FORM OF SECURITIES PURCHASE AGREEMENT
Exhibit
10.1
FORM
OF SECURITIES PURCHASE AGREEMENT
This
Securities Purchase Agreement (this “Agreement”)
is
dated as of June ____, 2008 (the “Effective
Date”),
between ICO Global Communications (Holdings) Limited, a Delaware corporation
(the “Company”),
and
each of those persons listed on the signature pages as purchasers (“Purchasers”).
Recitals
A. The
Company’s Class A Common Stock, par value $0.01 per share (the “Class
A Common Stock”)
is
listed on the NASDAQ Global Market under the trading symbol “ICOG.” The Company
files reports pursuant to the Securities Exchange Act of 1934, as amended (the
“Exchange
Act”).
B. The
Company desires to issue and sell to Purchasers, and Purchasers desire to
purchase from the Company, shares of Class A Common Stock. The shares will
be
issued and sold pursuant to the exemption from registration provided in
Section 4(2) of the Securities Act of 1933, as amended (the “Securities
Act”).
Agreement
In
consideration of the mutual covenants contained in this Agreement, and for
other
good and valuable, the Company and Purchasers agree as follows:
1.Definitions.
In
addition to the terms defined elsewhere in this Agreement, for all purposes
of
this Agreement, the following terms have the meanings below:
“Action”
means
any action, suit or investigation pending or threatened, in writing or
otherwise, against or affecting the Company or any of its material properties
before or by any court, arbitrator, governmental or administrative agency or
regulatory authority (federal, state, county, local or foreign).
“Business
Day”
means
any day except Saturday, Sunday and any day which is a federal legal holiday
or
a day on which banking institutions in the City of New York are authorized
or
required by law or other governmental action to close.
“Claim”
has
the
meaning set forth in Section 5.5(c).
“Class
A Common Stock”
has
the
meaning set forth in the Recitals.
“Closing”
means
the closing of the purchase and sale of the Shares pursuant to Section 2,
which shall occur two trading days subsequent to the execution by the parties
of
this Agreement.
“Commission”
means
the Securities and Exchange Commission.
“Exchange
Act”
means
has the meaning set forth in the Recitals.
“Indemnified
Party”
has
the
meaning set forth in Section 5.5(c).
“Indemnifying
Party”
has
the
meaning set forth in Section 5.5(c).
“IP
Rights”
means
all patents, patent rights, patent applications, registered trademarks and
service marks, trademark rights, trademark applications, trade names, registered
copyrights and all licenses owned or possessed by the Company or a Significant
Subsidiary.
“Lien”
means
any lien, charge, encumbrance, security interest, right of first refusal or
other restrictions of any kind.
“Material
Adverse Effect”
means
any of (i) a material and adverse effect on the legality, validity or
enforceability of this Agreement, (ii) a material and adverse effect on the
results of operations, assets, prospects, business or condition (financial
or
otherwise) of the Company and its subsidiaries, taken as a whole, or
(iii) a material impairment of the Company’s ability to perform on a timely
basis its obligations under this Agreement.
“Per
Share Purchase Price”
has
the
meaning set forth in Section 2.1.
“Person”
means
an individual or corporation, partnership, trust, incorporated or unincorporated
association, joint venture, limited liability company, joint stock company,
government (or an agency or subdivision thereof) or other entity of any
kind.
“Registration
Period”
has
the
meaning set forth in Section 5.2(a).
“Registration
Statement”
means
a
registration statement filed on the appropriate Form with, and declared
effective by, the Commission under the Securities Act and covering the resale
by
Purchasers of the Shares.
“Rule
144”
means
Rule 144 promulgated by the Commission pursuant to the Securities Act, as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission having substantially the same effect as
such
Rule.
“Securities
Act”
has
the
meaning set forth in the Recitals.
“SEC
Reports”
has
the
meaning set forth in Section 3.5.
“Shares”
means
the total number of shares of Class A Common Stock issued to the Purchasers
pursuant to Section 2.1, except that in Section 4, "Shares" means those shares
of Class A Common Stock to be issued to the respective Purchaser making the
representations and warranties in Section 4.
“Significant
Subsidiary”
has
the
meaning set forth in Rule 1-02(w) of Regulation S-X under the Securities
Act.
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2.Purchase
and Sale.
2.1 Purchase
and Sale.
Subject
to the terms and conditions set forth in this Agreement, at the Closing the
Company shall issue and sell to Purchasers, and each Purchaser, severally and
not jointly, shall purchase from the Company, the whole number of shares of
Class A Common Stock equal to (a) the dollar amount set forth below Purchaser’s
name on the signature page of this Agreement, divided by (b) the Per Share
Purchase Price. The “Per Share Purchase Price” shall be equal to 95% of the
average of the closing prices as reported on the Nasdaq Global Market for the
20
trading days ending on the trading date immediately preceding the Effective Date
of this Agreement.
2.2 Closing
Deliveries.
(a) At the Closing, the Company shall deliver or cause to be delivered the
following to each Purchaser:
(i) a
certificate evidencing the number of Shares purchased by such Purchaser
registered in the name of such Purchaser;
and
(ii) the
legal
opinion of Holme Xxxxxxx & Xxxx, LLP, counsel to the Company, in the form
attached hereto as Appendix A.
