ORBCOMM INC. 7,000,000 Shares of Common Stock ($0.001 par value per Share) Form of Underwriting Agreement
Exhibit 1
7,000,000 Shares of Common Stock
($0.001 par value per Share)
($0.001 par value per Share)
Form of Underwriting Agreement
[ ], 2007
[ ], 2007
UBS Securities LLC
as Representative to the Underwriters
named on Schedule A hereto
c/o UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
as Representative to the Underwriters
named on Schedule A hereto
c/o UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
ORBCOMM Inc., a Delaware corporation (the “Company”), proposes to issue and sell, and
each person or entity (each, a “Selling Stockholder”) identified as a Selling Stockholder
in Schedule C annexed hereto proposes to sell, to the underwriters named in Schedule
A annexed hereto (the “Underwriters”), for whom you are acting as representative, an
aggregate of 7,000,000 shares (the “Firm Shares”) of common stock, $0.001 par value (the
“Common Stock”), of the Company, of which 2,985,000 Firm Shares are to be issued and sold
by the Company and an aggregate of 4,015,000 Firm Shares are to be sold by the Selling
Stockholders. The number of Firm Shares to be sold by each Selling Stockholder is the number of
Firm Shares set forth opposite the name of such Selling Stockholder in Schedule C annexed
hereto. In addition, solely for the purpose of covering over-allotments, each Selling Stockholder
proposes to grant to the Underwriters the option to purchase from such Selling Stockholder up to an
aggregate of 1,050,000 additional shares of Common Stock from the Selling Stockholders
collectively, in the amounts set forth opposite the Selling Stockholder’s name in Schedule C (the
“Additional Shares”). The Firm Shares and the Additional Shares are hereinafter
collectively sometimes referred to as the “Shares.” The Shares are described in the
Prospectus which is referred to below.
The Company has prepared and filed, in accordance with the provisions of the Securities Act of
1933, as amended, and the rules and regulations thereunder (collectively, the “Act”), with
the Securities and Exchange Commission (the “Commission”) a registration statement on Form
S-1 (File No. 333-142427) under the Act, including a prospectus, relating to the Shares.
Except where the context otherwise requires, “Registration Statement,” as used herein, means
the registration statement, as amended at the time of such registration statement’s effectiveness
for purposes of Section 11 of the Act, as such section applies to the respective Underwriters (the
“Effective Time”), including (i) all documents filed as a part thereof, (ii) any information
contained in a prospectus filed with the Commission pursuant to Rule 424(b) under the Act, to the
extent such information is deemed, pursuant to Rule 430A or Rule 430C under the Act, to be part of
the registration statement at the Effective Time, and (iii) any registration statement filed to
register the offer and sale of Shares pursuant to Rule 462(b) under the Act.
The Company has furnished to you, for use by the Underwriters and by dealers in connection
with the offering of the Shares, copies of one or more preliminary prospectuses
-1-
relating to the Shares. Except where the context otherwise requires, “Preliminary
Prospectus,” as used herein, means each such preliminary prospectus, in the form so furnished.
Except where the context otherwise requires, “Prospectus,” as used herein, means the
prospectus, relating to the Shares, filed by the Company with the Commission pursuant to Rule
424(b) under the Act on or before the second business day after the date hereof (or such earlier
time as may be required under the Act), or, if no such filing is required, the final prospectus
included in the Registration Statement at the time it became effective under the Act, in each case
in the form furnished by the Company to you for use by the Underwriters and by dealers in
connection with the offering of the Shares.
“Permitted Free Writing Prospectuses,” as used herein, means the documents listed on
Schedule D attached hereto and each “road show” (as defined in Rule 433 under the Act), if
any, related to the offering of the Shares contemplated hereby that is a “written communication”
(as defined in Rule 405 under the Act) (each such road show, an “Electronic Road Show”).
The Underwriters have not offered or sold and will not offer or sell, without the Company’s
consent, any Shares by means of any “free writing prospectus” (as defined in Rule 405 under the
Act) that is required to be filed by the Underwriters with the Commission pursuant to Rule 433
under the Act, other than a Permitted Free Writing Prospectus.
“Disclosure Package,” as used herein, means any Preliminary Prospectus together with
any combination of one or more of the Permitted Free Writing Prospectuses, if any.
As used in this Agreement, “Business Day” shall mean a day on which the NASDAQ Stock
Market LLC Global Market (the “NASDAQ”) is open for trading. The terms “herein,” “hereof,”
“hereto,” “hereinafter” and similar terms, as used in this Agreement, shall in each case refer to
this Agreement as a whole and not to any particular section, paragraph, sentence or other
subdivision of this Agreement. The term “or,” as used herein, is not exclusive.
The Company, each of the Selling Stockholders and the Underwriters agree as follows:
-2-
extent as you may determine; provided, however, that any such increase or
decrease shall not affect the purchase price for the Shares that is payable to the Company by the
Underwriters pursuant to this Agreement.
In addition, the Selling Stockholders, severally and not jointly, hereby grant to the several
Underwriters the option (the “Over-Allotment Option”) to purchase, and upon the basis of
the representations and warranties and subject to the terms and conditions herein set forth, the
Underwriters shall have the right to purchase from the Selling Stockholders all or a portion of the
Additional Shares as may be necessary to cover over-allotments made in connection with the offering
of the Firm Shares, at the same purchase price per share to be paid by the Underwriters to the
Company and the Selling Stockholders for the Firm Shares. The Over-Allotment Option may be
exercised by UBS on behalf of the several Underwriters at any time, and from time to time, on or
before the thirtieth day following the date of the Prospectus, by written notice to the Company and
the Representative of the Selling Stockholder (as defined below). Such notice shall set forth the
aggregate number of Additional Shares as to which the Over-Allotment Option is being exercised, and
the date and time when the Additional Shares are to be delivered (any such date and time being
herein referred to as an “additional time of purchase”); provided, however,
that no additional time of purchase shall be earlier than the “time of purchase” (as defined below)
nor earlier than the second Business Day after the date on which the Over-Allotment Option shall
have been exercised nor later than the tenth Business Day after the date on which the
Over-Allotment Option shall have been exercised. The number of Additional Shares to be sold to
each Underwriter shall be the number which bears the same proportion to the aggregate number of
Additional Shares being purchased as the number of Firm Shares set forth opposite the name of such
Underwriter on Schedule A hereto bears to the total number of Firm Shares (subject, in each
case, to such adjustment as UBS may determine to eliminate fractional shares), subject to
adjustment in accordance with Section 11 hereof.
Pursuant to powers of attorney (the “Powers of Attorney”) granted by each Selling
Stockholder (which Powers of Attorney shall be satisfactory to UBS), Xxxxxxxxx X. Xx Xxxx, Esq.,
General Counsel of the Company, shall act as representative of the Selling Stockholders (the
“Representative of the Selling Stockholders”). The Representative of the Selling
Stockholders is authorized, on behalf of each Selling Stockholder, among other things, to execute
any documents necessary or desirable in connection with the sale of the Shares to be sold hereunder
by such Selling Stockholder, to make delivery of the certificates of such Shares, to receive the
proceeds of the sale of such Shares, to give receipts for such proceeds, to pay therefrom the
expenses to be borne by such Selling Stockholder in connection with the sale and public offering of
the Shares, to distribute the balance of such proceeds to such Selling Stockholder, to receive
notices on behalf of such Selling Stockholder and to take such other action as may be necessary or
desirable in connection with the transactions contemplated by this Agreement.
2. Payment and Delivery. Payment of the purchase price for the Firm Shares shall be
made to the Company and to each Selling Stockholder by Federal Funds wire transfer, against
delivery of the certificates for the Firm Shares to you through the facilities of The Depository
Trust Company (“DTC”) for the respective accounts of the Underwriters. Such payment and
delivery shall be made at 10:00 A.M., New York City time, on [ ], 2007 (unless another
-3-
time shall be agreed to by you and the Company and the Representative of the Selling
Stockholders or unless postponed in accordance with the provisions of Section 10 hereof). The time
at which such payment and delivery are to be made is hereinafter sometimes called the “time of
purchase.” Electronic transfer of the Firm Shares shall be made to you at the time of purchase
in such names and in such denominations as you shall specify.
Payment of the purchase price for the Additional Shares shall be made at the additional time
of purchase in the same manner and at the same office as the payment for the Firm Shares.
Electronic transfer of the Additional Shares shall be made to you at the additional time of
purchase in such names and in such denominations as you shall specify.
Deliveries of the documents described in Section 9 hereof with respect to the purchase of the
Shares shall be made at the offices of Milbank, Tweed, Xxxxxx & XxXxxx LLP, Xxx Xxxxx Xxxxxxxxx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 9:00 A.M., New York City time, on the date of the closing of
the purchase of the Firm Shares or the Additional Shares, as the case may be.
(a) the Registration Statement has heretofore become, and is, effective under the Act
or, with respect to any registration statement to be filed to register the offer and sale of
Shares pursuant to Rule 462(b) under the Act, will be filed with the Commission and become
effective under the Act no later than 10:00 P.M., New York City time, on the date of
determination of the public offering price for the Shares; no stop order of the Commission
preventing or suspending the use of any Preliminary Prospectus or Permitted Free Writing
Prospectus, or the effectiveness of the Registration Statement, has been issued, and no
proceedings for such purpose have been instituted or, to the Company’s knowledge, are
threatened by the Commission, and any request on the part of the Commission for additional
information has been complied with;
(b) the Registration Statement complied when it became effective, complies as of the
date hereof and, as amended or supplemented, at the time of purchase, each additional time
of purchase, if any, and at all times during which a prospectus is required by the Act to be
delivered (whether physically or through compliance with Rule 172 under the Act or any
similar rule) in connection with any sale of Shares, will comply, in all material respects,
with the requirements of the Act; the Registration Statement did not, as of the Effective
Time, contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not misleading;
each Preliminary Prospectus complied, at the time it was filed with the Commission, and
complies as of the date hereof, in all material respects with the requirements of the Act;
at no time during the period that begins on the earlier of the date of such Preliminary
Prospectus and the date such Preliminary Prospectus was filed with the Commission and ends
at the time of purchase did or will any Preliminary Prospectus, as then amended or
supplemented, include an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading, and at no time during
-4-
such period did or will any Preliminary Prospectus, as then amended or supplemented,
together with any combination of one or more of the then issued Permitted Free Writing
Prospectuses, if any, include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; the Prospectus will comply, as of
its date, the date that it is filed with the Commission, the time of purchase, each
additional time of purchase, if any, and at all times during which a prospectus is required
by the Act to be delivered (whether physically or through compliance with Rule 172 under the
Act or any similar rule) in connection with any sale of Shares, in all material respects,
with the requirements of the Act (including, without limitation, Section 10(a) of the Act);
at no time during the period that begins on the earlier of the date of the Prospectus and
the date the Prospectus is filed with the Commission and ends at the later of the time of
purchase, the latest additional time of purchase, if any, and the end of the period during
which a prospectus is required by the Act to be delivered (whether physically or through
compliance with Rule 172 under the Act or any similar rule) in connection with any sale of
Shares did or will the Prospectus, as then amended or supplemented, include an untrue
statement of a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not
misleading; at no time during the period that begins on the date of such Permitted Free
Writing Prospectus and ends at the time of purchase did or will any Permitted Free Writing
Prospectus include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that the Company
makes no representation or warranty in this Section 3(b) with respect to any statement
contained in the Registration Statement, any Preliminary Prospectus, the Prospectus or any
Permitted Free Writing Prospectus in reliance upon and in conformity with information
concerning an Underwriter and furnished in writing by or on behalf of such Underwriter
through you to the Company expressly for use in the Registration Statement, such Preliminary
Prospectus, the Prospectus or such Permitted Free Writing Prospectus;
(c) prior to the execution of this Agreement, the Company has not, directly or
indirectly, offered or sold any Shares by means of any “prospectus” (within the meaning of
the Act) or used any “prospectus” (within the meaning of the Act) in connection with the
offer or sale of the Shares, in each case other than the Preliminary Prospectuses and the
Permitted Free Writing Prospectuses, if any; the Company has not, directly or indirectly,
prepared, used or referred to any Permitted Free Writing Prospectus except in compliance
with Rules 164 and 433 under the Act; assuming that such Permitted Free Writing Prospectus
is accompanied or preceded by the most recent Preliminary Prospectus or the Prospectus, as
the case may be, and that such Permitted Free Writing Prospectus is so sent or given after
the Registration Statement was filed with the Commission (and after such Permitted Free
Writing Prospectus was, if required pursuant to Rule 433(d) under the Act, filed with the
Commission), the sending or giving, by any Underwriter, of any Permitted Free Writing
Prospectus will satisfy the provisions of Rule 164 and Rule 433 (without reliance on
subsections (b), (c) and (d) of Rule 164); the Preliminary Prospectus dated May 14, 2007 is
a prospectus that, other than by reason of
-5-
Rule 433 or Rule 431 under the Act, satisfies the requirements of Section 10 of the
Act, including a price range where required by rule; neither the Company nor the
