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TELIGENT, L.L.C.
(a Delaware limited liability company)
and
TELIGENT, INC.
(a Delaware corporation)
1,100,000 Shares of Class A Common Stock
(Par Value U.S.$.01 Per Share)
INTERNATIONAL PURCHASE AGREEMENT
Dated: November __, 1997
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Table of Contents
INTERNATIONAL PURCHASE AGREEMENT................................................................................ 1
SECTION 1. Representations and Warranties.................................................... 4
(a) Representations and Warranties by the L.L.C. and the Issuer....................... 4
(i) Compliance with Registration Requirements............................... 4
(ii) Independent Accountants................................................. 5
(iii) Financial Statements.................................................... 5
(iv) No Material Adverse Change in Business.................................. 6
(v) Good Standing of the L.L.C.............................................. 6
(vi) Good Standing of the Issuer............................................. 6
(vii) Good Standing of Subsidiaries........................................... 6
(viii) Capitalization of the Company........................................... 7
(ix) Authorization of Agreement.............................................. 7
(x) Authorization and Description of Securities............................. 7
(xi) Absence of Defaults and Conflicts....................................... 8
(xii) Absence of Labor Dispute................................................ 9
(xiii) Absence of Proceedings.................................................. 9
(xiv) Accuracy of Exhibits.................................................... 9
(xv) Possession of Intellectual Property..................................... 9
(xvi) Absence of Further Requirements......................................... 9
(xvii) Possession of Licenses and Permits...................................... 10
(xviii) Title to Property....................................................... 10
(xix) Investment Company Act.................................................. 11
(xx) Environmental Laws...................................................... 11
(xxi) Registration Rights..................................................... 11
(xxii) Transactions............................................................ 11
(xxiii) Insurance Coverage...................................................... 12
(xxiv) Absence of Dividend Restrictions........................................ 12
(xxv) Filings of Tax Returns.................................................. 12
(xxvi) Maintenance of Internal Accounting Controls............................. 12
(b) Officer's Certificates............................................................ 13
SECTION 2. Sale and Delivery to International Managers; Closing.............................. 13
(a) International Initial Securities.................................................. 13
(b) International Option Securities................................................... 13
(c) Payment........................................................................... 13
(d) Denominations; Registration....................................................... 14
SECTION 3. Covenants of the Issuer........................................................... 15
(a) Compliance with Securities Regulations and Commission
Requests.......................................................................... 15
(b) Filing of Amendments.............................................................. 15
(c) Delivery of Registration Statements............................................... 15
(d) Delivery of Prospectuses.......................................................... 16
(e) Continued Compliance with Securities Laws......................................... 16
i
(f) Rule 158.......................................................................... 16
(g) Use of Proceeds................................................................... 16
(h) Listing........................................................................... 17
(i) Restriction on Sale of Securities................................................. 17
(j) Reporting Requirements............................................................ 17
[(k) Compliance with NASD Rules........................................................ 17
SECTION 4. Payment of Expenses............................................................... 18
(a) Expenses.......................................................................... 18
(b) Termination of Agreement.......................................................... 18
SECTION 5. Conditions of International Managers' Obligations................................. 18
(a) Effectiveness of Registration Statement........................................... 18
(b) Opinions of Counsel for the L.L.C. and the Issuer................................. 19
(c) Opinion of Counsel for International Managers..................................... 19
(d) Officers' Certificate............................................................. 20
(e) Accountants' Comfort Letter....................................................... 20
(f) Bring-down Comfort Letter......................................................... 20
(g) Approval of Listing............................................................... 20
(h) No Objection...................................................................... 20
(i) Debt Transaction.................................................................. 21
(j) Lock-up Agreements................................................................ 21
(k) Transactions...................................................................... 21
(l) Purchase of U.S. Initial Securities............................................... 21
(m) Conditions to Purchase of International Option Securities......................... 21
(i) Officers' Certificate................................................... 21
(ii) Opinion of Counsel for Company.......................................... 22
(iii) Opinion of Counsel for International Managers........................... 22
(iv) Bring-down Comfort Letter............................................... 22
(n) Additional Documents.............................................................. 22
(o) Termination of Agreement.......................................................... 22
SECTION 6. Indemnification................................................................... 23
(a) Indemnification of International Managers......................................... 23
(b) Indemnification of Issuer, Directors and Officers................................. 24
(c) Actions Against Parties; Notification............................................. 24
(d) Settlement Without Consent if Failure to Reimburse................................ 25
(e) Indemnification for Reserved Securities........................................... 25
SECTION 7. Contribution...................................................................... 25
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery.......................................................................... 27
SECTION 9. Termination of Agreement.......................................................... 27
(a) Termination; General.............................................................. 27
(b) Liabilities....................................................................... 27
SECTION 10. Default by One or More of the International Managers.............................. 27
SECTION 11. Notices........................................................................... 28
SECTION 12. Parties........................................................................... 29
SECTION 13. GOVERNING LAW AND TIME............................................................ 29
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SECTION 14. Effect of Headings................................................................ 29
SCHEDULES
Schedule A - International Managers............................................................ Sch A-1
Schedule B - Pricing Information............................................................... Sch B-1
Schedule C - Persons and Entities Subject to Lock-up........................................... Sch C-1
Schedule D - Subsidiaries of the Company....................................................... Sch D-1
EXHIBITS
Exhibit A - Form of Opinion of Company's Counsel..................................................... A-1
Exhibit B - Form of Opinion of Special Federal Regulatory Counsel.................................... B-1
Exhibit C - Form of Opinion of General Counsel for the Company....................................... C-1
Exhibit D - Form of Lock-up Letter................................................................... D-1
C-1
TELIGENT, L.L.C.
(a Delaware limited liability company)
and
TELIGENT, INC.
(a Delaware corporation)
1,100,000 Shares of Class A Common Stock
(Par Value U.S.$.01 Per Share)
INTERNATIONAL PURCHASE AGREEMENT
November __, 1997
XXXXXXX XXXXX INTERNATIONAL
SALOMON BROTHERS INTERNATIONAL LIMITED
BEAR, XXXXXXX, INTERNATIONAL LIMITED
XXXXXXX SACHS INTERNATIONAL
Ropemaker Place
00 Xxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Ladies and Gentlemen:
Teligent L.L.C., a Delaware limited liability company (the "L.L.C.")
and Teligent, Inc., a Delaware corporation (the "Issuer"; references herein to
the "Company" mean, as the date hereof, the L.L.C., and, as of the Closing Time
(as defined herein) and any Date of Delivery (as defined herein) the Issuer)
confirm their agreement with Xxxxxxx Xxxxx International ("Xxxxxxx Xxxxx") and
each of the other international underwriters named in Schedule A hereto
(collectively, the "International Managers", which term shall also include any
underwriter substituted as hereinafter provided in Section 10 hereof), for whom
Xxxxxxx Xxxxx, Xxxxxxx Brothers International Limited, Bear, Xxxxxxx
International Limited and Xxxxxxx Xxxxx International are acting as
representatives (in such capacity, the "International Representatives"), with
respect to the issue and sale by the Issuer and the purchase by the
International Managers, acting severally and not jointly, of the respective
numbers of shares of Class A Common Stock, par value $.01 per share, of the
Issuer ("Class A Common Stock") set forth in said Schedule A, and with respect
to the grant by the Issuer to the International Managers, acting severally and
not jointly, of the option described in Section 2(b) hereof to purchase all or
any part of 165,000 additional shares of Class A Common Stock to cover
over-allotments, if any. The aforesaid $1,100,000 shares of Class A Common Stock
(the "International Initial Securities") to be purchased by the International
Managers and all or any part of the 165,000 shares of Class A Common Stock
subject to the option described in Section 2(b) hereof (the "International
Option Securities") are hereinafter called, collectively, the "International
Securities".
It is understood that the L.L.C. and the Issuer are concurrently
entering into the U.S. Purchase Agreement dated the date hereof (the "U.S.
Purchase Agreement") providing for the offering by the Issuer of an aggregate of
4,400,000 shares of Class A Common Stock (the "U.S. Initial Securities") through
arrangements with certain underwriters in the United States and Canada (the
"U.S. Underwriters") for which Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, Salomon Brothers Inc, Bear Xxxxxxx & Co. Inc. and Xxxxxxx, Sachs &
Co. are acting as representative(s) (the "U.S. Representative(s)") and the grant
by the Issuer to the U.S. Underwriters, acting severally and not jointly, of an
option to purchase all or any part of the U.S. Underwriters' pro rata portion of
up to 660,000 additional shares of Class A Common Stock solely to cover
over-allotments, if any (the "U.S. Option Securities" and, together with the
International Option Securities, the "Option Securities"). The U.S. Initial
Securities and the U.S. Option Securities are hereinafter called the "U.S.