(b) At
the
Closing, each Purchaser shall deliver or cause
to be
delivered to the Company the dollar amount set forth below such Purchaser’s name
on the signature page of this Agreement in immediately available funds, by
wire
transfer to the account designated in Appendix B.
3. Representations
and Warranties of the Company.
The
Company hereby makes the following representations and warranties to each of
the
Purchasers as of the date hereof, except as otherwise specified:
3.1 Organization
and Qualification.
The
Company and each Significant Subsidiary is duly incorporated, validly existing
and in good standing under the laws of Delaware, with the requisite power and
authority to own and use its properties and assets and to carry on its business
as currently conducted. The Company and each Significant Subsidiary is duly
qualified to conduct its businesses and is in good standing as a foreign
corporation or other entity in each jurisdiction in which the nature of the
business conducted or property owned by it makes such qualification necessary,
except where the failure to be so qualified or in good standing, as the case
may
be, could not, individually or in the aggregate, reasonably be expected to
result in a Material Adverse Effect and no proceeding has been instituted in
any
such jurisdiction revoking, limiting or curtailing, or seeking to revoke, limit
or curtail, such power and authority or qualification.
3.2 Authorization;
Enforcement.
The
Company has the requisite corporate power and authority to enter into and to
consummate the transactions contemplated by this Agreement and otherwise to
carry out its obligations hereunder. The execution and delivery of this
Agreement by the Company and the consummation by it of the transactions
contemplated hereby have been duly authorized by all necessary action on the
part of the Company and no further action is required by the Company in
connection therewith. This Agreement has been duly executed and delivered by
the
Company and constitutes the valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation or similar laws relating to, or
affecting generally the enforcement of, creditors’ rights and remedies or by
other equitable principles of general application.
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3.3 No
Conflicts.
(a) The
execution, delivery and performance of this Agreement by the Company and the
consummation by the Company of the transactions contemplated hereby do not
and
will not (i) conflict with or violate any provision of the Company’s
certificate of incorporation or bylaws, or (ii) conflict with, or
constitute a default (or an event that with notice or lapse of time or both
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation (with or without notice, lapse of time
or both) of, or result in the imposition of any Lien or restriction whatsoever
upon any of the material properties or assets of the Company or any Significant
Subsidiary pursuant to, any agreement, credit facility, debt or other instrument
(evidencing a Company debt or otherwise) or other understanding to which the
Company or any Significant Subsidiary is a party or by which any property or
asset of the Company or any Significant Subsidiary is bound or affected, or
(iii) result in a violation of any law, rule, regulation, order, judgment,
injunction, decree or other restriction of any court or governmental authority
to which the Company or any Significant Subsidiary is subject (including federal
and state securities laws and regulations), or by which any property or asset
of
the Company or any Significant Subsidiary is bound or affected; except in the
case of each of clauses (ii) and (iii), such as could not, individually or
in
the aggregate, reasonably be expected to result in a Material Adverse Effect.
(b) Except
where such a violation would not result in a Material Adverse Effect, neither
the Company nor any Significant Subsidiary is in violation of or default under
any provision of its respective certificate of incorporation, bylaws, or any
material contract, instrument, judgment, order, writ or decree to which it
is a
party or by which it or any of its properties is bound; or is in violation
of
any material provision of any federal or state statute, rule or regulation
applicable to the Company or such Significant Subsidiary.
3.4 Issuance
of the Shares.
The
Shares have been duly authorized and, when issued and paid for in accordance
with this Agreement, will be duly and validly issued, fully paid and
nonassessable, free and clear of all Liens.
3.5 SEC
Reports.
The
Company has filed all reports required to be filed by it under the Securities
Act and the Exchange Act, including pursuant to Section 13(a) or 15(d)
thereof, for the twelve months preceding the date hereof (the foregoing
materials, being collectively referred to herein as the “SEC
Reports”).
As of
their respective dates, the SEC Reports complied in all material respects with
the requirements of the Securities Act and the Exchange Act and the rules and
regulations of the Commission promulgated thereunder, and none of the SEC
Reports, when filed, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary
in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading. The SEC Reports when read in their totality,
with the disclosure contained in subsequent SEC Reports updating and as
appropriate superseding the disclosure contained in preceding SEC Reports,
present as of the date hereof do not contain any untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading.
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3.6 Financial
Statements.
The
financial statements of the Company included in the SEC Reports comply in all
material respects with applicable accounting requirements and the rules and
regulations of the Commission with respect thereto as in effect at the time
of
filing. Such financial statements have been prepared in accordance with
generally accepted accounting principles (GAAP) applied on a consistent basis
during the periods involved, except as may be otherwise specified in such
financial statements or the notes thereto, and fairly present in all material
respects the financial position of the Company and its consolidated subsidiaries
as of and for the dates thereof and the results of operations and cash flows
for
the periods then ended, subject, in the case of unaudited statements, to normal,
immaterial, year-end audit adjustments.
3.7 Material
Changes.
Since
March 31, 2008, except as specifically disclosed in the SEC Reports, there
has
been no event, occurrence or development that has had or that could reasonably
be expected to result in a Material Adverse Effect.