Underwriters are disqualified, by reason of subsection (f) or (g) of Rule 164 under the Act,
from using, in connection with the offer and sale of the Shares, “free writing prospectuses”
(as defined in Rule 405 under the Act) pursuant to Rules 164 and 433 under the Act; the
Company is not an “ineligible issuer” (as defined in Rule 405 under the Act) as of the
eligibility determination date for purposes of Rules 164 and 433 under the Act with respect
to the offering of the Shares contemplated by the Registration Statement; the parties hereto
agree and understand that the content of any and all “road shows” (as defined in Rule 433
under the Act) related to the offering of the Shares contemplated hereby is solely the
property of the Company;
(d) as of the date of this Agreement, the Company has the authorized and outstanding
capitalization as set forth in the sections of the Registration Statement, the Preliminary
Prospectuses and the Prospectus entitled “Capitalization” and “Description of capital stock”
(and any similar section or information, if any, contained in any Permitted Free Writing
Prospectus), and, as of the time of purchase and any additional time of purchase, as the
case may be, the Company shall have an authorized and outstanding capitalization as set
forth in the sections of the Registration Statement, the Preliminary Prospectuses and the
Prospectus entitled “Capitalization” and “Description of capital stock” (and any similar
section or information, if any, contained in any Permitted Free Writing Prospectus),
subject, in each case, to the issuance of shares of Common Stock upon exercise or conversion
of stock options, warrants and convertible securities disclosed as outstanding in the
Registration Statement (excluding the exhibits thereto), each Preliminary Prospectus and the
Prospectus and the grant of options, restricted stock units, stock appreciation rights and
other stock-based awards under existing stock incentive plans described in the Registration
Statement (excluding the exhibits thereto), each Preliminary Prospectus and the Prospectus);
all of the issued and outstanding shares of capital stock, including the Common Stock, of
the Company have been duly authorized and validly issued and are fully paid and
non-assessable, have been issued in compliance with all applicable securities laws and were
not issued in violation of any preemptive right, resale right, right of first refusal or
similar right binding on the Company; no further approval or authority of the stockholders
or the Board of Directors of the Company are required for the issuance and sale of the
Shares; and the Amended and Restated Certificate of Incorporation of the Company and the
Amended Bylaws, each in the form filed as an exhibit to the Registration Statement, have
been in full force and effect at or before the time of purchase; the Shares are duly listed
and admitted and authorized for trading, and the Company is in compliance with the
applicable Marketplace Rules of the NASDAQ, including, without limitation, the requirements
for continued listing of the Common Stock on the NASDAQ;
(e) the Company has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of Delaware, with full corporate power and
authority to own, lease and operate its properties and conduct its business as described in
the Registration Statement, the Preliminary Prospectuses, the Prospectus and the Permitted
Free Writing Prospectuses, if any, to execute and deliver this Agreement
-6-
and to issue, sell and deliver the Shares to be sold by it pursuant hereto as
contemplated herein;
(f) the Company is duly qualified to do business as a foreign corporation and is in
good standing in each jurisdiction where the ownership or leasing of its properties or the
conduct of its business as currently conducted requires such qualification, except where the
failure to be so qualified and in good standing would not, individually or in the aggregate,
either (i) have a material adverse effect on the business, properties, financial condition,
results of operations or prospects of the Company and the Subsidiaries (as hereinafter
defined) taken as a whole, (ii) prevent or materially interfere with consummation of the
transactions contemplated hereby or (iii) result in the delisting of shares of Common Stock
from the NASDAQ (the occurrence of any such effect or any such prevention or interference or
any such result described in the foregoing clauses (i), (ii) and (iii) being herein referred
to as a “Material Adverse Effect”);
(g) the Company has no subsidiaries (as defined under the Securities Exchange Act of
1934, as amended, and the rules and regulations of the Commission promulgated thereunder
(the “Exchange Act”)) other than the subsidiaries listed on Schedule B
hereto (collectively, excluding the entities identified on Schedule B as “dormant
subsidiaries,” the “Subsidiaries”) and the entities identified as dormant on
Schedule B are accurately identified; the Company owns, directly or indirectly, all of the
issued and outstanding capital stock of each of the Subsidiaries, other than Satcom
International Group plc. and ORBCOMM Europe LLC; the Company has no “significant
subsidiary,” as that term is defined in Rule 1-02(w) of Regulation S-X under the Act (the
“Significant Subsidiaries”), other than Stellar Satellite Communications Ltd., a
company established under the laws of the British Virgin Islands; ORBCOMM LLC, a Delaware
limited liability company, and ORBCOMM License Corp., a Delaware corporation, are the only
subsidiaries through which the Company owns or operates satellites and material related
assets (the “Asset Subsidiaries” and, together with the Significant Subsidiaries,
the “Material Subsidiaries”) and, with the exception of the Material Subsidiaries,
no subsidiary owns or possesses any property or assets, or has any obligations or
liabilities, or possesses any rights (by contract, franchise, permit or otherwise) or
engages in any operations that are, individually or in the aggregate, material to the
Company or its business, properties, financial condition, results of operations or prospects
of the Company; other than the capital stock of the Subsidiaries, MITE Global Communications
S.A. de C.V., ORBCOMM Maghreb, ORBCOMM Africa (Property Limited) and European Datacomm
Holdings, N.V., the Company does not own, directly or indirectly, any shares of stock or any
other equity or long-term debt securities of any corporation or have any equity interest in
any firm, partnership, joint venture, association or other entity; complete and correct
copies of the charters and the bylaws (or equivalent organizational or governing documents)
of the Company and each Material Subsidiary and all amendments thereto have been delivered
to you, and, except as set forth in the exhibits to the Registration Statement, no changes
therein will be made on or after the date hereof through and including the time of purchase
or, if later, any additional time of purchase; each Material Subsidiary has been duly
incorporated or formed and is validly existing as a corporation or limited liability company
in good standing under the laws of the
-7-
jurisdiction of its incorporation or formation, with full corporate power and authority
to own, lease and operate its properties and to conduct its business as described in the
Registration Statement, the Preliminary Prospectuses, the Prospectus and the Permitted Free
Writing Prospectuses, if any; each Material Subsidiary is duly qualified to do business as a
foreign corporation or limited liability company and is in good standing in each
jurisdiction where the ownership or leasing of its properties or the conduct of its business
requires such qualification, except where the failure to be so qualified and in good
standing would not, individually or in the aggregate, have a Material Adverse Effect; each
Material Subsidiary is in compliance in all respects with the laws, orders, rules,
regulations and directives issued or administered by such jurisdictions, except where the
failure to be in compliance would not, individually or in the aggregate, have a Material
Adverse Effect; all of the outstanding shares of capital stock of each of the Material
Subsidiaries have been duly authorized and validly issued, are fully paid and
non-assessable, have been issued in compliance with all applicable federal and state
securities laws, were not issued in violation of any preemptive right, resale right, right
of first refusal or similar right and (except as otherwise described in this Section 3(g))
are owned by the Company subject to no security interest, other encumbrance or adverse
claims;
(h) except as described in the Registration Statement, the Preliminary Prospectuses and
the Prospectus, there are no outstanding subscriptions, rights, options, warrants, calls,
convertible securities, commitments of sales or other rights to purchase, agreements or
other obligations to issue or other rights to convert any obligation into shares of capital
stock or ownership interests in the Company or any of the Material Subsidiaries;
(i) the Shares to be sold by the Company pursuant hereto have been duly and validly
authorized and, when issued and delivered against payment therefor as provided herein, will
be duly and validly issued, fully paid and non-assessable and free of any statutory and
contractual preemptive rights, resale rights, rights of first refusal and similar rights;
the Shares to be sold by the Company pursuant hereto, when issued and delivered against
payment therefor as provided herein, will be free of any restriction upon the voting or
transfer thereof pursuant to the Company’s charter or bylaws or other governing documents or
any agreement or other instrument to which the Company or any of the Subsidiaries is a party
or by which any of them or any of their respective properties may be bound or affected; the
Shares to be sold by the Selling Stockholders pursuant hereto have been duly and validly
authorized and issued and are and, after they are delivered against payment therefor as
provided herein, will be fully paid, non-assessable and free of statutory preemptive rights,
resale rights, rights of first refusal and similar rights; the Shares to be sold by the
Selling Stockholders pursuant hereto are and, after they are delivered against payment
therefor as provided herein, will be free of any restriction upon the voting or transfer
thereof pursuant to the Company’s charter or bylaws or any agreement or other instrument to
which the Company or any of the Subsidiaries is a party;
-8-
(j) the capital stock of the Company, including the Shares, conforms in all material
respects to the description thereof contained in the Registration Statement, the Preliminary
Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if any, and,
except for Shares held in the book-entry form, the certificates for the Shares, if any, are
in due and proper form and the holders of the Shares will not be subject to personal
liability by reason of being stockholders of the Company;
(k) this Agreement has been duly authorized, executed and delivered by the Company;
(l) neither the Company nor any of the Material Subsidiaries is in breach or violation
of or in default under (nor has any event occurred which with notice, lapse of time or both
would result in any breach or violation of, constitute a default under or give the holder of
any indebtedness (or a person acting on such holder’s behalf) the right to require the
repurchase, redemption or repayment of all or any part of such indebtedness under) (A) its
respective charter or bylaws (or equivalent organizational or governing documents), in each
case as amended to the date hereof, (B) any indenture, mortgage, deed of trust, bank loan or
credit agreement or other evidence of indebtedness, or any license (including without
limitation the Communications Licenses (as defined below)), lease, contract or other
agreement or instrument to which the Company or any of the Subsidiaries is a party or by
which any of them or any of their respective properties may be bound or affected, (C) any
federal, state, local or foreign law, regulation or rule, (D) any rule or regulation of any
self-regulatory organization or other non-governmental regulatory authority (including,
without limitation, the rules and regulations of the NASDAQ), or (E) any decree, judgment or
order applicable to the Company or any of the Subsidiaries or any of their respective
properties, except, in the case of clauses (B), (C), (D) and (E), for any such breach,
violation, default or acceleration that is described in the Registration Statement, the
Preliminary Prospectuses and the Prospectus or any Permitted Free Writing Prospectus or that
would not, individually or in the aggregate, have a Material Adverse Effect;
(m) the execution, delivery and performance of this Agreement, the issuance and sale of
the Shares to be sold by the Company pursuant hereto, the sale of Shares to be sold by the
Selling Stockholders pursuant hereto and the consummation of the transactions contemplated
hereby will not conflict with, result in any breach or violation of or constitute a default
under (nor constitute any event which, with notice, lapse of time or both, would result in
any breach or violation of, constitute a default under or give the holder of any
indebtedness (or a person acting on such holder’s behalf) the right to require the
repurchase, redemption or repayment of all or a part of such indebtedness under) (or result
in the creation or imposition of a lien, charge or encumbrance on any property or assets of
the Company or any Subsidiary pursuant to) (A) the charter or bylaws of the Company or any
of the Subsidiaries, (B) any indenture, mortgage, deed of trust, bank loan or credit
agreement or other evidence of indebtedness, or any license, lease, contract or other
agreement or instrument to which the Company or any of the Subsidiaries is a party or by
which any of them or any of their respective properties may be bound or affected, (C) any
federal, state, local or foreign law, regulation or rule, (D)
-9-
any rule or regulation of any self-regulatory organization or other non-governmental
regulatory authority (including, without limitation, the rules and regulations of the
NASDAQ), or (E) any decree, judgment or order applicable to the Company or any of the
Subsidiaries or any of their respective properties, except, in the case of clause (B), for
any such breach, violation, default or acceleration that is described in the Registration
Statement, the Preliminary Prospectuses and the Prospectus or any Permitted Free Writing
Prospectus or that would not, individually or in the aggregate, have a Material Adverse
Effect;
(n) no approval, authorization, consent or order of or filing or registration with any
federal, state, local or foreign governmental or regulatory commission, board, body,
authority or agency, or of or with any self-regulatory organization or other
non-governmental regulatory authority (including, without limitation, the NASDAQ), or
approval of the stockholders of the Company, is required in connection with the issuance and
sale of the Shares to be sold by the Company pursuant hereto, the sale of the Shares to be
sold by the Selling Stockholders pursuant hereto or the consummation of the transactions
contemplated hereby, other than (i) registration of the Shares under the Act, which has been
effected or, with respect to any registration statement to be filed hereunder pursuant to
Rule 462(b) under the Act, will be effected in accordance herewith, (ii) any necessary
qualification under the securities or blue sky laws of the various jurisdictions in which
the Shares are being offered by the Underwriters, (iii) under the rules and regulations of
the NASD, Inc. (the “NASD”) or (iv) under the rules and regulations of the U.S.
