15,000,000 Shares Brightpoint, Inc. Common Stock ($0.01 Par Value) EQUITY UNDERWRITING AGREEMENT
Exhibit 1.1
EXECUTION COPY
15,000,000 Shares
Brightpoint, Inc.
Common Stock
($0.01 Par Value)
July 15, 2009
Deutsche Bank Securities Inc.
As Representative of the
Several Underwriters
As Representative of the
Several Underwriters
c/o Deutsche Bank Securities Inc.
00 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
00 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
NC Telecom Holding A/S (the “Selling Shareholder”), a shareholder of Brightpoint, Inc., an
Indiana corporation (the “Company”), proposes to sell to the several underwriters (the
“Underwriters”) named in Schedule I hereto for whom you are acting as representative (the
“Representative”) an aggregate of 15,000,000 shares (the “Firm Shares”) of the Company’s common
stock, $0.01 par value (the “Common Stock”). The respective amounts of the Firm Shares to be so
purchased by the several Underwriters are set forth opposite their names in Schedule I hereto. To
the extent there are no additional parties listed on Schedule I hereto other than you, the term
Representative as used herein shall mean you as the Underwriter, and the term Underwriters shall
mean the singular thereof. The Selling Shareholder also proposes to sell at the Underwriters’
option an aggregate of up to 1,500,000 additional shares of the Company’s Common Stock (the “Option
Shares”) as set forth below. As the Representative, you have advised the Company and the Selling
Shareholder (a) that you are authorized to enter into this Agreement on behalf of the several
Underwriters, and (b) that the several Underwriters are willing, acting severally and not jointly,
to purchase the numbers of Firm Shares set forth opposite their respective names in Schedule I,
plus their pro rata portion of the Option Shares if you elect to exercise the over-allotment option
in whole or in part for the accounts of the several Underwriters. The Firm Shares and the Option
Shares (to the extent the aforementioned option is exercised) are herein collectively called the
“Shares.”
In consideration of the mutual agreements contained herein and of the interests of the parties
in the transactions contemplated hereby, the parties hereto agree as follows:
1. Representations and Warranties of the Company and the Selling Shareholder
(a) The Company represents and warrants to each of the Underwriters as follows:
(i) A registration statement on Form S-3 (File No. 333-160238) with respect to the Shares has
been prepared by the Company in conformity with the requirements of the Securities Act of 1933, as
amended (the “Act”), and the rules and regulations (the “Rules and Regulations”) of the Securities
and Exchange Commission (the “Commission”) thereunder and has been filed with the Commission. The
Company and the transactions contemplated by this Agreement meet the requirements and comply with
the conditions for the use of Form S-3. Copies of such registration statement, including any
amendments thereto, the preliminary prospectuses (meeting the requirements of the Rules and
Regulations) contained therein and the exhibits, financial statements and schedules, as finally
amended and revised, have heretofore been delivered by the Company to you. Such registration
statement, together with any registration statement filed by the Company pursuant to Rule 462(b)
under the Act, is herein referred to as the “Registration Statement,” which shall be deemed to
include all information omitted therefrom in reliance upon Rules 430A, 430B or 430C under the Act
and contained in the Prospectus referred to below, has become effective under the Act and no
post-effective amendment to the Registration Statement has been filed as of the date of this
Agreement. “Prospectus” means the form of prospectus first filed with the Commission pursuant to
and within the time limits described in Rule 424(b) under the Act. Each preliminary prospectus
included in the Registration Statement prior to the time it becomes effective is herein referred to
as a “Preliminary Prospectus.” Any reference herein to the Registration Statement, any Preliminary
Prospectus or to the Prospectus or to any amendment or supplement to any of the foregoing documents
shall be deemed to refer to and include any documents incorporated by reference therein, and, in
the case of any reference herein to the Prospectus, also shall be deemed to include any documents
incorporated by reference therein, and any supplements or amendments thereto, filed with the
Commission after the date of filing of the Prospectus under Rule 424(b) under the Act, and prior to
the termination of the offering of the Shares by the Underwriters.
(ii) As of the Applicable Time (as defined below) and as of the Closing Date (as defined
below) and any Option Closing Date (as defined below), as the case may be, neither (i) the General
Use Free Writing Prospectus(es) (as defined below) issued at or prior to the Applicable Time and
the Statutory Prospectus (as defined below), all considered together (collectively, the “General
Disclosure Package”), nor (ii) any individual Limited Use Free Writing Prospectus (as defined
below), when considered together with the General Disclosure Package, included or will include any
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; provided, however, that the Company makes no representations or
warranties as to information
contained in or omitted from any Issuer Free Writing Prospectus, in reliance upon, and in
conformity with, written information furnished to the Company by or on behalf of any Underwriter
through the Representative, specifically for use therein, it being understood and agreed that the
only such information is that described in Section 13 herein. As used in this subsection and
elsewhere in this Agreement:
“Applicable Time” means 7:00 p.m., New York time, on the date of this Agreement or such other
time as agreed to by the Company and the Representative.
“Statutory Prospectus” as of any time means the Preliminary Prospectus relating to the Shares
that is included in the Registration Statement immediately prior to that time, including any
document incorporated by reference therein.
“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in
Rule 433 under the Act, relating to the Shares 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) under the Act.
“General Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is
identified on Schedule II to this Agreement.
“Limited Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is not a
General Use Free Writing Prospectus.
(iii) The Company has been duly organized and is validly existing as a corporation under the
laws of the State of Indiana, with corporate power and authority to own or lease its properties and
conduct its business as described in the Registration Statement, the General Disclosure Package and
the Prospectus. Each subsidiary of the Company that meets the definition of “significant
subsidiary” under Rule 1-02 of Regulation S-X (each a “Subsidiary” and, collectively, the
“Subsidiaries”) is listed on Schedule III and has been duly organized and is validly existing as a
corporation in good standing, where applicable, under the laws of the jurisdiction of its
incorporation, with corporate power and authority to own or lease its properties and conduct its
business as described in the Registration Statement, the General Disclosure Package and the
Prospectus. The Company and each of the Subsidiaries are duly qualified to transact business in
all jurisdictions in which the conduct of their business requires such qualification, except where
the failure to be so qualified would not reasonably be expected to have, individually or in the
aggregate, a material adverse effect on the earnings, business, management, properties, assets,
rights, operations, condition (financial or otherwise) or prospects of the Company and of the
Subsidiaries taken as a whole, whether or not arising in the ordinary course of business (a
“Material Adverse Effect”). The outstanding shares of capital stock of each of the Subsidiaries
have been duly authorized and validly issued, are fully paid and non-assessable and, except as
described in the Registration Statement, the General Disclosure Package
and the Prospectus, are owned by the Company or another Subsidiary free and clear of all liens,
encumbrances and equities and claims;
and other than as described in the Registration Statement,
the General Disclosure Package and the Prospectus with respect to the Company’s option or incentive
plans, no options, warrants or other rights to purchase, agreements or other obligations to issue
or other rights to convert any obligations into shares of capital stock or ownership interests in
the Subsidiaries are outstanding.
(iv) The outstanding shares of Common Stock of the Company, including all shares to be sold
by the Selling Shareholder, have been duly authorized and validly issued and are fully paid and
non-assessable; and no preemptive rights of stockholders exist with respect to any of the Shares or
the issue and sale thereof. Neither the filing of the Registration Statement nor the offering or
sale of the Shares as contemplated by this Agreement gives rise to any rights, other than those
which have been waived or satisfied, for or relating to the registration of any shares of Common
Stock.
(v) All of the Shares conform to the description thereof contained in the Registration
Statement, the General Disclosure Package and the Prospectus. The form of certificates for the
Shares conforms to the corporate law of the jurisdiction of the Company’s incorporation.
(vi) The Commission has not issued an order preventing or suspending the use of any
Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus relating to the
proposed offering of the Shares, and no proceeding for that purpose or pursuant to Section 8A of
the Act has been instituted or, to the Company’s knowledge, threatened by the Commission. The
Registration Statement as of each effective date thereof, the date hereof, the Closing Date and any
Option Closing Date, and the Prospectus as of the date thereof and the date hereof, the Closing
Date and any Option Closing Date, complied and will comply with the requirements of the Act and the
Rules and Regulations. The documents incorporated, or to be incorporated, by reference in the
Prospectus, at the time filed with the Commission conformed or will conform, in all respects to the
requirements of the Securities Exchange Act of 1934 (“Exchange Act”) or the Act, as applicable, and
the rules and regulations of the Commission thereunder. The Registration Statement and any
amendment thereto as of each effective date thereof and the date hereof, the Closing Date and any
Option Closing Date, did not contain, and will not contain, any untrue statement of a material fact
and did not omit, and will not omit, to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and the Prospectus and any amendments and
supplements thereto as of the dates thereof and at the date hereof, the Closing Date and any Option
Closing Date did not contain, and will not contain, any untrue statement of a material fact; and
did not omit, and will not 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 representations or warranties as to information contained in or
omitted from the Registration Statement or the Prospectus, or any such amendment or supplement, in
reliance upon, and in conformity with, written information furnished to the Company by or on behalf
of any Underwriter through the Representative or by or on behalf of the Selling Shareholder,
specifically for use therein, it being understood and agreed that the only such information is that
described in Section 13 herein.
(vii) 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 Shares or until any earlier date that
the Company notified or notifies the Representative as described in the next sentence, 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 that has not been superseded or modified; provided, however, that
the Company makes no representation or warranty as to information contained in or omitted from any
Issuer Free Writing Prospectus, or any amendment or supplement thereto, in reliance upon, and in
conformity with, written information furnished to the Company by or on behalf of any Underwriter
through the Representative or by or on behalf of the Selling Shareholder specifically for use
therein.