3.8 Compliance.
Neither
the Company nor any Significant Subsidiary (i) is in default under or in
violation of (and no event has occurred that has not been waived that, with
notice or lapse of time or both, would result in a default by the Company or
such subsidiary), nor has the Company or such subsidiary received notice of
a
claim that it is in default under or that it is in violation of, any indenture,
loan or credit agreement or any other agreement or instrument to which it is
a
party or by which it or any of its properties is bound (whether or not such
default or violation has been waived), (ii) is in violation of any order of
any court, arbitrator or governmental body, or (iii) is or has been in
violation of any statute, rule or regulation of any governmental authority,
including without limitation all foreign, federal, state and local laws relating
to taxes, environmental protection, occupational health and safety, product
quality and safety and employment and labor matters, except in each case as
could not, individually or in the aggregate, have or reasonably be expected
to
result in a Material Adverse Effect.
3.9 Litigation.
After
reasonable inquiry and except as specifically disclosed in the SEC Reports,
the
Company is unaware of (i) any Action which adversely affects or challenges
the legality, validity or enforceability of this Agreement or the Shares;
(ii) any Action which could, if there were an unfavorable decision,
individually or in the aggregate, have or reasonably be expected to result
in a
Material Adverse Effect; or (iii) any judgments, decrees, injunctions or
orders of any court, government department, commission, agency, instrumentality
or arbitrator made against the Company or any Significant Subsidiary or any
of
their assets or properties that have or reasonably could be expected to result
in a Material Adverse Effect. None of the Company, any director or officer
thereof (in his or her capacity as such) or any Significant Subsidiary, is
or
has been the subject of any Action involving a claim of violation of or
liability under federal or state securities laws or a claim of breach of
fiduciary duty.
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3.10 Insurance.
The
Company and each Significant Subsidiary is 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 the Company and each
Significant Subsidiary is engaged, including, but not limited to, directors’ and
officers’ insurance coverage of at least $10 million. The Company has no 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 on terms consistent with
market for the Company’s line of business.
3.11 Regulatory
Permits.
The
Company and each Significant Subsidiary possesses all certificates,
authorizations and permits issued by the appropriate federal, state, local
or
foreign regulatory authorities necessary to conduct its business as currently
conducted, except where the failure to possess such permits could not,
individually or in the aggregate, reasonably be expected to result in a Material
Adverse Effect, and neither the Company nor any Significant Subsidiary has
received any notice of proceedings relating to the revocation or modification
of
any such permits.
3.12 Transactions
With Affiliates.
Except
as set forth in the SEC Reports, none of the officers or directors (or their
family members) of the Company or stockholders of the Company holding more
than
5% of any class of common stock of the Company is presently a party to any
transaction with the Company (other than for services as employees, officers
and
directors), including any contract, agreement or other arrangement providing
for
the furnishing of services to or by, providing for rental of real or personal
property to or from, or otherwise requiring payments to or from any officer,
director or such employee or, to the knowledge of the Company, any entity in
which any officer, director, or any such employee has a substantial interest
or
is an officer, director, trustee or partner.
3.13 Xxxxxxxx-Xxxxx;
Internal Accounting Controls.
The
Company is in material compliance with all provisions of the Xxxxxxxx-Xxxxx
Act
of 2002 (including the rules and regulations of the Commission adopted
thereunder) which are applicable to it as of the date of this Agreement. The
Company’s certifying officers have evaluated the effectiveness of the Company’s
controls and procedures as of the date prior to the filing date of the most
recently filed periodic report under the Exchange Act (such date, the
“Evaluation
Date”).
The
Company presented in its most recently filed periodic report under the Exchange
Act the conclusions of the certifying officers about the effectiveness of the
disclosure controls and procedures based on their evaluations as of the
Evaluation Date. Since the Evaluation Date, there have been no significant
changes in the Company’s disclosure controls and procedures (as such term is
defined in Rule 13a-14(c) and Rule 15d-14(c) under the Exchange Act),
in the Company’s internal control over financial reporting (as defined in Rule
13a-15(f) or Rule 15d-15(f) under the Exchange Act) or, to the Company’s
knowledge, in other factors that could significantly affect the Company’s
disclosure controls and procedures or internal control over financial
reporting.
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3.14 Taxes.
The
Company and each Significant Subsidiary has filed all material federal, state
and foreign income and franchise tax returns when due (or obtained appropriate
extensions for filing) and has paid or accrued all taxes shown as due thereon,
and the Company has no knowledge of a tax deficiency which has been or might
be
asserted or threatened against it or against any Significant Subsidiary which
would have a Material Adverse Effect.
3.15 Off-Balance
Sheet Arrangements.
There
is no transaction, arrangement, or other relationship, directly or indirectly,
between the Company and an unconsolidated or other off balance sheet entity
that
is required to be disclosed by the Company in its Exchange Act filings and
is
not so disclosed or that otherwise would be reasonably likely to have a Material
Adverse Effect other than those disclosed in the Company’s SEC
filings.
3.16 Certain
Fees.