Federal Communications Commission (the “FCC”), all of which have been obtained;
(o) except as described in the Registration Statement (excluding the exhibits thereto),
the Preliminary Prospectuses and the Prospectus, (i) no person has the right, contractual or
otherwise, to cause the Company to issue or sell to it any shares of Common Stock or shares
of any other capital stock or other equity interests of the Company, (ii) no person has any
preemptive rights, resale rights, rights of first refusal or other rights to purchase from
the Company any shares of Common Stock or shares of any other capital stock of or other
equity interests in the Company, (iii) no person has the right to act as an underwriter or
as a financial advisor to the Company in connection with the offer and sale of the Shares
and (iv) no person has the right, contractual or otherwise, to cause the Company to register
under the Act any shares of Common Stock or shares of any other capital stock of or other
equity interests in the Company, or to include any such shares or interests in the
Registration Statement or the offering contemplated thereby, in the case of each of the
foregoing clauses (i), (ii), (iii) and (iv), whether as a result of the filing or
effectiveness of the Registration Statement or the sale of the Shares as contemplated hereby
or otherwise;
(p) except as described in the Registration Statement (excluding the exhibits thereto),
the Preliminary Prospectuses or the Prospectus, each of the Company and the Subsidiaries has
all necessary governmental licenses, authorizations, consents and approvals and has made all
necessary filings required under any federal, state, local or foreign law, regulation or
rule, and has obtained all necessary licenses, authorizations,
-10-
consents and approvals from other persons, in order to operate its respective
properties and conduct its respective business as currently conducted, except where such
failure would not, individually or in the aggregate, have a Material Adverse Effect; neither
the Company nor any of the Subsidiaries is in violation of, or in default under, or has
received notice of any proceedings relating to revocation or modification of, any such
license, authorization, consent or approval or any federal, state, local or foreign law,
regulation or rule or any decree, order or judgment applicable to the Company or any of the
Subsidiaries, except where such violation, default, revocation or modification would not,
individually or in the aggregate, have a Material Adverse Effect;
(q) all legal or governmental proceedings, statutes, regulations, affiliate
transactions and relationships, off-balance sheet transactions (including, without
limitation, transactions related to, and the existence of, “variable interest entities”
within the meaning of Financial Accounting Standards Board Interpretation No. 46),
contracts, licenses, agreements, properties, leases or documents of a character required to
be described in the Registration Statement, the Preliminary Prospectuses or the Prospectus
or to be filed as an exhibit to the Registration Statement have been so described or filed
as required;
(r) except as described in the Registration Statement (excluding the exhibits thereto),
the Preliminary Prospectuses and the Prospectus, there are no actions, suits, claims,
investigations or proceedings pending or, to the Company’s knowledge, threatened or
contemplated to which the Company or any of the Subsidiaries or any of their respective
directors or officers is or would be a party or of which any of their respective properties
is or would be subject at law or in equity, before or by any federal, state, local or
foreign governmental or regulatory commission, board, body, authority or agency, or before
or by any self-regulatory organization or other non-governmental regulatory authority
(including, without limitation, the rules and regulations of the NASDAQ), except any such
action, suit, claim, investigation or proceeding which, if resolved adversely to the Company
or any Subsidiary, would not, individually or in the aggregate, have a Material Adverse
Effect;
(s) Deloitte & Touche LLP, whose report on the consolidated financial statements of the
Company and the Subsidiaries is included in the Registration Statement, the Preliminary
Prospectuses, the Prospectus or any Permitted Free Writing Prospectus, if any, is an
independent registered public accounting firm as required by the Act, the Exchange Act and
the rules and regulations of the Public Company Accounting Oversight Board (the
“PCAOB”); the Company has not engaged Deloitte & Touche LLP to provide any
“prohibited activities” (as defined in Section 10A of the Exchange Act) on behalf of the
Company;
(t) the financial statements included in the Registration Statement, the Preliminary
Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if any, together
with the related notes and schedules, present fairly, in all material respects, the
consolidated financial position of the Company and the Subsidiaries as of the dates
indicated and the consolidated results of operations, cash flows and changes in
-11-
stockholder’s equity of the Company for the periods specified and have been prepared in
compliance with the requirements of the Act and the Exchange Act and in conformity with
generally accepted accounting principles in the United States applied on a consistent basis
during the periods involved; and the other financial, accounting and statistical information
and data related to the Company and its subsidiaries set forth in the Registration Statement
and Prospectus present fairly, in all material respects, the information purported to be
shown thereby at the respective dates and for the respective periods to which they apply
and, except as otherwise disclosed therein, have been prepared on a basis consistent with
the financial statements and the books and records of the entities as to which such
information is shown; there are no financial statements (historical or pro forma) that are
required to be included in the Registration Statement, the Preliminary Prospectuses, the
Prospectus and the Permitted Free Writing Prospectuses, if any, (including, without
limitation, as required by Rules 3-12 or 3-05 or Article 11 of Regulation S-X under the Act)
that are not included as required; the Company and the Subsidiaries do not have any material
liabilities or obligations, direct or contingent (including any off-balance sheet
obligations), not disclosed in the Registration Statement, the Preliminary Prospectuses and
the Prospectus; except as disclosed in the Registration Statement, each Preliminary
Prospectus and the Prospectus, neither the Company nor any Subsidiary is, together with its
“related parties,” the “primary beneficiary” of any “variable interest entity” (as such
terms are used in Financial Accounting Standards Board Interpretation No. 46); and all
disclosures contained in the Registration Statement, the Preliminary Prospectuses, the
Prospectus and the Permitted Free Writing Prospectuses, if any, regarding “non-GAAP
financial measures” (as such term is defined by the rules and regulations of the Commission)
comply with Regulation G of the Exchange Act and Item 10 of Regulation S-K under the Act, to
the extent applicable;
(u) subsequent to the respective dates as of which information is given in the
Registration Statement, the Preliminary Prospectuses, the Prospectus and the Permitted Free
Writing Prospectuses, if any, in each case excluding any amendments or supplements to the
foregoing made after the execution of this Agreement, there has not been (i) any material
adverse change, or any development involving a prospective material adverse change, in the
business, properties, management, financial condition or results of operations of the
Company and the Subsidiaries, taken as a whole, (ii) except as contemplated by the
Registration Statement (excluding the exhibits thereto), the Preliminary Prospectuses, the
Prospectus or any Permitted Free Writing Prospectus, any transaction which is material to
the Company and the Subsidiaries, taken as a whole, (iii) any obligation, direct or
contingent (including any off-balance sheet obligations), incurred by the Company or any
Subsidiary, which is material to the Company and the Subsidiaries, taken as a whole, (iv)
except as contemplated by the Registration Statement (excluding the exhibits thereto), the
Preliminary Prospectuses, the Prospectus or any Permitted Free Writing Prospectus, any
change in the capital stock or outstanding indebtedness of the Company or any Subsidiaries
or (v) any dividend or distribution of any kind declared, paid or made on the capital stock
of the Company or any Subsidiary;
-12-
(v) the Company has obtained for the benefit of the Underwriters the agreement (a
“Lock-Up Agreement”), in the form set forth as Exhibit A hereto, of (i) each
of its directors and “officers” (within the meaning of Rule 16a-1(f) under the Act), (ii)
each Selling Stockholder, (iii) each holder of the outstanding shares of Common Stock named
in Exhibit A-1 hereto (treating, for purposes of this Section 3(v), each holder of any
security convertible into or exercisable or exchangeable for shares of Common Stock or any
warrant or other right to acquire shares of Common Stock or any such security named in
Exhibit A-1 hereto as a holder of the shares of Common Stock underlying such
security, warrant or right, and treating as outstanding, for purposes of this Section 3(v),
each share of Common Stock underlying any such security, warrant or right);
(w) neither the Company nor any Subsidiary is, and at no time during which a prospectus
is required by the Act to be delivered (whether physically or through compliance with Rule
172 under the Act or any similar rule) in connection with any sale of Shares or after giving
effect to the offering and sale of the Shares will any of them 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 “Investment Company Act”);
(x) except as would not, individually or in the aggregate, have a Material Adverse
Effect, the Company and each of the Subsidiaries have good and marketable title to all
property (real and personal) described in the Registration Statement, the Preliminary
Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if any, as being
owned by each of them, free and clear of all liens, claims, security interests or other
encumbrances; all the property described in the Registration Statement, the Preliminary
Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if any, as being
held under lease by the Company or a Subsidiary is held thereby under valid, subsisting and
enforceable leases;
(y) except as described in the Registration Statement (excluding the exhibits thereto),
the Preliminary Prospectuses and the Prospectus, each of the Company and the Subsidiaries
owns, possesses or has the right to use all inventions, patent applications, patents,
trademarks (both registered and unregistered), tradenames, service names, copyrights, trade
secrets and other proprietary information (collectively, the “Intellectual
Property”) necessary for the conduct of, or material to, its businesses as described in
the Registration Statement, the Preliminary Prospectuses, the Prospectus and the Permitted
Free Writing Prospectuses, if any, and the Company has not received any claim to the
contrary or any challenge by any other person to the rights of the Company or any of the
Subsidiaries with respect to the Intellectual Property; and, to the knowledge of the
Company, except where the failure to own, possess or have the right to use such Intellectual
Property would not, individually or in the aggregate, have a Material Adverse Effect,
neither the Company nor any of the Subsidiaries has infringed or is infringing the
intellectual property of a third party, and neither the Company nor any Subsidiary has
received notice of a claim by a third party to the contrary;
-13-
(z) except as described in the Registration Statement (excluding the exhibits thereto),
the Preliminary Prospectuses or the Prospectus, the Company and the Subsidiaries have filed
with the FCC and the International Telecommunication Union (the “ITU”), all reports,
documents, instruments, information and applications required to be filed pursuant to the
rules and regulations of the FCC and the ITU, and have obtained all licenses, orders or
other authorizations issued by the FCC and the ITU, and any equivalent authority in each
other jurisdiction in which the Company operates (collectively, the “Communications
Licenses”) required for the operation of the business of the Company and the
Subsidiaries, and such Communications Licenses are in full force and effect and, to the
Company’s knowledge, there are no pending modification, amendment or revocation proceedings
initiated by the FCC or the ITU, or any equivalent authority in any other jurisdiction in
which the Company operates which, if determined against the Company, would have a Material
Adverse Effect; fees due and payable to domestic and foreign governmental authorities
pursuant to the rules governing Communications Licenses held by the Company and the
Subsidiaries, the nonpayment of which, with the giving of notice or the lapse of time or
both would constitute grounds for revocation thereof, have been timely paid and, except as
disclosed in the Registration Statement, the Preliminary Prospectuses, the Prospectus and
the Permitted Free Writing Prospectuses, if any, each of the Company and the Subsidiaries is
in compliance in all material respects with the terms of the Communications Licenses, as
applicable, and there is no condition of which the Company or any of the Subsidiaries has
received notice, nor, to the Company’s knowledge, is there any proceeding threatened, by any
domestic or foreign governmental authority, which would cause the termination, suspension,
cancellation or non-renewal of any of the Communications Licenses, or the imposition of a
penalty or fine by any domestic or foreign regulatory authority; the Company and the
Subsidiaries have all necessary consents, authorizations and approvals to utilize the
Communications Licenses in the manner and for the purposes described in the Registration
Statement, the Preliminary Prospectuses, the Prospectus and the Permitted Free Writing
Prospectuses, if any;
(aa) except as would not, individually or in the aggregate, have a Material Adverse
Effect, (i) there is (A) no unfair labor practice complaint pending or, to the Company’s
knowledge, threatened against the Company or any of the Subsidiaries before the National
Labor Relations Board, and no grievance or arbitration proceeding arising out of or under
collective bargaining agreements is pending or, to the Company’s knowledge, threatened, (B)
no strike, labor dispute, slowdown or stoppage pending or, to the Company’s knowledge,
threatened against the Company or any of the Subsidiaries and (C) no union representation
dispute currently existing concerning the employees of the Company or any of the
Subsidiaries; (ii) to the Company’s knowledge, no union organizing activities are currently
taking place concerning the employees of the Company or any of the Subsidiaries; and (iii)
there has been no violation of any federal, state, local or foreign law relating to
discrimination in the hiring, promotion or pay of employees, any applicable wage or hour
laws or any provision of the Employee Retirement Income Security Act of 1974, as amended, or
the rules and regulations promulgated thereunder (“ERISA”) concerning the employees
of the Company or any of the Subsidiaries;
-14-
(bb) except as would not, individually or in the aggregate, have a Material Adverse
Effect, (i) the Company and the Subsidiaries and their properties, assets and operations are
in compliance with Environmental Laws (as defined below); (ii) there are no events,
conditions, circumstances, activities, practices, actions, omissions or plans that could
reasonably be expected to give rise to any material costs or liabilities to the Company or
any Subsidiary under, or to interfere with or prevent compliance by the Company or any
Subsidiary with, Environmental Laws, except for operational costs or liabilities subsumed
within the financial statements included in the Registration Statement and (iii) neither the
Company nor any of the Subsidiaries (A) to the knowledge of the Company, is the subject of
any investigation, (B) has received any notice or claim, (C) is a party to any pending or,
to the Company’s knowledge, threatened action, suit or proceeding, (D) is bound by any
judgment, decree or order or (E) has entered into any agreement, in each case relating to
any alleged violation of any Environmental Law or any actual or alleged release or
threatened release or cleanup at any location of any Hazardous Materials (as defined below)
(as used herein, “Environmental Law” means any federal, state, local or foreign law,
statute, ordinance, rule, regulation, order, decree, judgment, injunction, permit, license,
authorization or other binding requirement, or common law, relating to human health, or
safety with respect to Hazardous Materials or the protection, cleanup or restoration of the
environment or natural resources, including those relating to the distribution, processing,
generation, treatment, storage, disposal, transportation, other handling or release or
threatened release of Hazardous Materials, and “Hazardous Materials” means any
material (including, without limitation, pollutants, contaminants, hazardous or toxic
substances or wastes) that is regulated by or may give rise to liability under any
Environmental Law);
(cc) all tax returns required to be filed by the Company or any of the Subsidiaries
have been timely filed, and all taxes and other assessments of a similar nature (whether
imposed directly or through withholding) including any interest, additions to tax or
penalties applicable thereto due or claimed to be due from such entities have been timely
paid, other than those being contested in good faith and for which adequate reserves have
been provided, except, in each case, as the same would not, individually or in the
aggregate, have a Material Adverse Effect;
(dd) the Company and each of the Subsidiaries maintain insurance covering their
respective properties, operations, personnel and businesses as the Company reasonably deems
adequate; such insurance insures against such losses and risks to an extent which the
Company reasonably deems adequate given the Company’s financial condition and the cost of
obtaining such coverage relative to the benefits of such coverage, taking into due
consideration customary industry practice; all such insurance is fully in force on the date
hereof and will be fully in force at the time of purchase and each additional time of
purchase, if any; neither the Company nor any Subsidiary has reason to believe that it will
not be able to renew any such insurance, the absence of which would not, individually or in
the aggregate, have a Material Adverse Effect, as and when such insurance expires;
-15-
(ee) the Company and each of the Subsidiaries (i) maintain accurate books and records
and (ii) maintain systems of internal accounting controls sufficient to provide reasonable
assurance that (1) transactions are executed in accordance with management’s general or
specific authorization; (2) transactions are recorded as necessary to permit preparation of
financial statements in conformity with GAAP and to maintain accountability for assets; (3)
access to assets is permitted only in accordance with management’s general or specific
authorization; and (4) the recorded accountability for assets is compared with existing
assets at reasonable intervals and appropriate action is taken with respect to any
differences;
(ff) the Company has established and maintains and evaluates “disclosure controls and
procedures” (as such term is defined in Rule 13a-15 and 15d-15 under the Exchange Act); such
disclosure controls and procedures are designed to ensure that material information relating
to the Company, including its consolidated subsidiaries, is made known to the Company’s
Chief Executive Officer and its Chief Financial Officer by others within those entities, and
such disclosure controls and procedures are effective to perform the functions for which
they were established; the Company’s independent auditors and the Audit Committee of the
Board of Directors of the Company have been advised of (i) all significant deficiencies and
material weaknesses in the design or operation of internal control over financial reporting
which could adversely affect the Company’s ability to record, process, summarize, and report
financial data and (ii) any fraud, whether or not material, that involves management or
other employees who have a significant role in the Company’s internal control over financial
reporting; since the date of the most recent evaluation of such disclosure controls and
procedures, except as described in the Registration Statement, the Preliminary Prospectus
and the Prospectus, there have been no significant changes in internal control over
financial reporting or in other factors that could significantly affect internal control