(viii) The Company has not, directly or indirectly, distributed and will not distribute any
offering material in connection with the offering and sale of the Shares other than any Preliminary
Prospectus, the Prospectus and other materials, if any, permitted under the Act and consistent with
Section 4(a)(ii) below. The Company will file with the Commission all Issuer Free Writing
Prospectuses in the time required under Rule 433(d) under the Act. The Company has satisfied or
will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the
Commission any electronic road show.
(ix) (i) At the time of filing the Registration Statement and (ii) as of the date hereof
(with such date being used as the determination date for purposes of this clause(ii)), the Company
was not and is not an “ineligible issuer” (as defined in Rule 405 under the Act, without taking
into account any determination by the Commission pursuant to Rule 405 under the Act that it is not
necessary that the Company be considered an ineligible issuer), including, without limitation, for
purposes of Rules 164 and 433 under the Act with respect to the offering of the Shares as
contemplated by the Registration Statement.
(x) The financial statements, together with the related notes and schedules, as set forth or
incorporated by reference in the Registration Statement, the General Disclosure Package and the
Prospectus, present fairly in all material respects the financial data included therein at the
indicated dates and for the indicated periods. The financial statements and related schedules have
been prepared in accordance with applicable generally accepted accounting principles, including any
applicable reconciliation requirements, in each case consistently applied throughout the periods
involved, except as disclosed therein, and all adjustments necessary for a fair presentation of
results for such periods have been made. The summary and selected consolidated financial and
statistical data included or incorporated by reference in the Registration Statement, the General
Disclosure Package and the Prospectus presents fairly the information shown therein and such data
has been compiled on a basis consistent with the financial statements presented therein and the
books and records of the Company and its Subsidiaries. All disclosures contained in the
Registration Statement, the General Disclosure Package and the Prospectus regarding “non-GAAP
financial measures” (as such term is defined by the Rules and Regulations) comply in all material
respects with Regulation G of the Exchange Act and
Item 10 of Regulation S-K under the Act, to the extent
applicable. The Company and the
Subsidiaries do not have any material liabilities or obligations, direct or contingent (including
any off-balance sheet obligations or any “variable interest entities” within the meaning of
Financial Accounting Standards Board Interpretation No. 46), not disclosed in the Registration
Statement, the General Disclosure Package and the Prospectus. There are no financial statements
(historical or pro forma) that are required to be included in the Registration Statement, the
General Disclosure Package or the Prospectus that are not included as required.
(xi) Ernst & Young LLP and KPMG Statsautoriseret Revisionspartnerselskab (Partnership of
State Authorized Public Accountants), who have certified certain financial statements of the
Company and Dangaard Telecom A/S, respectively, and each of whose reports appear in, or are
incorporated by reference in, the Registration Statement, the General Disclosure Package and the
Prospectus, are each independent registered public accounting firms with respect to the Company and
the Subsidiaries and Dangaard Telecom A/S and its subsidiaries, respectively, within the meaning of
the Act and the applicable Rules and Regulations and the Public Company Accounting Oversight Board
(United States) (the “PCAOB”) in the case of Ernst & Young LLP and within the meaning of applicable
Danish auditing and accounting standards in the case of KPMG Statsautoriseret
Revisionspartnerselskab (Partnership of State Authorized Public Accountants).
(xii) Except as disclosed in the Registration Statement, the General Disclosure Package and
the Prospectus, neither the Company nor any of the Subsidiaries is aware of (i) any material
weakness in its internal control over financial reporting or (ii) change in internal control over
financial reporting that has materially affected, or is reasonably likely to materially affect, the
Company’s internal control over financial reporting.
(xiii) Solely to the extent that the Xxxxxxxx-Xxxxx Act of 2002, as amended, and the rules
and regulations promulgated by the Commission and the Nasdaq Stock Market thereunder (the
“Xxxxxxxx-Xxxxx Act”) have been applicable to the Company, there is and has been no failure on the
part of the Company to comply in all material respects with any applicable provision of the
Xxxxxxxx-Xxxxx Act. The Company has taken all necessary actions to ensure that it is in compliance
in all material respects with all provisions of the Xxxxxxxx-Xxxxx Act that are in effect and with
which the Company is required to comply and is actively taking steps to ensure that it will be in
compliance in all material respects with other provisions of the Xxxxxxxx-Xxxxx Act not currently
in effect or which will become applicable to the Company.
(xiv) There is no action, suit, claim or proceeding pending or, to the knowledge of the
Company, threatened against the Company or any of the Subsidiaries before any court or
administrative agency or otherwise which if determined adversely to the Company or any of the
Subsidiaries would reasonably be expected to either (i) have a Material Adverse Effect, or (ii)
prevent the consummation of the transactions contemplated hereby.
(xv) The Company and the Subsidiaries have good and marketable title to all of the properties
and assets reflected in the consolidated financial statements hereinabove described or
described in
the Registration Statement, the General Disclosure Package and the Prospectus, subject to no lien,
mortgage, pledge, charge or encumbrance of any kind except those that (A) are reflected in such
financial statements or described in the Registration Statement, the General Disclosure Package and
the Prospectus, or (B) do not materially interfere with the use made and proposed to be made of
such properties and assets by the Company and the Subsidiaries. The Company and the Subsidiaries
occupy their leased properties under valid and binding leases conforming in all material respects
to the description thereof set forth in the Registration Statement, the General Disclosure Package
and the Prospectus.
(xvi) The Company and the Subsidiaries have filed all Federal, State, local and foreign tax
returns which have been required to be filed through the date hereof and have paid all taxes
indicated by such returns and all assessments received by them or any of them to the extent that
such taxes have become due (except for such taxes that are not yet delinquent or that are being
contested in good faith and for which an adequate reserve for accrual has been established in
accordance with GAAP). All tax liabilities have been adequately provided for in the financial
statements of the Company, and the Company does not know of any actual or proposed additional
material tax assessments.
(xvii) Since the respective dates as of which information is given in the Registration
Statement, the General Disclosure Package and the Prospectus, as each may be amended or
supplemented, there has not been any Material Adverse Effect or any development that would
reasonably be expected to have a Material Adverse Effect, and there has not been any transaction
entered into, or any transaction that is probable of being entered into, by the Company or the
Subsidiaries, other than transactions in the ordinary course of business, that is in each case
material to the Company and its Subsidiaries, taken as a whole, other than any transactions
described in the Registration Statement, the General Disclosure Package and the Prospectus, as each
may be amended or supplemented. The Company and the Subsidiaries have no material contingent
obligations that are required to be disclosed in the Company’s financial statements, which are
included or incorporated by reference in the Registration Statement, the General Disclosure Package
and the Prospectus, but are not so disclosed.
(xviii) Neither the Company nor any of the Subsidiaries is or with the giving of notice or
lapse of time or both, will be, (A) in violation of its certificate or articles of incorporation,
by-laws, certificate of formation, limited liability agreement, partnership agreement or other
organizational documents or (B) in violation of or in default under any agreement, lease, contract,
indenture or other instrument or obligation to which it is a party or by which it, or any of its
properties, is bound and, solely with respect to this clause (B), which violation or default would
have a Material Adverse Effect. The execution and delivery of this Agreement and the consummation
of the transactions herein contemplated and the fulfillment of the terms hereof will not conflict
with or result in a breach of (i) any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by
which the Company or any Subsidiary or any of their respective properties is bound, which conflict,
breach or default would have a Material Adverse Effect, (ii) of
the certificate or articles of
incorporation or by-laws of the Company or (iii) any law, order, rule or regulation judgment,
order, writ or decree applicable to the Company or any Subsidiary of any court or of any
government, regulatory body or administrative agency or other governmental body having jurisdiction
over the Company or any Subsidiary or the property or assets of the Company or any Subsidiary which
conflict or breach would have a Material Adverse Effect.
(xix) The execution and delivery of, and the performance by the Company of its obligations
under this Agreement has been duly and validly authorized by all necessary corporate action on the
part of the Company, and this Agreement has been duly executed and delivered by the Company.
(xx) Each approval, consent, order, authorization, designation, declaration or filing by or
with any regulatory, administrative or other governmental body necessary in connection with the
execution and delivery by the Company of this Agreement and the consummation of the transactions
herein contemplated (except such additional steps as may be required by the Commission, the
Financial Industry Regulatory Authority (“FINRA”) or such additional steps as may be necessary to
qualify the Shares for public offering by the Underwriters under state securities or Blue Sky laws)
has been obtained or made and is in full force and effect.
(xxi) The Company and each of the Subsidiaries hold all material licenses, certificates and
permits from governmental authorities which are necessary to the conduct of their businesses as
described in the Registration Statement, the General Disclosure Package and the Prospectus, except
where the failure to possess the same would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect; the Company and the Subsidiaries each own or possess
the right to use all patents, patent rights, trademarks, trade names, service marks, service names,
copyrights, license rights, know-how (including trade secrets and other unpatented and unpatentable
proprietary or confidential information, systems or procedures) and other intellectual property
rights (“Intellectual Property”) necessary to carry on their business as described in the
Registration Statement, the General Disclosure Package and the Prospectus, except where the failure
to own or possess the same would not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect; neither the Company nor any of the Subsidiaries has infringed, and
none of the Company or the Subsidiaries have received notice of conflict with, any Intellectual
Property of any other person or entity, except in each case for such infringements or conflicts
that would not reasonably be expected to have a Material Adverse Effect. The Company has taken all
reasonable steps necessary to secure interests in such Intellectual Property from its contractors.