Securities". It is understood that the Issuer is not obligated to sell and the
International Managers are not obligated to purchase, any International Initial
Securities unless all of the U.S. Initial Securities are contemporaneously
purchased by the U.S. Underwriters.
The International Managers and the U.S. Underwriters are hereinafter
collectively called the "Underwriters", the International Initial Securities and
the U.S. Initial Securities are hereinafter collectively called the "Initial
Securities", and the International Securities and the U.S. Securities are
hereinafter collectively called the "Securities".
The Underwriters will concurrently enter into an Intersyndicate
Agreement of even date herewith (the "Intersyndicate Agreement") providing for
the coordination of certain transactions among the Underwriters under the
direction of Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated (in such capacity, the "Global Coordinator").
The Company understands that the International Managers propose to make
a public offering of the International Securities as soon as the International
Representatives deem advisable after this Agreement has been executed and
delivered.
The Company and the U.S. Representative have agreed that up to 550,000
shares of the U.S. Initial Securities to be purchased by the U.S. Underwriters
(the "Reserved Securities") shall be reserved for sale by the U.S. Underwriters
to certain of the Issuer's directors, officers and employees, members of their
immediate families or other individuals who are business associates of the
Issuer, as part of the distribution of the U.S. Securities by the U.S.
Underwriters, subject
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to the terms of this Agreement, the applicable rules, regulations and
interpretations of the National Association of Securities Dealers, Inc. and all
other applicable laws, rules and regulations. To the extent that such Reserved
Securities are not orally confirmed for purchase by such persons by the end of
the first business day after the date of this Agreement, such Reserved
Securities may be offered to the public as part of the public offering
contemplated hereby.
The Issuer has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-1 (No. 333-37381) and
amendments thereto covering the registration of the Securities under the
Securities Act of 1933, as amended (the "1933 Act"), including the related
preliminary prospectus or prospectuses. Promptly after execution and delivery of
this Agreement, the Issuer will either (i) prepare and file a prospectus in
accordance with the provisions of Rule 430A ("Rule 430A") of the rules and
regulations of the Commission under the 1933 Act (the "1933 Act Regulations")
and paragraph (b) of Rule 424 ("Rule 424(b)") of the 1933 Act Regulations or
(ii) if the Issuer has elected to rely upon Rule 434 ("Rule 434") of the 1933
Act Regulations, prepare and file a term sheet (a "Term Sheet") in accordance
with the provisions of Rule 434 and Rule 424(b). Two forms of prospectus are to
be used in connection with the offering and sale of the Securities: one relating
to the International Securities (the "Form of International Prospectus") and one
relating to the U.S. Securities (the "Form of U.S. Prospectus"). The Form of
International Prospectus is identical to the Form of U.S. Prospectus, except for
the front cover and back cover pages and the information under the caption
"Underwriting" and the inclusion in the Form of International Prospectus of a
section under the caption "Certain United States Tax Considerations for
Non-United States Holders." The information included in any such prospectus or
in any such Term Sheet, as the case may be, that was omitted from such
registration statement at the time it became effective but that is deemed to be
part of such registration statement at the time it became effective (a) pursuant
to paragraph (b) of Rule 430A is referred to as "Rule 430A Information" or (b)
pursuant to paragraph (d) of Rule 434 is referred to as "Rule 434 Information."
Each Form of International Prospectus and Form of U.S. Prospectus used before
such registration statement became effective, and any prospectus that omitted,
as applicable, the Rule 430A Information or the Rule 434 Information, that was
used after such effectiveness and prior to the execution and delivery of this
Agreement, is herein called a "preliminary prospectus." Such registration
statement, including the exhibits, schedules and amendments thereto, if any, at
the time it became effective and including the Rule 430A Information and the
Rule 434 Information, as applicable, is herein called the "Registration
Statement". Any registration statement filed pursuant to Rule 462(b) of the 1933
Act Regulations is herein referred to as the "Rule 462(b) Registration
Statement," and after such filing the term "Registration Statement" shall
include the Rule 462(b) Registration Statement. The final Form of International
Prospectus and the final Form of U.S. Prospectus in the forms first furnished to
the Underwriters for use in connection with the confirmation of sales of the
Securities are herein called the "International Prospectus" and the "U.S.
Prospectus", respectively, and collectively, the "Prospectuses." If Rule 434 is
relied on, the terms "International Prospectus" and "U.S. Prospectus" shall
refer to the
3
preliminary International Prospectus and preliminary U.S. Prospectus, each dated
October 30, 1997, respectively, each together with the applicable Term Sheet and
all references in this Agreement to the date of such Prospectuses shall mean the
date of the applicable Term Sheet. For purposes of this Agreement, all
references to the Registration Statement, any preliminary prospectus, the
International Prospectus, the U.S. Prospectus or any Term Sheet or any amendment
or supplement to any of the foregoing shall be deemed to include the copy filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("XXXXX").
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the L.L.C. and the Issuer. Each
of the L.L.C. and the Issuer, jointly and severally, represents and warrants to
each International Manager as of the date hereof, as of the Closing Time
referred to in Section 2(c) hereof, and, if any International Option Securities
are purchased, as of each Date of Delivery referred to in Section 2(b) hereof,
and agrees with each International Manager, as follows:
(i) Compliance with Registration Requirements. Each of the
Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to
the knowledge of the L.L.C. or the Issuer, are contemplated by the
Commission, and any request on the part of the Commission for
additional information has been complied with.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments and
supplements thereto became effective and at the Closing Time (and, if
any International Option Securities are purchased, at the Date of
Delivery), the Registration Statement, the Rule 462(b) Registration
Statement and any post-effective amendments and supplements thereto
complied and will comply in all material respects with the requirements
of the 1933 Act and the 1933 Act Regulations and did not and will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and the Prospectuses, any
preliminary prospectuses and any supplement thereto or prospectus
wrapper prepared in connection therewith, at their respective times of
issuance and at the Closing Time, complied and will comply in all
material respects with any applicable laws or regulations of foreign
jurisdictions in which the Prospectuses and such preliminary
prospectuses, as amended or supplemented, if applicable, are
distributed in connection with the offer and sale of Reserved
Securities. Neither of the Prospectuses nor any amendments or
supplements thereto (including any prospectus wrapper), at the time the
Prospectuses or any such amendment or supplement were issued and at the
Closing Time (and, if any International Option Securities are
purchased, at the
4
Date of Delivery), included or will include an untrue statement of a
material fact or omitted or will omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. If Rule 434
is used, the Company will comply with the requirements of Rule 434 and
the Prospectuses shall not be "materially different", as such term is
used in Rule 434, from the prospectuses included in the Registration
Statement at the time it became effective. The representations and
warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement, any Rule 462(b) Registration
Statement or any post-effective amendment thereto or the International
Prospectus or any amendments or supplements thereto made in reliance
upon and in conformity with information furnished to the Company in
writing by any International Manager through the International
Representatives expressly for use in the Registration Statement, any
Rule 462(b) Registration Statement or any post-effective amendment
thereto or the International Prospectus or any amendments or
supplements thereto.
Each preliminary prospectus and the prospectuses filed as part
of the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the 1933 Act
Regulations and each preliminary prospectus and the Prospectuses
delivered to the Underwriters for use in connection with this offering
was identical to the electronically transmitted copies thereof filed
with the Commission pursuant to XXXXX, except to the extent permitted
by Regulation S-T.
(ii) Independent Accountants. The accountants who certified
the financial statements and supporting schedules included in the
Registration Statement are independent public accountants as required
by the 1933 Act and the 1933 Act Regulations.
(iii) Financial Statements. The financial statements included
in the Registration Statement and the Prospectuses, together with the
related schedules (if any) and notes, present fairly the financial
position of the L.L.C. at the dates indicated and the statement of
operations, members' deficit and cash flows of the L.L.C. for the
periods specified; said financial statements have been prepared in
conformity with generally accepted accounting principles ("GAAP")
applied on a consistent basis throughout the periods involved. The
supporting schedules (if any) included in the Registration Statement
present fairly in accordance with GAAP the information required to be
stated therein. The selected financial data included in the
Prospectuses present fairly the information shown therein and have been
compiled on a basis consistent with that of the audited financial
statements included in the Registration Statement. The pro forma
balance sheet and the related notes thereto included in the
Registration Statement and the Prospectuses present fairly the
information shown therein, have been prepared in accordance with the
Commission's rules and guidelines with respect to pro forma financial
statements and
5
have been properly compiled on the bases described therein, and the
assumptions used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect to the
transactions and circumstances referred to therein.
