HARMONIC INC. (a Delaware corporation) 12,500,000 Shares of Common Stock PURCHASE AGREEMENT
Exhibit 1.1
(a Delaware corporation)
12,500,000 Shares of Common Stock
Dated:
October 31, 2007
(a Delaware corporation)
12,500,000 Shares of Common Stock
(Par Value $0.001 Per Share)
October 31, 2007
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
as Representative of the several Underwriters
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
as Representative of the several Underwriters
4 World Financial Center
Xxx Xxxx, Xxx Xxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Harmonic Inc., a Delaware corporation (the “Company”) confirms its agreement with Xxxxxxx
Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (“Xxxxxxx Xxxxx”) and each of the
other Underwriters named in Schedule A hereto (collectively, the “Underwriters,” which term shall
also include any underwriter substituted as hereinafter provided in Section 10 hereof), for whom
Xxxxxxx Xxxxx is acting as representative (in such capacity, the “Representative”), with respect to
(i) the issue and sale by the Company and the purchase by the Underwriters, acting severally and
not jointly, of the respective numbers of shares of Common Stock, par value $0.001 per share, of
the Company (“Common Stock”) set forth in Schedule A hereto and (ii) the grant by the Company to
the Underwriters, acting severally and not jointly, of the option described in Section 2(b) hereof
to purchase all or any part of 1,875,000 additional shares of Common Stock to cover overallotments, if any.
The aforesaid 12,500,000 shares of Common Stock (the “Initial Securities”) to be purchased by the
Underwriters and all or any part of the 1,875,000 shares of Common Stock subject to the option described in
Section 2(b) hereof (the “Option Securities”) are hereinafter called, collectively, the
“Securities.”
The Company understands that the Underwriters propose to make a public offering of the
Securities as soon as the Representative deems advisable after this Agreement has been executed and
delivered.
The Company has filed with the Securities and Exchange Commission (the “Commission”) a
registration statement on Form S-3 (No. 333-123823), including the related preliminary prospectus
or prospectuses, which registration statement has been declared effective under the Securities Act
of 1933, as amended (the “1933 Act”). Such registration statement covers the registration of the
securities under the 1933 Act. Promptly after execution and delivery of this Agreement, the
Company will prepare and file a prospectus in accordance with the provisions of Rule 430B (“Rule
430B”) of the rules and regulations of the Commission under the 1933 Act (the “1933 Act
Regulations”) and paragraph (b) of
Rule 424 (“Rule 424(b)”) of the 1933 Act Regulations. Any information included in such
prospectus that was omitted from such registration statement at the time it became effective but
that is deemed to be part of and included in such registration statement pursuant to Rule 430B is
referred to as “Rule 430B Information.” Each prospectus used in connection with the offering of
the Securities that omitted the Rule 430B Information is herein called a “preliminary prospectus.”
Such registration statement, at any given time, including the amendments thereto at such time, the
exhibits and any schedules thereto, at such time, the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the 1933 Act at such time and the documents otherwise deemed
to be a part thereof or included therein by 1933 Act Regulations, is herein called the
“Registration Statement.” The Registration Statement at the time it originally became effective is
herein called the “Original Registration Statement.” Any registration statement filed pursuant to
Rule 462(b) of the 1933 Act Regulations to register a portion of the Securities is herein referred
to as the “Rule 462(b) Registration Statement,” and after such filing the term “Registration
Statement” shall include the Rule 462(b) Registration Statement. The final prospectus in the form
first furnished to the Underwriters for use in connection with the offering of the Securities
including the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the
1933 Act at the time of the execution of this Agreement is herein called the “Prospectus.” For
purposes of this Agreement, all references to the Registration Statement, any preliminary
prospectus, the Prospectus or any amendment or supplement to any of the foregoing shall be deemed
to include the copy filed with the Commission pursuant to its Electronic Data Gathering, Analysis
and Retrieval system (“XXXXX”).
All references in this Agreement to financial statements and schedules and other information
which is “contained,” “included” or “stated” in the Registration Statement, any preliminary
prospectus or the Prospectus (or other references of like import) shall be deemed to mean and
include all such financial statements and schedules and other information which is incorporated by
reference in or otherwise deemed by 1933 Act Regulations to be a part of or included in the
Registration Statement, any preliminary prospectus or the Prospectus, as the case may be; and all
references in this Agreement to amendments or supplements to the Registration Statement, any
preliminary prospectus or the Prospectus shall be deemed to mean and include the filing of any
document under the Securities Exchange Act of 1934 (the “1934 Act”) which is incorporated by
reference in or otherwise deemed by 1933 Act Regulations to be a part of or included in the
Registration Statement, such preliminary prospectus or the Prospectus, as the case may be.
SECTION 1. Representations and Warranties.
(i) Compliance with Registration Requirements. (A) At the time of filing the
Original Registration Statement, (B) at the time of the most recent amendment thereto for
the purposes of complying with Section 10(a)(3) of the 1933 Act (whether such amendment was
by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of
the 1934 Act or form of prospectus), and (C) at the date hereof, the Company met the
requirements for use of Form S-3 under the 1933 Act.
(ii) Registration Statement, Prospectus and Disclosure at Time of Sale. The
Original Registration Statement became effective on April 22, 2005, and any post-effective
amendment thereto and any Rule 462(b) Registration Statement has become effective under the
1933 Act. No stop order suspending the effectiveness of the Registration Statement, any
Rule 462(b)
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Registration Statement or any post-effective amendment thereto has been issued under
the 1933 Act and no proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Company, are contemplated by the Commission, and any request on the
part of the Commission for additional information has been complied with.
At the respective times the Original Registration Statement, any Rule 462(b)
Registration Statement and each amendment thereto became effective, at each deemed effective
date with respect to the Underwriters pursuant to Rule 430B(f)(2) of the 1933 Act
Regulations and at the Closing Time (and, if any Option Securities are purchased, at the
Date of Delivery), the Registration Statement, the Rule 462(b) Registration Statement and
any amendments and supplements thereto complied and will comply in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations and did not and will not
contain an untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading. Neither the
Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such
amendment or supplement was issued and at the Closing Time (and, if any Option Securities
are purchased, at the Date of Delivery), included or will include an untrue statement of a
material fact or omitted or will omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were made, not
misleading.