There are no outstanding options, licenses or agreements of any kind relating to the Intellectual
Property of the Company that are required to be described in the Registration Statement, the
General Disclosure Package and the Prospectus and that are not described therein in all material
respects. The Company is not a party to or
bound by any options, licenses or agreements with respect to the Intellectual Property of any other
person or entity that are required to be described in the Registration Statement, the General
Disclosure Package and the Prospectus and that are not described therein in all material respects.
None of the technology employed by the Company has been obtained or is being used by the
Company in
violation of any contractual obligation binding on the Company or, to the knowledge of the Company,
any of its officers, directors or employees or otherwise in violation of the rights of any persons;
the Company has not received any written or oral communications alleging that the Company has
violated, infringed or conflicted with, or, by conducting its business as set forth in the
Registration Statement, the General Disclosure Package and the Prospectus, would violate, infringe
or conflict with, any of the Intellectual Property of any other person or entity. The Company
knows of no material infringement by others of Intellectual Property owned by or licensed to the
Company.
(xxii) Neither the Company, nor to the Company’s knowledge, any of its affiliates (except
that the Company does not make any representation with respect to any actions of the Selling
Shareholder), has taken, directly or indirectly, any action designed to cause or result in, or
which has constituted or which might reasonably be expected to constitute, the stabilization or
manipulation of the price of the shares of Common Stock to facilitate the sale or resale of the
Shares. The Company acknowledges that the Underwriters may engage in passive market making
transactions in the Shares on the Nasdaq Global Select Market in accordance with Regulation M under
the Exchange Act.
(xxiii) Neither the Company nor any Subsidiary is or, after giving effect to the offering and
sale of the Shares contemplated hereunder, will be an “investment company” within the meaning of
such term under the Investment Company Act of 1940 as amended (the “1940 Act”), and the rules and
regulations of the Commission thereunder.
(xxiv) The Company maintains a system of internal accounting controls for the Company and the
Subsidiaries sufficient to provide reasonable assurances that (i) transactions are executed in
accordance with management’s general or specific authorization; (ii) transactions are recorded as
necessary to permit preparation of financial statements in conformity with GAAP and to maintain
accountability for assets; (iii) access to assets is permitted only in accordance with management’s
general or specific authorization; and (iv) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken with respect to any
differences.
(xxv) The Company has established and maintains “disclosure controls and procedures” (as
defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act); the Company’s “disclosure
controls and procedures” are reasonably designed to ensure that all information (both financial and
non-financial) required to be disclosed by the Company in the reports that it files or submits
under the Exchange Act is recorded, processed, summarized and reported within the time periods
specified in the rules and regulations of the Exchange Act, and that all such information is
accumulated and communicated to the Company’s management as appropriate to allow timely decisions
regarding required disclosure and to make the certifications of the Chief Executive Officer and
Chief Financial Officer of the Company required under the Exchange Act with respect to such
reports.
(xxvi) The statistical, industry-related and market-related data included in the Registration
Statement, the General Disclosure Package and the Prospectus are based on or derived from sources
that the Company reasonably and in good faith believes are reliable and accurate in all material
respects.
(xxvii) The estimates, preliminary results and other financial data relating to the Company’s
financial performance as of and for the three and six months ended June 30, 2009 included in the
Registration Statement, the General Disclosure Package and the Prospectus presents fairly, in all
material respects, such information and such information has been derived from the books and
records of the Company and its Subsidiaries or such other sources that the Company reasonably and
in good faith believes are reliable and accurate.
(xxviii) The operations of the Company and its subsidiaries are and have been conducted at
all times in compliance in all material respects with applicable financial record-keeping and
reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended,
applicable money laundering statutes and applicable rules and regulations thereunder (collectively,
the “Money Laundering Laws”), and no action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the Company or any or its
Subsidiaries with respect to the Money Laundering Laws is pending or, to the Company’s knowledge,
threatened.
(xxix) Neither the Company nor, to the Company’s knowledge, any director, officer, agent or
employee 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”).
(xxx) The Company and each of the Subsidiaries carry, or are covered by, insurance in such
amounts and covering such risks as is adequate for the conduct of their respective businesses and
the value of their respective properties and as is customary for companies engaged in similar
businesses.
(xxxi) The Company and each Subsidiary is in compliance in all material respects with all
presently applicable provisions of the Employee Retirement Income Security Act of 1974, as amended,
including the regulations and published interpretations thereunder (“ERISA”); no “reportable event”
(as defined in ERISA) has occurred with respect to any “pension plan” (as defined in ERISA) for
which the Company and each Subsidiary would have any liability; the Company and each Subsidiary has
not incurred and does not expect to incur liability under (i) Title IV of ERISA with respect to
termination of, or withdrawal from, any “pension plan” or (ii) Sections 412 or 4971 of the
Internal Revenue Code of 1986, as amended, including the regulations and published interpretations
thereunder (the “Code”); and each “pension plan” for which the Company or any Subsidiary 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.
(xxxii) To the Company’s knowledge, there are no affiliations or associations between any
member of FINRA and any of the Company’s officers, directors or 5% or greater securityholders,
except as set forth in the Registration Statement.
(xxxiii) Neither the Company nor any of the Subsidiaries is in violation of any statute,
rule, regulation, decision or order of any governmental agency or body or any court, domestic or
foreign, relating to the use, disposal or release of hazardous or toxic substances or relating to
the protection or restoration of the environment or human exposure to hazardous or toxic substances
(collectively, “environmental laws”), owns or operates any real property contaminated with any
substance that is subject to environmental laws, is liable for any off-site disposal or
contamination pursuant to any environmental laws, or is subject to any claim relating to any
environmental laws, which violation, contamination, liability or claim would, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect; and the Company is not
aware of any pending investigation which might lead to such a claim.
(xxxiv) The Shares are listed on the Nasdaq Global Select Market.
(xxxv) There are no relationships or related-party transactions involving the Company or any
of the Subsidiaries or any other person required to be described in the Registration Statement, the
General Disclosure Package and the Prospectus and that have not been described therein.
(xxxvi) Neither the Company nor any of the Subsidiaries has made any contribution or other
payment to any official of, or candidate for, any federal, state or foreign office in violation of
any applicable law which violation is required to be disclosed in the Prospectus, which has not
been described in the General Disclosure Package and the Prospectus.
(b) The Selling Shareholder represents and warrants to each of the Underwriters and, with
respect to clause (v) below, to the Company, as follows:
(i) The Selling Shareholder has been duly organized and is validly existing as a corporation
in good standing under the laws of Denmark.
(ii) The Selling Shareholder now has and at the Closing Date and any Option Closing Date, as
the case may be (as such dates are hereinafter defined), will have good and marketable title to the
Firm Shares and the Option Shares to be sold by the Selling Shareholder, free and clear of any
liens, encumbrances, equities and claims, and full right, power and authority to effect the sale
and delivery of
such Firm Shares and Option Shares; and upon the delivery of, against payment for, such Firm Shares
and Option Shares pursuant to this Agreement, the Underwriters will acquire good and marketable
title to such Firm Shares and such Option Shares on the Closing Date and any Option Closing Date,
as applicable, free and clear of any liens, encumbrances, equities and claims.
(iii) The Selling Shareholder has corporate power and authority to execute, deliver and
perform its obligations under this Agreement. This Agreement has been duly authorized, executed
and delivered by the Selling Shareholder. The execution and delivery of this Agreement and the
consummation by the Selling Shareholder of the transactions herein contemplated will not require
any consent, approval, authorization, or other order of any court, regulatory body, administrative
agency or other governmental body (except as may be required under the Act, state securities laws
or Blue Sky laws) to be obtained by the Selling Shareholder and will not result in a breach of any
of the terms and provisions of, or constitute a default under, (i) any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Selling Shareholder is a party,
or of any order, rule or regulation applicable to the Selling Shareholder of any court or of any
regulatory body or administrative agency or other governmental body having jurisdiction over the
Selling Shareholder or the property or assets of the Selling Shareholder, except to the extent any
such breach or default would not, individually or in the aggregate, result in a material adverse
effect on the earnings, business, management, properties, assets, rights, operations, condition
(financial or otherwise) or prospects of the Selling Shareholder and of its subsidiaries, taken as
a whole, whether or not arising in the ordinary course of business, or (ii) any organizational
documents of the Selling Shareholder.
(iv) The Selling Shareholder has not taken and will not take, directly or indirectly, any
action designed to, or which has constituted, or which might reasonably be expected to cause or
result in the stabilization or manipulation of the price of the Common Stock of the Company and,
other than as permitted by the Act, the Selling Shareholder will not distribute any prospectus or
other offering material in connection with the offering of the Shares without the prior written
consent of the Representative.
(v) The Selling Shareholder is (i) not aware of any untrue statement of a material fact or
omission of a material fact from the Registration Statement required to be stated therein or
necessary to make the statements therein not misleading or (ii) aware of any untrue statement of a
material fact or omission of a material fact from the General Disclosure Package and the Prospectus
necessary for inclusion therein in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however, that the Selling
Shareholder makes no representation as to any disclosure in the Registration Statement, the General
Disclosure Package or the Prospectus with respect to the indemnification claim made by the Company
against the Selling Shareholder in connection with the acquisition of Dangaard Holding A/S from the
Selling Shareholder. The sale of the Firm Shares and the Option Shares by the Selling Shareholder
pursuant hereto is not prompted by any material information concerning the Company or any of the
Subsidiaries which is not set forth in the General Disclosure Package and the Prospectus. The
information pertaining to the Selling Shareholder set forth in the table and
accompanying footnotes under the caption “Selling Shareholder—Security Ownership of the Selling
Shareholder” of the prospectus supplement filed with the Commission on July 13, 2009, is complete
and accurate in all material respects.
