by Section 6(a)(ii) effected without its written
consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii)
such indemnifying party shall have received notice of the terms of such
settlement at least 30 days prior to such settlement being entered into
and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
(e) Other Agreements with Respect to Indemnification. The provisions
of this Section shall not affect any agreement among the Company and
the Selling Shareholders with respect to indemnification.
SECTION 7. Contribution. If the indemnification provided for in Section
6 hereof is for any reason unavailable to or insufficient (other than by its
terms) to hold harmless an indemnified party in respect of any losses,
liabilities, claims, damages or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount of such losses,
liabilities, claims, damages and expenses incurred by such indemnified party,
as incurred, (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Selling Shareholders on
the one hand and the U.S. Underwriters on the other hand from the offering
of the Securities pursuant to this Agreement or (ii) if the allocation
provided by clause (i) 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
and the Selling Shareholders on the one hand and of the U.S. Underwriters on
the other hand in connection with the statements or omissions which resulted
in such losses, liabilities, claims, damages or expenses, as well as any
other relevant equitable considerations.
The relative benefits received by the Company and the Selling
Shareholders on the one hand and the U.S. Underwriters on the other hand in
connection with the offering of the Securities pursuant to this Agreement
shall be deemed to be in the same respective proportions as the total
net proceeds from the offering of the Securities pursuant to this
Agreement (before deducting expenses) received by the Company and the
Selling Shareholders and the total underwriting discount received by the
U.S. Underwriters, in each case as set forth on the cover of the U.S.
Prospectus, or, if Rule 434 is used, the corresponding location on the
Term Sheet, bear to the aggregate initial public offering price of the
Securities as set forth on such cover.
The relative fault of the Company and the Selling
Shareholders on the one hand and the U.S. Underwriters on the other
hand shall be determined by reference to, among other things, whether
any such untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact relates to information
supplied by the Company or the Selling Shareholders or by the U.S.
Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.
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The Company, the Selling Shareholders and the U.S.
Underwriters agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the U.S. Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to above in this
Section 7. The aggregate amount of losses, liabilities, claims, damages
and expenses incurred by an indemnified party and referred to above in this
Section 7 shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in investigating, preparing or
defending against any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue or alleged untrue statement or
omission or alleged omission.
Notwithstanding the provisions of this Section 7, no U.S.
Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the U.S. Securities
underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such U.S. Underwriter
has otherwise been required to pay by reason of any 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 1933 Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls a
U.S. Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution
as such U.S. Underwriter, and each director of the Company, each
officer of the Company who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act shall have the same
rights to contribution as the Company. The U.S. Underwriters' respective
obligations to contribute pursuant to this Section 7 are several in
proportion to the number of Initial U.S. Securities set forth opposite
their respective names in Schedule A hereto and not joint.
The provisions of this Section shall not affect any agreement
among the Company and the Selling Shareholders with respect to
contribution.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company or any of its
subsidiaries or the Selling Shareholders submitted pursuant hereto, shall
remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any U.S. Underwriter or controlling
person, or by or on behalf of the Company or the Selling Shareholders,
and shall survive delivery of the Securities to the U.S. Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. The U.S. Representatives may terminate
this Agreement, by notice to the Company and the Selling Shareholders,
at any time at or prior to Closing Time (i) if
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there has been, since the time of execution of this Agreement or since the
respective dates as of which information is given in the U.S. Prospectus,
any material adverse change in the condition, financial or otherwise, or
in the earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any material
adverse change in the financial markets in the United States or the
international financial markets, any outbreak of hostilities or escalation
thereof or other calamity or crisis or any change or development involving a
prospective change in national or international political, financial or
economic conditions, in each case the effect of which is such as to make it,
in the judgment of the U.S. Representatives, impracticable to market the
Securities or to enforce contracts for the sale of the Securities, or (iii) if
trading in any securities of the Company has been suspended or materially
limited by the Commission or the Nasdaq National Market, or if trading
generally on the American Stock Exchange or the New York Stock Exchange or in
the Nasdaq National Market has been suspended or materially limited, or
minimum or maximum prices for trading have been fixed, or maximum ranges for
prices have been required, by any of said exchanges or by such system or by
order of the Commission, the National Association of Securities Dealers,
Inc. or any other governmental authority, or (iv) if a banking moratorium has
been declared by either Federal or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any
other party except as provided in Section 4 hereof, and provided further
that Sections 6, 7 and 8 shall survive such termination and remain in full
force and effect.