Each preliminary prospectus (including the prospectus or prospectuses filed as part of
the Original Registration Statement or any amendment thereto) complied when so filed in all
material respects with the 1933 Act Regulations and each preliminary prospectus and the
Prospectus delivered to the Underwriters for use in connection with this offering was
identical to the electronically transmitted copies thereof filed with the Commission
pursuant to XXXXX, except to the extent permitted by Regulation S-T.
As of the Applicable Time (as defined below), neither (x) the Issuer General Use Free
Writing Prospectus(es) (as defined below) issued at or prior to the Applicable Time, the
Statutory Prospectus (as defined below) and the information included on Schedule C hereto,
all considered together (collectively, the “General Disclosure Package”), nor (y) any
individual Issuer Limited Use Free Writing Prospectus, when considered together with the
General Disclosure Package, included any untrue statement of a material fact or omitted to
state any material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
As used in this subsection and elsewhere in this Agreement:
“Applicable
Time” means 7:00 pm (Eastern time) on October 31, 2007, or such other
time as agreed by the Company and Xxxxxxx Xxxxx.
“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as defined
in Rule 433 of the 1933 Act Regulations (“Rule 433”), relating to the Securities that (i) is
required to be filed with the Commission by the Company, (ii) is a “road show for an
offering that is a written communication” within the meaning of Rule 433(d)(8)(i) whether or
not required to be filed with the Commission or (iii) is exempt from filing pursuant to Rule
433(d)(5)(i) because it contains a description of the Securities or of the offering that
does not reflect the final terms, in each case in the form filed or required to be filed
with the Commission or, if not required to be filed, in the form retained in the Company’s
records pursuant to Rule 433(g).
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“Issuer General Use Free Writing Prospectus” means any Issuer Free Writing Prospectus
that is intended for general distribution to prospective investors, as evidenced by its
being specified in Schedule E hereto.
“Issuer Limited Use Free Writing Prospectus” means any Issuer Free Writing Prospectus
that is not an Issuer General Use Free Writing Prospectus.
“Statutory Prospectus” as of any time means the prospectus relating to the Securities
that is included in the Registration Statement immediately prior to that time, including any
document incorporated by reference therein.
Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent times
through the completion of the public offer and sale of the Securities or until any earlier
date that the Company notified or notifies Xxxxxxx Xxxxx as described in Section 3(e), did
not, does not and will not include any information that conflicted, conflicts or will
conflict with the information contained in the Registration Statement or the Prospectus,
including any document incorporated by reference therein, and any preliminary or other
prospectus deemed to be a part thereof that has not been superseded or modified.
The representations and warranties in this subsection shall not apply to statements in
or omissions from the Registration Statement, the Prospectus or any Issuer Free Writing
Prospectus made in reliance upon and in conformity with written information furnished to the
Company by any Underwriter through Xxxxxxx Xxxxx expressly for use therein.
(iii) Incorporated Documents. The documents incorporated or deemed to be
incorporated by reference in the Registration Statement and the Prospectus, when they became
effective or at the time they were or hereafter are filed with the Commission, complied and
will comply in all material respects with the requirements of the 1934 Act and the rules and
regulations of the Commission thereunder (the “1934 Act Regulations”), and, when read
together with the other information in the Prospectus, (a) at the time the Original
Registration Statement became effective, (b) at the earlier of the time the Prospectus was
first used and the date and time of the first contract of sale of Securities in this
offering and (c) at the Closing Time, did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading.
(iv) Independent Accountants. The accountants who certified the financial
statements and supporting schedules included in the Registration Statement are independent
public accountants as required by the 1933 Act and the 1933 Act Regulations.
(v) Financial Statements. The financial statements included in the
Registration Statement, the General Disclosure Package and the Prospectus, together with the
related schedules and notes, present fairly in all material respects the financial position
of the Company and its consolidated subsidiaries at the dates indicated and the statement of
operations, stockholders’ equity and cash flows of the Company and its consolidated
subsidiaries for the periods specified; said financial statements have been prepared in
conformity with generally accepted accounting principles (“GAAP”) applied on a consistent
basis throughout the periods involved. The supporting schedules, if any, present fairly in
all material respects accordance with GAAP the information required to be stated therein.
The summary financial information included in the Prospectus presents fairly in all material
respects the information shown therein and has been compiled on a basis consistent with that
of the financial statements included in the Registration Statement. The pro forma financial
statements and the related notes thereto included
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in the Registration Statement, the General Disclosure Package and the Prospectus
present fairly in all material respects the information shown therein, have been prepared in
accordance with the Commission’s rules and guidelines with respect to pro forma financial
statements and have been properly compiled on the bases described therein, and the Company’s
assumptions used in the preparation thereof are reasonable and the adjustments used therein
are appropriate, in each case in the opinion of the Company’s management, to give effect to
the transactions and circumstances referred to therein.
(vi) No Material Adverse Change in Business. Since the respective dates as of
which information is given in the Registration Statement, the General Disclosure Package or
the Prospectus, except as otherwise stated therein, (A) there has been no material adverse
change in the condition, financial or otherwise, or in the earnings or business affairs of
the Company and its subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business (a “Material Adverse Effect”), (B) there have been no
transactions entered into by the Company or any of its subsidiaries, other than those in the
ordinary course of business, which are material with respect to the Company and its
subsidiaries considered as one enterprise, and (C) there has been no dividend or
distribution of any kind declared, paid or made by the Company on any class of its capital
stock.
(vii) Good Standing of the Company. The Company has been duly organized and is
validly existing as a corporation in good standing under the laws of the State of Delaware
and has corporate power and authority to own, lease and operate its properties and to
conduct its business in all material respects as described in the Prospectus and to enter
into and perform its obligations under this Agreement; and the Company is duly qualified as
a foreign corporation to transact business and is in good standing in each other
jurisdiction in which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure so to qualify or to
be in good standing would not reasonably be expected to result in a Material Adverse Effect.
(viii) Good Standing of Subsidiaries. Each “significant subsidiary” of the
Company (as such term is defined in Rule 1-02 of Regulation S-X) (each a “Subsidiary” and,
collectively, the “Subsidiaries”) has been duly organized and is validly existing and in
good standing under the laws of the jurisdiction of its incorporation or organization, has
the power and authority to own, lease and operate its properties and to conduct its business
in all material respects as described in the Prospectus and is duly qualified as a foreign
corporation to transact business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in good standing would
not reasonably be expected to result in a Material Adverse Effect; except as otherwise
disclosed in the Registration Statement, all of the issued and outstanding capital stock of
each such Subsidiary has been duly authorized and validly issued, is fully paid and
non-assessable and is owned by the Company, directly or through subsidiaries, free and clear
of any material security interest, mortgage, pledge, lien, encumbrance, claim or equity;
none of the outstanding shares of capital stock of any Subsidiary was issued in violation of
the preemptive or similar rights of any securityholder of such Subsidiary. The only
subsidiaries of the Company are (a) the subsidiaries listed on Exhibit 21 to the
Registration Statement and (b) certain other subsidiaries which, considered in the aggregate
as a single Subsidiary, do not constitute a “significant subsidiary” as defined in Rule 1-02
of Regulation S-X.