No
brokerage or finder’s fees or commissions are or will be payable by the Company
to any broker, financial advisor or consultant, finder, placement agent,
investment banker, bank or other Person with respect to the transactions
contemplated by this Agreement. Purchasers shall have no obligation with respect
to any fees or with respect to any claims (other than such fees or commissions
owed by an Purchaser pursuant to written agreements executed by such Purchaser
which fees or commissions shall be the sole responsibility of such Purchaser)
made by or on behalf of other Persons for fees of a type contemplated in this
Section that may be due in connection with the transactions contemplated by
this
Agreement.
3.17 Certain
Registration Matters.
Assuming the accuracy of each Purchaser’s representations and warranties set
forth in Section, no registration under the Securities Act or applicable state
law is required for the offer and sale of the Shares by the Company to
Purchasers pursuant to this Agreement.
3.18 Interim
Events.
Since
the filing by the Company of its Quarterly Report on Form 10-Q on May 12, 2008,
and except as otherwise disclosed in SEC Reports or as would not individually
or
in the aggregate have a Material Adverse Effect, neither the Company nor any
Significant Subsidiary (i) has entered into or is party to or is otherwise
bound
by any written or oral contract, agreement, understanding, arrangement, lease,
guaranty, or other obligation or series of related obligations or transactions;
(ii) is a party to, or, directly or indirectly bound by any indenture, mortgage,
deed of trust, or other agreement or instrument relating to the borrowing of
money, the guarantee of indebtedness, or the granting of any security interest,
negative pledge or other encumbrance on the assets of the Company or such
Significant Subsidiary; or (iii) has incurred or is subject to any liabilities
or obligations, fixed or contingent, matured or unmatured, or
otherwise.
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3.19 Bankruptcy.
Neither
the Company nor any Significant Subsidiary has admitted in writing its inability
to pay its debts generally as they become due, filed or consented to the filing
against it of a petition in bankruptcy or a petition to take advantage of any
insolvency act, made an assignment for the benefit of creditors, consented
to
the appointment of a receiver for itself or for the whole or any substantial
part of its property, or had a petition in bankruptcy filed against it, been
adjudicated a bankrupt, or filed a petition or answer seeking reorganization
or
arrangement under the federal bankruptcy laws or any other laws of the United
States or any other jurisdiction.
3.20 Intellectual
Property.
To the
best of the Company’s knowledge, the IP Rights are valid and enforceable rights
and do not infringe or conflict with the rights of any third party. To the
best
of the Company’s knowledge, there is neither pending nor threatened nor is there
any basis for any claim or litigation against the Company or any Significant
Subsidiary contesting the validity or right to use any of the IP Rights, and
none of the Company or the Significant Subsidiaries have received any notice
of
infringement upon or conflict with any asserted right of others nor, to the
best
of the Company’s knowledge, no person, corporation or other entity is infringing
the IP Rights.
3.21 Conduct
of Business.
Except
as disclosed in the SEC Reports, the Company, directly or through subsidiaries,
has all property, assets, leases, licenses, patents, trademarks, know-how,
contracts or agreements (the “Assets”)
reasonably necessary to operate the business of the Company as conducted as
of
the date hereof. To the Company’s knowledge, and except as disclosed in the SEC
Reports, no purchase commitment for materials, supplies, component parts or
items of inventory of the business to which the Company or a Significant
Subsidiary is a party is in excess of the ordinary, normal, usual and current
requirements of the business of the Company or such Significant Subsidiary
or at
a price in excess of the current reasonable market price. To the Company’s
knowledge and except as disclosed in the SEC Reports, no contract or other
obligation which relates to the business of the Company obligates the Company
or
a Significant Subsidiary (i) to provide products or services to third
persons which the Company knows or has reason to believe is at price which
would
result in a material net loss on the sale or provision of such product or
service, or which is pursuant to terms or conditions it cannot reasonably expect
to satisfy or fulfill in their entirety; or (ii) to purchase or acquire
services, information, products, inventory or equipment in excess of the normal,
ordinary, usual and current requirements of the business of the Company or
at a
price in excess of the current reasonable market price.
4. Representations
and Warranties of Purchasers.
Each
Purchaser, severally and not jointly, hereby represents and warrants to the
Company as follows:
4.1 Investment
Intent.
Such
Purchaser is acquiring the Shares as principal for its own account for
investment purposes only and not with a view to or for distributing or reselling
such Shares or any part thereof, without prejudice, however, to Purchaser’s
right at all times to sell or otherwise dispose of all or any part of such
Shares in compliance with applicable federal and state securities laws. Subject
to the immediately preceding sentence, nothing contained herein shall be deemed
a representation or warranty by Purchaser to hold the Shares for any period
of
time. Purchaser is acquiring the Shares hereunder in the ordinary course of
its
business. Purchaser does not have any agreement or understanding, directly
or
indirectly, with any Person to distribute any of the Shares.
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4.2 Purchaser’s
Status.
At the
time such Purchaser was offered the Shares, it was, and at the date hereof
it
is, an “accredited investor” as defined in Rule 501(a) under the Securities Act.
4.3 Access
to Information.