(vi) Neither the Selling Shareholder nor any of its subsidiaries is or, after giving effect
to the offering and sale of the Shares contemplated hereunder and the application of the net
proceeds from such sale as described in the General Disclosure Package and the Prospectus, will be
an “investment company” within the meaning of such term under the Investment Company Act of 1940
and the rules and regulations of the Commission thereunder.
2. Purchase, Sale and Delivery of the Firm Shares.
(a) On the basis of the representations, warranties and covenants herein contained, and
subject to the conditions herein set forth, the Selling Shareholder agrees to sell to the
Underwriters and each Underwriter agrees, severally and not jointly, to purchase, at a price of
$4.825 per share, the number of Firm Shares set forth opposite the name of each Underwriter in
Schedule I hereof, subject to adjustments in accordance with Section 9 hereof.
(b) Payment for the Firm Shares to be sold hereunder is to be made in Federal (same day)
funds to an account designated by the Selling Shareholder for the shares to be sold by the Selling
Shareholder, in each case against delivery therefor to the Representative for the several accounts
of the Underwriters. Such payment and delivery are to be made through the facilities of The
Depository Trust Company at 10:00 a.m., New York time, on the third business day after the date of
this Agreement or at such other time and date not later than five business days thereafter as you
and the Company shall agree upon, such time and date being herein referred to as the “Closing
Date.” (As used herein, “business day” means a day on which the New York Stock Exchange is open
for trading and on which banks in New York are open for business and not permitted by law or
executive order to be closed.)
(c) In addition, on the basis of the representations and warranties herein contained and
subject to the terms and conditions herein set forth, the Selling Shareholder hereby grants an
option to the several Underwriters to purchase the Option Shares at the price per share as set
forth in the first paragraph of this Section 2. The maximum number of Option Shares to be sold by
the Selling Shareholder is 1,500,000. Said option may be exercised in whole or in part at any time
on or before the 30th day after the date of this Agreement upon written or telegraphic notice by
the Representative to the Company and the Selling Shareholder setting forth the number of Option
Shares as to which the several Underwriters are exercising the option and the settlement date (any
such settlement date being herein referred to as an “Option Closing Date”). The option with
respect to the Option Shares granted hereunder may be exercised only to cover over-allotments in
the sale of the Firm Shares by the Underwriters. You, as Representative of the several
Underwriters, may cancel such option at any time prior to its expiration by giving written notice
of such cancellation to the Company and the Selling Shareholder. To the extent, if any, that the
option is exercised, payment for the Option Shares shall be
made on the relevant Option Closing Date in Federal (same day) funds drawn to the order of the
Selling Shareholder against delivery therefor through the facilities of The Depository Trust
Company, New York, New York.
3. Offering by the Underwriters.
It is understood that the several Underwriters are to make a public offering of the Firm
Shares as soon as the Representative deems it advisable to do so. The Firm Shares are to be
initially offered to the public at the initial public offering price set forth in the Prospectus.
The Representative may from time to time thereafter change the public offering price and other
selling terms.
It is further understood that you will act as the Representative for the Underwriters in the
offering and sale of the Shares in accordance with a Master Agreement Among Underwriters entered
into by you and the several other Underwriters.
4. Covenants of the Company and the Selling Shareholder.
(a) The Company covenants and agrees with the several Underwriters that:
(i) The Company will (A) prepare and timely file with the Commission under Rule 424(b) under
the Act a Prospectus in a form approved by the Representative containing information previously
omitted at the time of effectiveness of the Registration Statement in reliance on Rules 430A, 430B
or 430C under the Act, (B) not file any amendment to the Registration Statement or distribute an
amendment or supplement to the General Disclosure Package or the Prospectus or document
incorporated by reference therein of which the Representative shall not previously have been
advised and furnished with a copy or to which the Representative shall have reasonably objected in
writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis
all reports and any definitive proxy or information statements required to be filed by the Company
with the Commission subsequent to the date of the Prospectus and prior to the termination of the
offering of the Shares by the Underwriters.
(ii) The Company will (i) not make any offer relating to the Shares that would constitute an
Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as
defined in Rule 405 under the Act) required to be filed by the Company or the Selling Shareholder
with the Commission under Rule 433 under the Act unless the Representative approves its use in
writing prior to first use (each, a “Permitted Free Writing Prospectus”), provided that the prior
written consent of the Representative shall be deemed to have been given in respect of any Issuer
Free Writing Prospectus included in Schedule II hereto, (ii) treat each Permitted Free Writing
Prospectus as an Issuer Free Writing Prospectus, (iii) comply with the requirements of Rules 164
and 433 under the Act applicable to any Issuer Free Writing Prospectus, including the requirements
relating to timely filing with the Commission, legending and record keeping and (iv) not take any
action that would result in an Underwriter, the Company or the Selling Shareholder being required
to file with the Commission
pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such
Underwriter that such Underwriter otherwise would not have been required to file thereunder. The
Company will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with
the Commission any electronic road show.
(iii) The Company will advise the Representative promptly (A) when the Registration Statement
or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments
from the Commission, (C) of any request of the Commission for amendment of the Registration
Statement or for supplement to the General Disclosure Package or the Prospectus or for any
additional information, and (D) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or any order preventing or suspending the use of any
Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or of the institution
of any proceedings for that purpose or pursuant to Section 8A of the Act. The Company will use
commercially reasonable efforts to prevent the issuance of any such order and to obtain as soon as
possible the lifting thereof, if issued.
(iv) The Company will cooperate with the Representative in endeavoring to qualify the Shares
for sale under the securities laws of such jurisdictions as the Representative may reasonably have
designated in writing and will make such applications, file such documents, and furnish such
information as may be reasonably required for that purpose, provided the Company shall not be
required to qualify as a foreign corporation or dealer in securities in any such jurisdiction where
it would not otherwise be required to so qualify, file a general consent to service of process in
any such jurisdiction or subject itself to taxation in any such jurisdiction if it is not otherwise
so subject. The Company will maintain such qualifications in effect for so long as required for
the distribution of the Shares.
(v) The Company will deliver to, or upon the order of, the Representative, from time to time,
as many copies of any Preliminary Prospectus as the Representative may reasonably request. The
Company will deliver to, or upon the order of, the Representative, from time to time, as many
copies of any Issuer Free Writing Prospectus as the Representative may reasonably request. The
Company will deliver to, or upon the order of, the Representative during the period when delivery
of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) (the
“Prospectus Delivery Period”) is required under the Act, as many copies of the Prospectus in final
form, or as thereafter amended or supplemented, as the Representative may reasonably request. The
Company will deliver to the Representative at or before the Closing Date, four signed copies of the
Registration Statement and all amendments thereto including all exhibits filed therewith, and will
deliver to the Representative such number of copies of the Registration Statement (without
exhibits), including documents incorporated by reference therein, and of all amendments thereto, as
the Representative may reasonably request.
(vi) The Company will comply with the Act and the Rules and Regulations, and the Exchange
Act, and the rules and regulations of the Commission thereunder, so as to permit the
completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus.
If during the period in which a prospectus (or, in lieu thereof, the notice referred to under Rule
173(a) under the Act) is required by law to be delivered by an Underwriter or dealer, any event
shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of
the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances existing at the time the Prospectus is
delivered to
a purchaser, not misleading, or, if it is necessary at any time to amend or supplement
the Prospectus to comply with applicable law, the Company promptly will either (i) prepare and file
with the Commission an appropriate amendment to the Registration Statement or supplement to the
Prospectus or (ii) prepare and file with the Commission an appropriate filing under the Exchange
Act which shall be incorporated by reference in the Prospectus so that the Prospectus as so amended
or supplemented will not, in the light of the circumstances when it is so delivered, be misleading,
or so that the Prospectus will comply with the law.
(vii) If the General Disclosure Package is being used to solicit offers to buy the Shares at a
time when the Prospectus is not yet available to prospective purchasers and any event shall occur
as a result of which, in the judgment of the Company or in the reasonable opinion of the
Underwriters, it becomes necessary to amend or supplement the General Disclosure Package in order
to make the statements therein, in the light of the circumstances, not misleading, or to make the
statements therein not conflict with the information contained in the Registration Statement then
on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to
comply with applicable law, the Company promptly will either (i) prepare, file with the Commission
(if required) and furnish to the Underwriters and any dealers an appropriate amendment or
supplement to the General Disclosure Package or (ii) prepare and file with the Commission an
appropriate filing under the Exchange Act which shall be incorporated by reference in the General
Disclosure Package so that the General Disclosure Package as so amended or supplemented will not,
in the light of the circumstances, be misleading or conflict with the Registration Statement then
on file, or so that the General Disclosure Package will comply with law.
(viii) The Company will make generally available to its security holders, as soon as it is
practicable to do so, but in any event not later than 15 months after the effective date of the
Registration Statement, an earnings statement (which need not be audited) in reasonable detail,
covering a period of at least 12 consecutive months beginning after the effective date of the
Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of
the Act and Rule 158 under the Act and will advise you in writing when such statement has been so
made available; provided that (A) such delivery requirements to the Company’s securityholders shall
be deemed met by the Company’s compliance with its reporting requirements pursuant to the Exchange
Act if such compliance satisfies the conditions of Rule 158 and (B) such delivery requirements to
the Representative shall be deemed met by the Company if the related reports are available on the
Commission’s Electronic Data Gathering and Retrieval System.