(ix) Capitalization. The authorized, issued and outstanding capital stock of
the Company is as set forth in the Prospectus in the column entitled “Actual” under the
caption “Capitalization” (except for subsequent issuances, if any, pursuant to this
Agreement, pursuant to
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reservations, agreements or employee benefit plans referred to in the Prospectus or
pursuant to the exercise of convertible securities or options referred to in the
Prospectus). The shares of issued and outstanding capital stock of the Company have been
duly authorized and validly issued and are fully paid and non-assessable; none of the
outstanding shares of capital stock of the Company was issued in violation of the preemptive
or other similar rights of any securityholder of the Company.
(x) Authorization of Agreement. The Company has the corporate power and
authority to enter into this Agreement and to perform its obligations hereunder and the
transactions contemplated hereby have been duly authorized by the Company. This Agreement
has been duly authorized, executed and delivered by the Company.
(xi) Authorization and Description of Securities. The Securities have been
duly authorized for issuance and sale to the Underwriters pursuant to this Agreement and,
when issued and delivered by the Company pursuant to this Agreement against payment of the
consideration set forth herein, will be validly issued and fully paid and non-assessable;
the Common Stock conforms to all statements relating thereto contained in the Prospectus and
such description conforms to the rights set forth in the instruments defining the same; no
holder of the Securities will be subject to personal liability by reason of being such a
holder; and the issuance of the Securities is not subject to the preemptive or other similar
rights of any securityholder of the Company.
(xii) Absence of Defaults and Conflicts. Neither the Company nor any of its
subsidiaries is in violation of its charter or by-laws (or comparable organizational
documents) or in default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or
credit agreement, note, lease or other agreement or instrument to which the Company or any
of its subsidiaries is a party or by which it or any of them may be bound, or to which any
of the property or assets of the Company or any subsidiary is subject (collectively,
“Agreements and Instruments”) except for such defaults that would not reasonably be expected
to result in a Material Adverse Effect; and the execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated herein and in the
Registration Statement (including the issuance and sale of the Securities and the use of the
proceeds from the sale of the Securities as described in the Prospectus under the caption
“Use of Proceeds”) and compliance by the Company with its obligations hereunder have been
duly authorized by all necessary corporate action and do not and will not, whether with or
without the giving of notice or passage of time or both, conflict with or constitute a
breach of, or default or Repayment Event (as defined below) under, or result in the creation
or imposition of any lien, charge or encumbrance upon any property or assets of the Company
or any subsidiary pursuant to, the Agreements and Instruments, except for such conflicts,
breaches, defaults or Repayment Events or liens, charges or encumbrances that would not
reasonably be expected to result in a Material Adverse Effect, nor will such action result
in any violation of the provisions of the charter or by-laws of the Company or any
subsidiary or any material violation of any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over the Company or any subsidiary or any of their
assets, properties or operations. As used herein, a “Repayment Event” means any event or
condition which gives the holder of any material note, debenture or other evidence of
indebtedness (or any person acting on such holder’s behalf) the right to require the
repurchase, redemption or repayment of all or a portion of such indebtedness by the Company
or any subsidiary.
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(xiii) Absence of Labor Dispute. No labor dispute with the employees of the
Company or any subsidiary exists or, to the knowledge of the Company, is imminent, and which
would reasonably be expected to result in a Material Adverse Effect.
(xiv) Employee Retirement Income Security Act. Except as such matters would
not, singly or in the aggregate, result in a Material Adverse Effect, (A) the Company is in
compliance with all presently applicable provisions of the Employee Retirement Income
Security Act of 1974, as amended, including the regulations and published interpretations
thereunder (“ERISA”); (B) no “reportable event” (as defined in ERISA) has occurred with
respect to any “pension plan” (as defined in ERISA) for which the Company would have any
liability; (C) the Company has not incurred and does not expect to incur liability under (1)
Title IV of ERISA with respect to termination of, or withdrawal from, any “pension plan” or
(2) Sections 412 or 4971 of the Internal Revenue Code of 1986, as amended, including the
regulations and published interpretations thereunder (the “Code”); and (D) each “pension
plan” for which the Company would have any liability that is intended to be qualified under
Section 401(a) of the Code is so qualified in all material respects and nothing has
occurred, whether by action or by failure to act, which would cause the loss of such
qualification.
(xv) Absence of Proceedings. Except as in described in the Registration
Statement, the General Disclosure Package or the Prospectus, there is no action, suit,
proceeding, inquiry or investigation before or brought by any court or governmental agency
or body, domestic or foreign, now pending, or, to the knowledge of the Company, threatened
in writing, against or affecting the Company or any subsidiary, which would reasonably be
expected to result in a Material Adverse Effect, or which might materially and adversely
affect the properties or assets thereof or the consummation of the transactions contemplated
in this Agreement or the performance by the Company of its obligations hereunder; the
aggregate of all pending legal or governmental proceedings to which the Company or any
subsidiary is a party or of which any of their respective property or assets is the subject
which are not described in the Registration Statement, including ordinary routine litigation
incidental to the business, would not reasonably be expected to result in a Material Adverse
Effect.
(xvi) Accuracy of Exhibits. There are no contracts or documents which are
required to be described in the Registration Statement, the Prospectus or the documents
incorporated by reference therein or to be filed as exhibits thereto which have not been so
described and filed as required.
(xvii) Possession of Intellectual Property. The Company and its subsidiaries
own or possess, or can acquire on reasonable terms, adequate patents, patent rights,
licenses, inventions, copyrights, know-how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information, systems or procedures),
trademarks, service marks, trade names or other intellectual property (collectively,
“Intellectual Property”) necessary to carry on the business now operated by them in all
material respects, and neither the Company nor any of its subsidiaries has received any
written notice of any infringement of or conflict with asserted rights of others with
respect to any Intellectual Property, and which infringement or conflict (if the subject of
any unfavorable decision, ruling or finding), singly or in the aggregate, would reasonably
be expected to result in a Material Adverse Effect.