(iv) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectuses, except as otherwise stated therein, (A)
there has been no material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business
(a "Material Adverse Effect"), (B) there have been no transactions
entered into by the Company or any of its subsidiaries, other than
those in the ordinary course of business, which are material with
respect to the Company and its subsidiaries considered as one
enterprise, and (C) there has been no dividend or distribution of any
kind declared, paid or made by the Company to any of its members or
stockholders, as applicable.
(v) Good Standing of the L.L.C. The L.L.C. has been duly
organized and is validly existing as a limited liability company in
good standing under the laws of the State of Delaware and has limited
liability company power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectuses
and to enter into and perform its obligations under this Agreement; and
the L.L.C. is duly qualified as a foreign limited liability company to
transact business and is in good standing in each other jurisdiction in
which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except
where the failure so to qualify or to be in good standing would not
result in a Material Adverse Effect.
(vi) Good Standing of the Issuer. The Issuer has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Delaware and has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectuses and to enter into and perform
its obligations under this Agreement; and the Issuer is duly qualified
as a foreign corporation to transact business and is in good standing
in each other jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in
good standing would not result in a Material Adverse Effect.
(vii) Good Standing of Subsidiaries. Each "significant
subsidiary" of the Company (as such term is defined in Rule 1-02 of
Regulation S-X) (each a "Subsidiary" and, collectively, the
"Subsidiaries") has been duly organized and is validly existing as a
corporation or limited liability company (as applicable) in good
standing under the laws of the jurisdiction of its organization, has
corporate or limited liability company (as
6
applicable) power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectuses
and is duly qualified as a foreign corporation or limited liability
company (as applicable) to transact business and is in good standing in
each jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good
standing would not result in a Material Adverse Effect; except as
otherwise disclosed in the Registration Statement, all of the issued
and outstanding capital stock or members' interests (as applicable) of
each such Subsidiary has been duly authorized and validly issued, and,
in the case of Subsidiaries that are corporations, is fully paid and
non-assessable, and is owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity (except for any pledge
thereof securing the Revolving Credit Agreement (as defined in the
Registration Statement)); none of the outstanding shares of capital
stock or members' interests (as applicable) of any Subsidiary was
issued in violation of the preemptive or similar rights of any
securityholder or member (as applicable) of such Subsidiary. The only
subsidiaries of the Company are the subsidiaries listed on Schedule D
to this Agreement.
(viii) Capitalization of the Company. The capitalization of
the L.L.C. is as set forth in the Prospectuses in the column entitled
"Actual" under the caption "Prospectus Summary--Pro Forma
Capitalization" (except for the repayment in full since September 30,
1997 of all outstanding amounts under the Revolving Credit Agreement).
The shares of issued and outstanding capital stock of the Issuer have
been duly authorized and validly issued and are fully paid and
non-assessable; none of the outstanding shares of capital stock of the
Issuer was issued in violation of the preemptive or other similar
rights of any member or securityholder of the L.L.C. or the Issuer.
(ix) Authorization of Agreement. This Agreement and the U.S.
Purchase Agreement have been duly authorized, executed and delivered by
each of the L.L.C. and the Issuer.
(x) Authorization and Description of Securities. The
Securities to be purchased by the International Managers and the U.S.
Underwriters from the Company have been duly authorized for issuance
and sale to the International Managers pursuant to this Agreement and
the U.S. Underwriters pursuant to the U.S. Purchase Agreement,
respectively, and, when issued and delivered by the Company pursuant to
this Agreement and the U.S. Purchase Agreement, respectively, against
payment of the consideration set forth herein and in the U.S. Purchase
Agreement, respectively, will be validly issued, fully paid and
non-assessable; the Common Stock conforms to all statements relating
thereto contained in the Prospectuses and such description conforms to
the rights set forth in the instruments defining the same; no holder of
the Securities will be subject to personal liability by reason of being
such a holder; and the issuance of the Securities is
7
not subject to the preemptive or other similar rights of any member or
securityholder of the L.L.C. or the Issuer.
(xi) Absence of Defaults and Conflicts. Neither the L.L.C.,
the Issuer nor any of their respective subsidiaries is in violation of
its organizational documents (in the case of a limited liability
company) or charter or by-laws (in the case of a corporation), or in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage,
deed of trust, loan or credit agreement, note, lease or other agreement
or instrument to which either the L.L.C., the Issuer or any of their
respective subsidiaries is a party or by which it or any of them may be
bound, or to which any of the property or assets of either the L.L.C.,
the Issuer or any of their respective subsidiaries is subject
(collectively, the "Agreements and Instruments") except for such
violations or defaults that would not result in a Material Adverse
Effect; and the execution, delivery and performance of this Agreement
and the U.S. Purchase Agreement and the consummation of the
transactions contemplated in this Agreement, the U.S. Purchase
Agreement and in the Registration Statement (including the consummation
of the Reorganization, the Additional Sponsor Equity Contributions and
the Strategic Equity Investment, each as defined in the Registration
Statement (collectively, the "Transactions"), the issuance and sale of
the Securities and the use of the proceeds from the sale of the
Securities as described in the Prospectuses under the caption "Use of
Proceeds") and compliance by each of the L.L.C. and the Issuer with
their respective obligations under this Agreement, the U.S. Purchase
Agreement and the agreements pursuant to which the Transactions will be
consummated have been duly authorized by all necessary limited
liability company or corporate action (as applicable) and do not and
will not, whether with or without the giving of notice or passage of
time or both, conflict with or constitute a breach of, or default or
Repayment Event (as defined below) under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of either the L.L.C., the Issuer or any of their respective
subsidiaries pursuant to, the Agreements and Instruments (except for
such conflicts, breaches or defaults or liens, charges or encumbrances
that would not result in a Material Adverse Effect), nor will such
action result in any violation of the provisions of the organizational
documents (in the case of a limited liability company) or charter or
by-laws (in the case of a corporation) of either the L.L.C., the Issuer
or any of their respective subsidiaries or (except for such violations
that could not result in a Material Adverse Effect) any applicable law,
statute, rule, regulation, judgment, order, writ or decree of any
government, government instrumentality or court, domestic or foreign,
having jurisdiction over either the L.L.C., the Issuer or any of their
respective subsidiaries or any of their respective assets, properties
or operations. As used herein, a "Repayment Event" means any event or
condition which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such holder's behalf)
the right to require the repurchase, redemption or repayment of all or
a portion of such indebtedness by either the L.L.C., the Issuer or any
of their respective subsidiaries.
8
(xii) Absence of Labor Dispute. No labor dispute with the
employees of the Company or any of its subsidiaries exists or, to the
knowledge of the Company, is imminent which, in any case under this
clause (xii), could reasonably be expected to result in a Material
Adverse Effect.
(xiii) Absence of Proceedings. Except as set forth in the
Prospectuses, there is no action, suit, proceeding, inquiry or
investigation before or brought by any court or governmental agency or
body, domestic or foreign, now pending, or, to the knowledge of the
Company, threatened, against or affecting the Company or any of its
subsidiaries, or to which the property of the Company or any of its
subsidiaries is subject, which is required to be disclosed in the
Registration Statement (other than as disclosed therein), or which
could reasonably be expected to result in a Material Adverse Effect, or
which could reasonably be expected to materially and adversely affect
the properties or assets thereof or the consummation of the
transactions contemplated in this Agreement and the U.S. Purchase
Agreement or the performance by the L.L.C. and the Issuer of their
respective obligations hereunder or the consummation of any of the
transactions contemplated pursuant to the Transactions; the aggregate
of all pending legal or governmental proceedings to which the Company
or any of its subsidiaries is a party or of which any of their
respective property or assets is the subject which are not described in
the Registration Statement, including ordinary routine litigation
incidental to the business, could not reasonably be expected to result
in a Material Adverse Effect.
(xiv) Accuracy of Exhibits. There are no contracts or
documents which are required to be described in the Registration
Statement or the Prospectuses or to be filed as exhibits thereto which
have not been so described and filed as required.
(xv) Possession of Intellectual Property. The Company and its
subsidiaries own or possess, or can acquire on reasonable terms,
adequate patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks, trade names or other
intellectual property (collectively, "Intellectual Property") necessary
to carry on the business now operated by them, and neither the Company
nor any of its subsidiaries has received any notice or is otherwise
aware of any infringement of or conflict with asserted rights of others
with respect to any Intellectual Property or of any facts or
circumstances which would render any Intellectual Property invalid or
inadequate to protect the respective interests of the Company or any of
its subsidiaries therein, and which infringement or conflict (if the
subject of any unfavorable decision, ruling or finding) or invalidity
or inadequacy, singly or in the aggregate, would result in a Material
Adverse Effect.