over financial reporting, including any corrective actions with regard to significant
deficiencies and material weaknesses; the principal executive officers (or their
equivalents) and principal financial officers (or their equivalents) of the Company have
made all certifications required by the Xxxxxxxx-Xxxxx Act (the “Xxxxxxxx-Xxxxx Act”) and
any related rules and regulations promulgated by the Commission, and the statements
contained in each such certification are complete and correct; the Company and the
Subsidiaries are, and the Company has taken all necessary actions to ensure that the
Company’s directors and officers in their capacities as such are, each in compliance in all
material respects with all applicable effective provisions of the Xxxxxxxx-Xxxxx Act and the
rules and regulations of the Commission and the NASDAQ promulgated thereunder; it being
understood that the Company and the Subsidiaries have not yet been required to report, and
have not reported on the Company’s internal control over financial reporting pursuant to
Item 308 of Regulation S-K promulgated by the Commission and the Company’s independent
auditors have not yet audited the Company’s internal control over financial reporting;
(gg) the Company and, to the knowledge of the Company, the Company’s directors or
officers, in their capacities as such, are each in compliance in all material respects with
Section 402 of the Xxxxxxxx-Xxxxx Act and the rules and regulations promulgated thereunder;
-16-
(hh) each “forward-looking statement” (within the meaning of Section 27A of the Act or
Section 21E of the Exchange Act) contained in the Registration Statement, the Preliminary
Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if any, has been
made or reaffirmed with a reasonable basis and has been disclosed in good faith;
(ii) the Company has not, prior to the date hereof, made any offer or sale of
securities which could be “integrated” for purposes of the Act with the offer and sale of
the Shares pursuant to the Registration Statement and the Prospectus; and except as
disclosed in the Registration Statement, the Preliminary Prospectuses and the Prospectus,
the Company has not sold or issued any security during the 180-day period preceding the date
of the Prospectus, including but not limited to any sales pursuant to Rule 144A or
Regulation D or S under the Act, other than shares of Common Stock used pursuant to employee
benefit plans, qualified stock option plans or the employee compensation plans or pursuant
to outstanding options, rights or warrants as described in the Registration Statement, the
Preliminary Prospectuses and the Prospectus;
(jj) all statistical or market-related data included in the Registration Statement, the
Preliminary Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if
any, are based on or derived from sources that the Company reasonably believes to be
reliable and accurate in all material respects, and the Company has obtained the written
consent to the use of such data from such sources to the extent required; and all financial
and statistical data included in the Registration Statement, the Preliminary Prospectuses,
the Prospectus and the Permitted Free Writing Prospectuses, if any, are accurately and
fairly presented in all material respects;
(kk) neither the Company nor any of the Subsidiaries nor, to the knowledge of the
Company, any director, officer, agent, employee or affiliate of the Company or any of the
Subsidiaries is aware of or has taken any action, directly or indirectly, that would result
in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and
the rules and regulations thereunder (the “Foreign Corrupt Practices Act”),
including, without limitation, making use of the mails or any means or instrumentality of
interstate commerce corruptly in furtherance of an offer, payment, promise to pay or
authorization of the payment of any money, or other property, gift, promise to give, or
authorization of the giving of anything of value to any “foreign official” (as such term is
defined in the Foreign Corrupt Practices Act) or any foreign political party or official
thereof or any candidate for foreign political office, in contravention of the Foreign
Corrupt Practices Act; and the Company, the Subsidiaries and, to the knowledge of the
Company, its affiliates have conducted their businesses in compliance in all material
respects with the Foreign Corrupt Practices Act and have instituted and maintain policies
and procedures designed to ensure, and which are reasonably expected to continue to ensure,
continued compliance in all material respects therewith;
(ll) the operations of the Company and the Subsidiaries are and have been conducted at
all times in compliance in all material respects with applicable financial recordkeeping and
reporting requirements of the Currency and Foreign Transactions
-17-
Reporting Act of 1970, as amended, the “United and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001” (the
“Patriot Act”) or the money laundering statutes of all jurisdictions, the rules and
regulations thereunder and any related or similar rules, regulations or guidelines, issued,
administered or enforced by any governmental agency;
(mm) neither the Company nor any of the Material Subsidiaries nor, to the knowledge of
the Company, any director, officer, agent, employee or affiliate of the Company or any of
the Subsidiaries is currently subject to any U.S. sanctions administered by OFAC; and the
Company will not directly or indirectly use the proceeds of the offering, or lend,
contribute or otherwise make available such proceeds to any Subsidiary, joint venture
partner or other person or entity, for the purpose of financing the activities of any person
currently subject to any U.S. sanctions administered by OFAC;
(nn) no Subsidiary is currently prohibited, directly or indirectly, from paying any
dividends to the Company, from making any other distribution on such Subsidiary’s capital
stock, from repaying to the Company any loans or advances to such Subsidiary from the
Company or from transferring any of such Subsidiary’s property or assets to the Company or
any other Subsidiary of the Company, except as described in the Registration Statement
(excluding the exhibits thereto), the Preliminary Prospectuses and the Prospectus;
(oo) immediately after the issuance and sale of the Shares to be sold by the Company
and the sale of the Shares to be sold by the Selling Stockholders as contemplated hereby, no
shares of preferred stock of the Company shall be issued or outstanding; and the issuance
and sale of the Shares as contemplated hereby will not cause any holder of any shares of
capital stock, securities convertible into or exchangeable or exercisable for capital stock
or options, warrants or other rights to purchase capital stock or any other securities of
the Company to have any right to acquire any shares of preferred stock of the Company;
(pp) the Company has not received any notice from the NASDAQ regarding the delisting of
the Common Stock from the NASDAQ.
(qq) except pursuant to this Agreement, neither the Company nor any of the Subsidiaries
has incurred any liability for any finder’s or broker’s fee or agent’s commission in
connection with the execution and delivery of this Agreement or the consummation of the
transactions contemplated hereby or by the Registration Statement;
(rr) neither the Company nor any of the Subsidiaries nor any of their respective
directors, officers, affiliates or controlling persons has taken, directly or indirectly,
any action designed, or which has constituted or might reasonably be expected to cause or
result in the stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Shares; and
(ss) to the Company’s knowledge, there are no affiliations or associations between (i)
any member of the NASD and (ii) the Company or any of the Company’s
-18-
officers, directors, 5% or greater security holders or any beneficial owner of the
Company’s unregistered equity securities that were acquired at any time on or after the
180th day immediately preceding the date the Registration Statement was initially
filed with the Commission, except as disclosed in the Registration Statement (excluding
exhibits thereto), the Preliminary Prospectuses and the Prospectus.
In addition, any certificate signed by any officer of the Company or any of the Subsidiaries
and delivered to the Underwriters or counsel for the Underwriters in connection with the offering
of the Shares shall be deemed to be a representation and warranty by the Company or Subsidiary, as
the case may be, as to matters covered thereby, to each Underwriter.
(a) all Selling Stockholders Statements (as defined below) with respect to such Selling
Stockholder included (i) in the Registration Statement, any Preliminary Prospectus or the
Prospectus complied and will comply in all material respects with all applicable provisions
of the Act or (ii) in the Registration Statement did not, as of the Effective Time, contain
an untrue statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make such Selling Stockholder Statements not misleading; at
no time during the period that begins on the earlier of the date of such Preliminary
Prospectus and the date such Preliminary Prospectus was filed with the Commission and ends
at the time of purchase did or will any Selling Stockholder Statements with respect to such
Selling Stockholder in any such Preliminary Prospectus, as then amended or supplemented,
include an untrue statement of a material fact or omit to state a material fact necessary in
order to make such Selling Stockholder Statements, in the light of the circumstances under
which they were made, not misleading, and at no time during such period did or will any
Preliminary Prospectus, as then amended or supplemented, together with any combination of
one or more of the then issued Permitted Free Writing Prospectuses, if any, contain any
Selling Stockholder Statements with respect to such Selling Stockholder that include an
untrue statement of a material fact or omit to state a material fact necessary in order to
make such Selling Stockholder Statements, in the light of the circumstances under which they
were made, not misleading; at no time during the period that begins on the earlier of the
date of the Prospectus and the date the Prospectus is filed with the Commission and ends at
the later of the time of purchase, the latest additional time of purchase, if any, and the
end of the period during which a prospectus is required by the Act to be delivered (whether
physically or through compliance with Rule 172 under the Act or any similar rule) in
connection with any sale of Shares did or will the Prospectus, as then amended or
supplemented, contain any Selling Stockholder Statements with respect to such Selling
Stockholder that include an untrue statement of a material fact or omit to state a material
fact necessary in order to make such Selling Stockholder Statements, in the light of the
circumstances under which they were made, not misleading; at no time during the period that
begins on the date of such Permitted Free Writing Prospectus and ends at the time of
purchase did or will any Permitted Free Writing Prospectus, contain any Selling
-00-
Xxxxxxxxxxx Xxxxxxxxxx with respect to such Selling Stockholder that include an untrue
statement of a material fact or omit to state a material fact necessary in order to make
such Selling Stockholder Statements, in the light of the circumstances under which they were
made, not misleading (as used herein “Selling Stockholder Statements” are the
statements set forth in the sections of the Registration Statement, any Preliminary
Prospectus, the Prospectus or any Permitted Free Writing Prospectus entitled “Selling
stockholders” and “Principal stockholders”);
(b) such Selling Stockholder has not, prior to the execution of this Agreement, offered
or sold any Shares by means of any “prospectus” (within the meaning of the Act), or used any
“prospectus” (within the meaning of the Act) in connection with the offer or sale of the
Shares, in each case other than the then most recent Preliminary Prospectus;
(c) neither the execution, delivery and performance of this Agreement or the Custody
Agreement or Power of Attorney to which such Selling Stockholder is a party nor the sale by
such Selling Stockholder of the Shares to be sold by such Selling Stockholder pursuant to
this Agreement nor the consummation of the transactions contemplated hereby or thereby will
conflict with, result in any breach or violation of or constitute a default under (or
constitute any event which with notice, lapse of time or both would result in any breach or
violation of or constitute a default under) (i) if such Selling Stockholder is not an
individual, the charter or bylaws or other organizational instruments of such Selling
Stockholder, (ii) any indenture, mortgage, deed of trust, bank loan or credit agreement or
other evidence of indebtedness, or any license, lease, contract or other agreement or
instrument to which such Selling Stockholder is a party or by which such Selling Stockholder
or any of its properties may be bound or affected, (iii) any federal, state, local or
foreign law, regulation or rule, (iv) or any rule or regulation of any self-regulatory
organization or other non-governmental regulatory authority (including, without limitation,
the rules and regulations of the NASDAQ), or (v) any decree, judgment or order applicable to
such Selling Stockholder or any of its properties, except, in the case of clause (ii), for
any such breach, violation, default or acceleration that is described in the Registration
Statement (excluding the exhibits thereto), the Preliminary Prospectuses and the Prospectus
or that would not, individually or in the aggregate, have a Material Adverse Effect.
(d) no approval, authorization, consent or order of or filing with any federal, state,
local or foreign governmental or regulatory commission, board, body, authority or agency, or
of or with any self-regulatory organization or other non-governmental regulatory authority
(including, without limitation, the NASDAQ), is required in connection with the sale of the
Shares to be sold by such Selling Stockholder pursuant to this Agreement or the consummation
by such Selling Stockholder of the transactions contemplated hereby or by the Custody
Agreement or Power of Attorney to which such Selling Stockholder is a party other than (i)
registration of the Shares under the Act, which has been effected or, with respect to any
registration statement to be filed hereunder pursuant to Rule 462(b) under the Act, will be
effected in accordance herewith, (ii) any necessary qualification under the securities or
blue sky laws of the various
-20-
jurisdictions in which the Shares are being offered by the Underwriters or (iii) under
the rules and regulations of the NASD, all of which have been obtained;
(e) neither such Selling Stockholder nor any of its affiliates has taken, directly or
indirectly, any action designed to, or which has constituted or might reasonably be expected
to cause or result in the stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares;
(f) there are no affiliations or associations between any member of the NASD and such
Selling Stockholder, except as disclosed in the Registration Statement (excluding the
exhibits thereto), the Preliminary Prospectuses and the Prospectus; none of the proceeds
received by such Selling Stockholder from the sale of the Shares to be sold by such Selling
Stockholder pursuant to this Agreement will be paid to a member of the NASD or any affiliate
of (or person “associated with,” as such terms are used in the Rules of the NASD) such
member;
(g) such Selling Stockholder now is and, at the time of delivery of such Shares
(whether the time of purchase or any additional time of purchase, as the case may be), will
be the lawful owner of the number of Shares to be sold by such Selling Stockholder pursuant
to this Agreement and has and, at the time of delivery of such Shares, will have valid and
marketable title to such Shares, and upon delivery of and payment for such Shares (whether
at the time of purchase or any additional time of purchase, as the case may be), the
Underwriters will acquire valid and marketable title to such Shares free and clear of any
claim, lien, encumbrance, security interest, community property right, restriction on
transfer or other defect in title;
(h) such Selling Stockholder has and, at the time of delivery of the Shares to be sold
by such Selling Stockholder pursuant to this Agreement (whether the time of purchase or any
additional time of purchase, as the case may be), will have full legal right, power and
capacity, and all authorizations and approvals required by law (other than those imposed by
the Act and state securities or blue sky laws), to (i) enter into this Agreement and the
Custody Agreement (as defined below) and to execute a Power of Attorney, (ii) sell, assign,
transfer and deliver the Shares to be sold by such Selling Stockholder pursuant to this
Agreement in the manner provided in this Agreement and (iii) make the representations,
warranties and agreements made by such Selling Stockholder herein;
(i) this Agreement and the custody agreement (the “Custody Agreement”), between
Mellon Investor Services LLC, as custodian (the “Custodian”), and such Selling
Stockholder and the Power of Attorney to which such Selling Stockholder is a party have each
been duly executed and delivered by (or, in the case of this Agreement, on behalf of) such
Selling Stockholder;
(j) such Selling Stockholder has duly and irrevocably authorized the Representative of
the Selling Stockholders, on behalf of such Selling Stockholder, to execute and deliver this
Agreement and any other documents necessary or desirable in connection with the transactions
contemplated hereby or thereby and to deliver the Shares
-21-
to be sold by such Selling Stockholder pursuant to this Agreement and receive payment
therefor pursuant hereto;
(k) the sale of the Shares to be sold by such Selling Stockholder pursuant to this
Agreement is not prompted by any information concerning the Company or any Subsidiary which
is not set forth in the Registration Statement (excluding the exhibits thereto), each
Preliminary Prospectus and the Prospectus;
(l) at the time of purchase and each additional time of purchase, all stock transfer or
other taxes (other than income taxes), if any, that are required to be paid in connection
with the sale and transfer of the Shares to be sold by such Selling Stockholder to the
several Underwriters hereunder will be fully paid or provided for by such Selling
Stockholder, and all laws imposing such taxes will be fully complied with;
(m) pursuant to the Custody Agreement to which such Selling Stockholder is a party,
certificates in negotiable form or book-entry credits for the Shares to be sold by such
Selling Stockholder pursuant to this Agreement have been placed in custody for the purpose
of making delivery of such Shares in accordance with this Agreement; such Selling
Stockholder agrees that (i) such Shares represented by such certificates or book-entry
credits are for the benefit of, and coupled with and subject to the interest of, the
Custodian, the Representative of the Selling Stockholders, the Underwriters and the Company,
(ii) the arrangements made by such Selling Stockholder for custody and for the appointment
of the Custodian and the Representative of the Selling Stockholders by such Selling
Stockholder are irrevocable, and (iii) the obligations of such Selling Stockholder hereunder
shall not be terminated by operation of law, whether by the death, disability or incapacity
of such Selling Stockholder (or, if such Selling Stockholder is not an individual, the
liquidation, dissolution, merger or consolidation of such Selling Stockholder) or the
occurrence of any other event (each, an “Event”); if an Event occurs before the
delivery of the Shares hereunder, certificates or book-entry credits for the Shares shall be
delivered by the Custodian in accordance with the terms and conditions of the Power of
Attorney to which such Selling Stockholder is a party, the Custody Agreement to which such
Selling Stockholder is a party and this Agreement, and actions taken by the Custodian and
the Representative of the Selling Stockholders pursuant to such Power or Attorney or such
Custody Agreement shall be as valid as if such Event had not occurred, regardless of whether
or not the Custodian or the Representative of the Selling Stockholders, or either of them,
shall have received notice thereof; and
In addition, any certificate signed by any Selling Stockholder (or, with respect to any
Selling Stockholder that is not an individual, any officer of such Selling Stockholder or of any of
such Selling Stockholder’s subsidiaries) or by the Representative of the Selling Stockholders and
delivered to the Underwriters or counsel for the Underwriters in connection with the offering of
the Shares shall be deemed to be a representation and warranty by such Selling Stockholder, as to
matters covered thereby, to each Underwriter.