(xviii) Absence of Manipulation. Neither the Company nor any affiliate of the
Company has taken, nor will the Company or any affiliate take, directly or indirectly, any
action which is designed to or which has constituted or which would be expected to cause or
result in
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stabilization or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities.
(xix) Absence of Further Requirements. No filing with, or authorization,
approval, consent, license, order, registration, qualification or decree of, any court or
governmental authority or agency is necessary or required for the performance by the Company
of its obligations hereunder, in connection with the offering, issuance or sale of the
Securities hereunder or the consummation of the transactions contemplated by this Agreement,
except such as have been already obtained or where the failure to make any such filing or
obtain any such authorization, approval, consent, license, order, registration,
qualification or decree would not reasonably be expected to result in a Material Adverse
Effect.
(xx) Possession of Licenses and Permits. The Company and its subsidiaries
possess such permits, licenses, approvals, consents and other authorizations (collectively,
“Governmental Licenses”) issued by the appropriate federal, state, local or foreign
regulatory agencies or bodies necessary to conduct the business now operated by them, except
where the failure so to possess would not, singly or in the aggregate, reasonably be
expected to result in a Material Adverse Effect; the Company and its subsidiaries are in
compliance with the terms and conditions of all such Governmental Licenses, except where the
failure so to comply would not, singly or in the aggregate, reasonably be expected to result
in a Material Adverse Effect; all of the Governmental Licenses are valid and in full force
and effect, except when the invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not, singly or in the aggregate,
reasonably be expected to result in a Material Adverse Effect; and neither the Company nor
any of its subsidiaries has received any notice of proceedings relating to the revocation or
modification of any such Governmental Licenses which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would reasonably be expected to
result in a Material Adverse Effect.
(xxi) Title to Property. Neither the Company nor its subsidiaries own any real
property; and all of the leases and subleases material to the business of the Company and
its subsidiaries, considered as one enterprise, and under which the Company or any of its
subsidiaries holds properties described in the Prospectus, are in full force and effect, and
neither the Company nor any subsidiary has received any written notice of any material claim
of any sort that has been asserted by anyone adverse to the rights of the Company or any
subsidiary under any of the leases or subleases mentioned above, or affecting or questioning
the rights of the Company or such subsidiary to the continued possession of the leased or
subleased premises under any such lease or sublease, in each case except as would not
reasonably be expected to have a Material Adverse Effect.
(xxii) Investment Company Act. The Company is not required, and upon the
issuance and sale of the Securities as herein contemplated and the application of the net
proceeds therefrom as described in the Prospectus will not be required, to register as an
“investment company” under the Investment Company Act of 1940, as amended (the “1940 Act”).
(xxiii) Environmental Laws. Except as would not, singly or in the aggregate,
reasonably be expected to result in a Material Adverse Effect, (A) neither the Company nor
any of its subsidiaries is in violation of any federal, state, local or foreign statute,
law, rule, regulation, ordinance, code, policy or rule of common law or any judicial or
administrative interpretation thereof, including any judicial or administrative order,
consent, decree or judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface water, groundwater, land
surface or subsurface strata) or wildlife, including, without
8
limitation, laws and regulations relating to the release or threatened release of
chemicals, pollutants, contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products, asbestos-containing materials or mold (collectively,
“Hazardous Materials”) or to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of Hazardous Materials (collectively,
“Environmental Laws”), (B) the Company and its subsidiaries have all permits, authorizations
and approvals required under any applicable Environmental Laws and are each in compliance
with their requirements, and (C) there are no pending or threatened (in writing)
administrative, regulatory or judicial actions, suits, demands, demand letters, claims,
liens, notices of noncompliance or violation, investigation or proceedings relating to any
Environmental Law against the Company or any of its subsidiaries.
(xxiv) Registration Rights. Except as set forth in the Prospectus, there are
no persons with registration rights or other similar rights to have any securities
registered pursuant to the Registration Statement or otherwise registered by the Company
under the 1933 Act.
(xxv) Accounting Controls and Disclosure Controls. The Company and each of its
subsidiaries maintain a system of internal accounting controls sufficient to provide
reasonable assurances that (A) transactions are executed in accordance with management’s
general or specific authorization; (B) transactions are recorded as necessary to permit
preparation of financial statements in conformity with GAAP and to maintain accountability
for assets; (C) access to assets is permitted only in accordance with management’s general
or specific authorization; and (D) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with respect to
any differences. Since the end of the Company’s most recent audited fiscal year, there has
been (1) to the Company’s knowledge, no material weakness in the Company’s internal control
over financial reporting (whether or not remediated) and (2) no change in the Company’s
internal control over financial reporting that has materially affected, or is reasonably
likely to materially affect, the Company’s internal control over financial reporting.
The Company and its consolidated subsidiaries employ disclosure controls and procedures
that are designed to ensure that information required to be disclosed by the Company in the
reports that it files or submits under the 1934 Act is recorded, processed, summarized and
reported, within the time periods specified in the Commission’s rules and forms, and is
accumulated and communicated to the Company’s management, including its principal executive
officer or officers and principal financial officer or officers, as appropriate, to allow
timely decisions regarding disclosure.
(xxvi) Compliance with the Xxxxxxxx-Xxxxx Act. There is and has been no
failure on the part of the Company or any of the Company’s directors or officers, in their
capacities as such, to comply in all material respects with any provision of the
Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated in connection therewith
(the “Xxxxxxxx-Xxxxx Act”), including Section 402 related to loans and Sections 302 and 906
related to certifications.
(xxvii) Pending Proceedings and Examinations. The Registration Statement is
not the subject of a pending proceeding or examination under Section 8(d) or 8(e) of the
1933 Act, and the Company is not the subject of a pending proceeding under Section 8A of the
1933 Act in connection with the offering of the Securities.
(xxviii) Payment of Taxes. Except as described in the Registration Statement,
the General Disclosure Package and the Prospectus, all United States federal income tax
returns of the Company and its subsidiaries required by law to be filed have been filed and
all taxes shown
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by such returns or otherwise assessed, which are due and payable, have been paid,
except assessments against which appeals have been or will be promptly taken and as to which
adequate reserves have been provided, and except as would not reasonably be expected to
result in a Material Adverse Effect. The Company and its subsidiaries have filed all other
tax returns that are required to have been filed by them pursuant to applicable foreign,
state, local or other law except insofar as the failure to file such returns would not
reasonably be expected to result in a Material Adverse Effect, and has paid all taxes due
pursuant to such returns or pursuant to any assessment received by the Company and its
subsidiaries, except for such taxes, if any, as are being contested in good faith and as to
which adequate reserves have been provided. The charges, accruals and reserves on the books
of the Company in respect of any income and corporation tax liability for any years not
finally determined are adequate to meet any assessments or re-assessments for additional
income tax for any years not finally determined, except to the extent of any inadequacy that
would not reasonably be expected to result in a Material Adverse Effect.