(xvi) Absence of Further Requirements. Except as described in
the Prospectuses, no filing with, or authorization, approval, consent,
license, order,
9
registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign, is necessary or required for
the performance by the L.L.C. or the Issuer of their respective
obligations hereunder, in connection with the offering, issuance or
sale of the Securities under this Agreement and the U.S. Purchase
Agreement or the consummation of the transactions contemplated by this
Agreement or the U.S. Purchase Agreement or the consummation of any of
the transactions contemplated pursuant to the Transactions, except such
as have been already obtained or as may be required under the rules and
regulations promulgated thereunder or the laws and regulations
promulgated thereunder or the laws and regulations of jurisdictions
outside the United States in which the International Securities are
offered and the 1933 Act or the 1933 Act Regulations or state
securities or blue sky laws or the Securities Exchange Act of 1934, as
amended.
(xvii) Possession of Licenses and Permits. Except as set forth
in the Prospectuses, the Company and its subsidiaries possess such
permits, licenses, approvals, consents and other authorizations
(collectively, "Governmental Licenses") issued by the appropriate
federal, state, local or foreign regulatory agencies or bodies
necessary to conduct the business now operated by them; each of the
Company and its subsidiaries are in compliance with the terms and
conditions of all such Governmental Licenses, except where the failure
so to comply would not, singly or in the aggregate, have a Material
Adverse Effect; all of the Governmental Licenses are valid and in full
force and effect, except when the invalidity of such Governmental
Licenses or the failure of such Governmental Licenses to be in full
force and effect would not have a Material Adverse Effect; and neither
the Company nor any of its subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such
Governmental Licenses which, singly or in the aggregate, if the subject
of an unfavorable decision, ruling or finding, would result in a
Material Adverse Effect.
(xviii) Title to Property. The Company and its subsidiaries
have good and marketable title to all real property owned by them and
good title to all other properties owned by them, in each case, free
and clear of all mortgages, pledges, liens, security interests, claims,
restrictions or encumbrances of any kind except such as (a) are
described in the Prospectuses or (b) do not, singly or in the
aggregate, materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property by
the Company or any of its subsidiaries; and all of the leases and
subleases material to the business of the Company and its subsidiaries,
considered as one enterprise, and under which the Company or any of its
subsidiaries holds properties described in the Prospectuses, are in
full force and effect, and neither the Company nor any of its
subsidiaries has any notice of any material claim of any sort that has
been asserted by anyone adverse to the rights of the Company or any of
its subsidiaries under any of the leases or subleases mentioned above,
or affecting or questioning the rights of the Company or such
subsidiary to the continued possession of the leased or subleased
premises under any such lease or sublease.
10
(xix) Investment Company Act. The Company is not and, upon the
issuance and sale of the Securities as herein contemplated and the
application of the net proceeds therefrom as described in the
Prospectuses will not be, an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in
the Investment Company Act of 1940, as amended (the "1940 Act").
(xx) Environmental Laws. Except as described in the
Registration Statement and except as would not, singly or in the
aggregate, result in a Material Adverse Effect, (A) neither the Company
nor any of its subsidiaries is in violation of any federal, state,
local or foreign statute, law, rule, regulation, ordinance, code,
policy or rule of common law or any judicial or administrative
interpretation thereof, including any judicial or administrative order,
consent, decree or judgment, relating to pollution or protection of
human health, the environment (including, without limitation, ambient
air, surface water, groundwater, land surface or subsurface strata) or
wildlife, including, without limitation, laws and regulations relating
to the release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances, petroleum
or petroleum products (collectively, "Hazardous Materials") or to the
manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials (collectively,
"Environmental Laws"), (B) the Company and its subsidiaries have all
permits, authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements,
(C) there are no pending or threatened administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens,
notices of noncompliance or violation, investigation or proceedings
relating to any Environmental Law against the Company or any of its
subsidiaries and (D) there are no events or circumstances that might
reasonably be expected to form the basis of an order for clean-up or
remediation, or an action, suit or proceeding by any private party or
governmental body or agency, against or affecting the Company or any of
its subsidiaries relating to Hazardous Materials or any Environmental
Laws.
(xxi) Registration Rights. Except as described in the
Prospectuses, there are no persons with registration rights or other
similar rights to have any securities registered pursuant to the
Registration Statement or otherwise registered by the Company under the
0000 Xxx.
(xxii) Transactions. The agreements entered into by the
L.L.C. and the Issuer for the purposes of completing the Transactions
are all in full force and effect with respect to the L.L.C. and the
Issuer and, to the knowledge of the L.L.C. and the Issuer, with respect
to the other parties thereto; and the representations and warranties of
the L.L.C. and the Issuer set forth in such agreements are true and
correct as of the date hereof and as of the respective dates of such
agreements. The L.L.C. and the Issuer have obtained all contractual
consents and approvals necessary to consummate the
11
Transactions. Except as described in the Prospectuses, all
transactions contemplated as part of the Transactions will be
consummated prior to or simultaneously with the Closing Time.
(xxiii) Insurance Coverage. The Company and each of its
subsidiaries are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are
prudent and customary in the businesses in which they are engaged;
neither the Company nor any of its subsidiaries has been refused any
insurance coverage sought or applied for; and neither the Company nor
any of its subsidiaries has any reason to believe that it will not be
able to renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may be
necessary to continue its business at a cost that would not materially
and adversely affect the condition (financial or otherwise), business
prospects, net worth or results of operations of the Company and its
subsidiaries as one enterprise, except as described in or contemplated
by the Prospectuses.
(xxiv) Absence of Dividend Restrictions. No subsidiary of the
L.L.C. or the Issuer, respectively, is currently prohibited, directly
or indirectly, from paying any dividends to the L.L.C. or the Issuer,
as the case may be, from making any other distribution on such
subsidiary's capital stock, from repaying to the L.L.C. or the Issuer,
as the case may be, any loans or advances to such subsidiary from the
Issuer or from transferring any of such subsidiary's property or assets
to the L.L.C. or the Issuer, as the case may be, or any other
subsidiary of the L.L.C. or the Issuer, as the case may be, except as
described in or contemplated by the Prospectuses.
(xxv) Filings of Tax Returns. The Company has filed all
foreign, federal, state and local tax returns that are required to be
filed or has requested extensions thereof and has paid all material
taxes required to be paid by it and any other assessment, fine or
penalty levied against it, to the extent that any of the foregoing is
due and payable, except for any such tax, assessment, fine or penalty
that is currently being contested in good faith or as described in or
contemplated by the Prospectuses.
(xxvi) Maintenance of Internal Accounting Controls. The
Company and each of its subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or
specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability;
(iii) access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at
reasonable and appropriate intervals and appropriate action is taken
with respect to any differences.
12
(b) Officer's Certificates. Any certificate signed by any officer of
the Issuer or any of its subsidiaries delivered to the International
Representatives or to counsel for the International Managers shall be deemed a
representation and warranty by the Issuer to each International Manager as to
the matters covered thereby.
SECTION 2. Sale and Delivery to International Managers; Closing.
(a) International Initial Securities. On the basis of the
representations and warranties herein contained and subject to the terms and
conditions herein set forth, the Issuer agrees to sell to each International
Manager, severally and not jointly, and each International Manager, severally
and not jointly, agrees to purchase from the Issuer, at the price per share set
forth in Schedule B, the number of International Initial Securities set forth in
Schedule A opposite the name of such International Manager, plus any additional
number of International Initial Securities which such International Manager may
become obligated to purchase pursuant to the provisions of Section 10 hereof.
(b) International Option Securities. In addition, on the basis of the
representations and warranties herein contained and subject to the terms and
conditions herein set forth, the Issuer hereby grants an option to the
International Managers, severally and not jointly, to purchase up to an
additional 165,000 shares of Class A Common Stock at the price per share set
forth in Schedule B, less an amount per share equal to any dividends or
distributions declared by the Issuer and payable on the International Initial
Securities but not payable on the International Option Securities. The option
hereby granted will expire 30 days after the date hereof and may be exercised in
whole or in part from time to time only for the purpose of covering
over-allotments which may be made in connection with the offering and
distribution of the International Initial Securities upon notice by the Global
Coordinator to the Issuer setting forth the number of International Option
Securities as to which the several International Managers are then exercising
the option and the time and date of payment and delivery for such International
Option Securities. Any such time and date of delivery for the International
Option Securities (a "Date of Delivery") shall be determined by the Global
Coordinator, but shall not be earlier than one full business day, or be later
than seven full business days, after the exercise of said option, nor in any
event prior to the Closing Time, as hereinafter defined. If the option is
exercised as to all or any portion of the International Option Securities, each
of the International Managers, acting severally and not jointly, will purchase
that proportion of the total number of International Option Securities then
being purchased which the number of International Initial Securities set forth
in Schedule A opposite the name of such International Manager bears to the total
number of International Initial Securities, subject in each case to such
adjustments as the Global Coordinator in its discretion shall make to eliminate
any sales or purchases of fractional shares.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the International Initial Securities shall be made at the
offices of Skadden, Arps, Slate, Xxxxxxx &
13
Xxxx, LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as
shall be agreed upon by the Global Coordinator and the Company, at [10:00] A.M.