SECTION 10. Default by One or More of the U.S. Underwriters. If one or
more of the U.S. Underwriters shall fail at Closing Time or a Date of Delivery
to purchase the Securities which it or they are obligated to purchase under
this Agreement (the "Defaulted Securities"), the U.S. Representatives shall
have the right, within 24-hours thereafter, to make arrangements for one or
more of the non-defaulting U.S. Underwriters, or any other U.S. Underwriters,
to purchase all, but not less than all, of the Defaulted Securities in such
amounts as may be agreed upon and upon the terms herein set forth; if, however,
the U.S. Representatives shall not have completed such arrangements within such
24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
number of U.S. Securities to be purchased on such date, each of the
non-defaulting U.S. Underwriters shall be obligated, severally and not
jointly, to purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting U.S. Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the number of
U.S. Securities to be purchased on such date, this Agreement or, with respect
to any Date of Delivery which occurs after the Closing Time, the obligation of
the U.S. Underwriters to purchase and of the Company to sell the U.S. Option
Securities to be purchased and sold on such Date of Delivery shall terminate
without liability on the part of any non-defaulting Underwriter.
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No action taken pursuant to this Section shall relieve any defaulting
U.S. Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement or, in the case of a Date of Delivery which is after the
Closing Time, which does not result in a termination of the obligation of
the U.S. Underwriters to purchase and the Company to sell the relevant U.S.
Option Securities, as the case may be, either (i) the U.S. Representatives or
(ii) the Company and any Selling Shareholder shall have the right to postpone
Closing Time or the relevant Date of Delivery, as the case may be, for a period
not exceeding seven days in order to effect any required changes in the
Registration Statement or the Prospectuses or in any other documents or
arrangements. As used herein, the term "U.S. Underwriter" includes any
person substituted for a U.S. Underwriter under this Section 10.
SECTION 11. Default by One or More of the Selling Shareholders or the
Company. (a) If a Selling Shareholder shall fail at Closing Time to sell and
deliver the number of U.S. Securities which such Selling Shareholder is
obligated to sell hereunder, then the U.S. Underwriters may, at option of the
U. S. Representatives, by notice from the U.S. Representatives to the Company
and the non-defaulting Selling Shareholder, either (a) terminate this Agreement
without any liability on the part of any non-defaulting party except that the
provisions of Sections 4, 6, 7 and 8 shall remain in full force and effect or
(b) elect to purchase the U.S. Securities which the non-defaulting Selling
Shareholder and the Company have agreed to sell hereunder. No action taken
pursuant to this Section 11 shall relieve any Selling Shareholder so defaulting
from liability, if any, in respect of such default.
In the event of a default by any Selling Shareholder as referred to in
this Section 11, each of (i) the U.S. Representatives, and (ii) the Company and
the non-defaulting Selling Shareholders shall have the right to postpone
Closing Time for a period not exceeding seven days in order to effect any
required change in the Registration Statement or the Prospectuses or in any
other documents or arrangements.
(b) If the Company shall fail at Closing Time or at the Date of Delivery
to sell the number of U.S. Securities that it is obligated to sell hereunder,
then this Agreement shall terminate without any liability on the part of any
nondefaulting party; provided, however, that the provisions of Sections 4, 6,
7 and 8 shall remain in full force and effect. No action taken pursuant to this
Section shall relieve the Company from liability, if any, in respect of such
default.