(xxix) Insurance. The Company and each of the subsidiaries maintain insurance
covering its properties, operations, personnel and businesses as the Company deems adequate.
Such insurance insures against such losses and risks to an extent which is adequate in
accordance with customary industry practice to protect the Company and the subsidiaries and
their businesses.
(xxx) Statistical and Market-Related Data. Any statistical and market-related
data included in the Registration Statement and the Prospectus are based on or derived from
sources that the Company believes to be reliable and accurate.
(xxxi) Foreign Corrupt Practices Act. Neither the Company nor, to the
knowledge of the Company, any director, officer, agent, employee, affiliate or other person
acting on behalf of the Company or any of its 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.
(xxxii) Money Laundering Laws. The operations of the Company are and have been
conducted at all times in material compliance with applicable financial recordkeeping and
reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as
amended, 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.
(xxxiii) OFAC. Neither the Company nor, to the knowledge of the Company, any
director, officer, agent, employee, affiliate or person acting on behalf of the Company is
currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control
of the U.S. Treasury Department (“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.
(xxxiv) No Broker’s Fees. The Company is not a party to any contract,
agreement or understanding with any person (other than this Agreement) that would give rise
to a valid claim against the Company or any Underwriter for a brokerage commission, finder’s
fee or like payment in connection with the offering and sale of the Securities.
10
(xxxv) Listing on the Nasdaq Global Market. The Common Stock of the Company is
listed on the Nasdaq Global Market under the ticker symbol “HLIT”. The Company has not
received any notice that it is not in compliance with the listing requirements of the Nasdaq
Global Market.
SECTION 2. Sale and Delivery to Underwriters; Closing.
In addition, in the event that any or all of the Option Securities are purchased by the
Underwriters, payment of the purchase price for, and delivery of certificates for, such Option
Securities shall be made at the above-mentioned offices, or at such other place as shall be agreed
upon by the Representative and the Company, on each Date of Delivery as specified in the notice
from the Representative to the Company.
11
Payment shall be made to the Company by wire transfer of immediately available funds to a bank
account designated by the Company, against delivery to the Representative for the respective
accounts of the Underwriters of certificates for the Securities to be purchased by them. It is
understood that each Underwriter has authorized the Representative, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the Initial Securities and
the Option Securities, if any, which it has agreed to purchase. Xxxxxxx Xxxxx, individually and
not as representative of the Underwriters, may (but shall not be obligated to) make payment of the
purchase price for the Initial Securities or the Option Securities, if any, to be purchased by any
Underwriter whose funds have not been received by the Closing Time or the relevant Date of
Delivery, as the case may be, but such payment shall not relieve such Underwriter from its
obligations hereunder.
SECTION 3. Covenants of the Company. The Company covenants with each Underwriter as
follows:
12
Representative or counsel for the Underwriters shall reasonably object. The Company has given
the Representative notice of any filings made pursuant to the 1934 Act or 1934 Act Regulations
prior to the Applicable Time; the Company will give the Representative notice of its intention to
make any such filing from the Applicable Time to the Closing Time and will furnish the
Representative with copies of any such documents a reasonable amount of time prior to such proposed
filing and will not file or use any such document to which the Representatives or counsel for the
Underwriters shall reasonably object.
13
the Company will promptly notify Xxxxxxx Xxxxx and will promptly amend or supplement, at its
own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue
statement or omission.
14
SECTION 4. Payment of Expenses.
15
the Securities and (xi) the fees and expenses incurred in connection with the listing of the
Securities on the NASDAQ Global Market, if any.
SECTION 5. Conditions of Underwriters’ Obligations. The obligations of the several
Underwriters hereunder are subject to the accuracy of the representations and warranties of the
Company contained in Section 1 hereof or in certificates of any officer of the Company or any
subsidiary of the Company delivered pursuant to the provisions hereof, to the performance by the
Company of its covenants and other obligations hereunder, and to the following further conditions:
(b) Opinion of Counsel for Company. At the Closing Time, the Representative shall have
received the opinion, dated as of the Closing Time, of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C.,
counsel for the Company, in form and substance reasonably satisfactory to counsel for the
Underwriters, together with signed or reproduced copies of such letter for each of the other
Underwriters to the effect set forth in Exhibit A hereto. In giving such opinion such counsel may
rely, as to all matters governed by the laws of jurisdictions other than the law of the State of
New York and the federal law of the United States and the General Corporation Law of the State of
Delaware, upon the opinions of counsel satisfactory to the Representative. Such counsel may also
state that, insofar as such opinion involves factual matters, they have relied, to the extent they
deem proper, upon certificates of officers of the Company and its subsidiaries and certificates of
public officials.
(d) Opinion of Counsel for Underwriters. At the Closing Time, the Representative shall have
received the opinion, dated as of the Closing Time, of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, counsel
for the Underwriters, together with signed or reproduced copies of such letter for each of the
other Underwriters with respect to such matters as the Representative may reasonably request. In
giving such opinion such counsel may rely, as to all matters governed by the laws of jurisdictions
other than the law of the State of New York and the federal law of the United States and the
General Corporation Law of the State of Delaware, upon the opinions of counsel satisfactory to the
Representative. Such counsel
16
may also state that, insofar as such opinion involves factual matters, they have relied, to
the extent they deem proper, upon certificates of officers of the Company and its subsidiaries and
certificates of public officials.
(i) Officers’ Certificate. A certificate, dated such Date of Delivery, of the
President or a Vice President of the Company and of the chief financial or chief accounting
officer of the Company, in each case on behalf of the Company, confirming that the
certificate delivered at the Closing Time pursuant to Section 5(e) hereof remains true and
correct as of such Date of Delivery.