(Eastern time) on the third (fourth, if the pricing occurs after 4:30 P.M.
(Eastern time) on any given day) business day after the date hereof (unless
postponed in accordance with the provisions of Section 10), or such other time
not later than ten business days after such date as shall be agreed upon by the
Global Coordinator and the Issuer (such time and date of payment and delivery
being herein called "Closing Time").
In addition, in the event that any or all of the International Option
Securities are purchased by the International Managers, payment of the purchase
price for, and delivery of certificates for, such International Option
Securities shall be made at the above-mentioned offices, or at such other place
as shall be agreed upon by the Global Coordinator and the Issuer, on each Date
of Delivery as specified in the notice from the Global Coordinator to the
Issuer.
Payment shall be made to the Issuer by wire transfer of immediately
available funds to a bank account designated by the Issuer, against delivery to
the International Representatives for the respective accounts of the
International Managers of certificates for the International Securities to be
purchased by them. It is understood that each International Manager has
authorized the International Representatives, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the
International Initial Securities and the International Option Securities, if
any, which it has agreed to purchase. Xxxxxxx Xxxxx, individually and not as
representative of the International Managers, may (but shall not be obligated
to) make payment of the purchase price for the International Initial Securities
or the International Option Securities, if any, to be purchased by any
International Manager whose funds have not been received by the Closing Time or
the relevant Date of Delivery, as the case may be, but such payment shall not
relieve such International Manager from its obligations hereunder.
(d) Denominations; Registration. Certificates for the International
Initial Securities and the International Option Securities, if any, shall be in
such denominations and registered in such names as the International
Representatives may request in writing at least one full business day before the
Closing Time or the relevant Date of Delivery, as the case may be. The
certificates for the International Initial Securities and the International
Option Securities, if any, will be made available for examination and packaging
by the International Representatives in The City of New York not later than
10:00 A.M. (Eastern time) on the business day prior to the Closing Time or the
relevant Date of Delivery, as the case may be.
14
SECTION 3. Covenants of the Issuer. The Issuer covenants with each
International Manager as follows:
(a) Compliance with Securities Regulations and Commission
Requests. The Company, subject to Section 3(b), will comply with the
requirements of Rule 430A or Rule 434, as applicable, and will notify
the Global Coordinator immediately, and confirm the notice in writing,
(i) when any post-effective amendment to the Registration Statement
shall become effective, or any supplement to the Prospectuses or any
amended Prospectuses shall have been filed, (ii) of the receipt of any
comments from the Commission, (iii) of any request by the Commission
for any amendment to the Registration Statement or any amendment or
supplement to the Prospectuses or for additional information, and (iv)
of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing
or suspending the use of any preliminary prospectus, or of the
initiation or threatening of any proceedings for any of such purposes.
The Issuer will promptly effect the filings necessary pursuant to Rule
424(b) and will take such steps as it deems necessary to ascertain
promptly whether the form of prospectus transmitted for filing under
Rule 424(b) was received for filing by the Commission and, in the event
that it was not, it will promptly file such prospectus. The Issuer will
make every reasonable effort to prevent the issuance of any stop order
and, if any stop order is issued, to obtain the lifting thereof at the
earliest possible moment.
(b) Filing of Amendments. The Issuer will give the Global
Coordinator notice of its intention to file or prepare any amendment to
the Registration Statement (including any filing under Rule 462(b)),
any Term Sheet or any amendment, supplement or revision to either any
prospectus included in the Registration Statement at the time it became
effective or to the Prospectuses, will furnish the Global Coordinator
with copies of any such documents a reasonable amount of time prior to
such proposed filing or use, as the case may be, and will not file or
use any such document to which the Global Coordinator or counsel for
the International Managers shall object.
(c) Delivery of Registration Statements. The Issuer has
furnished or will deliver to the International Representatives and
counsel for the International Managers, without charge, signed copies
of the Registration Statement as originally filed and of each amendment
thereto (including exhibits filed therewith or incorporated by
reference therein) and signed copies of all consents and certificates
of experts, and will also deliver to the International Representatives,
without charge, a conformed copy of the Registration Statement as
originally filed and of each amendment thereto (without exhibits) for
each of the International Managers. The copies of the Registration
Statement and each amendment thereto furnished to the International
Managers will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to XXXXX, except to the
extent permitted by Regulation S-T.
15
(d) Delivery of Prospectuses. The Issuer has delivered to each
International Manager, without charge, as many copies of each
preliminary prospectus as such International Manager reasonably
requested, and the Issuer hereby consents to the use of such copies for
purposes permitted by the 1933 Act. The Issuer will furnish to each
International Manager, without charge, during the period when the
Prospectuses is required to be delivered under the 1933 Act or the
Securities Exchange Act of 1934 (the "1934 Act"), such number of copies
of the International Prospectus (as amended or supplemented) as such
International Manager may reasonably request. Such copies of the
International Prospectus and any amendments or supplements thereto
furnished to the International Managers will be identical to the
electronically transmitted copies thereof filed with the Commission
pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Issuer will
comply with the 1933 Act and the 1933 Act Regulations so as to permit
the completion of the distribution of the Securities as contemplated in
this Agreement, the U.S. Purchase Agreement and in the Prospectuses. If
at any time when a prospectus is required by the 1933 Act to be
delivered in connection with sales of the Securities, any event shall
occur or condition shall exist as a result of which it is necessary, in
the opinion of counsel for the International Managers or for the
Issuer, to amend the Registration Statement or amend or supplement any
Prospectus in order that the Prospectuses will not include any untrue
statements of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the
light of the circumstances existing at the time any such Prospectus is
delivered to a purchaser, or if it shall be necessary, in the opinion
of such counsel, at any such time to amend the Registration Statement
or amend or supplement any Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, the Issuer
will promptly prepare and file with the Commission, subject to Section
3(b), such amendment or supplement as may be necessary to correct such
statement or omission or to make the Registration Statement or the
Prospectuses comply with such requirements, and the Company will
furnish to the International Managers such number of copies of such
amendment or supplement as the International Managers may reasonably
request.
(f) Rule 158. The Issuer will timely file such reports
pursuant to the 1934 Act as are necessary in order to make generally
available to its securityholders as soon as practicable an earnings
statement for the purposes of, and to provide the benefits contemplated
by, the last paragraph of Section 11(a) of the 1933 Act.
(g) Use of Proceeds. The Issuer will use the net proceeds
received by it from the sale of the Securities in the manner specified
in the Prospectuses under "Use of Proceeds".
16
(h) Listing. The Issuer will use its best efforts to effect
and maintain the quotation of the Securities on the Nasdaq National
Market and will file with the Nasdaq National Market all documents and
notices required by the Nasdaq National Market of companies that have
securities that are traded in the over-the-counter market and
quotations for which are reported by the Nasdaq National Market.
(i) Restriction on Sale of Securities. During a period of 180
days from the date of the Prospectuses, the Issuer will not, without
the prior written consent of the Global Coordinator, (i) directly or
indirectly, offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant to purchase or otherwise transfer or
dispose of any share of its common stock or any securities convertible
into or exercisable or exchangeable for its common stock or file any
registration statement under the 1933 Act with respect to any of the
foregoing or (ii) enter into any swap or any other agreement or any
transaction that transfers, in whole or in part, directly or
indirectly, the economic consequence of ownership of any of its common
stock, whether any such swap or transaction described in clause (i) or
(ii) above is to be settled by delivery of common stock or such other
securities, in cash or otherwise. The foregoing sentence shall not
apply to (A) the Securities to be sold hereunder or under the U.S.
Purchase Agreement, (B) any shares of the common stock issued in the
Transactions in the Prospectuses, (C) any shares of common stock issued
or options to purchase common stock granted pursuant to employee
agreements or employee benefit plans of the Issuer referred to in the
Prospectuses or (D) any shares of common stock issued pursuant to any
non-employee director stock plan.
(j) Reporting Requirements. The Issuer, during the period when
the Prospectuses are required to be delivered under the 1933 Act or the
1934 Act, will file all documents required to be filed with the
Commission pursuant to the 1934 Act within the time periods required by
the 1934 Act and the rules and regulations of the Commission
thereunder.