(ix) Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they
have been prepared by or are available to the Company, a copy of any unaudited interim financial
statements of the Company for any period subsequent to the period covered by the most recent
financial statements appearing in the Registration Statement and the Prospectus.
(x) No offering, sale, short sale or other disposition of any shares of Common Stock of the
Company or other securities convertible into or exchangeable or exercisable for shares of Common
Stock or derivative of Common Stock (or agreement for such), except for (A) the grant by
the
Company of stock options, restricted stock, restricted stock units or other awards pursuant to the
Company’s 2004 Long-Term Incentive Plan, (B) the issuance by the Company of shares of Common Stock
upon (i) the exercise of any option outstanding on the date hereof, or (ii) the vesting of
restricted stock units outstanding on the date hereof, (C) the issuance of shares of Common Stock
by the Company in connection with a strategic partnering transaction, (D) the issuance of shares of
Common Stock in exchange for equity or assets of a company in connection with a merger or
acquisition, (E) the distribution by the Company of shares of Common Stock to shareholders of the
Company, or (F) the transfer by the Company of shares of Common Stock to any wholly-owned
subsidiary will be made for a period of 45 days after the date of the Prospectus, directly or
indirectly, by the Company otherwise than hereunder or with the prior written consent of the
Representative; provided, however, that in the case of a transfer pursuant to clause (F) above, it
shall be a condition to the transfer that such subsidiary execute an agreement stating that the
subsidiary is receiving and holding such Common Stock subject to the provisions of this Section
4(a)(x). Notwithstanding the foregoing, if (1) during the last 17 days of the 45-day restricted
period, the Company issues an earnings release or material news or a material event relating to the
Company occurs; or (2) prior to the expiration of the 45-day restricted period, the Company
announces that it will release earnings results during the 16-day period following the last day of
the 45-day restricted period, then in each case the restrictions imposed by this Agreement shall
continue to apply until the expiration of the 18-day period beginning on the date of the release of
the earnings results or the occurrence of material news or a material event relating to the
Company, as the case may be, unless the Representative waives, in writing, such extension.
Notwithstanding anything herein to the contrary, this covenant shall be of no further force or
effect upon the earliest to occur of (i) August 31, 2009 if the Closing Date has not occurred prior
to that date, (ii) at such time as the Company withdraws the Registration Statement, and (iii) the
termination of this Agreement. The Company has agreed to provide written notice of any event that
would result in an extension of the Lock-Up Period.
(xi) The Company will use its best efforts to maintain the listing of the Shares on the
Nasdaq Global Select Market.
(xii) The Company has caused each officer and director of the Company to furnish to you, on
or prior to the date of this Agreement, a letter or letters, substantially in the form attached
hereto as Exhibit A (the “Lockup Agreement”).
(xiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of
incorporation of the Company, a registrar for the Common Stock.
(xiv) The Company will not take, directly or indirectly, any action designed to cause or
result in, or that has constituted or might reasonably be expected to constitute, the stabilization
or manipulation of the price of any securities of the Company.
(b) The Selling Shareholder covenants and agrees with the several Underwriters that:
(i) No offering, sale, short sale or other disposition of any shares of Common Stock of the
Company or other capital stock of the Company or other securities convertible, exchangeable or
exercisable for Common Stock or derivative of Common Stock owned by the Selling Shareholder or
request the registration for the offer or sale of any of the foregoing (or as to which the Selling
Shareholder has the right to direct the disposition of) except for (A) the transfer by the Selling
Shareholder of shares of Common Stock to any wholly-owned subsidiary, (B) the transfer by the
Selling Shareholder of shares of Common Stock (i) by distribution to partners, members or
shareholders of the Selling Shareholder, (ii) to any trust, partnership or limited liability
company for the direct or indirect benefit of the Selling Shareholder, or (iii) to a nominee or
custodian of a person or entity to whom a disposition or transfer would be permissible under
clauses (i) and (ii) above, or (C) the sale of shares of Common Stock by the Selling Shareholder to
the Company will be made for a period of 90 days after the date of this Agreement, directly or
indirectly, by the Selling Shareholder otherwise than hereunder or with the prior written consent
of the Representative; provided, however, that in the case of a transfer pursuant to clause (A) or
(B) above, it shall be a condition to the transfer that the transferee execute an agreement stating
that the transferee is receiving and holding such Common Stock subject to the provisions of this
Section 4(b)(i). Notwithstanding the foregoing, if (1) during the last 17 days of the 90-day
restricted period, the Company issues an earnings release or material news or a material event
relating to the Company occurs; or (2) prior to the expiration of the 90-day restricted period, the
Company announces that it will release earnings results during the 16-day period following the last
day of the 90-day restricted period, then in each case the restrictions imposed by this Agreement
shall continue to apply until the expiration of the 18-day period beginning on the date of the
release of the earnings results or the occurrence of material news or a material event relating to
the Company, as the case may be, unless the Representative waives, in writing, such extension.
Notwithstanding anything herein to the contrary, this covenant shall be of no further force or
effect upon the earliest to occur of (i) August 31, 2009 if the Closing Date has not occurred prior
to that date, (ii) at such time as the Company withdraws the Registration Statement, and (iii) the
termination of this Agreement. The Company has agreed to provide written notice of any event that
would result in an extension of the Lock-Up Period.
(ii) The Selling Shareholder will not take, directly or indirectly, any action designed to
cause or result in, or that has constituted or might reasonably be expected to constitute, the
stabilization or manipulation of the price of any securities of the Company.
(iii) The Selling Shareholder agrees that it will not prepare or have prepared on its behalf
or use or refer to, any “free writing prospectus” (as defined in Rule 405 under the Act), and
agrees that it will not distribute any written materials in connection with the offer or sale of
the Shares without the prior written consent of the Representative.
(iv) During the Prospectus Delivery Period, the Selling Shareholder will advise the
Representative promptly, and will confirm such advice in writing to the Representative, of any
change in the information relating to the Selling Shareholder in the
Registration Statement, the
Prospectus or any document comprising the General Disclosure Package.
(c) Each Underwriter hereby represents and agrees that:
(i) It has not and will not distribute, use or authorize use of, any “free writing
prospectus,” as defined in Rule 405 under the Act (which term includes use of any written
information furnished to the Commission by the Company and not incorporated by reference into the
Registration Statement and any press release issued by the Company) other than (x) a free writing
prospectus that, solely as a result of use by such Underwriter, would not trigger an obligation to
file such free writing prospectus with the Commission pursuant to Rule 433 under the Act, (y) any
Issuer Free Writing Prospectus listed on Schedule V or prepared pursuant to Section 4(a)(ii) above
(including any electronic road show), or (z) any free writing prospectus prepared by such
Underwriter and approved by the Company in advance in writing (each such free writing prospectus
referred to in clauses (x) and (z), an “ Underwriter Free Writing Prospectus “).
(ii) Without the prior written consent of the Company, it has not and will not distribute any
Underwriter Free Writing Prospectus referred to in clause (c)(i) in a manner reasonably designed to
lead to its broad unrestricted dissemination.
(iii) It will retain copies of each free writing prospectus used or referred to by it, to the
extent required under Rule 433 under the Act.
(iv) It has not and will not distribute any offering material in connection with the offering
and sale of the Shares other than any Preliminary Prospectus, the Prospectus and other materials,
if any, permitted under the Act and consistent with Section 4(c)(i) and (ii) above.
(v) It will use its commercially reasonable efforts not to sell Shares to investors that are,
to such Underwriter’s knowledge, Competitors of the Company. For purposes hereof, “Competitor”
shall mean any person with a division, department or subsidiary principally engaged in the
distribution or logistical handling of wireless equipment.
5. Costs and Expenses.
(a) The Selling Shareholder will pay on the Closing Date all costs, expenses and fees incurred
by the Underwriters (other than the fees and expenses of counsel to the Underwriters), including
the costs associated with any journey by chartered aircraft or motor vehicle used in connection
with the road show to market the Shares to potential investors, incident to the performance of the
obligations of the Underwriters under this Agreement. For the avoidance of doubt, the Underwriters
will incur no obligation to pay for any of the following: accounting fees of the Company; the fees
and disbursements of counsel for the Company; the fees and disbursements of
counsel for the Selling
Shareholder; the cost of printing and delivering to, or as requested by, the Underwriters copies of
the Registration Statement, Preliminary Prospectuses, the Issuer Free Writing Prospectuses, the
Prospectus, this Agreement, the Underwriters’ Selling Invitation, the Blue Sky Survey and any
supplements or amendments thereto; the filing fees of the Commission; the filing fees and expenses
(including legal fees and disbursements) incident to securing any required review by FINRA of the
terms of the sale of the Shares; any fees and expenses relating to the listing of the Shares on the
Nasdaq Global Select Market; the costs and expenses (including without limitation any damages or
other amounts payable in connection with legal or contractual liability) associated with the
reforming of any contracts for sale of the Shares made by the Underwriters caused by a breach of
the representation in Section 1(a)(ii); the expenses, including the fees and disbursements of
counsel for the Underwriters, incurred in connection with the qualification of the Shares under
State securities or Blue Sky laws. Any transfer taxes imposed on the sale of the Shares to the
several Underwriters will be paid by the Selling Shareholder. If this Agreement shall not be
consummated because the conditions in Section 6 hereof are not satisfied, or because this Agreement
is terminated by the Representative pursuant to Section 11 hereof, or by reason of any failure,
refusal or inability on the part of the Company or the Selling Shareholder to perform any
undertaking or satisfy any condition of this Agreement or to comply with any of the terms hereof on
their part to be performed, unless such failure, refusal or inability is due primarily to the
default or omission of any Underwriter, the Selling Shareholder shall reimburse the several
Underwriters for reasonable out-of-pocket expenses, including fees and disbursements of counsel,
reasonably incurred in connection with investigating, marketing and proposing to market the Shares
or in contemplation of performing their obligations hereunder; but the Selling Shareholder shall
not in any event be liable to any of the several Underwriters for damages on account of loss of
anticipated profits from the sale by them of the Shares.