17
(iii) Opinion of Counsel for Company. The opinion of Xxxxxx Xxxxxxx Xxxxxxxx &
Xxxxxx, P.C., counsel for the Company, together with the opinion of Shenhav, Elrom,
Konforti, Shavit, special Israeli counsel for the Company, each in form and substance
reasonably satisfactory to counsel for the Underwriters, dated such Date of Delivery,
relating to the Option Securities to be purchased on the Date of Delivery and otherwise to
the same effect as the opinions required by Section 5(b) and Section 5(c) hereof,
respectively.
(iv) Opinion of Counsel for Underwriters. The opinion of Pillsbury Xxxxxxxx
Xxxx Xxxxxxx LLP, counsel for the Underwriters, dated such Date of Delivery, relating to the
Option Securities to be purchased on such Date of Delivery and otherwise to the same effect
as the opinion required by Section 5(d) hereof.
(v) Bring-down Comfort Letter. A letter from PricewaterhouseCoopers LLP, in
form and substance reasonably satisfactory to the Representative and dated such Date of
Delivery, substantially in the same form and substance as the letter furnished to the
Representative pursuant to Section 5(g) hereof, except that the “specified date” in the
letter furnished pursuant to this paragraph shall be a date not more than five days prior to
such Date of Delivery.
SECTION 6. Indemnification.
(i) against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, arising out of any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment thereto), including the Rule 430B
Information or the omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not misleading or arising out of
any untrue statement or alleged untrue statement of a material fact contained in any
preliminary prospectus, any Issuer Free Writing Prospectus or the Prospectus (or any
amendment or supplement thereto),
18
or the omission or alleged omission therefrom of a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they were made,
not misleading;
(ii) against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or threatened, or
of any claim whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section 6(d) below) any such
settlement is effected with the written consent of the Company;
(iii) against any and all expense whatsoever, as incurred (including the fees and
disbursements of counsel chosen by Xxxxxxx Xxxxx), reasonably incurred in investigating,
preparing or defending against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue statement or omission
or alleged untrue statement or omission made in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through Xxxxxxx Xxxxx expressly for use in
the Registration Statement (or any amendment thereto), including the Rule 430B Information, or any
preliminary prospectus, any Issuer Free Writing Prospectus or the Prospectus (or any amendment or
supplement thereto); and, provided, further, however, that with respect to any preliminary
prospectus, the foregoing indemnity agreement shall not inure to the benefit of any Underwriter
from whom the person asserting the loss, liability, claim or damage purchased Securities, or such
Underwriter’s Affiliates, its selling agents, and each person, if any, who controls such
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, if
copies of a subsequent preliminary prospectus or the Prospectus were timely delivered to the
Underwriter pursuant to this Agreement, and a copy of such subsequent preliminary prospectus or the
Prospectus was not sent or given by or on behalf of such Underwriter to the person asserting such
loss, liability, claim or damage, at or prior to the confirmation of the sale of the Securities to
such person, and if such subsequent preliminary prospectus or the Prospectus would have cured the
defect giving rise to such loss, liability, claim or damage.
19
Section 6(a) above, counsel to the indemnified parties shall be selected by Xxxxxxx Xxxxx,
and, in the case of parties indemnified pursuant to Section 6(b) above, counsel to the indemnified
parties shall be selected by the Company. An indemnifying party may participate at its own expense
in the defense of any such action; provided, however, that counsel to the
indemnifying party shall not (except with the consent of the indemnified party) also be counsel to
the indemnified party. In no event shall the indemnifying parties be liable for fees and expenses
of more than one counsel (in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or circumstances. No indemnifying
party shall, without the prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under this Section 6 or Section 7
hereof (whether or not the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (i) includes an unconditional release of each indemnified
party from all liability arising out of such litigation, investigation, proceeding or claim and
(ii) does not include a statement as to or an admission of fault, culpability or a failure to act
by or on behalf of any indemnified party.
SECTION 7. Contribution. If the indemnification provided for in Section 6 hereof is
for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of
any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying
party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and
expenses incurred by such indemnified party, as incurred, (i) in such proportion as is appropriate
to reflect the relative benefits received by the Company on the one hand and the Underwriters on
the other hand from the offering of the Securities pursuant to this Agreement or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and of the Underwriters on the other hand in
connection with the statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the Underwriters on the
other hand in connection with the offering of the Securities pursuant to this Agreement shall be
deemed to be in the same respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by the Company and the
total underwriting discount received by the Underwriters, in each case as set forth on the cover of
the Prospectus bear to the aggregate initial public offering price of the Securities as set forth
on the cover of the Prospectus.
20
The relative fault of the Company on the one hand and the Underwriters on the other hand shall
be determined by reference to, among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 7 were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to above in this Section 7. The aggregate amount
of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred
to above in this Section 7 shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged
omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by reason of any such untrue
or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the
0000 Xxx) shall be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
For purposes of this Section 7, each person, if any, who controls an Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act and each Underwriter’s
Affiliates and selling agents shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the Registration Statement,
and each person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act shall have the same rights to contribution as the Company. The
Underwriters’ respective obligations to contribute pursuant to this Section 7 are several in
proportion to the number of Initial Securities set forth opposite their respective names in
Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive. All
representations, warranties and agreements contained in this Agreement or in certificates of
officers of the Company or any of its subsidiaries submitted pursuant hereto, shall remain
operative and in full force and effect regardless of (i) any investigation made by or on behalf of
any Underwriter or its Affiliates or selling agents, any person controlling any Underwriter, its
officers or directors, any person controlling the Company and (ii) delivery of and payment for the
Securities.
SECTION 9. Termination of Agreement.
21
outbreak of hostilities or significant escalation thereof or other calamity or crisis or any
change in national or international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of the Representative, impracticable or
inadvisable to market the Securities or to enforce contracts for the sale of the Securities, or
(iii) if trading in any securities of the Company has been suspended or materially limited by the
Commission or The NASDAQ Stock Market, or if trading generally in the NASDAQ Global Market has been
suspended or materially limited, or minimum or maximum prices for trading have been fixed, or
maximum ranges for prices have been required, by said exchanges or by order of the Commission, the
Financial Industry Regulatory Authority or any other governmental authority, or (iv) a material
disruption has occurred in commercial banking or securities settlement or clearance services in the
United States, or (v) if a banking moratorium has been declared by either Federal or New York
authorities.