[(k) Compliance with NASD Rules. The Issuer hereby agrees that
it will ensure that the Reserved Securities will be restricted as
required by the National Association of Securities Dealers, Inc. (the
"NASD") or the NASD rules from sale, transfer, assignment, pledge or
hypothecation for a period of three months following the date of this
Agreement. The Underwriters will notify the Issuer as to which persons
will need to be so restricted. At the request of the Underwriters, the
Issuer will direct the transfer agent to place a stop transfer
restriction upon such securities for such period of time. Should the
Issuer release, or seek to release, from such restrictions any of the
Reserved Securities, the Issuer agrees to reimburse the Underwriters
for any reasonable expenses (including, without limitation, legal
expenses) they incur in connection with such release.
17
SECTION 4. Payment of Expenses. (a) Expenses. Each of the L.L.C. and
the Issuer agrees, jointly and severally, to will pay all expenses incident to
the performance of their respective obligations under this Agreement, including
(i) the preparation, printing and filing of the Registration Statement
(including financial statements and exhibits) as originally filed and of each
amendment thereto, (ii) the preparation, printing and delivery to the
Underwriters of this Agreement, any Agreements Among Underwriters and such other
documents as may be required in connection with the offering, purchase, sale,
issuance or delivery of the Securities, (iii) the preparation, issuance and
delivery of the certificates for the Securities to the Underwriters, including
any stock or other transfer taxes and any stamp or other duties payable upon the
sale, issuance or delivery of the Securities to the Underwriters and the
transfer of the Securities between the U.S. Underwriters and International
Managers, (iv) the fees and disbursements of counsel, accountants and other
advisors for the L.L.C. and the Issuer, (v) the reasonable fees and
disbursements of counsel for the Underwriters in connection with the preparation
of any Blue Sky Survey and any supplement thereto, (vi) the printing and
delivery to the Underwriters of copies of each preliminary prospectus, any Term
Sheets and of the Prospectuses and any amendments or supplements thereto, (vii)
the preparation, printing and delivery to the Underwriters of copies of any Blue
Sky Survey and any supplement thereto, (viii) the fees and expenses of any
transfer agent or registrar for the Securities, (ix) the filing fees incident
to, and the reasonable fees and disbursements of counsel to the Underwriters in
connection with, the review by the National Association of Securities Dealers,
Inc. (the "NASD") of the terms of the sale of the Securities, (x) the fees and
expenses incurred in connection with the inclusion of the Securities in the
Nasdaq and (xi) all costs and expenses of the Underwriters, including the fees
and disbursements of counsel for the Underwriters, in connection with matters
related to the Reserved Securities which are designated by the Issuer for sale
to employees and others having a business relationship with the Issuer.
(b) Termination of Agreement. If this Agreement is terminated by the
International Representatives in accordance with the provisions of Section 5 or
Section 9(a)(i) hereof, the L.L.C. and the Issuer shall reimburse the
International Managers for all of their out-of-pocket expenses, including the
reasonable fees and disbursements of counsel for the International Managers.
SECTION 5. Conditions of International Managers' Obligations. The
obligations of the several International Managers hereunder are subject to the
accuracy of the representations and warranties of each of the L.L.C. and the
Issuer contained in Section 1(a) hereof or in certificates of any officer of the
Issuer or any subsidiary of the Issuer delivered pursuant to the provisions
hereof, to the performance by the Issuer of its covenants and other obligations
hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective and at Closing Time no stop order suspending the
effectiveness of the Registration Statement shall have
18
been issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to
the reasonable satisfaction of counsel to the International Managers. A
prospectus containing the Rule 430A Information shall have been filed
with the Commission in accordance with Rule 424(b) (or a post-effective
amendment providing such information shall have been filed and declared
effective in accordance with the requirements of Rule 430A) or, if the
Issuer has elected to rely upon Rule 434, a Term Sheet shall have been
filed with the Commission in accordance with Rule 424(b).
(b) Opinions of Counsel for the L.L.C. and the Issuer. At
Closing Time, the International Representatives shall have received the
favorable opinion, dated as of Closing Time, of (i) Skadden, Arps,
Slate, Xxxxxxx & Xxxx LLP, counsel for the L.L.C. and the Issuer, to
the effect set forth in Exhibit A hereto and to such further effect as
counsel to the International Managers may reasonably request, (ii)
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special federal regulatory
counsel for the L.L.C. and the Issuer, to the effect set forth in
Exhibit B hereto and to such further effect as counsel to the
International Managers may reasonably request and (iii) Xxxxxxxx X.
Xxxxxx, Esq., General Counsel for the L.L.C. and the Issuer, to the
effect set forth in Exhibit C hereto and to such further effect as
counsel to the International Managers may reasonably request; each in
form and substance satisfactory to counsel for the International
Managers, together with signed or reproduced copies of such letter for
each of the other International Managers. Such counsel may state that,
insofar as such opinions involve factual matters, they have relied, to
the extent they deem proper, upon certificates of officers of the
L.L.C. and the Issuer and their respective subsidiaries and
certificates of public officials.
(c) Opinion of Counsel for International Managers. At Closing
Time, the International Representatives shall have received the
favorable opinion, dated as of Closing Time, of Shearman & Sterling,
counsel for the International Managers, together with signed or
reproduced copies of such letter for each of the other International
Managers with respect to the matters set forth in [clauses (i), (ii),
(v), (vi) (solely as to preemptive or other similar rights arising by
operation of law or under the organizational documents, charter or
by-laws, as the case may be, of the L.L.C. and the Issuer, (viii)
through (x), inclusive, (xii), (xiv) (solely as to the information in
the Prospectuses under "Description of Capital Stock--Common Stock")
and the penultimate paragraph] of Exhibit A hereto. In giving such
opinion, such counsel may rely, as to all matters governed by the laws
of jurisdictions other than the law of the State of New York, the
federal law of the United States and the General Corporation Law of the
State of Delaware, upon the opinions of counsel satisfactory to the
International Representatives. Such counsel may also state that,
insofar as such opinion involves factual matters, they
19
have relied, to the extent they deem proper, upon certificates of
officers of the L.L.C. and the Issuer and their respective subsidiaries
and certificates of public officials.
(d) Officers' Certificate. At Closing Time, there shall not
have been, since the date hereof or since the respective dates as of
which information is given in the Prospectuses, any material adverse
change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in
the ordinary course of business, and the International Representatives
shall have received a certificate of the President or a Vice President
of the Company and of the chief financial or chief accounting officer
of the Company, dated as of Closing Time, to the effect that (i) there
has been no such material adverse change, (ii) the representations and
warranties in Section 1(a) hereof are true and correct with the same
force and effect as though expressly made at and as of Closing Time
(except to the extent that such representations and warranties relate
to an earlier date), (iii) the Company has complied with all agreements
and satisfied all conditions on its part to be performed or satisfied
at or prior to Closing Time, and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are pending or are
contemplated by the Commission.
(e) Accountants' Comfort Letter. At the time of the execution
of this Agreement, the International Representatives shall have
received from Ernst & Young LLP a letter dated such date, in form and
substance satisfactory to the International Representatives, together
with signed or reproduced copies of such letter for each of the other
International Managers containing statements and information of the
type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain
financial information contained in the Registration Statement and the
Prospectuses.
(f) Bring-down Comfort Letter. At Closing Time, the
International Representatives shall have received from Ernst & Young
LLP a letter, dated as of Closing Time, to the effect that they
reaffirm the statements made in the letter furnished pursuant to
subsection (e) of this Section, except that the specified date referred
to shall be a date not more than [three] business days prior to Closing
Time.
(g) Approval of Listing. At Closing Time, the Securities shall
have been approved for inclusion in the Nasdaq National Market, subject
only to official notice of issuance.
(h) No Objection. The NASD has confirmed that it has not
raised any objection with respect to the fairness and reasonableness of
the underwriting terms and arrangements.
20
(i) Debt Transactions. The transactions contemplated by the
Debt Purchase Agreement, dated of even date herewith, among the
International Representatives and the Issuer and the L.L.C. shall have
occurred contemporaneously with the transactions contemplated herein.
(j) Lock-up Agreements. At the date of this Agreement, the
International Representatives shall have received an agreement
substantially in the form of Exhibit B hereto signed by the persons
listed on Schedule C hereto.
(k) Transactions. At the Closing Time, (i) the Transactions
(other than the Second Closing (as defined in the Prospectuses)) shall
have been consummated in full, (ii) the agreements entered into by the
L.L.C. and the Issuer for the purposes of completing the Second Closing
shall be in full force and effect with respect to the L.L.C. and the
Issuer and, to the knowledge of the L.L.C. and the Issuer, with respect
to the other parties thereto, the representations and warranties of the
L.L.C. and the Issuer set forth in such agreements shall be true and
correct and prior to, or simultaneously with, the Closing Time, and
(iii) the L.L.C. and the Issuer shall have provided to the Global
Coordinator and counsel for the International Representatives copies of
all closing documents delivered to the parties to the Transactions
(other than with respect to the Second Closing).