-22-
(a) to furnish such information as may be required and otherwise to cooperate in
qualifying the Shares for offering and sale under the securities or blue sky laws of such
states or other jurisdictions as you may designate and to maintain such qualifications in
effect so long as you may request for the distribution of the Shares; provided,
however, that the Company shall not be required to qualify as a foreign corporation
or to consent to the service of process under the laws of any such jurisdiction (except
service of process with respect to the offering and sale of the Shares); and to promptly
advise you of the receipt by the Company of any notification with respect to the suspension
of the qualification of the Shares for offer or sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose;
(b) to make available to the Underwriters in New York City, as soon as practicable
after this Agreement becomes effective, and thereafter from time to time to furnish to the
Underwriters, as many copies of the Prospectus (or of the Prospectus as amended or
supplemented if the Company shall have made any amendments or supplements thereto after the
effective date of the Registration Statement) as the Underwriters may request for the
purposes contemplated by the Act; in case any Underwriter is required to deliver (whether
physically or through compliance with Rule 172 under the Act or any similar rule), in
connection with the sale of the Shares, a prospectus after the nine-month period referred to
in Section 10(a)(3) of the Act, the Company will prepare, at its expense, promptly upon
request such amendment or amendments to the Registration Statement and the Prospectus as may
be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act;
(c) if, at the time this Agreement is executed and delivered, it is necessary or
appropriate for a post-effective amendment to the Registration Statement, or a Registration
Statement under Rule 462(b) under the Act, to be filed with the Commission and become
effective before the Shares may be sold, the Company will use its best efforts to cause the
Registration Statement or such post-effective amendment to be filed and become effective,
and will pay any applicable fees in accordance with the Act, as soon as possible, and the
Company will advise you promptly and, if requested by you, will confirm such advice in
writing, (i) when the Registration Statement and any such post-effective amendment thereto
has become effective, and (ii) if Rule 430A under the Act is used, when the Prospectus is
filed with the Commission pursuant to Rule 424(b) under the Act (which the Company agrees to
file in a timely manner in accordance with such Rules);
(d) to advise you promptly, confirming such advice in writing, of any request by the
Commission for amendments or supplements to the Registration Statement, any Preliminary
Prospectus, the Prospectus or any Permitted Free Writing Prospectus or for additional
information with respect thereto, or of notice of institution of proceedings for, or the
entry of a stop order, suspending the effectiveness of the Registration Statement and, if
the Commission should enter a stop order suspending the effectiveness of the Registration
Statement, to use its best efforts to obtain the lifting or removal of such order as soon as
possible; to advise you promptly of any proposal to amend or supplement the Registration
Statement, any Preliminary Prospectus or the Prospectus and to provide you
-23-
and Underwriters’ counsel copies of any such documents for review and comment a
reasonable amount of time prior to any proposed filing, and to file no such amendment or
supplement to which you shall reasonably object in writing;
(e) to file promptly all reports and documents and any preliminary or definitive proxy
or information statement required to be filed by the Company with the Commission in order to
comply with the Exchange Act for so long as a prospectus is required by the Act to be
delivered (whether physically or through compliance with Rule 172 under the Act or any
similar rule) in connection with the offering or sale of the Shares; and to provide you, for
your review and comment, with a copy of such reports and statements and other documents to
be filed by the Company pursuant to Section 13, 14 or 15(d) of the Exchange Act during such
period a reasonable amount of time prior to any proposed filing, and to file no such report,
statement or document to which you shall reasonably and timely object in writing and to
promptly notify you of such filing;
(f) to advise the Underwriters promptly of the happening of any event within the period
during which a prospectus is required by the Act to be delivered (whether physically or
through compliance with Rule 172 under the Act or any similar rule) in connection with any
sale of Shares, which event could require the making of any change in the Prospectus then
being used so that the Prospectus would not include an untrue statement of material fact or
omit to state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they are made, not misleading, and to advise the
Underwriters promptly if, during such period, it shall become necessary to amend or
supplement the Prospectus to cause the Prospectus to comply with the requirements of the
Act, and, in each case, during such time, to prepare and furnish, at the Company’s expense,
to the Underwriters promptly such amendments or supplements to such Prospectus as may be
necessary to reflect any such change or to effect such compliance;
(g) to make generally available to its security holders, and to deliver to you, an
earnings statement of the Company (which will satisfy the provisions of Section 11(a) of the
Act) covering a period of twelve months beginning after the effective date of the
Registration Statement (as defined in Rule 158(c) under the Act) as soon as is reasonably
practicable after the termination of such twelve-month period but in any case not later than
18 months after the effective date of the Registration Statement;
(h) to furnish to you one copy for each representative of the Underwriters and one copy
for Milbank, Tweed, Xxxxxx & XxXxxx LLP of the Registration Statement, as initially filed
with the Commission, and of all amendments thereto (including all exhibits thereto) and
sufficient copies of the foregoing (other than exhibits) for distribution of a copy to each
of the other Underwriters;
(i) to furnish to you as early as practicable prior to the time of purchase and any
additional time of purchase, as the case may be, but not later than two Business Days prior
thereto, a copy of the latest available unaudited interim consolidated financial statements,
if any, of the Company and the Subsidiaries which have been read by the
-24-
Company’s independent registered public accountants, as stated in their letter to be
furnished pursuant to Section 9(f) hereof;
(j) to apply the net proceeds to the Company from the sale of the Shares in the manner
set forth under the caption “Use of proceeds” in the Prospectus;
(k) to comply with Rule 433(d) under the Act and with Rule 433(g) under the Act;
(l) beginning on the date hereof and ending on, and including, the date that is 90 days
after the date of the Prospectus (the “Lock-Up Period”), without the prior written
consent of UBS, not to (i) issue, sell, offer to sell, contract or agree to sell,
hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to
dispose of, directly or indirectly, or establish or increase a put equivalent position or
liquidate or decrease a call equivalent position within the meaning of Section 16 of the
Exchange Act and the rules and regulations of the Commission promulgated thereunder, with
respect to, any Common Stock or any other securities of the Company that are substantially
similar to Common Stock, or any securities convertible into or exchangeable or exercisable
for, or any warrants or other rights to purchase, the foregoing, (ii) file or cause to
become effective a registration statement under the Act relating to the offer and sale of
any Common Stock or any other securities of the Company that are substantially similar to
Common Stock, or any securities convertible into or exchangeable or exercisable for, or any
warrants or other rights to purchase, the foregoing, (iii) enter into any swap or other
arrangement that transfers to another, in whole or in part, any of the economic consequences
of ownership of Common Stock or any other securities of the Company that are substantially
similar to Common Stock, or any securities convertible into or exchangeable or exercisable
for, or any warrants or other rights to purchase, the foregoing, whether any such
transaction is to be settled by delivery of Common Stock or such other securities, in cash
or otherwise or (iv) publicly announce an intention to effect any transaction specified in
clause (i), (ii) or (iii), except, in each case, for (A) the registration of the offer and
sale of the Shares as contemplated by this Agreement, (B) issuances of Common Stock upon the
exercise of options or warrants disclosed as outstanding in the Registration Statement
(excluding the exhibits thereto), the Preliminary Prospectuses and the Prospectus, and (C)
the issuance of employee and director stock options, restricted stock units, stock
appreciation rights or other stock-based awards not exercisable during the Lock-Up Period
pursuant to stock incentive plans described in the Registration Statement (excluding the
exhibits thereto), each Preliminary Prospectus and the Prospectus; provided,
however, that if (a) during the period that begins on the date that is fifteen (15)
calendar days plus three (3) Business Days before the last day of the Lock-Up Period and
ends on the last day of the Lock-Up Period, the Company issues an earnings release or
material news or a material event relating to the Company occurs; or (b) prior to the
expiration of the Lock-Up Period, the Company announces that it will release earnings
results during the sixteen (16) day period beginning on the last day of the Lock-Up Period,
then the restrictions imposed by this Section 5(l) shall continue to apply until the expiration
of the date that is fifteen (15)
-25-
calendar days plus three (3) Business Days after the date on which the issuance of the
earnings release or the material news or material event occurs;
(m) prior to the time of purchase or any additional time of purchase, as the case may
be, to issue no press release or other communication directly or indirectly and hold no
press conferences with respect to the Company or any Subsidiary, the financial condition,
results of operations, business, properties, assets, or liabilities of the Company or any
Subsidiary, or the offering of the Shares, without your prior consent, which consent shall
not be unreasonably withheld, conditioned or delayed;
(n) not, at any time at or after the execution of this Agreement, to, directly or
indirectly, offer or sell any Shares by means of any “prospectus” (within the meaning of the
Act), or use any “prospectus” (within the meaning of the Act) in connection with the offer
or sale of the Shares, in each case other than the Prospectus;
(o) not to, and to cause its Subsidiaries not to, take, directly or indirectly, any
action designed, or which will constitute, or has constituted or might reasonably be
expected to cause or result in, under the Exchange Act, the stabilization or manipulation of
the price of any security of the Company to facilitate the sale or resale of the Shares;
(p) to use its best efforts to cause the Common Stock to be listed on the NASDAQ and to
maintain such listing; and
(q) to maintain a transfer agent and, if necessary under the jurisdiction of
incorporation of the Company, a registrar for the Common Stock.
(a) not, at any time at or after the execution of this Agreement, to offer or sell any
Shares by means of any “prospectus” (within the meaning of the Act), or use any “prospectus”
(within the meaning of the Act) in connection with the offer or sale of the Shares, in each
case other than the Prospectus;
(b) not to take, directly or indirectly, any action designed, or which will constitute,
or has constituted, or might reasonably be expected to cause or result in, under the
Exchange Act, the stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Shares;
(c) to pay or cause to be paid all taxes, if any, on the transfer and sale of the
Shares being sold by such Selling Stockholder;
(d) to advise you promptly, and if requested by you, confirm such advice in writing, so
long as a prospectus is required by the Act to be delivered (whether physically or through
compliance with Rule 172 under the Act or any similar rule) in connection with any sale of
Shares, of (i) any change in any information in the Registration Statement, the Preliminary
Prospectuses, the Prospectus and the Permitted Free Writing
-26-
Prospectuses, if any, that was furnished to the Company by such Selling Stockholder (in
writing expressly for use therein) or (ii) any new material information relating to the
Selling Stockholder required to be stated in the Registration Statement, the Preliminary
Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if any;
(e) prior to or concurrently with the execution and delivery of this Agreement, to
execute and deliver to the Underwriters a Power of Attorney, Custody Agreement and a Lock-Up
Agreement;
(f) in order to document the Underwriters’ compliance with the reporting and
withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect
to the transactions herein contemplated, such Selling Stockholder will deliver to the
Representative of the Selling Stockholders prior to or at the date of the closing of the
purchase of the Firm Shares a properly completed and executed U.S. Treasury Department Form
W-9 (or other applicable form or statement specified by the U.S. Treasury Department
regulations evidencing such Selling Stockholder’s exemption from backup withholding tax);
(g) to furnish such information relating to such Selling Stockholder as may be required
and otherwise to cooperate in qualifying the Shares for offering and sale under the
securities or blue sky laws of such states or other jurisdictions as you may designate and
to maintain such qualifications in effect so long as you may request for the distribution of
the Shares; provided that such Selling Stockholder shall not be required to consent
to the service of process under the laws of any such jurisdiction (except service of process
with respect to the offering and sale of the Shares); and
(h) to advise the Underwriters and the Company promptly of the happening of any event
within the time during which a prospectus relating to the Shares is required to be delivered
(whether physically or through compliance with Rule 172 under the Act or any similar rule)
under the Act which could require the making of any change in the Prospectus, as it relates
to such Selling Stockholder, then being used so that the Prospectus would not include an
untrue statement of a material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they are made,
not misleading.