SECTION 10. Default by One or More of the Underwriters. If one or more of the
Underwriters shall fail at the Closing Time or a Date of Delivery to purchase the Securities which
it or they are obligated to purchase under this Agreement (the “Defaulted Securities”), the
Representative shall have the right, within 24 hours thereafter, to make arrangements for one or
more of the non-defaulting Underwriters, or any other underwriters, to purchase all, but not less
than all, of the Defaulted Securities in such amounts as may be agreed upon and upon the terms
herein set forth; if, however, the Representative shall not have completed such arrangements within
such 24-hour period, then:
(i) if the number of Defaulted Securities does not exceed 10% of the number of
Securities to be purchased on such date, each of the non-defaulting Underwriters shall be
obligated, severally and not jointly, to purchase the full amount thereof in the proportions
that their respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, or
(ii) if the number of Defaulted Securities exceeds 10% of the number of Securities to
be purchased on such date, this Agreement or, with respect to any Date of Delivery which
occurs after the Closing Time, the obligation of the Underwriters to purchase and of the
Company to sell the Option Securities to be purchased and sold on such Date of Delivery
shall terminate without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting Underwriter from
liability in respect of its default.
In the event of any such default which does not result in a termination of this Agreement or,
in the case of a Date of Delivery which is after the Closing Time, which does not result in a
termination of the obligation of the Underwriters to purchase and the Company to sell the relevant
Option Securities, as the case may be, either the (i) Representative or (ii) the Company shall have
the right to postpone Closing Time or the relevant Date of Delivery, as the case may be, for a
period not exceeding seven days in order to effect any required changes in the Registration
Statement or Prospectus or in any other documents or arrangements. As used herein, the term
“Underwriter” includes any person substituted for an Underwriter under this Section 10.
SECTION 11. Tax Disclosure. Notwithstanding any other provision of this Agreement,
immediately upon commencement of discussions with respect to the transactions contemplated hereby,
22
the Company (and each employee, representative or other agent of the Company) may disclose to
any and all persons, without limitation of any kind, the tax treatment and tax structure of the
transactions contemplated by this Agreement and all materials of any kind (including opinions or
other tax analyses) that are provided to the Company relating to such tax treatment and tax
structure. For purposes of the foregoing, the term “tax treatment” is the purported or claimed
federal income tax treatment of the transactions contemplated hereby, and the term “tax structure”
includes any fact that may be relevant to understanding the purported or claimed federal income tax
treatment of the transactions contemplated hereby.
SECTION 12. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by any standard form
of telecommunication. Notices to the Underwriters shall be directed to the Representative at 4
World Financial Center, New York, New York 10080, attention of Office
of the General Counsel; notices to the Company
shall be directed to it at 000 Xxxxxx Xxx, Xxxxxxxxx, Xxxxxxxxxx 00000, attention of Xxxxx X.
Xxxxxxx.
SECTION 13. No Advisory or Fiduciary Relationship. The Company acknowledges and
agrees that (a) the purchase and sale of the Securities pursuant to this Agreement, including the
determination of the public offering price of the Securities and any related discounts and
commissions, is an arm’s-length commercial transaction between the Company, on the one hand, and
the several Underwriters, on the other hand, (b) in connection with the offering contemplated
hereby and the process leading to such transaction each Underwriter is and has been acting solely
as a principal and is not the agent or fiduciary of the Company, or its stockholders, creditors,
employees or any other party, (c) no Underwriter has assumed or will assume an advisory or
fiduciary responsibility in favor of the Company with respect to the offering contemplated hereby
or the process leading thereto (irrespective of whether such Underwriter has advised or is
currently advising the Company on other matters) and no Underwriter has any obligation to the
Company with respect to the offering contemplated hereby except the obligations expressly set forth
in this Agreement, (d) the Underwriters and their respective affiliates may be engaged in a broad
range of transactions that involve interests that differ from those of the Company, and (e) the
Underwriters have not provided any legal, accounting, regulatory or tax advice with respect to the
offering contemplated hereby and the Company has consulted its own respective legal, accounting,
regulatory and tax advisors to the extent it deemed appropriate.
SECTION 14. Parties. This Agreement shall each inure to the benefit of and be binding
upon the Underwriters and the Company and their respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any person, firm or
corporation, other than the Underwriters and the Company and their respective successors and the
controlling persons and officers and directors referred to in Sections 6 and 7 and their heirs and
legal representatives, any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the Underwriters and the Company
and their respective successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or corporation. No
purchaser of Securities from any Underwriter shall be deemed to be a successor by reason merely of
such purchase.
SECTION 15. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 16. TIME. TIME SHALL BE OF THE ESSENCE OF THIS AGREEMENT. EXCEPT AS OTHERWISE
SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
23
SECTION 17. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such counterparts shall
together constitute one and the same Agreement.
SECTION 18. Effect of Headings. The Section headings herein are for convenience only
and shall not affect the construction hereof.
24
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts,
will become a binding agreement between the Underwriters and the Company in accordance with its
terms.
| Very truly yours, HARMONIC INC. |
||||
| By | /s/ XXXXX X. XXXXXXX | |||
| Title: Chief Financial Officer | ||||
| CONFIRMED AND ACCEPTED, as of the date first above written: XXXXXXX XXXXX & CO. |
||||
| By: | XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED | |||
| By | /s/ XXXXXXX X. XXXXXX | |||
| Authorized Signatory | ||||
For itself and as Representative of the other Underwriters named in Schedule A hereto.
25
SCHEDULE A
| Number of | ||||
| Name of Underwriter | Initial Securities | |||
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated |
7,125,000 | |||
Xxxxxx Brothers Inc. |
3,500,000 | |||
Xxxxxxxxx & Company, Inc. |
1,250,000 | |||
Xxxxxxxx Curhan Ford & Co. |
625,000 | |||
Total |
12,500,000 | |||
Sch A-1
SCHEDULE B
| Number of Initial | Maximum Number of Option | |||
| Securities to be Sold | Securities to Be Sold | |||
| 12,500,000 | 1,875,000 |
Sch B-1
1. The initial public offering price per share for the Securities, determined as provided in said
Section 2, shall be $12.00.
2. The purchase price per share for the Securities to be paid by the several Underwriters shall be
$11.406, being an amount equal to the initial public offering price
set forth above less $0.594
per share; provided that the purchase price per share for any Option Securities purchased upon the
exercise of the overallotment option described in Section 2(b) shall be reduced by an amount per
share equal to any dividends or distributions declared by the Company and payable on the Initial
Securities but not payable on the Option Securities.