(l) Purchase of U.S. Initial Securities. Contemporaneously
with the purchase by the International Managers of the International
Initial Securities under this Agreement, the U.S. Underwriters shall
have purchased the U.S. Initial Securities under the U.S. Purchase
Agreement.
(m) Conditions to Purchase of International Option Securities.
In the event that the International Managers exercise their option
provided in Section 2(b) hereof to purchase all or any portion of the
International Option Securities, the representations and warranties of
the Company contained in Section 1(a) hereof and the statements in any
certificates furnished by the Company or any of its subsidiaries
hereunder shall be true and correct as of each Date of Delivery and, at
the relevant Date of Delivery (except to the extent that such
representations and warranties related to an earlier date), the
International Representatives shall have received:
(i) Officers' Certificate. A certificate of the
President or a Vice President of the Company and of the chief
financial or chief accounting officer of the Company, dated
such Date of Delivery, confirming that the certificate
delivered at Closing Time pursuant to Section 5(d) hereof
remains true and correct as of such Date of Delivery.
21
(ii) Opinion of Counsel for Company. The favorable
opinions of the respective counsel referred to in Section 5(b)
hereof, each in form and substance satisfactory to counsel for
the International Managers, dated such Date of Delivery,
relating to the International Option Securities to be
purchased on such Date of Delivery and otherwise to the same
effect as the respective opinions required by Section 5(b)
hereof.
(iii) Opinion of Counsel for International Managers.
The favorable opinion of Shearman & Sterling, counsel for the
International Managers, dated such Date of Delivery, relating
to the International Option Securities to be purchased on such
Date of Delivery and otherwise to the same effect as the
opinion required by Section 5(c) hereof.
(iv) Bring-down Comfort Letter. A letter from Ernst &
Young LLP, in form and substance satisfactory to the
International Representatives and dated such Date of Delivery,
substantially in the same form and substance as the letter
furnished to the International Representatives pursuant to
Section 5(f) hereof, except that the "specified date" in the
letter furnished pursuant to this paragraph shall be a date
not more than [five] days prior to such Date of Delivery.
(n) Additional Documents. At Closing Time and at each Date of
Delivery counsel for the International Managers shall have been
furnished with such documents and opinions as they may require for the
purpose of enabling them to pass upon the issuance and sale of the
Securities as herein contemplated, or in order to evidence the accuracy
of any of the representations or warranties, or the fulfillment of any
of the conditions, herein contained; and all proceedings taken by the
Issuer in connection with the issuance and sale of the Securities as
herein contemplated shall be satisfactory in form and substance to the
International Representatives and counsel for the International
Managers.
(o) Termination of Agreement. If any condition specified in
this Section shall not have been fulfilled when and as required to be
fulfilled, this Agreement, or, in the case of any condition to the
purchase of International Option Securities on a Date of Delivery which
is after the Closing Time, the obligations of the several International
Managers to purchase the relevant Option Securities, may be terminated
by the Lead Manager(s) by written notice to the Issuer on behalf of the
L.L.C. and the Issuer, as applicable, at any time at or prior to
Closing Time or such Date of Delivery, as the case may be, and such
termination shall be without liability of any party to any other party
except as provided in Section 4 and except that Sections 1, 6, 7 and 8
shall survive any such termination and remain in full force and effect.
22
SECTION 6. Indemnification.
(a) Indemnification of International Managers. Each of the L.L.C. and
the Issuer agrees, jointly and severally, to indemnify and hold harmless each
International Manager and each person, if any, who controls any International
Manager within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the Rule
430A Information and any Rule 434 Information, if applicable, or the
omission or alleged omission therefrom of a material fact required to
be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact included in any preliminary prospectus or
the Prospectuses (or any amendment or supplement thereto), or the
omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided
that (subject to Section 6(d) below) any such settlement is effected
with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by Xxxxxxx
Xxxxx), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, to the
extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Issuer by any
International Manager through the International Representatives expressly for
use in the Registration Statement (or any amendment thereto), including the Rule
430A Information and any Rule 434 Information, if applicable, or any preliminary
prospectus or the International Prospectus (or any amendment or supplement
thereto).
23
The foregoing indemnity agreement with respect to any preliminary
prospectus shall not inure to the benefit of any International Manager from whom
the person asserting any such loss, liability, claim, damage or expense
purchased Securities (or any director, officer or employee of such International
Manager, or any person who controls such International Manager within the
meaning of Section 15 of the 1933 Act or Section 20 of the 0000 Xxx) if a copy
of the applicable International Prospectus (as then amended or supplemented if
the Company shall have furnished any amendments or supplements thereto) was not
sent or given by or on behalf of such International Manager to such person, if
such is required by law, at or prior to the written confirmation of the sale of
such Securities to such person and if such International Prospectus (as so
amended or supplemented) would have cured the defect giving rise to such loss,
liability, claim, damage or expense.
(b) Indemnification of Issuer, Directors and Officers. Each
International Manager severally agrees to indemnify and hold harmless the
Issuer, its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Issuer within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act against any and all
loss, liability, claim, damage and expense described in the indemnity contained
in subsection (a) of this Section, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto), including the Rule 430A
Information and any Rule 434 Information, if applicable, or any preliminary
international prospectus or the International Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written information
furnished to the Issuer by such International Manager through Xxxxxxx Xxxxx
expressly for use in the Registration Statement (or any amendment thereto) or
such preliminary prospectus or the International Prospectus (or any amendment or
supplement thereto).
(c) Actions Against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by Xxxxxxx Xxxxx, and, in
the case of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Issuer. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior
24
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever in respect of which indemnification or contribution could
be sought under this Section 6 or Section 7 hereof (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) Settlement Without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
(e) Indemnification for Reserved Securities. In connection with the
offer and sale of the Reserved Securities, each of the L.L.C. and the Issuer
agrees, jointly and severally, promptly upon a request in writing, to indemnify
and hold harmless the International Managers from and against any and all
losses, liabilities, claims, damages and expenses incurred by them as a result
of the failure of any of the Issuer's directors, officers and employees, members
of their immediate families or other individuals who are business associates of
the Issuer to pay for and accept delivery of Reserved Securities which, by the
end of the first business day following the date of this Agreement, were subject
to a properly confirmed agreement to purchase.
SECTION 7. Contribution. If the indemnification provided for in Section
6 hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Issuer on the one
hand and the International Managers on the other hand from the offering of the
International Securities pursuant to this Agreement or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the L.L.C. and the Issuer on the one
hand and of the International Managers on the other hand in connection with the
statements or omissions that resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
25
The relative benefits received by the Issuer on the one hand and the
International Managers on the other hand in connection with the offering of the
International Securities pursuant to this Agreement shall be deemed to be in the
same respective proportions as the total net proceeds from the offering of the
International Securities pursuant to this Agreement (before deducting expenses)
received by the Company and the total underwriting discount received by the
International Managers, in each case as set forth on the cover of the
International Prospectus, or, if Rule 434 is used, the corresponding location on
the Term Sheet, bear to the aggregate initial public offering price of the
International Securities as set forth on such cover.
The relative fault of the L.L.C. and the Issuer on the one hand and the
International Managers on the other hand shall be determined by reference to,
among other things, whether any such untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the L.L.C. and the Issuer or by the International
Managers and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The L.L.C. and the Issuer and the International Managers agree that it
would not be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even if the International Managers were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to above in
this Section 7. The aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above in this Section
7 shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no International
Manager shall be required to contribute any amount in excess of the amount by
which the total price at which the International Securities underwritten by it
and distributed to the public were offered to the public exceeds the amount of
any damages which such International Manager has otherwise been required to pay
by reason of any such untrue or alleged untrue statement or omission or alleged
omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
International Manager within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
International Manager, and each director of the Issuer, each officer of the
Issuer who signed the Registration Statement, and each person, if any,
26
who controls the Issuer within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as the
Issuer. The International Managers' respective obligations to contribute
pursuant to this Section are several in proportion to the number of
International Initial Securities set forth opposite their respective names in
Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company or any of its
subsidiaries submitted pursuant hereto shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of any
International Manager or controlling person, or by or on behalf of the Company,
and shall survive delivery of the Securities to the International Managers.
SECTION 9. Termination of Agreement.