-27-
surveys to the Underwriters and to dealers, (iv) any listing of the Shares on the NASDAQ, (v)
any filing for review of the public offering of the Shares by the NASD, including the legal fees
and filing fees and other disbursements of counsel to the Underwriters relating to NASD matters,
(vi) the fees and disbursements of any transfer agent or registrar for the Shares, (vii) the costs
and expenses of the Company and the Selling Stockholders relating to presentations or meetings
undertaken in connection with the marketing of the offering and sale of the Shares to prospective
investors and the Underwriters’ sales forces, including, without limitation, third-party expenses
associated with the production of road show slides and graphics, fees and expenses of any
consultants engaged by the Company in connection with the road show presentations, travel, lodging
and other expenses incurred by the officers of the Company or by such Selling Stockholder and any
such consultants, and the cost of any aircraft chartered in connection with the road show, provided
that the Underwriters shall reimburse the Company an amount equal to the full, undiscounted,
unrestricted first class airfare on a major commercial airline for an equivalent route for each
person affiliated with the Underwriters who travels on such chartered aircraft, (viii) the costs
and expenses of qualifying the Shares for inclusion in the book-entry settlement system of the DTC
and (ix) the performance of the Company’s and such Selling Stockholder’s other obligations
hereunder. It is understood, however, that except as provided in this Section 7 and Sections 8 and
12 hereof, the Underwriters will pay all of their own costs and expenses, including the fees and
disbursements of their counsel.
(a) The Company shall furnish to you at the time of purchase and, if applicable, at the
additional time of purchase, an opinion and negative assurance letter of Xxxxxxxxxx & Xxxxx
LLP, counsel for the Company, addressed to the Underwriters, and dated the time of purchase
or the additional time of purchase, as the case may be, with executed copies for each of the
other Underwriters and in form and substance satisfactory to Milbank, Tweed, Xxxxxx & XxXxxx
LLP, counsel for the Underwriters, in the forms set forth in Exhibits B and C
hereto.
(b) The Company shall furnish to you at the time of purchase and, if applicable, at the
additional time of purchase, an opinion of Xxxxx Xxxxxx Xxxxxxxxx Xxxxxxxx, PLLC, special
counsel for the Company with respect to regulatory matters, including without limitation,
FCC matters, addressed to the Underwriters, and dated the
-28-
time of purchase or the additional time of purchase, as the case may be, with executed
copies for each of the other Underwriters, and in form and substance satisfactory to
Milbank, Tweed, Xxxxxx & XxXxxx LLP, counsel for the Underwriters, in the form set forth in
Exhibit D hereto.
(c) The Company shall furnish to you at the time of purchase and, if applicable, at the
additional time of purchase, an opinion of Xxxxxxxxx X. Xx Xxxx, General Counsel of the
Company, addressed to the Underwriters, and dated the time of purchase or the additional
time of purchase, as the case may be, with executed copies for each of the other
Underwriters, and in form and substance satisfactory to Milbank, Tweed, Xxxxxx & XxXxxx LLP,
counsel for the Underwriters, in the form set forth in Exhibit E hereto.
(d) The Company shall furnish to you at the time of the purchase and, if applicable, at
the additional time of purchase, an opinion of Xxxxxxx Xxxx & Xxxxxxx, special British
Virgin Islands counsel to Stellar Satellite Communications Ltd., addressed to the
Underwriters, and dated the time of purchase or the additional time of purchase, as the case
may be, with executed copies for each of the other Underwriters and in form and substance
satisfactory to Milbank, Tweed, Xxxxxx & XxXxxx LLP, counsel for the Underwriters, in the
form set forth in Exhibit F hereto.
(e) The Selling Stockholders shall furnish to you at the time of purchase and, if
applicable, at the additional time of purchase, an opinion of (i) Xxxxxxxxxx & Xxxxx LLP, as
New York counsel for the Selling Stockholders, to the effect set forth in Exhibit G
hereto, and (ii) in the case of Selling Stockholders that are a corporation, limited
liability company or partnership, an opinion of local counsel for such Selling Stockholders
(which may be an in-house counsel) to the effect set forth Exhibit H hereto,
addressed to the Underwriters, and dated the time of purchase, or the additional time of
purchase, as the case may be, with executed copies for each of the other Underwriters, and
in form and substance reasonably satisfactory to Milbank, Tweed, Xxxxxx & XxXxxx LLP,
counsel for the Underwriters.
(f) You shall have received from X.X. Xxxx LLP letters dated, respectively, the date of
this Agreement, the date of the Prospectus, the time of purchase and, if applicable, the
additional time of purchase, and addressed to the Underwriters (with executed copies for
each of the Underwriters) in the forms satisfactory to UBS, which letters shall cover,
without limitation, the various financial disclosures contained in the Registration
Statement, the Preliminary Prospectuses, the Prospectus and the Permitted Free Writing
Prospectuses, if any.
(g) You shall have received from Deloitte & Touche LLP letters dated, respectively, the
date of this Agreement, the date of the Prospectus, the time of purchase and, if applicable,
the additional time of purchase, and addressed to the Underwriters (with executed copies for
each of the Underwriters) in the forms satisfactory to UBS, which letters shall cover,
without limitation, the various financial disclosures contained in the Registration
Statement, the Preliminary Prospectuses, the Prospectus and the Permitted Free Writing
Prospectuses, if any.
-29-
(h) You shall have received at the time of purchase and, if applicable, at the
additional time of purchase, the favorable opinion of Milbank, Tweed, Xxxxxx & XxXxxx LLP,
counsel for the Underwriters, dated the time of purchase or the additional time of purchase,
as the case may be, in form and substance reasonably satisfactory to you.
(i) No Prospectus or amendment or supplement to the Registration Statement or the
Prospectus shall have been filed to which you shall have objected in writing.
(j) The Registration Statement and any registration statement required to be filed,
prior to the sale of the Shares, under the Act pursuant to Rule 462(b), shall have been
filed and shall have become effective under the Act or the Exchange Act, as the case may be.
If Rule 430A under the Act is used, the Prospectus shall have been filed with the
Commission pursuant to Rule 424(b) under the Act at or before 5:30 P.M., New York City time,
on the second full Business Day after the date of this Agreement (or such earlier time as
may be required under the Act).
(k) Prior to and at the time of purchase, and, if applicable, the additional time of
purchase, (i) no stop order with respect to the effectiveness of the Registration Statement
shall have been issued under the Act or proceedings initiated under Section 8(d) or 8(e) of
the Act; (ii) the Registration Statement and all amendments thereto shall not contain an
untrue statement of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; (iii) none of the
Preliminary Prospectuses or the Prospectus, and no amendment or supplement thereto, shall
include an untrue statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under which they are
made, not misleading; (iv) no Disclosure Package, and no amendment or supplement thereto,
shall include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the circumstances under
which they are made, not misleading; and (v) none of the Permitted Free Writing
Prospectuses, if any, shall include an untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they are made, not misleading.
(l) The Company will, at the time of purchase and, if applicable, at the additional
time of purchase, deliver to you a certificate of its Chief Executive Officer and its Chief
Financial Officer, dated the time of purchase or the additional time of purchase, as the
case may be, in the form attached as Exhibit I hereto.
(m) The Selling Stockholders will, at the time of purchase and, if applicable, at the
additional time of purchase, deliver to you a certificate signed by the Representative of
the Selling Stockholders, dated the time of purchase or the additional time of purchase, as
the case may be, in the form attached as Exhibit J hereto.
(n) You shall have received each of the signed Lock-Up Agreements referred to in
Section 3(v) hereof, of each of the Company’s directors and officers and each holder of the
Company’s Common Stock or any security convertible or exercisable or exchangeable for Common
Stock, or any warrant or other right to purchase Common
-30-
Stock or any such security, named in Exhibit A-1 hereto and each such Lock-Up
Agreement shall be in full force and effect at the time of purchase and the additional time
of purchase, as the case may be.
(o) The Company shall have furnished to you such other documents and certificates as to
the accuracy and completeness of any statement in the Registration Statement, any
Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus as of the
time of purchase and, if applicable, the additional time of purchase, as you may reasonably
request.
(p) Each Selling Stockholder shall have furnished to you such other documents and
certificates as to the accuracy and completeness of any statement in the Registration
Statement, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing
Prospectus, in each case only to the extent such statement reflects written information
provided by such Selling Stockholder, as of the time of purchase and, if applicable, the
additional time of purchase, as you may reasonably request.
(q) The NASD shall not have raised any objection with respect to the fairness or
reasonableness of the underwriting, or other arrangements of the transactions, contemplated
hereby.
(r) Each Selling Stockholder shall have delivered to you a duly executed Power of
Attorney and a duly executed Custody Agreement, in each case in form and substance
satisfactory to UBS.
The obligations of the several Underwriters hereunder shall be subject to termination in the
absolute discretion of UBS, if (1) since the time of execution of this Agreement or the earlier
respective dates as of which information is given in the Registration Statement, the Preliminary
Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if any, there has been
any change or any development involving a prospective change in the business, properties,
management, financial condition or results of operations of the Company and the Subsidiaries taken
as a whole, the effect of which change or development is, in the sole judgment of UBS, so material
and adverse as to make it impractical or inadvisable to proceed with the public offering or the
delivery of the Shares on the terms and in the manner contemplated in the Registration Statement,
the Preliminary Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if any,
or (2) since the time of execution of this Agreement, there shall have occurred: (A) a suspension
or material limitation in trading in securities generally on the New York Stock Exchange, the
American Stock Exchange or the NASDAQ; (B) a suspension or material limitation in trading in the
Company’s securities on the NASDAQ; (C) a general moratorium on commercial banking activities
declared by either federal or New York State authorities or a material disruption in commercial
banking or securities settlement or clearance services in the United States; (D) an outbreak or
escalation of hostilities or acts of terrorism involving the United States or a declaration by the
United States of a national emergency or war; or (E) any other calamity or crisis or any change in
financial, political or
-31-
economic conditions in the United States or elsewhere, if the effect of any such event
specified in clause (D) or (E), in the sole judgment of UBS, makes it impractical or inadvisable to
proceed with the public offering or the delivery of the Shares on the terms and in the manner
contemplated in the Registration Statement, the Preliminary Prospectuses, the Prospectus and the
Permitted Free Writing Prospectuses, if any, or (3) since the time of execution of this Agreement,
there shall have occurred any downgrading, or any notice or announcement shall have been given or
made of: (A) any intended or potential downgrading or (B) any watch, review or possible change that
does not indicate an affirmation or improvement in the rating accorded any securities of or
guaranteed by the Company or any Subsidiary by any “nationally recognized statistical rating
organization,” as that term is defined in Rule 436(g)(2) under the Act.
If UBS elects to terminate this Agreement as provided in this Section 10, the Company, the
Selling Stockholders and each other Underwriter shall be notified promptly in writing.
If the sale to the Underwriters of the Shares, as contemplated by this Agreement, is not
carried out by the Underwriters for any reason permitted under this Agreement, or if such sale is
not carried out because the Company or any Selling Stockholder, as the case may be, shall be unable
to comply with any of the terms of this Agreement, the Company and the Selling Stockholders shall
not be under any obligation or liability under this Agreement (except to the extent provided in
Sections 7, 8 and 12 hereof), and the Underwriters shall be under no obligation or liability to the
Company or any Selling Stockholder under this Agreement (except to the extent provided in Section
12 hereof) or to one another hereunder.
Without relieving any defaulting Underwriter from its obligations hereunder, the Company and
each Selling Stockholder each agree with the non-defaulting Underwriters that they will not sell
any Firm Shares hereunder unless all of the Firm Shares are purchased by the Underwriters (or by
substituted Underwriters selected by you with the approval of the Company or selected by the
Company with your approval).
-32-
If a new Underwriter or Underwriters are substituted by the Underwriters or by the Company for
a defaulting Underwriter or Underwriters in accordance with the foregoing provision, the Company or
you shall have the right to postpone the time of purchase for a period not exceeding five Business
Days in order that any necessary changes in the Registration Statement and the Prospectus and other
documents may be effected.
The term “Underwriter” as used in this Agreement shall refer to and include any Underwriter
substituted under this Section 11 with like effect as if such substituted Underwriter had
originally been named in Schedule A hereto.
If the aggregate number of Firm Shares which the defaulting Underwriter or Underwriters agreed
to purchase exceeds 10% of the total number of Firm Shares which all Underwriters agreed to
purchase hereunder, and if neither the non-defaulting Underwriters nor the Company shall make
arrangements within the five Business Day period stated above for the purchase of all the Firm
Shares which the defaulting Underwriter or Underwriters agreed to purchase hereunder, this
Agreement shall terminate without further act or deed and without any liability on the part of the
Company or any Selling Stockholder to any non-defaulting Underwriter and without any liability on
the part of any non-defaulting Underwriter to the Company or to any Selling Stockholder;
provided, however, that, for avoidance of doubt, in the case of such a termination
on account of a default with respect to any Additional Shares, this Agreement shall not terminate
as to the Firm Shares or any Additional Shares purchased by the Underwriters from the Company or
the Selling Stockholders pursuant to this Agreement prior to such termination. Nothing in this
paragraph, and no action taken hereunder, shall relieve any defaulting Underwriter from liability
in respect of any default of such Underwriter under this Agreement.
