Exhibit 1
ORBCOMM INC.
[________] Shares of Common Stock
($0.001 par value per Share)
FORM OF UNDERWRITING AGREEMENT
November [__], 2006
UNDERWRITING AGREEMENT
November [__], 2006
UBS Securities LLC
as Representative to the Underwriters
named on Schedule A hereto
c/o UBS Securities LLC
299 Park Avenue
New York, New York 10171
Ladies and Gentlemen:
ORBCOMM Inc., a Delaware corporation (the "Company"), proposes to
issue and sell, and each person or entity (each, a "Selling Stockholder")
identified as a Selling Stockholder in Schedule C annexed hereto proposes to
sell, to the underwriters named in Schedule A annexed hereto (the
"Underwriters"), for whom you are acting as representative, an aggregate of
[________] shares (the "Firm Shares") of common stock, $0.001 par value (the
"Common Stock"), of the Company, of which [# of firm shares from company] Firm
Shares are to be issued and sold by the Company and an aggregate of [# of firm
shares from selling stockholders] Firm Shares are to be sold by the Selling
Stockholders. The number of Firm Shares to be sold by each Selling Stockholder
is the number of Firm Shares set forth opposite the name of such Selling
Stockholder in Schedule C annexed hereto. In addition, solely for the purpose of
covering over-allotments, the Company proposes to grant to the Underwriters the
option to purchase from the Company up to an additional [________] shares of
Common Stock (the "Additional Shares"). The Firm Shares and the Additional
Shares are hereinafter collectively sometimes referred to as the "Shares." The
Shares are described in the Prospectus which is referred to below.
The Company has prepared and filed, in accordance with the provisions
of the Securities Act of 1933, as amended, and the rules and regulations
thereunder (collectively, the "Act"), with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-1 (File No.
333-134088) under the Act, including a prospectus, relating to the Shares.
Except where the context otherwise requires, "Registration Statement,"
as used herein, means the registration statement, as amended at the time of such
registration statement's effectiveness for purposes of Section 11 of the Act, as
such section applies to the respective Underwriters (the "Effective Time"),
including (i) all documents filed as a part thereof, (ii) any information
contained in a prospectus filed with the Commission pursuant to Rule 424(b)
under the Act, to the extent such information is deemed, pursuant to Rule 430A
or Rule 430C under the Act, to be part of the registration statement at the
Effective Time, and (iii) any registration statement filed to register the offer
and sale of Shares pursuant to Rule 462(b) under the Act.
The Company has furnished to you, for use by the Underwriters and by
dealers in connection with the offering of the Shares, copies of one or more
preliminary prospectuses relating to the Shares. Except where the context
otherwise requires, "Preliminary Prospectus," as used herein, means each such
preliminary prospectus, in the form so furnished.
Except where the context otherwise requires, "Prospectus," as used
herein, means the prospectus, relating to the Shares, filed by the Company with
the Commission pursuant to Rule 424(b) under the Act on or before the second
business day after the date hereof (or such earlier time as may be required
under the Act), or, if no such filing is required, the final prospectus included
in the Registration Statement at the time it became effective under the Act, in
each case in the form furnished by the Company to you for use by the
Underwriters and by dealers in connection with the offering of the Shares.
"Permitted Free Writing Prospectuses," as used herein, means the
documents listed on Schedule D attached hereto and each "road show" (as defined
in Rule 433 under the Act), if any, related to the offering of the Shares
contemplated hereby that is a "written communication" (as defined in Rule 405
under the Act) (each such road show, an "Electronic Road Show"). The
Underwriters have not offered or sold and will not offer or sell, without the
Company's consent, any Shares by means of any "free writing prospectus" (as
defined in Rule 405 under the Act) that is required to be filed by the
Underwriters with the Commission pursuant to Rule 433 under the Act, other than
a Permitted Free Writing Prospectus.
"Disclosure Package," as used herein, means any Preliminary Prospectus
together with any combination of one or more of the Permitted Free Writing
Prospectuses, if any.
As used in this Agreement, "Business Day" shall mean a day on which
the NASDAQ Stock Market LLC Global Market (the "NASDAQ") is open for trading.
The terms "herein," "hereof," "hereto," "hereinafter" and similar terms, as used
in this Agreement, shall in each case refer to this Agreement as a whole and not
to any particular section, paragraph, sentence or other subdivision of this
Agreement. The term "or," as used herein, is not exclusive.