(a) Termination; General. The International Representatives may
terminate this Agreement, by notice to the Issuer on behalf of the L.L.C. and
the Issuer, as applicable, at any time at or prior to Closing Time (i) if there
has been, since the time of execution of this Agreement or since the respective
dates as of which information is given in the International Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any material adverse
change in the financial markets in the United States or the international
financial markets, any outbreak of hostilities or escalation thereof or other
calamity or crisis or any change or development involving a prospective change
in national or international political, financial or economic conditions, in
each case the effect of which is such as to make it, in the judgment of the
International Representatives, impracticable to market the Securities or to
enforce contracts for the sale of the Securities, or (iii) if trading in any
securities of the Issuer has been suspended or materially limited by the
Commission or the Nasdaq National Market, or if trading generally on the
American Stock Exchange or the New York Stock Exchange or in the Nasdaq National
Market has been suspended or materially limited, or minimum or maximum prices
for trading have been fixed, or maximum ranges for prices have been required, by
any of said exchanges or by such system or by order of the Commission, the NASD
or any other governmental authority, or (iv) if NASD Federal or New York
authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section 9, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 6, 7 and 8 shall survive such termination and remain in full force and
effect.
SECTION 10. Default by One or More of the International Managers. If
one or more of the International Managers shall fail at Closing Time or a Date
of Delivery to purchase the
27
Securities which it or they are obligated to purchase under this Agreement (the
"Defaulted Securities"), the International Representatives shall have the right,
within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting International Managers, or any other underwriters, to purchase
all, but not less than all, of the Defaulted Securities in such amounts as may
be agreed upon and upon the terms herein set forth; if, however, the
International Representatives shall not have completed such arrangements within
such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10%
of the number of International Securities to be purchased on such date,
the non-defaulting International Managers shall be obligated, each
severally and not jointly, to purchase the full amount thereof in the
proportions that their respective underwriting obligations hereunder
bear to the underwriting obligations of all non-defaulting
International Managers, or
(b) if the number of Defaulted Securities exceeds 10% of the
number of International Securities to be purchased on such date, this
Agreement or, with respect to any Date of Delivery which occurs after
Closing Time, the obligation of the International Managers to purchase
and of the Issuer to sell the Option Securities to be purchased and
sold on such Date of Delivery, shall terminate without liability on the
part of any non-defaulting International Manager.
No action taken pursuant to this Section 10 shall relieve any
defaulting International Manager from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement or, in the case of a Date of Delivery which is after Closing
Time, which does not result in a termination of the obligation of the
International Managers to purchase and the Issuer to sell the relevant
International Option Securities, as the case may be, either the International
Representatives or the Issuer shall have the right to postpone Closing Time or
the relevant Date of Delivery, as the case may be, for a period not exceeding
seven days in order to effect any required changes in the Registration Statement
or Prospectuses or in any other documents or arrangements. As used herein, the
term "International Manager" includes any person substituted for an
International Manager under this Section 10.
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
International Managers shall be directed to the Lead Manager(s) at Ropemaker
Place, 00 Xxxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX, Xxxxxxx, attention of o; and
notices to either of the Companies shall be directed to the Company at 0000
Xxxxxxxx Xxxx, Xxxxxx, Xxxxxxxx 00000, attention of Xxxxxxxx X. Xxxxxx, Esq.,
with copies to Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, 000 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, attention of Xxxx X. Xxxxx, Esq.
28
SECTION 12. Parties. This Agreement shall inure to the benefit of and
be binding upon the International Managers and the L.L.C. and the Issuer and
their respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the International Managers and the L.L.C. and the Issuer and their
respective successors and the controlling persons and officers and directors
referred to in Sections 6 and 7 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision herein contained. This Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive benefit of the
International Managers and the Company and their respective successors, and said
controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation. No
purchaser of Securities from any International Manager shall be deemed to be a
successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
29
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to each of the L.L.C. and the Issuer a
counterpart hereof, whereupon this instrument, along with all counterparts, will
become a binding agreement between the International Managers and the L.L.C. and
the Issuer in accordance with its terms.
Very truly yours,
TELIGENT, L.L.C.
By
-----------------------
Name:
Title:
TELIGENT, INC.
By
-----------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX XXXXX INTERNATIONAL
SALOMON BROTHERS INTERNATIONAL LIMITED
BEAR, XXXXXXX INTERNATIONAL LIMITED
XXXXXXX SACHS INTERNATIONAL
By
-----------------------
Authorized Signatory
For themselves and as International Representatives of the other International
Managers named in Schedule A hereto.
30
SCHEDULE A
INTERNATIONAL MANAGERS
Number of
International
Initial
Name of International Manager Securities
Xxxxxxx Xxxxx International................................................................
Salomon Brothers International Limited.....................................................
Bear, Xxxxxxx International Limited........................................................
Xxxxxxx Sachs International................................................................
---------
Total...................................................................................... 1,100,000
=========
Sch A - 1
SCHEDULE B
PRICING INFORMATION
TELIGENT, INC.
1,100,000 Shares of Class A Common Stock
(Par Value U.S.$.01 Per Share)
1. The initial public offering price per share for the
International Initial Securities, determined as provided in Section 2,
shall be $o.
2. The purchase price per share for the International Initial
Securities to be paid by the several International Managers shall be
$o, being an amount equal to the initial public offering price set
forth above less $o per share; provided that the purchase price per
share for any International Option Securities purchased upon the
exercise of the over-allotment option described in Section 2(b) shall
be reduced by an amount per share equal to any dividends or
distributions declared by the Issuer and payable on the International
Initial Securities but not payable on the International Option
Securities.
Sch B - 1
SCHEDULE C
PERSONS AND ENTITIES SUBJECT TO LOCK-UP
Sch C - 1
SCHEDULE D
SUBSIDIARIES OF THE COMPANY
Sch D - 1
EXHIBIT A
FORM OF OPINION OF COMPANY COUNSEL
TO BE DELIVERED PURSUANT TO SECTION 5(b)
A - 1
EXHIBIT B
FORM OF OPINION OF SPECIAL FEDERAL REGULATORY COUNSEL
TO BE DELIVERED PURSUANT TO SECTION 5(b)
B - 1
EXHIBIT C
FORM OF OPINION OF GENERAL COUNSEL FOR THE COMPANY
TO BE DELIVERED PURSUANT TO SECTION 5(b)
C-1
EXHIBIT D
FORM OF LOCK-UP LETTER
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
SALOMON BROTHERS INC
BEAR XXXXXXX & CO. INC.
XXXXXXX, SACHS & CO.
XXXXXXX XXXXX INTERNATIONAL
SALOMON BROTHERS INTERNATIONAL LIMITED
BEAR, XXXXXXX INTERNATIONAL LIMITED
XXXXXXX SACHS INTERNATIONAL
as Representatives of the several
Underwriters to be named in the
within-mentioned Purchase Agreements
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Proposed Public Offering by Teligent, Inc.
Dear Sirs:
The undersigned, a stockholder [and an officer and/or director] of
Teligent, Inc., a Delaware corporation (the "Company"), understands that Xxxxxxx
Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx
Xxxxx"), Xxxxxxx Xxxxxxxx Inc, Bear, Xxxxxxx & Co., Inc. and Xxxxxxx, Xxxxx &
Co. propose to enter into a U.S. Purchase Agreement and Xxxxxxx Xxxxx
International, Salomon Brothers International Limited, Bear, Xxxxxxx
International Limited and Xxxxxxx Sachs International propose to enter into an
International Purchase Agreement (together, the "Purchase Agreements") with the
Company providing for the public offering of shares (the "Securities") of the
Company's Class A Common Stock, par value $.01 per share.
In recognition of the benefit that such an offering will confer upon
the undersigned as a stockholder [and an officer and/or director] of the
Company, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the undersigned agrees with each
underwriter to be named in the Purchase Agreements that, during a period of 180
days from the date of the Purchase Agreements, the undersigned will not, without
the prior written consent of Xxxxxxx Xxxxx, directly or indirectly, (i) offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant for
the sale of, or otherwise dispose of or transfer any shares of common stock of
the Company or any securities convertible into or exchangeable or exercisable
for common stock of the Company, whether now owned or hereafter acquired by the
undersigned or with
D-1
respect to which the undersigned has or hereafter acquires the power of
disposition, or file any registration statement under the Securities Act of
1933, as amended, with respect to any of the foregoing or (ii) enter into any
swap or any other agreement or any transaction that transfers, in whole or in
part, directly or indirectly, the economic consequence of ownership of any
common stock of the Company, whether any such swap or transaction is to be
settled by delivery of common stock of the Company or other securities, in cash
or otherwise; provided, however, that the undersigned may without such consent
(i) exercise any outstanding stock options granted pursuant to employment
agreements or employee benefit plans of the Company referred to in the
Prospectuses (as defined in the Purchase Agreements) so long as the undersigned
agrees to be bound by this Agreement with respect to shares of common stock
issued upon such exercise and (ii) make bona fide gifts of shares of common
stock of the Company so long as the transferee agrees to be bound by this
Agreement with respect to such shares.
Very truly yours,
Signature:
-------------------------
Print Name:
-------------------------
D-2