Such
Purchaser acknowledges that it has reviewed the SEC Reports and has been
afforded (i) the opportunity to ask such questions as it has deemed
necessary of, and to receive answers from, representatives of the Company
concerning the terms and conditions of the offering of the Shares and the merits
and risks of investing in the Shares; (ii) access to information about the
Company and its respective financial condition, results of operations, business,
properties, management and prospects sufficient to enable it to evaluate its
investment; and (iii) the opportunity to obtain such additional information
that the Company possesses or can acquire without unreasonable effort or expense
that is necessary to make an informed investment decision with respect to the
investment. Such purchaser has conducted its own independent assessment,
analysis and investigation with respect to the Company and its business at
the
time of entering into this Agreement and has agreed to enter into this Agreement
based solely on this assessment, analysis and investigation.
5. Registration
Rights.
5.1 Registration
Statement.
The
Company shall prepare and file with the Commission, not later than 30 days
after
the Closing, a Registration Statement relating to the offer and sale of the
Shares (together with any shares of Class A Common Stock or any other securities
issued as a dividend or distribution in respect of the Shares) from time to
time
on a continuous basis by Purchasers pursuant to Rule 415 of the Securities
Act and shall use commercially reasonable efforts to cause the Commission to
declare such Registration Statement effective under the Securities Act
(a) as promptly as practicable but (b) in no event later than 75 days after
the Registration Statement was filed. If the Company fails to file a
Registration Statement within 30 days after the Closing, the Company shall
pay
to each Purchaser 1% of the dollar amount set forth below such Purchaser’s name
on the signature page of this Agreement for each 30 days subsequent to Closing
such Registration Statement is not filed. If the Registration Statement is
not
effective under the Securities Act within 75 days after its filing, the Company
shall pay to each Purchaser 1% of the dollar amount set forth below such
Purchaser’s name on the signature page of this Agreement, and the Company shall
pay to each Purchaser 1% of the dollar amount set forth below such Purchaser’s
name on the signature page of this Agreement for each 30 days thereafter that
such Registration Statement is not effective.
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5.2 Obligations
of the Company.
In
connection with the registration of the Shares, the Company shall:
(a) Prepare
and file the Registration Statement in accordance with the time period set
forth
in Section 5.1 and promptly prepare and file with the Commission such
amendments (including post-effective amendments) to the Registration Statement
and supplements to the prospectus included therein (a “Prospectus”)
as may
be necessary to keep the Registration Statement continuously effective and
in
compliance with the provisions of the Securities Act applicable thereto so
as to
permit the Prospectus forming part thereof to be current and useable by
Purchasers for resales of the Shares until such date as is the earlier of (x)
the date when all Shares covered by such Registration Statement have been sold
or (y) the date on which the Shares may be sold without any restriction
(including the volume limitations) pursuant to Rule 144 as determined by counsel
to the Company pursuant to a written opinion letter, addressed to the Company’s
transfer agent to such effect (the “Registration
Period”)
and
take all lawful action such that the Registration Statement and any amendment
thereto does not, when it becomes effective, 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 that the Prospectus
forming part of the Registration Statement, and any amendment or supplement
thereto, does not at any time during the Registration Period include an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(b) During
the Registration Period, comply with the provisions of the Exchange Act and
the
Securities Act until such time as all of such Shares have been disposed of
in
accordance with the intended methods of disposition by Purchasers as set forth
in the Prospectus forming part of the Registration Statement;
(c) Prior
to
the filing with the Commission of the Registration Statement (including any
amendments thereto) and the distribution or delivery of any Prospectus
(including any supplements thereto), provide draft copies thereof to Purchasers
and, with respect to language that pertains to Purchasers, reflect in such
documents all such comments received from Purchasers within two full Business
Days after receipt of such draft copies as Purchasers reasonably may
propose;
(d) (i) Register,
qualify or make a determination of exemption for the Shares covered by the
Registration Statement under such securities or “blue sky” laws of such
jurisdictions as Purchasers reasonably request, (ii) prepare and file in
such jurisdictions such amendments (including post-effective amendments) and
supplements to such registrations and qualifications as may be necessary to
maintain the effectiveness thereof at all times during the Registration Period,
(iii) take all such other lawful actions as may be necessary to maintain
such registrations, qualifications and exemptions in effect at all times during
the Registration Period, and (iv) take all such other lawful actions
reasonably necessary or advisable to qualify the Shares for sale in such
jurisdictions; provided,
however,
that the
Company shall not be required in connection therewith or as a condition thereto
to (A) qualify to do business in any jurisdiction where it would not
otherwise be required to qualify, (B) subject itself to general taxation in
any such jurisdiction or (C) file a general consent to service of process
in any such jurisdiction;
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(e) As
promptly as practicable after becoming aware of such event, notify Purchasers
of
the occurrence of any event, as a result of which the Prospectus included in
the
Registration Statement, as then in effect, includes an untrue statement of
a
material fact or omits to state a material fact required to be stated therein
or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, and promptly prepare an amendment to
the
Registration Statement and supplement to the Prospectus to correct such untrue
statement or omission, and deliver a number of copies of such supplement and
amendment to Purchasers as it may reasonably request;
(f) As
promptly as practicable after becoming aware of such event, notify Purchasers
of
the issuance by the Commission of any stop order or other suspension of the
effectiveness of the Registration Statement and take all lawful action to effect
the withdrawal, rescission or removal of such stop order or other
suspension;
(g) Take
all
such other lawful actions reasonably necessary to expedite and facilitate the
disposition by Purchasers of their Shares in accordance with the intended
methods therefor provided in the Prospectus which are customary under the
circumstances;
5.3 Purchasers’
Obligations.