(b) The Selling Shareholder will pay on the Closing Date all of the Company’s Registration
Expenses, as that term is defined in the Registration Rights Agreement dated July 31, 2007 between
the Company and the Selling Shareholder (the “Registration Rights Agreement”), in excess of
$300,000 through the Closing Date, which excess amount the Selling Shareholder and the Company
agree is equal to $600,000.
6. Conditions of Obligations of the Underwriters.
The several obligations of the Underwriters to purchase the Firm Shares on the Closing Date
and the Option Shares, if any, on any Option Closing Date are subject to the accuracy, as of the
Applicable Time, the Closing Date or the relevant Option Closing Date, as the case may be, of the
representations and warranties of the Company and the Selling Shareholder contained herein, and to
the performance by the Company and the Selling Shareholder of their covenants and obligations
hereunder and to the following additional conditions:
(a) The Registration Statement and all post-effective amendments thereto shall have become
effective and the Prospectus and each Issuer Free Writing Prospectus required shall have been filed
as required by Rules 424, 430A, 430B, 430C or 433 under the Act, as applicable, within
the time
period prescribed by, and in compliance with, the Rules and Regulations, and any request of the
Commission for additional information (to be included in the Registration Statement or otherwise)
shall have been disclosed to the Representative and complied with to its reasonable satisfaction.
No stop order suspending the effectiveness of the Registration Statement, as amended from time to
time, shall have been issued and no proceedings for that purpose or pursuant to Section 8A under
the Act shall have been taken or, to the knowledge of the Company or the Selling Shareholder, shall
be contemplated or threatened by the Commission and no injunction, restraining order or order of
any nature by a Federal or state court of competent jurisdiction shall have been issued as of the
Closing Date which would prevent the issuance of the Shares.
(b) The Representative shall have received on the Closing Date or any Option Closing Date, as
the case may be, the opinion of Ice Xxxxxx LLP, counsel for the Company, dated the Closing Date or
the relevant Option Closing Date, as the case may be, addressed to the Underwriters (and stating
that it may be relied upon by counsel to the Underwriters) to the effect set forth in Annex A
hereto.
(c) The Representative shall have received on the Closing Date or any Option Closing Date, as
the case may be, the opinion of Blank Rome LLP, counsel for the Company, dated the Closing Date or
the relevant Option Closing Date, as the case may be, addressed to the Underwriters (and stating
that it may be relied upon by counsel to the Underwriters) to the effect set forth in Annex B
hereto.
(d) The Representative shall have received on the Closing Date or any Option Closing Date, as
the case may be, the opinion of Xxxxxx & Xxxxxxx LLP, counsel for the Selling Shareholder, dated
the Closing Date or the relevant Option Closing Date, as the case may be, addressed to the
Underwriters (and stating that it may be relied upon by counsel to the Underwriters) to the effect
set forth in Annex C hereto.
(e) The Representative shall have received on the Closing Date or any Option Closing Date, as
the case may be, the opinion of Accura Advokataktieselskab, counsel for the Selling Shareholder,
dated the Closing Date or the relevant Option Closing Date, as the case may be, addressed to the
Underwriters (and stating that it may be relied upon by counsel to the Underwriters) to the effect
set forth in Annex D hereto.
(f) The Representative shall have received from Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, counsel
for the Underwriters, such opinion or opinions, dated the Closing Date or any Option Closing Date,
as the case may be, with respect to such matters as the Representative may require, and the Company
shall have furnished to such counsel such documents as they request for the purpose of enabling it
to pass upon such matters.
(g) The Underwriter shall have received, on each of the date hereof, the Closing Date and, if
applicable, any Option Closing Date, a letter dated the date hereof, the Closing Date or
any Option
Closing Date, as the case may be, of Ernst & Young LLP in form and substance reasonably
satisfactory to you, to the effect set forth in Annex E hereto.
(h) The Representative shall have received on the Closing Date and, if applicable, any
Option Closing Date, as the case may be, a certificate or certificates of the Chief Executive
Officer and the Chief Financial Officer of the Company to the effect that, as of the Closing Date
or the relevant Option Closing Date, as the case may be, each of them severally represents as
follows:
(i) The Registration Statement has become effective under the Act and no stop order
suspending the effectiveness of the Registration Statement or no order preventing or suspending the
use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus has been
issued, and no proceedings for such purpose or pursuant to Section 8A of the Act have been taken or
are, to their knowledge, contemplated or threatened by the Commission;
(ii) The representations and warranties of the Company contained in Section 1 hereof are true
and correct as of the Closing Date or the relevant Option Closing Date, as the case may be;
(iii) All filings required to have been made by the Company pursuant to Rules 424, 430A, 430B
or 430C under the Act have been made as and when required by such rules;
(iv) They have carefully examined the General Disclosure Package and any individual Limited
Use Free Writing Prospectus and, to their knowledge, as of the Applicable Time, the statements
contained in the General Disclosure Package and any individual Limited Use Free Writing Prospectus
did not contain any untrue statement of a material fact, and such General Disclosure Package and
any individual Limited Use Free Writing Prospectus, when considered together with the General
Disclosure Package, did not 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;
(v) They have carefully examined the Registration Statement and, to their knowledge, as of
the effective date of the Registration Statement, the Registration Statement and any amendments
thereto did not contain any untrue statement of a material fact and did not omit to state a
material fact necessary in order to make the statements therein not misleading, and since the
effective date of the Registration Statement, no event has occurred which should have been set
forth in a
supplement to or an amendment of the Prospectus which has not been so set forth in such supplement
or amendment;
(vi) They have carefully examined the Prospectus and, to their knowledge, as of its date and
the Closing Date or the relevant Option Closing Date, as the case may be, the Prospectus and any
amendments and supplements thereto did not contain any untrue statement of a material fact and did
not 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
(vii) Since the respective dates as of which information is given in the Registration
Statement, the General Disclosure Package and the Prospectus, there has not been any Material
Adverse Effect or any development that would reasonably be expected to have a Material Adverse
Effect, whether or not arising in the ordinary course of business.
(i) The Representative shall have received on the Closing Date and, if applicable, the
relevant Option Closing Date, as the case may be, a certificate of the Selling Shareholder to the
effect that, as of the Closing Date or the relevant Option Closing Date, as the case may be, it
represents as follows:
(i) The representations and warranties of the Selling Shareholder contained in Section 1
hereof are true and correct as of the Closing Date or the relevant Option Closing Date, as the case
may be; and
(ii) The Selling Shareholder has complied with all of the agreements and satisfied all of the
conditions on its part to be performed or satisfied hereunder on or prior to such date.
(j) The Company and the Selling Shareholder shall have furnished to the Representative such
further certificates and documents confirming the representations and warranties, covenants and
conditions contained herein and related matters as the Representative may reasonably have
requested.
(k) The Firm Shares and Option Shares, if any, have been duly listed on the Nasdaq Global
Select Market.
(l) The Lockup Agreements described in Section 4 (a)(x) shall be in full force and effect.
The opinions and certificates mentioned in this Agreement shall be deemed to be in compliance
with the provisions hereof only if they are in all material respects reasonably satisfactory to the
Representative and to Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, counsel for the Underwriters.
If any of the conditions hereinabove provided for in this Section 6 shall not have been
fulfilled when and as required by this Agreement to be fulfilled, the obligations of the
Underwriters hereunder may be terminated by the Representative by notifying the Company and the
Selling Shareholder of such termination in writing or by telegram at or prior to the Closing Date
or the relevant Option Closing Date, as the case may be.
In such event, the Selling Shareholder, the Company and the Underwriters shall not be under
any obligation to each other (except to the extent provided in Sections 5 and 8 hereof).
7. Conditions of the Obligations of the Selling Shareholder.
The obligations of the Selling Shareholder to sell and deliver the Shares required to be
delivered as and when specified in this Agreement are subject to the conditions that at the Closing
Date or the relevant Option Closing Date, as the case may be, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and in effect or proceedings
therefor initiated or threatened.
8. Indemnification.
(a) The Company agrees:
(1) to indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of either Section 15 of the Act or Section 20 of
the Exchange Act, against any losses, claims, damages or liabilities to which such
Underwriter or any such controlling person may become subject under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions or proceedings in respect
thereof) arise out of or are based upon (i) any untrue statement or alleged untrue statement
of any material fact contained in the Registration Statement, any Preliminary Prospectus,
any Issuer Free Writing Prospectus the Prospectus or any amendment or supplement thereto or
(ii) the omission or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading in the light of the
circumstances under which they were made; provided, however, that the Company will not be
liable in any such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue statement, or omission or
alleged omission made in the Registration Statement, any Preliminary Prospectus, any Issuer
Free Writing Prospectus, the Prospectus, or such amendment or supplement, in reliance upon
and in conformity with written information furnished to the Company by or through the
Representative specifically for use therein, it being understood and agreed that the only
such information furnished by any Underwriter consists of the information described as such
in Section 13 herein; and provided further that the Company shall not be liable to the
extent it is determined in a final judgment by a court of competent jurisdiction that such
loss, claim, charge, liability or
action resulted directly from any acts or failures to act undertaken or omitted to be taken
by such Underwriter through its bad faith, gross negligence or willful misconduct; and
(2) to reimburse each Underwriter and each such controlling person upon demand for any
legal or other out-of-pocket expenses reasonably incurred by such Underwriter or such
controlling person in connection with investigating or defending any such loss, claim,
damage or liability, action or proceeding or in responding to a subpoena or governmental
inquiry related to the offering of the Shares, whether or not such Underwriter or
controlling person is a party to any action or proceeding. In the event that it is finally
judicially determined that any Underwriter was not entitled to receive payments for legal
and other
expenses pursuant to this subparagraph, such Underwriter will promptly return all
sums that had been advanced pursuant hereto.