Sch C-1
SCHEDULE D
Xxxxxxx X. Xxx
Xxxxxx Xxxxxx
Xxxxxxx X. Xxxxxxxx
Xxxxxxx Xxxxxxxxx
E. Xxxxx Xxxxxx
Xxxxxxx X. Xxxxxxxxx
Xxxxx Xxxxxxx
Xxxxx X. Xxx Xxxxxxxxxx
Xxxxx X. Xxxxxxx
Xxxxxx Xxx-Xxxxx
Xxxxxxx X. Xxxxxxxx
Neven Haltmayer
Xxxxxx Xxxxxx
Xxxxxxx X. Xxxxxxxx
Xxxxxxx Xxxxxxxxx
E. Xxxxx Xxxxxx
Xxxxxxx X. Xxxxxxxxx
Xxxxx Xxxxxxx
Xxxxx X. Xxx Xxxxxxxxxx
Xxxxx X. Xxxxxxx
Xxxxxx Xxx-Xxxxx
Xxxxxxx X. Xxxxxxxx
Neven Haltmayer
Sch D-1
SCHEDULE E
None.
Sch E-1
Exhibit A
FORM OF OPINION OF COMPANY’S COUNSEL
TO BE DELIVERED PURSUANT TO SECTION 5(b)
TO BE DELIVERED PURSUANT TO SECTION 5(b)
A-1
Exhibit B
FORM OF OPINION OF SPECIAL ISRAELI COUNSEL FOR THE COMPANY
TO BE DELIVERED PURSUANT TO SECTION 5(c)
TO BE DELIVERED PURSUANT TO SECTION 5(c)
X-0
Xxxxxxx X
x, 0000
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated,
Xxxxxx Brothers Inc.
as Representatives of the several
Underwriters to be named in the
within-mentioned Purchase Agreement
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated,
Xxxxxx Brothers Inc.
as Representatives of the several
Underwriters to be named in the
within-mentioned Purchase Agreement
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
Re: Proposed Public Offering by Harmonic Inc.
Dear Sirs:
The undersigned, a securityholder and an officer and/or director of Harmonic Inc., a Delaware
corporation (the “Company”), understands that Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated (“Xxxxxxx Xxxxx”) and Xxxxxx Brothers Inc. propose to enter into a Purchase
Agreement (the “Purchase Agreement”) with the Company providing for the public offering of shares
(the “Securities”) of the Company’s common stock, par value $0.001 per share (the “Common Stock”).
In recognition of the benefit that such an offering will confer upon the undersigned as a
securityholder and an officer and/or director of the Company, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned agrees
with each underwriter to be named in the Purchase Agreement that, during a period of 90 days from
the date of the Purchase Agreement (including any extensions thereto as set forth herein, the
“Lock-Up Period”), the undersigned will not, without the prior written consent of Xxxxxxx Xxxxx,
directly or indirectly, (i) offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right or warrant for the sale
of, or otherwise dispose of or transfer any shares of the Company’s Common Stock or any securities
convertible into or exchangeable or exercisable for Common Stock, whether now owned or hereafter
acquired by the undersigned or with respect to which the undersigned has or hereafter acquires the
power of disposition, or file, or cause to be filed, any registration statement under the
Securities Act of 1933, as amended, with respect to any of the foregoing (collectively, the
“Lock-Up Securities”) or (ii) enter into any swap or any other agreement or any transaction that
transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of
the Lock-Up Securities, whether any such swap or transaction is to be settled by delivery of Common
Stock or other securities, in cash or otherwise.
Notwithstanding the foregoing, and subject to the conditions below, the undersigned may
transfer the Lock-Up Securities without the prior written consent of Xxxxxxx Xxxxx, provided that
(1) Xxxxxxx Xxxxx receives a signed lock-up agreement for the balance of the lockup period from
each donee, trustee, distributee, or transferee, as the case may be, (2) any such transfer shall
not involve a disposition for value, (3) such transfers are not required to be reported in any
public report or filing with the Securities and Exchange Commission, or otherwise and (4) the
undersigned does not otherwise voluntarily effect any public filing or report regarding such
transfers:
C-1
| (i) | as a bona fide gift or gifts; or | ||
| (ii) | pursuant to any court order, decree or settlement ; or | ||
| (iii) | to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned (for purposes of this lock-up agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin); or | ||
| (iv) | as a distribution to limited partners or stockholders of the undersigned; or | ||
| (v) | to the undersigned’s affiliates or to any investment fund or other entity controlled or managed by the undersigned. |
Furthermore, the undersigned may sell shares of Common Stock of the Company purchased by the
undersigned on the open market following the public offering if and only if (i) such sales are not
required to be reported in any public report or filing with the Securities Exchange Commission, or
otherwise and (ii) the undersigned does not otherwise voluntarily effect any public filing or
report regarding such sales.
In addition, notwithstanding the foregoing, the undersigned may, at any time after the closing
of the public offering, enter into a written plan meeting the requirements of Rule 10b5-1 under the
Securities Exchange Act of 1934, as amended, relating to the sale of shares of Common Stock, if
then permitted by the Company; provided that (a) the shares of Common Stock subject to such plan
may not be sold until after the end of the Lock-Up Period (including any extension thereof as
provided herein) and (b) (i) neither the undersigned nor the Company report, or will be required to
report in any public report or filing with the Securities and Exchange Commission, or otherwise,
relating to, or disclosing, such plan or its existence prior to the end of the Lock-Up Period
(including any extension thereof as provided herein), and (ii) the undersigned does not otherwise
voluntarily effect any public filing or report relating to, or disclosing, such plan or its
existence prior to the end of the Lock-Up Period (including any extension thereof as provided
herein).
[Moreover, the provisions set forth herein shall not apply to any offer, pledge, sale,
contract for sale, sale of any option or other disposal or transfer of up to [_____] shares of
Common Stock by the undersigned during the Lock-Up Period.]The undersigned also agrees and consents
to the entry of stop transfer instructions with the Company’s transfer agent and registrar against
the transfer of the Lock-Up Securities except in compliance with the foregoing restrictions.
This agreement shall lapse and become null and void (i) upon written notice by the Company to
Xxxxxxx Xxxxx that the Company does not intend to proceed with the public offering, (ii) if the
Purchase Agreement is not executed by the parties thereto on or prior to November 30, 2007, or
(iii) if the public offering shall not have been completed on or prior to December 14, 2007.
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| Very truly yours, |
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| Signature: | ||||
| Print Name: | ||||
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