(a) The Company agrees to indemnify, defend and hold harmless each Underwriter, its
partners, directors and officers, and any person who controls any Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, and the successors and
assigns of all of the foregoing persons, from and against any loss, damage, expense,
liability or claim (including the reasonable cost of investigation) which, jointly or
severally, any such Underwriter or any such person may incur under the Act, the Exchange
Act, the common law or otherwise, insofar as such loss, damage, expense, liability or claim
arises out of or is based upon (i) any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (or in the Registration Statement as
amended by any post-effective amendment thereof by the Company) or arises out of or is based
upon any omission or alleged omission to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as any such loss,
damage, expense, liability or claim arises out of or is based upon any untrue statement or
alleged untrue statement of a material fact contained in, and in conformity with information
concerning such Underwriter furnished in writing by or on behalf of such Underwriter through
UBS to the Company expressly for use in, the Registration Statement or arises out of or is
based upon any omission or alleged omission to state a material fact in the Registration
Statement in connection with
-33-
such information, which material fact was not contained in such information and which
material fact was required to be stated in such Registration Statement or was necessary to
make such information not misleading, or (ii) any untrue statement or alleged untrue
statement of a material fact included in any Prospectus (the term Prospectus for the purpose
of this Section 12 being deemed to include any Preliminary Prospectus, the Prospectus and
any amendments or supplements to the foregoing), in any Permitted Free Writing Prospectus,
in any “issuer information” (as defined in Rule 433 under the Act) of the Company, which
“issuer information” is required to be, or is, filed with the Commission, or in any
Prospectus together with any combination of one or more of the Permitted Free Writing
Prospectuses, if any, or arises out of or is based upon any omission or alleged omission to
state a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except, with respect to such
Prospectus or Permitted Free Writing Prospectus, insofar as any such loss, damage, expense,
liability or claim arises out of or is based upon any untrue statement or alleged untrue
statement of a material fact contained in, and in conformity with information concerning
such Underwriters furnished in writing by or on behalf of such Underwriter through you to
the Company expressly for use in, such Prospectus or Permitted Free Writing Prospectus or
arises out of or is based upon any omission or alleged omission to state a material fact in
such Prospectus or Permitted Free Writing Prospectus in connection with such information,
which material fact was not contained in such information and which material fact was
necessary in order to make the statements in such information, in the light of the
circumstances under which they were made, not misleading.
(b) Each Selling Stockholder agrees to indemnify, defend and hold harmless the Company,
each Underwriter, their respective partners, directors and officers, and any person who
controls the Company or any Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, and the successors and assigns of all of the foregoing
persons, from and against any loss, damage, expense, liability or claim (including the
reasonable cost of investigation) which, jointly or severally, any of the foregoing persons
may incur under the Act, the Exchange Act, the common law or otherwise, insofar as such
loss, damage, expense, liability or claim arises out of or is based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in the Registration
Statement (or in the Registration Statement as amended by any post-effective amendment
thereof by the Company), as such Registration Statement relates to such Selling Stockholder,
or arises out of or is based upon any omission or alleged omission to state a material fact
required to be stated therein or necessary to make the statements therein not misleading or
(ii) any untrue statement or alleged untrue statement of a material fact included in any
Prospectus, in any Permitted Free Writing Prospectus or in any Prospectus together with any
combination of one or more of the Permitted Free Writing Prospectuses, if any, in each case
as such document(s) relate to such Selling Stockholder, or arises out of or is based upon
any omission or alleged omission to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not
misleading, in each of cases (i) and (ii) to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission was made in
reliance upon and in
-34-
conformity with written information furnished to the Company by such Selling
Stockholder expressly for use therein; provided, however, that no Selling
Stockholder shall be responsible, pursuant to this Section 12(b), for losses, damages,
expenses, liabilities or claims for an amount in excess of the aggregate public offering
price of the Shares sold by such Selling Stockholder to the Underwriters pursuant hereto.
Notwithstanding anything herein to the contrary, in no event shall the liability of any
Selling Stockholder to provide indemnity pursuant to this Section 12(b), or contribution
pursuant to Section 12(e), exceed an amount equal to the aggregate public offering price of
the Shares sold by such Selling Stockholder to the Underwriters pursuant hereto.
(c) Each Underwriter severally agrees to indemnify, defend and hold harmless the
Company, its directors and officers, each Selling Stockholder and any person who controls
the Company within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
and the successors and assigns of all of the foregoing persons, from and against any loss,
damage, expense, liability or claim (including the reasonable cost of investigation) which,
jointly or severally, the Company, such Selling Stockholder or any such person may incur
under the Act, the Exchange Act, the common law or otherwise, insofar as such loss, damage,
expense, liability or claim arises out of or is based upon (i) any untrue statement or
alleged untrue statement of a material fact contained in, and in conformity with information
concerning such Underwriter furnished in writing by or on behalf of such Underwriter through
you to the Company expressly for use in, the Registration Statement (or in the Registration
Statement as amended by any post-effective amendment thereof by the Company), or arises out
of or is based upon any omission or alleged omission to state a material fact in such
Registration Statement in connection with such information, which material fact was not
contained in such information and which material fact was required to be stated in such
Registration Statement or was necessary to make such information not misleading or (ii) any
untrue statement or alleged untrue statement of a material fact contained in, and in
conformity with information concerning such Underwriter furnished in writing by or on behalf
of such Underwriter through you to the Company expressly for use in, a Prospectus or a
Permitted Free Writing Prospectus, or arises out of or is based upon any omission or alleged
omission to state a material fact in such Prospectus or Permitted Free Writing Prospectus in
connection with such information, which material fact was not contained in such information
and which material fact was necessary in order to make the statements in such information,
in the light of the circumstances under which they were made, not misleading.
(d) If any action, suit or proceeding (each, a “Proceeding”) is brought against
a person (an “indemnified party”) in respect of which indemnity may be sought
against the Company, a Selling Stockholder or an Underwriter (as applicable, the
“indemnifying party”) pursuant to subsection (a), (b) or (c), respectively, of this
Section 12, such indemnified party shall promptly notify such indemnifying party in writing
of the institution of such Proceeding and such indemnifying party shall assume the defense
of such Proceeding, including the employment of counsel reasonably satisfactory to such
indemnified party and payment of all fees and expenses; provided, however,
that the omission to so notify such indemnifying party shall not relieve such indemnifying
party
-35-
from any liability which such indemnifying party may have to any indemnified party or
otherwise, except to the extent that the indemnifying party has been prejudiced in any
material respect by such failure through the forfeiture of substantive rights or defenses.
The indemnified party or parties shall have the right to employ its or their own counsel in
any such case, but the fees and expenses of such counsel shall be at the expense of such
indemnified party or parties unless the employment of such counsel shall have been
authorized in writing by the indemnifying party (or, in the case such indemnifying party is
a Selling Stockholder, by such Selling Stockholder or by the Representative of the Selling
Stockholders) in connection with the defense of such Proceeding or the indemnifying party
shall not have, within a reasonable period of time in light of the circumstances, employed
counsel to defend such Proceeding or such indemnified party or parties shall have reasonably
concluded that there may be defenses available to it or them which are different from,
additional to or in conflict with those available to such indemnifying party (in which case
such indemnifying party shall not have the right to direct the defense of such Proceeding on
behalf of the indemnified party or parties), in any of which events such fees and expenses
shall be borne by such indemnifying party and paid as incurred (it being understood,
however, that such indemnifying party shall not be liable for the expenses of more than one
separate counsel (in addition to any local counsel) in any one Proceeding or series of
related Proceedings in the same jurisdiction representing the indemnified parties who are
parties to such Proceeding). The indemnifying party shall not be liable for any settlement
of any Proceeding effected without its written consent (or, in the case such indemnifying
party is a Selling Stockholder, without the written consent of either such Selling
Stockholder or the Representative of the Selling Stockholders) but, if settled with its
written consent (or, in the case such indemnifying party is a Selling Stockholder, with the
written consent of such Selling Stockholder or of the Representative of the Selling
Stockholders), such indemnifying party agrees to indemnify and hold harmless the indemnified
party or parties from and against any loss or liability by reason of such settlement.
Notwithstanding the foregoing sentence, if at any time an indemnified party shall have
requested an indemnifying party (or, where such indemnifying party is a Selling Stockholder,
requested such Selling Stockholder or the Representative of the Selling Stockholders) to
reimburse the indemnified party for fees and expenses of counsel as contemplated by the
second sentence of this Section 12(d), then the indemnifying party agrees that it shall be
liable for any settlement of any Proceeding effected without its written consent if (i) such
settlement is entered into more than 90 Business Days after receipt by such indemnifying
party (or, where such indemnifying party is a Selling Stockholder, receipt by such Selling
Stockholder or by the Representative of the Selling Stockholders) of the aforesaid request,
(ii) such indemnifying party shall not have fully reimbursed the indemnified party in
accordance with such request prior to the date of such settlement, unless there is a bona
fide dispute between such indemnifying party and indemnified party regarding such
reimbursement of such fees and expenses and the indemnifying party shall have fully
reimbursed the indemnified party for the undisputed fees and expenses, and (iii) such
indemnified party shall have given the indemnifying party (or, where such indemnifying party
is a Selling Stockholder, given such Selling Stockholder or the Representative of the
Selling Stockholders) at least 45 days’ prior notice of its intention to settle. No
indemnifying party shall, without the prior written
-36-
consent of the indemnified party (or, where such indemnified party is a Selling
Stockholder, the prior written consent of such Selling Stockholder or of the Representative
of the Selling Stockholders), effect any settlement of any pending or threatened Proceeding
in respect of which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims that are the
subject matter of such Proceeding and does not include an admission of fault or culpability
or a failure to act by or on behalf of such indemnified party.
(e) If the indemnification provided for in this Section 12 is unavailable to an
indemnified party under subsections (a), (b) and (c) of this Section 12 or insufficient to
hold an indemnified party harmless in respect of any losses, damages, expenses, liabilities
or claims referred to therein, then each applicable indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of such losses, damages,
expenses, liabilities or claims (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Selling Stockholders on the one hand and
the Underwriters on the other hand from the offering of the Shares or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company and the Selling Stockholders on the one hand and of
the Underwriters on the other in connection with the statements or omissions which resulted
in such losses, damages, expenses, liabilities or claims, as well as any other relevant
equitable considerations. The relative benefits received by the Company and the Selling
Stockholders on the one hand and the Underwriters on the other shall be deemed to be in the
same respective proportions as the total proceeds from the offering (net of underwriting
discounts and commissions but before deducting expenses) received by the Company and the
Selling Stockholders, and the total underwriting discounts and commissions received by the
Underwriters, bear to the aggregate public offering price of the Shares. The relative fault
of the Company and the Selling Stockholders on the one hand and of the Underwriters on the
other shall be determined by reference to, among other things, whether the untrue statement
or alleged untrue statement of a material fact or omission or alleged omission relates to
information supplied by the Company or the Selling Stockholders or by the Underwriters and
the parties’ relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The amount paid or payable by a party as a result of
the losses, damages, expenses, liabilities and claims referred to in this subsection shall
be deemed to include any legal or other fees or expenses reasonably incurred by such party
in connection with investigating, preparing to defend or defending any Proceeding.
(f) The Company, the Selling Stockholders and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this Section 12 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such purpose) or by
any other method of allocation that does not take account of the equitable considerations
referred to in subsection (e) above. Notwithstanding the provisions of this Section 12, no
Underwriter shall be required to contribute any amount
-37-
in excess of the amount by which the total price at which the Shares underwritten by
such Underwriter and distributed to the public were offered to the public exceeds the amount
of any damage which such Underwriter has otherwise been required to pay by reason of such
untrue statement or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters’ obligations to contribute pursuant to this Section 12
are several in proportion to their respective underwriting commitments and not joint.
(g) The indemnity and contribution agreements contained in this Section 12 and the
covenants, warranties and representations of the Company and the Selling Stockholders
contained in this Agreement shall remain in full force and effect regardless of any
investigation made by or on behalf of any Underwriter, its partners, directors or officers
or any person (including each partner, officer or director of such person) who controls any
Underwriter within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
or by or on behalf of the Company or the Selling Stockholders, their respective directors or
officers or any person who controls the Company or any Selling Stockholder within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, and shall survive any
termination of this Agreement or the issuance and delivery of the Shares to be sold by the
Company pursuant hereto and the delivery of the Shares to be sold by the Selling
Stockholders pursuant hereto. The Company, the Selling Stockholders and each Underwriter
agree promptly to notify each other of the commencement of any Proceeding against it and, in
the case of the Company or a Selling Stockholder, against any of their respective officers
or directors in connection with the issuance and sale of the Shares, or in connection with
the Registration Statement, any Preliminary Prospectus, the Prospectus or any Permitted Free
Writing Prospectus.
14. Notices. Except as otherwise herein provided, all statements, requests, notices
and agreements shall be in writing or by telegram or facsimile and, if to the Underwriters, shall
be sufficient in all respects if delivered or sent to UBS Securities LLC, 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000-0000, Attention: Syndicate Department and, if to the Company, shall be
sufficient in all respects if delivered or sent to the Company at the offices of the Company at
ORBCOMM Inc., 0000 Xxxxxxx Xxx., Xxxxx 000, Xxxx Xxx, Xxx Xxxxxx 00000, Attention: Xxxxx Xxxxxxxxx,
Chairman of the Board and Chief Executive Officer, and, if to any Selling Stockholder, shall be
sufficient in all respects if delivered or sent to the Representative of the
-38-
Selling Stockholders at ORBCOMM Inc., 0000 Xxxxxxx Xxx., Xxxxx 000, Xxxx Xxx, Xxx Xxxxxx
00000, Attention: Xxxxxxxxx X. Xx Xxxx, Esq., General Counsel.
15. Governing Law; Construction. This Agreement and any claim, counterclaim or
dispute of any kind or nature whatsoever arising out of or in any way relating to this Agreement
(“Claim”), directly or indirectly, shall be governed by, and construed in accordance with,
the internal laws of the State of New York. The section headings in this Agreement have been
inserted as a matter of convenience of reference and are not a part of this Agreement.