(b) The Selling Shareholder agrees:
(1) to indemnify each Underwriter and each person, if any, who controls such
Underwriter within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
against any losses, claims, damages or liabilities to which such Underwriter or controlling
person may become subject under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions or proceedings in respect thereof) arise out of or are
based upon information provided in writing to the Company by the Selling Shareholder
specifically for inclusion in the Registration Statement, any Preliminary Prospectus, any
Issuer Free Writing Prospectus, the Prospectus or any amendment or supplement thereto. This
indemnity obligation will be in addition to any liability that the Company may otherwise
have; and
(2) to indemnify the Company against any losses, claims, damages or liabilities to
which the Company may become subject, but only insofar as a final, non-appealable judgment
of a court of competent jurisdiction has determined that such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) resulted from an actual breach by
the Selling Shareholder of its representation set forth in Section 1(b)(v) of this Agreement
and that the Selling Shareholder had actual knowledge at the time of the Agreement that such
representation was false; provided, however, that nothing herein shall prejudice or limit
any of the Selling Shareholder’s rights to dispute any claim for indemnification by the
Company pursuant to the Stock Purchase Agreement, dated February 19, 2007, by and among the
Selling Shareholder, Dangaard Telecom A/S, the Company and Nordic Capital Fund VI
(consisting of: Nordic Capital VI Alpha, L.P., Nordic Capital Beta, L.P. NC VI Limited and
Nordic Industries Limited) (for purposes of Section 6.16 and 12.14 thereof only), as amended
(the “Stock Purchase Agreement”).
(c) Each Underwriter, severally and not jointly, will indemnify and hold harmless the
Company, each of its directors, each of its officers who have signed the Registration Statement,
the Selling Shareholder, and each person, if any, who controls the Company or the Selling
Shareholder
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, against any losses,
claims, damages or liabilities to which the Company or any such director, officer, Selling
Shareholder or controlling person may become subject under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions or proceedings in respect thereof) arise out of
or are based upon (i) any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, any Preliminary Prospectus, any Issuer Free Writing
Prospectus, the Prospectus or any amendment or supplement thereto, or (ii) the omission or the
alleged omission to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the circumstances under which they were
made; and will reimburse any legal or other expenses reasonably incurred by the Company or any such
director, officer,
Selling Shareholder or controlling person in connection with investigating or
defending any such loss, claim, damage, liability, action or proceeding; provided, however, that
each Underwriter will be liable in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission has been made in the
Registration Statement, any Preliminary Prospectus, any Issuer Free Writing Prospectus, the
Prospectus or such amendment or supplement, in reliance upon and in conformity with written
information furnished to the Company by or through the Representative specifically for use therein,
it being understood and agreed that the only such information furnished by any Underwriter consists
of the information described as such in Section 13 herein. This indemnity agreement will be in
addition to any liability that such Underwriter may otherwise have.
(d) In case any proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to this Section 8, such
person (the “indemnified party”) shall promptly notify the person against whom such indemnity may
be sought (the “indemnifying party”) in writing. No indemnification provided for in Section 8(a),
(b) or (c) shall be available to any party who shall fail to give notice as provided in this
Section 8(d) if the party to whom notice was not given was unaware of the proceeding to which such
notice would have related and was materially prejudiced by the failure to give such notice, but the
failure to give such notice shall not relieve the indemnifying party or parties from any liability
which it or they may have to the indemnified party for contribution or otherwise than on account of
the provisions of Section 8(a), (b) or (c). In case any such proceeding shall be brought against
any indemnified party and it shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party and shall pay as incurred the reasonable
fees and disbursements of such counsel related to such proceeding. In any such proceeding, any
indemnified party shall have the right to retain its own counsel at its own expense.
Notwithstanding the foregoing, the indemnifying party shall pay as incurred (or within 30 days of
presentation) the reasonable fees and expenses of the counsel retained by the indemnified party in
the event (i) the indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel, (ii) the named parties to any such proceeding (including any impleaded
parties) include both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential differing interests
between them or (iii) the indemnifying party shall have failed to assume the defense
and employ counsel acceptable to the indemnified party within a reasonable period of time after
notice of commencement of the action. It is understood that the indemnifying party shall not, in
connection with any proceeding or related proceedings in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one separate firm for all such indemnified parties. Such
firm shall be designated in writing by you in the case of parties indemnified pursuant to Section
8(a) or (b) and by the Company and the Selling Shareholder in the case of parties indemnified
pursuant to Section 8(c). The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent but if settled with such consent or if there be a
final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such
settlement or judgment. In addition, the
indemnifying party will not, without the prior written consent of the indemnified party, settle or
compromise or consent to the entry of any judgment in any pending or threatened claim, action or
proceeding of which indemnification may be sought hereunder (whether or not any indemnified party
is an actual or potential party to such claim, action or proceeding) unless such settlement,
compromise or consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action or proceeding.
(e) To the extent the indemnification provided for in this Section 8 is unavailable to or
insufficient to hold harmless an indemnified party under Section 8(a), (b) or (c) above in respect
of any losses, claims, damages or liabilities (or actions or proceedings in respect thereof)
referred to therein, then each indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Selling Shareholder on the one hand and the Underwriters
on the other from the offering of the Shares. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law then each indemnifying party
shall contribute to such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative fault of the Company
and the Selling Shareholder on the one hand and the Underwriters on the other in connection with
the statements or omissions which resulted in such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof), as well as any other relevant equitable considerations.
The relative benefits received by the Company and the Selling Shareholder on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses) received by the Selling Shareholder bear to the total
underwriting discounts and commissions received by the Underwriters, in each case as set forth in
the table on the cover page of the Prospectus. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information supplied by the
Company or the Selling Shareholder on the one hand or the Underwriters on the other and the
parties’ relative intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company, the Selling Shareholder and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section 8(e) 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 8(e). The amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions or proceedings in respect thereof) referred to above in
this Section 8(e) shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (e), (i) no Underwriter shall be required to
contribute any amount in excess of the underwriting discounts and commissions applicable to the
Shares purchased by such Underwriter, and (ii) 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, and (iii) the Selling Shareholder shall
not be required to contribute any amount in excess of the proceeds received by the Selling
Shareholder from the Underwriters in the offering. The Underwriters’ obligations in this Section
8(e) to contribute are several in proportion to their respective underwriting obligations and not
joint.
(f) In any proceeding relating to the Registration Statement, any Preliminary Prospectus, any
Issuer Free Writing Prospectus, the Prospectus or any supplement or amendment thereto, each party
against whom contribution may be sought under this Section 8 hereby consents to the jurisdiction of
any court having jurisdiction over any other contributing party, agrees that process issuing from
such court may be served upon it by any other contributing party and consents to the service of
such process and agrees that any other contributing party may join it as an additional defendant in
any such proceeding in which such other contributing party is a party.
(g) Any losses, claims, damages, liabilities or expenses for which an indemnified party is
entitled to indemnification or contribution under this Section 8 shall be paid by the indemnifying
party to the indemnified party as such losses, claims, damages, liabilities or expenses are
incurred. The indemnity and contribution agreements contained in this Section 8 and the
representations and warranties of the Company and the Selling Shareholder set forth in this
Agreement shall remain operative and in full force and effect, regardless of (i) any investigation
made by or on behalf of any Underwriter, its directors or officers or any person controlling any
Underwriter, the Company, its directors or officers or any persons controlling the Company, or the
Selling Shareholder, its directors or officers or any persons controlling the Selling Shareholders,
(ii) acceptance of any Shares and payment therefor hereunder, and (iii) any termination of this
Agreement. A successor to any Underwriter, its directors or officers or any person controlling any
Underwriter, or to the Company, its directors or officers, or any person controlling the Company,
shall be entitled to the benefits of the indemnity, contribution and reimbursement agreements
contained in this Section 8.