The Company has prepared and filed, in accordance with Section 12 of
the Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder (collectively, the "Exchange Act"), a registration statement (as
amended, the "Exchange Act Registration Statement") on Form 8-A (File No.
1-[____]) under the Exchange Act to register, under Section 12(b) of the
Exchange Act, the class of securities consisting of the Common Stock.
The Company, each of the Selling Stockholders and the Underwriters
agree as follows:
1. Sale and Purchase. Upon the basis of the representations and warranties,
and subject to the terms and conditions herein set forth, the Company agrees to
issue and sell and each of the Selling Stockholders agrees to sell, in each case
severally and not jointly, to the respective Underwriters and each of the
Underwriters, severally and not jointly, agrees to purchase from the Company and
each Selling Stockholder, the respective number of Firm Shares (subject to such
adjustment as UBS Securities LLC ("UBS") may determine to avoid fractional
shares) which bears the same proportion to the total number of Firm Shares to be
sold by the Company or by such Selling Stockholder, as the case may be, as the
number of Firm Shares set forth opposite the name of such Underwriter in
Schedule A annexed hereto, subject to adjustment in accordance with Section 11
hereof, bears to the total number of Firm Shares, in each case at a purchase
price of $[____] per Share. The Company is advised by you that the
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Underwriters intend (i) to make a public offering of their respective portions
of the Firm Shares as soon after the effective date of the Registration
Statement as in your judgment is advisable and (ii) initially to offer the Firm
Shares upon the terms set forth in the Prospectus. You may from time to time
increase or decrease the public offering price after the initial public offering
to such extent as you may determine; provided, however, that any such increase
or decrease shall not affect the purchase price for the Shares that is payable
to the Company by the Underwriters pursuant to this Agreement.
In addition, the Company hereby grants to the several Underwriters the
option (the "Over-Allotment Option") to purchase, and upon the basis of the
representations and warranties and subject to the terms and conditions herein
set forth, the Underwriters shall have the right to purchase from the Company
all or a portion of the Additional Shares as may be necessary to cover
over-allotments made in connection with the offering of the Firm Shares, at the
same purchase price per share to be paid by the Underwriters to the Company and
the Selling Stockholders for the Firm Shares. The Over-Allotment Option may be
exercised by UBS on behalf of the several Underwriters at any time, and from
time to time, on or before the thirtieth day following the date of the
Prospectus, by written notice to the Company. Such notice shall set forth the
aggregate number of Additional Shares as to which the Over-Allotment Option is
being exercised, and the date and time when the Additional Shares are to be
delivered (any such date and time being herein referred to as an "additional
time of purchase"); provided, however, that no additional time of purchase shall
be earlier than the "time of purchase" (as defined below) nor earlier than the
second Business Day after the date on which the Over-Allotment Option shall have
been exercised nor later than the tenth Business Day after the date on which the
Over-Allotment Option shall have been exercised. The number of Additional Shares
to be sold to each Underwriter shall be the number which bears the same
proportion to the aggregate number of Additional Shares being purchased as the
number of Firm Shares set forth opposite the name of such Underwriter on
Schedule A hereto bears to the total number of Firm Shares (subject, in each
case, to such adjustment as UBS may determine to eliminate fractional shares),
subject to adjustment in accordance with Section 11 hereof.
Pursuant to powers of attorney (the "Powers of Attorney") granted by
each Selling Stockholder (which Powers of Attorney shall be satisfactory to
UBS), [ ] shall act as representative of the Selling Stockholders
(the "Representative of the Selling Stockholders"). The Representative of the
Selling Stockholders is authorized, on behalf of each Selling Stockholder, among
other things, to execute any documents necessary or desirable in connection with
the sale of the Shares to be sold hereunder by such Selling Stockholder, to make
delivery of the certificates of such Shares, to receive the proceeds of the sale
of such Shares, to give receipts for such proceeds, to pay therefrom the
expenses to be borne by such Selling Stockholder in connection with the sale and
public offering of the Shares, to distribute the balance of such proceeds to
such Selling Stockholder, to receive notices on behalf of such Selling
Stockholder and to take such other action as may be necessary or desirable in
connection with the transactions contemplated by this Agreement.
2. Payment and Delivery. Payment of the purchase price for the Firm Shares
shall be made to the Company and to each Selling Stockholder by Federal Funds
wire transfer, against delivery of the certificates for the Firm Shares to you
through the facilities of The Depository Trust Company ("DTC") for the
respective accounts of the Underwriters. Such payment and
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delivery shall be made at 10:00 A.M., New York City time, on November [__], 2006
(unless another time shall be agreed to by you and the Company and the
Representative of the Selling Stockholders or unless postponed in accordance
with the provisions of Section 11 hereof). The time at which such payment and
delivery are to be made is hereinafter sometimes called the "time of purchase."