16. Submission to Jurisdiction. Except as set forth below, no Claim may be commenced,
prosecuted or continued in any court other than the courts of the State of New York located in the
City and County of New York or in the United States District Court for the Southern District of New
York, which courts shall have jurisdiction over the adjudication of such matters, and the Company,
the Selling Stockholders and the Underwriters each consent to the jurisdiction of such courts and
personal service with respect thereto. Each Underwriter and the Company (on its behalf and, to the
extent permitted by applicable law, on behalf of its stockholders and affiliates) and each Selling
Stockholder (on its behalf and, in the case such Selling Stockholder is not an individual, to the
extent permitted by applicable law, on behalf of its stockholders) each waive all right to trial by
jury in any action, proceeding or counterclaim (whether based upon contract, tort or otherwise) in
any way arising out of or relating to this Agreement. The Company, the Selling Stockholders and
the Underwriters each agree that a final judgment in any such action, proceeding or counterclaim
brought in any such court shall be conclusive and binding upon the Company, each Selling
Stockholder and the Underwriters and may be enforced in any other courts to the jurisdiction of
which the Company, any Selling Stockholder or any Underwriter is or may be subject, by suit upon
such judgment.
-39-
Stockholders each hereby confirms its understanding and agreement to that effect. The
Company, the Selling Stockholders and the Underwriters agree that they are each responsible for
making their own independent judgments with respect to any such transactions and that any opinions
or views expressed by the Underwriters to the Company or any Selling Stockholder regarding such
transactions, including, but not limited to, any opinions or views with respect to the price or
market for the Company’s securities, do not constitute advice or recommendations to the Company or
any Selling Stockholder. The Company and the Selling Stockholders each hereby waives and releases,
to the fullest extent permitted by law, any claims that the Company or any Selling Stockholder may
have against the Underwriters with respect to any breach or alleged breach of any fiduciary or
similar duty to the Company or any Selling Stockholder in connection with the transactions
contemplated by this Agreement or any matters leading up to such transactions.
[The Remainder of This Page Intentionally Left Blank; Signature Page Follows]
-40-
If the foregoing correctly sets forth the understanding among the Company, the Selling
Stockholders and the several Underwriters, please so indicate in the space provided below for that
purpose, whereupon this Agreement and your acceptance shall constitute a binding agreement among
the Company, the Selling Stockholders and the Underwriters, severally.
| Very truly yours, | ||||||
| ORBCOMM INC. | ||||||
| By: | ||||||
| Title: | ||||||
| THE SELLING STOCKHOLDERS NAMED IN SCHEDULE C HERETO | ||||||
| By: Xxxxxxxxx X. Xx Xxxx, Esq., Attorney-in-Fact | ||||||
| By: | ||||||
| Title: | ||||||
| Accepted and agreed to as of the date first above written, on behalf of itself and the other several Underwriters named in Schedule A | ||||
| UBS SECURITIES LLC | ||||
By:
|
UBS SECURITIES LLC | |||
By: |
||||
| Title: | ||||
By: |
||||
| Title: | ||||
SCHEDULE A
| Underwriter | Number of Firm Shares |
|||
UBS Securities LLC |
||||
Xxxxx and Company, LLC |
||||
Xxxxx Xxxxxxx & Co. |
||||
CIBC World Markets Corp. |
||||
Xxxxxxx Xxxxx & Associates, Inc. |
||||
Total |
7,000,000 | |||
SCHEDULE B
| Subsidiary | Jurisdiction of Organization | % Owned | ||||
ORBCOMM LLC
|
Delaware | 100 | % | |||
ORBCOMM License Corp.
|
Delaware | 100 | % | |||
ORBCOMM Canada Corp.
|
Canada | 100 | % | |||
ORBCOMM Canada Inc.
|
Canada | 100 | % | |||
ORBCOMM Curacao Gateway N.V.
|
Curacao | 100 | % | |||
ORBCOMM International Holdings LLC
|
Delaware | 100 | % | |||
ORBCOMM International 1 Holdings LLC
|
Delaware | 100 | % | |||
ORBCOMM International 2 Holdings LLC
|
Delaware | 100 | % | |||
ORBCOMM International 3 Holdings LLC
|
Delaware | 100 | % | |||
ORBCOMM New Zealand Limited
|
New Zealand | 100 | % | |||
Leosatellite Services de Ecuador S.A.
|
Ecuador | 100 | % | |||
ORBCOMM Central America Holdings LLC
|
Delaware | 100 | % | |||
ORBCOMM de Honduras, S.A.
|
Honduras | 100 | % | |||
ORBCOMM Panama Incorporated Inc.
|
Panama | 100 | % | |||
ORBCOMM Guatemala S.A.
|
Guatemala | 100 | % | |||
Bonimix S.A.
|
Uruguay | 100 | % | |||
ORBCOMM Australia Gateway Company
Pty. Limited
|
Australia | 100 | % | |||
LeoSat Dominican Republic,
S.A.1
|
Dominican Republic | 100 | % | |||
Stellar Satellite Communications Ltd.
|
British Virgin Islands | 100 | % | |||
Sistron International LLC1
|
Delaware | 100 | % | |||
ORBCOMM de Nicaragua S.A.
|
Nicaragua | 100 | % | |||
ORBCOMM de El Salvador S.A.
|
El Salvador | 100 | % | |||
ORBCOMM Peru S.A.
|
Peru | 100 | % | |||
Satcom International Group plc.
|
England and Wales | 52.13 | % | |||
ORBCOMM Europe LLC
|
Delaware | 26.07 | % | |||
| 1 | Dormant subsidiaries. |
SCHEDULE C
| Number of | Number of | |||||||
| Firm | Additional | |||||||
| Shares | Shares | |||||||
Company |
2,985,000 | — | ||||||
Selling Stockholders |
4,015,000 | 1,050,000 | ||||||
Total |
7,000,000 | 1,050,000 | ||||||
SCHEDULE D
(Permitted Free Writing Prospectuses)
EXHIBIT A
Lock-Up Agreement
, 2007
UBS Securities LLC
As Representative of the Underwriters
Named in Schedule A to the Underwriting Agreement
Referred to herein
As Representative of the Underwriters
Named in Schedule A to the Underwriting Agreement
Referred to herein
c/o UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Ladies and Gentlemen:
This Lock-Up Agreement is being delivered to you in connection with the proposed Underwriting
Agreement (the “Underwriting Agreement”) to be entered into by ORBCOMM Inc., a Delaware
corporation (the “Company”), the Selling Stockholders named therein, you and the other
underwriters named in Schedule A to the Underwriting Agreement (the “Underwriters”), with
respect to the public offering (the “Offering”) of common stock, par value $0.001 per
share, of the Company (the “Common Stock”).
In order to induce you to enter into the Underwriting Agreement, the undersigned agrees that,
for a period (the “Lock-Up Period”) beginning on the
date on which the lock-up agreements, entered into between the
Company and stockholders of the Company in connection with the
Company’s initial public offering, terminate (as such date may
be extended pursuant to the terms of such lock-up agreements), and ending on, and
including, the date that is 90 days after the date of the final prospectus relating to the
Offering, the undersigned will not, without the prior written consent
of the Representative and the
Company, (i) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option
to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, or file (or
participate in the filing of) a registration statement with the Securities and Exchange Commission
(the “Commission”) in respect of, or establish or increase a put equivalent position or
liquidate or decrease a call equivalent position within the meaning of Section 16 of the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated
thereunder (the “Exchange Act”) with respect to, any Common Stock or any other securities
of the Company that are substantially similar to Common Stock, or any securities convertible into
or exchangeable or exercisable for, or any warrants or other rights to purchase the foregoing
(collectively, the “Company Securities”), (ii) enter into any swap or other arrangement
that transfers to another, in whole or in part, any of the economic consequences of ownership of
Company Securities, whether any such transaction is to be settled by delivery of Common Stock or
such other securities, in cash or otherwise or (iii) publicly announce an
intention to effect any transaction specified in clause
(i) or (ii). In the event the Representative and the Company consent to release any holder of Company Securities (a “Released
Stockholder”) from any restrictions similar to those set forth in this Lock-Up Agreement, the
undersigned shall be similarly released from this Lock-Up Agreement with respect to the percentage
of securities that is equal to the percentage of securities as to which such Released Stockholder
was released (as determined by dividing the number of securities released by the aggregate number
of securities held by such Released Stockholder on a fully-diluted basis); provided,
however, that the undersigned shall not be so released from the restrictions set forth in
this Lock-Up Agreement, if holders of Company Securities owning a majority of the Company
Securities (which majority must include PCG Satellite
Investments LLC) subject to lock-up agreements with restrictions similar to those in this Lock-Up
Agreement shall have consented in writing to the release of the Released Stockholder. The
foregoing sentences shall not apply to (a) the registration of the offer and sale of Common Stock
as contemplated by the Underwriting Agreement and the sale of Common Stock to the Underwriters in the Offering, (b) bona fide gifts, (c) dispositions to
any trust for the direct or indirect benefit of the undersigned and/or the immediate family of the
undersigned, (d) distributions to partners, members, shareholders or affiliates of the undersigned
(and to any direct or indirect partner, member, shareholders or affiliates thereof), (e) the
exercise of options or warrants (including a cashless exercise) or conversion of convertible
securities outstanding on the date hereof, provided that the Common Stock received upon such
exercise or conversion shall be subject to the terms of this Lock-Up Agreement, (f) transfers of
Common Stock or other securities convertible into or exchangeable or exercisable for Common Stock
by will or intestate succession, (g) a bona fide pledge of Common Stock, made in the ordinary
course of business, for the sole purpose of obtaining financing for the undersigned or (h)
transactions relating to Common Stock or other securities convertible into or exchangeable or
exercisable for Common Stock acquired in open market transactions
after completion of the Company’s initial public offering,
provided no filing is required to be made with the Commission related to such transaction; provided
that in the case of any gift, disposition, transfer, or pledge pursuant to clause (b), (c), (d),
(f) or (g), such donee, trust, distributee, transferee, pledgee or other recipient of such Common
Stock or securities convertible into or exchangeable or exercisable for Common Stock agrees in
writing with the Underwriters to be bound by the terms of this Lock-Up Agreement. For purposes of
this paragraph, “immediate family” shall mean the undersigned and the spouse, any lineal
descendent, father, mother, brother or sister of the undersigned.
Notwithstanding anything herein to the contrary, the restrictions in the preceding paragraph
shall not apply to the sale of Firm Shares or Additional Shares by any Selling Stockholder to the
Underwriters pursuant to the Underwriting Agreement.
In addition, the undersigned hereby waives any rights the undersigned may have to require
registration of Common Stock in connection with the filing of a registration statement relating to
the Offering. The undersigned further agrees that, for the Lock-Up Period, the undersigned will
not, without the prior written consent of the Representative, make any demand for, or exercise any
right with respect to, the registration of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock, or warrants or other rights to purchase Common Stock
or any such securities.
Notwithstanding the above, if (a) during the period that begins on the date that is
fifteen (15) calendar days plus three (3) Business Days before the last day of the Lock-Up Period
and ends on the last day of the Lock-Up Period, the Company issues an earnings release or material
news or a material event relating to the Company occurs; or (b) prior to the expiration of the
Lock-Up Period, the Company announces that it will release earnings results during the sixteen (16)
day period beginning on the last day of the Lock-Up Period, then the restrictions imposed by this
Lock-Up Agreement shall continue to apply until the expiration of the date that is fifteen (15)
calendar days plus three (3) Business Days after the date on which the issuance of the earnings
release or the material news or material event occurs.
In addition, the undersigned hereby waives any and all preemptive rights, participation
rights, resale rights, rights of first refusal and similar rights that the undersigned may have
solely in connection with the Offering or with any issuance or sale by the Company of any equity or
other securities prior to the date of this Lock-Up Agreement, except for any such rights as have
been heretofore duly exercised.
The undersigned hereby confirms that the undersigned has not, directly or indirectly, taken,
and hereby covenants that the undersigned will not, directly or indirectly, take, any action
designed, or which has constituted or will constitute or might reasonably be expected to cause or
result in, under the Exchange Act or otherwise, the stabilization or manipulation of the price of
any security of the Company to facilitate the sale or resale of shares of Common Stock.
* * *
If (i) the Company notifies you in writing that it does not intend to proceed with the
Offering, (ii) the registration statement filed with the Commission with respect to the Offering is
withdrawn or (iii) for any reason the Underwriting Agreement shall be terminated prior to the “time
of purchase” (as defined in the Underwriting Agreement) or (iv) the Offering is not consummated
prior to July 15, 2007, this Lock-Up Agreement shall be terminated and the undersigned shall be
released from its obligations hereunder.
| Yours very truly, | ||||||
| Name of Investor: | ||||||
| Signed by: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| Notice Address for Investor: | ||||||||
| (please complete) | ||||||||
| Facsimile: | ||||||||
Agreed and Accepted:
By: |
||||
Name:
|
||||
Title:
|
||||
EXHIBIT A-1
LIST OF PARTIES TO EXECUTE LOCK-UP AGREEMENTS
A-1
EXHIBIT B
OPINION OF XXXXXXXXXX & XXXXX LLP
X-0
XXXXXXX X
XXXXXXX XX XXXXXXXXXX & XXXXX XXX
X-0
EXHIBIT D
OPINION OF XXXXX XXXXXX XXXXXXXXX XXXXXXXX, PLLC
D-1
EXHIBIT E
OPINION OF XXXXXXXXX XX XXXX, GENERAL COUNSEL TO THE COMPANY
E-1
EXHIBIT F
OPINION OF XXXXXXX XXXX & XXXXXXX
F-1
EXHIBIT G
OPINION OF XXXXXXXXXX & XXXXX LLP
AS SELLING STOCKHOLDERS’ NEW YORK COUNSEL
AS SELLING STOCKHOLDERS’ NEW YORK COUNSEL
G-1
EXHIBIT H
FORM OF OPINION OF LOCAL COUNSEL TO THE SELLING STOCKHOLDERS
H-1
EXHIBIT I
OFFICERS’ CERTIFICATE
I-1
EXHIBIT J
CERTIFICATE OF THE REPRESENTATIVE OF THE SELLING STOCKHOLDERS
J-1