In
connection with the registration of the Shares, each Purchaser shall have the
following obligations:
(a) It
shall
be a condition precedent to the obligations of the Company to register the
Shares that Purchaser (i) shall furnish to the Company such information
regarding itself, the Shares held by it and the intended method of disposition
of the Shares held by it as shall be reasonably required to effect the
registration of such Shares and (ii) shall execute such documents in
connection with such registration as the Company may reasonably
request.
(b) Purchaser
agrees that, upon receipt of any notice from the Company of the occurrence
of
any event of the kind described in Section 5.2(e) or (f), it shall
immediately discontinue its disposition of its Shares pursuant to the
Registration Statement until Purchaser’s receipt of the copies of the
supplemented or amended Prospectus contemplated by
Section 5.2(e).
5.4 Expenses
of Registration.
All
expenses, other than underwriting discounts and commissions, incurred in
connection with registrations, filings or qualifications pursuant to
Section 5.1, including, without limitation, all registration, listing, and
qualifications fees, printing and engraving fees, accounting fees, and the
fees
and disbursements of counsel for the Company shall be borne by the Company.
Purchasers shall pay the fees of their legal counsel.
A-11
5.5 Indemnification
and Contribution.
(a) The
Company shall indemnify and hold harmless Purchasers, and each of their
respective officers, directors, employees, and agents, and each Person who
controls such Purchaser within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act (each such Person being sometimes
hereinafter referred to as an “Indemnified
Person”)
from
and against any losses, claims, damages or liabilities, joint or several, to
which such Indemnified Person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in
respect thereof) arise out of or are based upon either a breach of the
representations and warranties set forth in Section 3 of this Agreement or
an
untrue statement or alleged untrue statement of a material fact contained in
any
Registration Statement or an omission or alleged omission to state therein
a
material fact required to be stated therein or necessary to make the statements
therein, not misleading, or arise out of or are based upon an untrue statement
or alleged untrue statement of a material fact contained in any Prospectus
or an
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in the light of
the
circumstances under which they were made, not misleading; and the Company hereby
agrees to reimburse such Indemnified Person for all reasonable legal and other
expenses incurred by them in connection with investigating or defending any
such
action or claim as and when such expenses are incurred; provided,
however,
that the
Company shall not be liable to any such Indemnified Person in any such case
to
the extent that any such loss, claim, damage or liability arises out of or
is
based upon (i) an untrue statement or alleged untrue statement made in, or
an omission or alleged omission from, such Registration Statement or Prospectus
in reliance upon and in conformity with written information furnished to the
Company by such Indemnified Person expressly for use therein or (ii) in the
case of the occurrence of an event of the type specified in Section 5.2(e),
the use by the Indemnified Person of an outdated or defective Prospectus after
the Company has notified the Indemnified Person in writing of such occurrence
prior to the time such Indemnified Person has entered into any trade to dispose
of the Shares related to such Prospectus.
(b) Each
Purchaser, severally and not jointly, agree to (i) indemnify and hold
harmless the Company, its directors (including any person who, with his or
her
consent, is named in the Registration Statement as a director nominee of the
Company), its officers who sign any Registration Statement and each Person,
if
any, who controls the Company within the meaning of either Section 15 of
the Securities Act or Section 20 of the Exchange Act, against any losses,
claims, damages or liabilities to which the Company or such other persons may
become subject, under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of
or
are based upon either a breach of the representations and warranties of such
Purchaser set forth in Section 4 of this Agreement or an untrue statement or
alleged untrue statement of a material fact contained in such Registration
Statement or Prospectus or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein (in light of the circumstances
under
which they were made, in the case of the Prospectus), not misleading, in each
case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by
such
Purchaser expressly for use therein; and (ii) reimburse the Company for any
legal or other expenses incurred by the Company in connection with investigating
or defending any such action or claim as such expenses are
incurred.