SECTION 12. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if hand delivered,
mailed, delivered by a nationally recognized next-day air courier or
transmitted by any standard form of telecommunication. All such notices and
communications shall be deemed to have been duly given: when delivered by hand,
if personally delivered; one business day after being timely delivered to a
next-day air courier; five business days after being deposited in the mail,
postage prepaid, if mailed; and when receipt is acknowledged by the recipient's
telecopier machine, if telecopied. Notices to the U.S. Underwriters shall be
directed to the U.S. Representatives at North Tower, World Financial Center,
New York, New York 10281-1201, attention of Xxxx X'Xxxxx; notices to the
Company shall be directed to it at 0000 Xxxxxxxxx Xxxxx, Xxxxxxxxxxxx,
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Indiana 46728, attention of Xxxxxx X. Xxxxx; notices to the Selling
Shareholders shall be directed to Xxxxxx Xxxxx, 0 Xxxxxxxxx Xxxxx, Xxxx Xxxxx,
Xxxxxxx 00000 and Xxxxxx Xxxxx, 00000 X.X. 00xx Xxxxxx, Xxxxx, Xxxxxxx 00000,
with a copy to the Company to such person or persons designated in accordance
with this Section 12.
SECTION 13. Parties. This Agreement shall each inure to the benefit of
and be binding upon the U.S. Underwriters, the Company and the Selling
Shareholders and their respective successors. Nothing expressed or mentioned
in this Agreement is intended or shall be construed to give any person, firm or
corporation, other than the U.S. Underwriters, the Company and the Selling
Shareholders and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and
legal representatives, any legal or equitable right, remedy or claim under or
in respect of this Agreement or any provision herein contained. This Agreement
and all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the U.S. Underwriters, the Company and the Selling
Shareholders and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No party hereto may assign
its rights or obligations, under this Agreement to any other person without, in
the case of the Company, the prior written approval of the U.S. Underwriters,
in the case of the Selling Shareholders, the prior written approval of the
Company and the U.S. Underwriters and, in the case of the U.S. Underwriters,
except as set forth in Section 10, the prior written approval of the Company.
No purchaser of Securities from any Underwriter shall be deemed to be a
successor by reason merely of such purchase.
SECTION 14. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS
OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 15. Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
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If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company and the Attorney-in-Fact for the Selling
Shareholders a counterpart hereof, whereupon this instrument, along with all
counterparts, will become a binding agreement among the U.S. Underwriters, the
Company and the Selling Shareholders in accordance with its terms.
Very truly yours,
BRIGHTPOINT, INC.
By:
Title:
_________________________
By:
Title:
As Attorney-in-Fact acting on behalf
of the Selling Shareholders named in
Schedule B hereto
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
XXXXX & COMPANY
UBS SECURITIES LLC
SANDS BROTHERS & CO., LTD.
By: XXXXXXX XXXXX, XXXXXX, XXXXXX & XXXXX
INCORPORATED
By
Authorized Signatory
For themselves and as U.S. Representatives of the other U.S. Underwriters named
in Schedule A hereto.
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SCHEDULE A
Number of
Initial
Name of Underwriter Securities
------------------- ----------
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx
Incorporated . . . . . . . .
Xxxxx & Company . . . . . . . . . . . . . . . . .
UBS Securities LLC . . . . . . . . . . . . . . .
Sands Brothers & Co., Ltd. . . . . . . . . . . .
---------
Total . . . . . . . . . . . . . . . . . . . . . . 3,200,000
=========
Sch A - 1
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SCHEDULE B
Number of Initial
Securities to be Sold
---------------------
Brightpoint, Inc. 1,440,000
Selling Shareholders
Xxxxxx Xxxxx 1,600,000
Xxxxxx Xxxxx 160,000
---------
Total ................... 3,200,000
=========
Sch B - 1
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SCHEDULE C
BRIGHTPOINT, INC.
3,200,000 Shares of Common Stock
(Par Value $.01 Per Share)
1. The initial public offering price per share for the
Securities, determined as provided in said Section 2, shall be $_____________.
2. The purchase price per share for the Securities to be paid by
the several U.S. Underwriters shall be $___________, being an amount equal to
the initial public offering price set forth above less $_________ per share;
provided that the purchase price per share for any U.S. Option Securities
purchased upon the exercise of the over-allotment option described in
Section 2(b) shall be reduced by an amount per share equal to any dividends
or distributions declared by the Company and payable on the Initial U.S.
Securities but not payable on the U.S. Option Securities.
Sch C - 1
38
[SCHEDULE D]
[List of persons and entities
subject to lock-up]
Sch D - 1