9. DEFAULT BY UNDERWRITERS.
If on the Closing Date or any Option Closing Date, as the case may be, any Underwriter shall
fail to purchase and pay for the portion of the Shares which such Underwriter has agreed to
purchase and pay for on such date (otherwise than by reason of any default on the part of the
Company or a Selling Shareholder), you, as Representative of the Underwriters, shall use your
reasonable efforts to procure within 36 hours thereafter one or more of the other Underwriters, or
any others, to purchase from the Selling Shareholder such amounts as may be agreed upon and upon
the terms set forth herein, the Shares which the defaulting Underwriter or Underwriters failed to
purchase. If during such 36 hours you, as such Representative, shall not have procured such other
Underwriters, or any others, to purchase the Shares agreed to be purchased by the defaulting
Underwriter or Underwriters, then (a) if the aggregate number of shares with respect to which such
default shall occur does not exceed 10% of the Shares to be purchased on the Closing Date or the
Option Closing date, as the case may be, the other Underwriters shall be obligated, severally, in
proportion to the respective numbers of Shares which they are obligated to purchase hereunder, to
purchase the Shares which such defaulting Underwriter or Underwriters failed to purchase, or (b) if
the aggregate number of shares of Shares with respect to which such default shall occur exceeds 10%
of the Shares to be purchased on the Closing Date or any Option Closing Date, as the case may be,
the Selling Shareholder or you as the Representative will have the right, by written notice given
within the next 36-hour period to the parties to this Agreement, to terminate this Agreement
without liability on the part of the non-defaulting Underwriters or of the Company or of the
Selling Shareholder except to the extent provided in Sections 5 and 8 hereof. In the event of a
default by any Underwriter or Underwriters, as set forth in this Section 9, the Closing Date or the
relevant Option Closing Date, as the case may be, may be postponed for such period, not exceeding
seven days, as you, as Representative, may determine in order that the required changes in the
Registration Statement, the General Disclosure Package or in the Prospectus or in any other
documents or arrangements may be effected. The term “Underwriter” includes any person substituted
for a defaulting Underwriter. Any action taken under this Section 9 shall not relieve any
defaulting Underwriter from liability in respect of any default of such Underwriter under this
Agreement.
10. Notices.
All communications hereunder shall be in writing and, except as otherwise provided herein,
will be mailed, delivered, telecopied or telegraphed and confirmed as follows: if to the
Underwriters, to Deutsche Bank Securities Inc., 00 Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000; Attention: ECM Syndicate, with a copy to Deutsche Bank Securities Inc., 00 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: General Counsel; if to the Company, to Brightpoint,
Inc., 0000 Xxxxxxxxxxx Xxx, Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxx 00000, Attention: Xxxxxx X. Xxxxx,
Esq., Executive Vice President and General Counsel, with a copy to Blank Rome LLP, 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx X. Xxxxxxx, Esq.; and if to the Selling
Shareholder, to NC Telecom Holding A/S, c/o NC Advisory A/S, Sankt Xxxxx Xxxxx 00, 0000
Xxxxxxxxxx, Xxxxxxx, Attention: Xxxxxxx Xxxxxxx, Director.
11. Termination.
This Agreement may be terminated by the Representative, in its sole discretion, by notice to
the Company and Selling Shareholder (a) at any time prior to the Closing Date or any Option Closing
Date (if different from the Closing Date and then only as to Option Shares) if any
of the following has occurred: (i) since the respective dates as of which information is given in
the Registration Statement, the General Disclosure Package and the Prospectus, there has been any
Material Adverse Effect or any development that would reasonably be expected to result in a
Material Adverse Effect, (ii) any outbreak or escalation of hostilities or declaration of war or
national emergency or other national or international calamity or crisis or change in economic or
political conditions if the effect of such outbreak, escalation, declaration, emergency, calamity,
crisis or change on the financial markets of the United States would, in the Representative’s
judgment, make it impracticable or inadvisable to market the Shares or to enforce contracts for the
sale of the Shares, or (iii) suspension of trading in securities generally on the New York Stock
Exchange, the American Stock Exchange or the Nasdaq Global Select Market or limitation on prices
(other than
limitations on hours or numbers of days of trading) for securities on any such
Exchange, (iv) the enactment, publication, decree or other promulgation of any statute, regulation,
rule or order of any court or other governmental authority which in the Representative’s opinion
materially and adversely affects or may materially and adversely affect the business or operations
of the Company, (v) the declaration of a banking moratorium by United States or New York State
authorities, (vi) any downgrading, or placement on any watch list for possible downgrading, in the
rating of any of the Company’s debt securities by any “nationally recognized statistical rating
organization” (as defined for purposes of Rule 436(g) under the Exchange Act); (vii) the suspension
of trading of the Company’s common stock by the Nasdaq Global Select Market, the Commission, or any
other governmental authority or, (viii) the taking of any action by any governmental body or agency
in respect of its monetary or fiscal affairs which in the Representative’s opinion has a material
adverse effect on the securities markets in the United States; or
(b) as provided in Sections 6 and 9 of this Agreement.
12. Successors.
This Agreement has been and is made solely for the benefit of the Underwriters, the Company
and the Selling Shareholder and their respective successors, executors, administrators, heirs and
assigns, and the officers, directors and controlling persons referred to herein, and no other
person will have any right or obligation hereunder. No purchaser of any of the Shares from any
Underwriter shall be deemed a successor or assign merely because of such purchase.
13. Information Provided by the Underwriters and the Selling Shareholder.
The Company, the Selling Shareholder and the Underwriters acknowledge and agree that the only
information furnished or to be furnished by (i) any Underwriter to the Company for inclusion in the
Registration Statement, any Preliminary Prospectus, any Issuer Free Writing Prospectus or the
Prospectus consists of the information set forth in the third paragraph, the last sentence of the
fourth paragraph and the fourteenth through twentieth paragraphs under the caption “Underwriting”
in the Preliminary Prospectus and the Prospectus and (ii) the Selling Shareholder for inclusion in
the Registration Statement, any Preliminary Prospectus, any Issuer Free Writing
Prospectus or the Prospectus consists of the information set forth in the table and accompanying
footnotes under the caption “Selling Shareholder—Security Ownership of the Selling Shareholder” of
the prospectus supplement filed with the Commission on July 13, 2009.
14. Miscellaneous.
The reimbursement, indemnification and contribution agreements contained in this Agreement and
the representations, warranties and covenants in this Agreement shall remain in full force and
effect regardless of (a) any termination of this Agreement, (b) any investigation made by or on
behalf of any Underwriter or controlling person thereof, or by or on behalf of the Company or
its
directors or officers or the Selling Shareholder or controlling person thereof, as the case may be,
and (c) delivery of and payment for the Shares under this Agreement.
The Company, the Selling Shareholder and each Underwriter (i) agree that any suit, action or
proceeding against it arising out of or relating to this Agreement may be instituted only in 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; (ii) waive to the fullest extent permitted by
applicable law, any objection which it may now or hereafter have to the laying of venue of any such
suit, action or proceeding, and any claim that any suit, action, or proceeding in such a court has
been brought in an inconvenient forum; (iii) submit to the non-exclusive jurisdiction of such
courts in any suit, action or proceeding; and (iv) waive any right to trial by jury in any suit,
action or proceeding arising out of or relating to this Agreement.
The Selling Shareholder hereby designates National Corporate Research Ltd. as its authorized
agent to accept and acknowledge on its behalf service of any and all process which may be served in
any such suit, action or proceeding in any such court and agrees that service of process upon said
agent at its office at 00 X. 00xx Xx, Xxx Xxxx, Xxx Xxxx 00000, and written notice of
said service to the Selling Shareholder, mailed or delivered to it, at the address provided above,
shall be deemed in every respect effective service of process upon the Selling Shareholder in any
such suit, action or proceeding and shall be taken and held to be valid personal service upon the
Selling Shareholder, whether or not the Selling Shareholder shall then be doing, or at any time
shall have done, business within the State of New York, an that any such service of process shall
be of the same force and validity as if service were made upon it according to the laws governing
the validity and requirements of such service in such State and waives all claim of error by reason
of any such service.
The Company and the Selling Shareholder acknowledge and agree that each Underwriter in
providing investment banking services to the Company and the Selling Shareholder in connection with
the offering, including in acting pursuant to the terms of this Agreement, has acted and is acting
as an independent contractor and not as a fiduciary and the Company and the Selling Shareholder do
not intend such Underwriter to act in any capacity other than as an independent contractor,
including as a fiduciary or in any other position of higher trust.
This Agreement supersedes all prior agreements and understandings (whether written or oral)
between the Company, the Selling Shareholder and the Underwriters, or any of them, with respect to
the subject matter hereof; provided, however, that the Company and the Selling Shareholder agree
and acknowledge that the Stock Purchase Agreement, the Shareholder Agreement dated as of July 31,
2007 by and between the Company and Dangaard Holding A/S (the “Shareholder Agreement”) and the
Registration Rights Agreement remain in full force and effect and, solely with respect to the
Company and the Selling Shareholder, in the event of any conflict between this Agreement and the
Stock Purchase Agreement, the Shareholder Agreement
and the Registration Rights Agreement, the
Stock Purchase Agreement, the Shareholder Agreement or the Registration Rights Agreement, as
applicable, shall control.
This Agreement may be executed in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same instrument.
This Agreement shall be governed by, and construed in accordance with, the law of the State of
New York, including, without limitation, Section 5-1401 of the New York General Obligations Law.
If the foregoing letter is in accordance with your understanding of our agreement, please sign
and return to us the enclosed duplicates hereof, whereupon it will become a binding agreement among
the Selling Shareholder, the Company and the several Underwriters in accordance with its terms.
[Signature Page Follows]
| Very truly yours, BRIGHTPOINT, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxx | |||
| Name: | Xxxxxx X. Xxxxx | |||
| Title: | Executive Vice President and General Councel | |||
| NC TELECOM HOLDING A/S |
||||
| By: | /s/ Xxxxxxx Xxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxx | |||
| Title: | Director | |||
| The foregoing Underwriting Agreement is hereby confirmed and accepted as of the date first above written. DEUTSCHE BANK SECURITIES INC. As Representative of the several Underwriters listed on Schedule I By: Deutsche Bank Securities Inc. |
||||
| By | /s/ Xxxxxx Xxx | |||
| Authorized Officer | ||||
| By | /s/ Tor Xxxxxx | |||
| Authorized Officer | ||||
UNDERWRITING AGREEMENT SIGNATURE PAGE