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(c) Promptly
after receipt by a Person seeking indemnification pursuant to this
Section 5.5 (an “Indemnified
Party”)
of
written notice of any investigation, claim, proceeding or other action in
respect of which indemnification is being sought (each, a “Claim”),
the
Indemnified Party promptly shall notify the Person against whom indemnification
pursuant to this Section 5.5 is being sought (the “Indemnifying
Party”)
of the
commencement thereof; but the omission to so notify the Indemnifying Party
shall
not relieve it from any liability that it otherwise may have to the Indemnified
Party, except to the extent that the Indemnifying Party is materially prejudiced
and forfeits substantive rights and defenses by reason of such failure. In
connection with any Claim as to which both the Indemnifying Party and the
Indemnified Party are parties, the Indemnifying Party shall be entitled to
assume the defense thereof. Notwithstanding the assumption of the defense of
any
Claim by the Indemnifying Party, the Indemnified Party shall have the right
to
employ separate legal counsel and to participate in the defense of such Claim,
and the Indemnifying Party shall bear the reasonable fees, out-of-pocket costs
and expenses of such separate legal counsel to the Indemnified Party if (and
only if): (i) the Indemnifying Party shall have agreed to pay such fees,
costs and expenses, (ii) the Indemnified Party shall reasonably have
concluded that representation of the Indemnified Party by the Indemnifying
Party
by the same legal counsel would not be appropriate due to actual or, as
reasonably determined by legal counsel to the Indemnified Party, potentially
differing interests between such parties in the conduct of the defense of such
Claim, or if there may be legal defenses available to the Indemnified Party
that
are in addition to or disparate from those available to the Indemnifying Party,
or (iii) the Indemnifying Party shall have failed to employ legal counsel
reasonably satisfactory to the Indemnified Party within a reasonable period
of
time after notice of the commencement of such Claim. If the Indemnified Party
employs separate legal counsel in circumstances other than as described in
the
preceding sentence, the fees, costs and expenses of such legal counsel shall
be
borne exclusively by the Indemnified Party. Except as provided above, the
Indemnifying Party shall not, in connection with any Claim in the same
jurisdiction, be liable for the fees and expenses of more than one firm of
counsel for the Indemnified Party (together with appropriate local counsel).
The
Indemnified Party shall not, without the prior written consent of the
Indemnifying Party (which consent shall not unreasonably be withheld), settle
or
compromise any Claim or consent to the entry of any judgment that does not
include an unconditional release of the Indemnifying Party from all liabilities
with respect to such Claim or judgment or contain any admission of
wrongdoing.
(d) If
the
indemnification provided for in this Section 5.5 is unavailable to or
insufficient to hold harmless an Indemnified Party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to
therein, then each Indemnifying Party shall contribute to the amount paid or
payable by such Indemnified Party as a result of such losses, claims, damages
or
liabilities (or actions in respect thereof) in such proportion as is appropriate
to reflect the relative fault of the Indemnifying Party and the Indemnified
Party in connection with the statements or omissions or alleged statements
or
omissions which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative fault of such Indemnifying Party and Indemnified
Party shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by such
Indemnifying Party or by such Indemnified Party, and the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The parties hereto agree that it would not be just
and equitable if contribution pursuant to this Section 5.5(d) were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to in this
Section 5.5(d). The amount paid or payable by an Indemnified Party as a
result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above shall be deemed to include any legal or other fees
or
expenses reasonably incurred by such Indemnified Party in connection with
investigating or defending any such action or claim. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
A-13
(e) The
obligations of the Company under this Section 5.5 shall be in addition to
any liability which the Company may otherwise have to any Indemnified Person
and
the obligations of any Indemnified Person under this Section 5.5 shall be
in addition to any liability which such Indemnified Person may otherwise have
to
the Company. The remedies provided in this Section 5.5 are not exclusive
and shall not limit any rights or remedies which may otherwise be available
to
an Indemnified Party at law or in equity.
5.6 Rule
144.
With a
view to making available to Purchasers the benefits of Rule 144, the
Company agrees to use its best efforts to comply with the provisions of
paragraph (c)(1) of Rule 144.
6. Other
Agreements of the Parties.
6.1 Listing
of Shares on Nasdaq.
The
Company shall use its best efforts to cause the Shares to be listed on the
Nasdaq Global Market within 15 days of their issuance.
6.2 Transfer
of Shares.
Shares
may only be transferred in compliance with state and federal securities laws.
In
connection with any transfer of the Shares other than pursuant to an effective
registration statement, the Company may require the transferor thereof to
provide to the Company an opinion of counsel reasonably satisfactory to the
Company, the form and substance of which opinion shall be reasonably
satisfactory to the Company, to the effect that such transfer does not require
registration of such transferred Shares under the Securities Act.
6.3 Legends.
Certificates evidencing the Shares will contain the following
legend:
THESE
SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION
OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO SUCH EFFECT,
THE
SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY.
A-14
6.4 Disclaimer
of Other Representations and Warranties.
EXCEPT
AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER THE COMPANY NOR PURCHASERS
MAKE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AT LAW OR IN EQUITY,
IN RESPECT OF THEMSELVES, OR THEIR RESPECTIVE BUSINESS OR OPERATIONS, AND ANY
SUCH OTHER REPRESENTATIONS OR WARRANTIES ARE HEREBY EXPRESSLY
DISCLAIMED.
7. Miscellaneous.
7.1 Fees
and Expenses.
Each
party shall pay all fees and expenses incurred by such party, including, but
not
limited to fees and expenses of its advisers, counsel, accountants and other
experts, if any, incident to the negotiation, preparation, execution, delivery
and performance of this Agreement. The Company shall pay all stamp and other
taxes and duties levied in connection with the sale of the Shares.
7.2 Entire
Agreement.
This
Agreement, together with the Exhibits thereto, contain the entire understanding
of the parties with respect to the subject matter hereof and supersede all
prior
agreements, understandings, discussions and representations, oral or written,
with respect to such matters, which the parties acknowledge have been merged
into such documents and exhibits.
7.3 Notices.
Any and
all notices or other communications or deliveries required or permitted to
be
provided hereunder shall be in writing and shall be deemed given and effective
on the earliest of (a) the date of transmission, if such notice or
communication is delivered via facsimile (provided the sender receives a
machine-generated confirmation of successful transmission) at the facsimile
number specified in this Section prior to 5:00 p.m. (New York City time) on
a Business Day, (b) the next Business Day after the date of transmission,
if such notice or communication is delivered via facsimile at the facsimile
number specified in this Section on a day that is not a Trading Day or later
than 5:00 p.m. (New York City time) on any Business Day, (c) the
Business Day following the date of mailing, if sent by U.S. nationally
recognized overnight courier service, or (d) upon actual receipt by the
party to whom such notice is required to be given. The address for such notices
and communications shall initially be, for the Purchasers, as set forth under
their signature below (or such other address as may be designated in writing
hereafter, in the same manner, by such Purchaser), and if to the Company:
Plaza
America Tower I
00000
Xxxxx Xxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx,
Xxxxxxxx 00000
Attn.:
General Counsel
Facsimile:
(000) 000-0000
With
a
copy to:
Holme
Xxxxxxx & Xxxx LLP
Attn.:
Xxxxx X. Xxxxxx
0000
Xxxxxxx Xx., Xxxxx 0000
Xxxxxx,
Xxxxxxxx 00000
Facsimile:
(000) 000-0000
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7.4 Amendments;
Waivers; No Additional Consideration.
No
provision of this Agreement may be waived or amended except in a written
instrument signed by the Company and by Purchasers holding a majority of the
Shares issued pursuant to this Agreement. No waiver of any default with respect
to any provision, condition or requirement of this Agreement shall be deemed
to
be a continuing waiver in the future or a waiver of any subsequent default
or a
waiver of any other provision, condition or requirement hereof, nor shall any
delay or omission of either party to exercise any right hereunder in any manner
impair the exercise of any such right.
7.5 Construction.
The
headings herein are for convenience only, do not constitute a part of this
Agreement and shall not be deemed to limit or affect any of the provisions
hereof.
7.6 Successors
and Assigns.
This
Agreement shall be binding upon and inure to the benefit of the parties and
their successors and permitted assigns. Neither party may assign this Agreement
or any rights or obligations hereunder without the prior written consent of
the
other party.
7.7 No
Third-Party Beneficiaries.
This
Agreement is intended for the benefit of the parties hereto and their respective
successors and permitted assigns and is not for the benefit of, nor may any
provision hereof be enforced by, any other Person, except as otherwise set
forth
in Section 5.5 (with respect to rights to indemnification and
contribution).
7.8 Governing
Law.
All
questions concerning the construction, validity, enforcement and interpretation
of this Agreement shall be governed by and construed and enforced in accordance
with the internal laws of the State of Delaware, without regard to the
principles of conflicts of law thereof. Each party hereto hereby irrevocably
waives personal service of process and consents to process being served in
any
such Proceeding by mailing a copy thereof via registered or certified mail
or
overnight delivery (with evidence of delivery) to such party at the address
in
effect for notices to it under this Agreement and agrees that such service
shall
constitute good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process
in any manner permitted by law. Each party hereto hereby irrevocably waives,
to
the fullest extent permitted by applicable law, any and all right to trial
by
jury in any legal proceeding arising out of or relating to this Agreement or
the
transactions contemplated hereby. If either party shall commence a Proceeding
to
enforce any provisions of this Agreement, then the prevailing party in such
Proceeding shall be reimbursed by the other party for its reasonable attorneys’
fees and other costs and expenses incurred with the investigation, preparation
and prosecution of such Proceeding.
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7.9 Execution.
This
Agreement may be executed in two or more counterparts, all of which when taken
together shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to
the
other party, it being understood that both parties need not sign the same
counterpart. In the event that any signature is delivered by facsimile
transmission, such signature shall create a valid and binding obligation of
the
party executing (or on whose behalf such signature is executed) with the same
force and effect as if such facsimile signature page were an original
thereof.
[remainder
of page intentionally left blank]
A-17
IN
WITNESS WHEREOF, the parties hereto have caused this Securities Purchase
Agreement to be duly executed by their respective authorized signatories as
of
the date first indicated above.
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The
Company:
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ICO
Global
Communications (Holdings)
Limited,
a
Delaware corporation
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||
|
By:
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|
Name:
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||
|
Title:
|
||
|
Purchasers:
|
||
|
By:
|
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|
Name:
|
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|
Title:
|
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A-18
Appendix
A
Matters
to be Covered in Opinion of Company Counsel
Capitalized
terms used and not defined herein shall have the meanings ascribed to them
in
the Agreement
(i)
The
Shares have been duly authorized and validly issued and are fully paid and
nonassessable.
(ii)
The
Company has the corporate power to execute and deliver the Agreement, to issue,
sell and deliver the Shares to the Purchasers and to perform its obligations
under the Agreement.
(iii)
The
execution, delivery and performance of the Agreement has been duly authorized
by
all requisite corporate action on behalf of the Company and the Agreement has
been duly executed and delivered by the Company and constitutes the legal,
valid
and binding obligation of the Company, enforceable against the Company in
accordance with its terms.
A-19
Appendix
B
Wire
Transfer Instructions
A-20