Electronic transfer of the Firm Shares shall be made to you at the time of
purchase in such names and in such denominations as you shall specify.
Payment of the purchase price for the Additional Shares shall be made
at the additional time of purchase in the same manner and at the same office as
the payment for the Firm Shares. Electronic transfer of the Additional Shares
shall be made to you at the additional time of purchase in such names and in
such denominations as you shall specify.
Deliveries of the documents described in Section 9 hereof with respect
to the purchase of the Shares shall be made at the offices of Milbank, Tweed,
Hadley & McCloy LLP, One Chase Manhattan Plaza, New York, New York 10005, at
9:00 A.M., New York City time, on the date of the closing of the purchase of the
Firm Shares or the Additional Shares, as the case may be.
3. Representations and Warranties of the Company. The Company represents
and warrants to and agrees with each of the Underwriters that:
(a) the Registration Statement has heretofore become, and is,
effective under the Act or, with respect to any registration statement to
be filed to register the offer and sale of Shares pursuant to Rule 462(b)
under the Act, will be filed with the Commission and become effective under
the Act no later than 10:00 P.M., New York City time, on the date of
determination of the public offering price for the Shares; no stop order of
the Commission preventing or suspending the use of any Preliminary
Prospectus or Permitted Free Writing Prospectus, or the effectiveness of
the Registration Statement, has been issued, and no proceedings for such
purpose have been instituted or, to the Company's knowledge, are threatened
by the Commission, and any request on the part of the Commission for
additional information has been complied with; the Exchange Act
Registration Statement has become effective as provided in Section 12 of
the Exchange Act;
(b) the Registration Statement complied when it became effective,
complies as of the date hereof and, as amended or supplemented, at the time
of purchase, each additional time of purchase, if any, and at all times
during which a prospectus is required by the Act to be delivered (whether
physically or through compliance with Rule 172 under the Act or any similar
rule) in connection with any sale of Shares, will comply, in all material
respects, with the requirements of the Act; the Registration Statement did
not, as of the Effective Time, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; each Preliminary
Prospectus complied, at the time it was filed with the Commission, and
complies as of the date hereof, in all material respects with the
requirements of the Act; at no time during the period that begins on the
earlier of the date of such Preliminary Prospectus and the date such
Preliminary Prospectus was filed with the Commission and ends at the time
of purchase did or will any Preliminary Prospectus,
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as then amended or supplemented, include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, and at no time during such period did or will any
Preliminary Prospectus, as then amended or supplemented, together with any
combination of one or more of the then issued Permitted Free Writing
Prospectuses, if any, include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; the Prospectus will comply, as of its date, the date that it is
filed with the Commission, the time of purchase, each additional time of
purchase, if any, and at all times during which a prospectus is required by
the Act to be delivered (whether physically or through compliance with Rule
172 under the Act or any similar rule) in connection with any sale of
Shares, in all material respects, with the requirements of the Act
(including, without limitation, Section 10(a) of the Act); at no time
during the period that begins on the earlier of the date of the Prospectus
and the date the Prospectus is filed with the Commission and ends at the
later of the time of purchase, the latest additional time of purchase, if
any, and the end of the period during which a prospectus is required by the
Act to be delivered (whether physically or through compliance with Rule 172
under the Act or any similar rule) in connection with any sale of Shares
did or will the Prospectus, as then amended or supplemented, include an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; at no time during
the period that begins on the date of such Permitted Free Writing
Prospectus and ends at the time of purchase did or will any Permitted Free
Writing Prospectus include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; provided, however, that the Company makes no representation or
warranty in this Section 3(b) with respect to any statement contained in
the Registration Statement, any Preliminary Prospectus, the Prospectus or
any Permitted Free Writing Prospectus in reliance upon and in conformity
with information concerning an Underwriter and furnished in writing by or
on behalf of such Underwriter through you to the Company expressly for use
in the Registration Statement, such Preliminary Prospectus, the Prospectus
or such Permitted Free Writing Prospectus;
(c) prior to the execution of this Agreement, the Company has not,
directly or indirectly, offered or sold any Shares by means of any
"prospectus" (within the meaning of the Act) or used any "prospectus"
(within the meaning of the Act) in connection with the offer or sale of the
Shares, in each case other than the Preliminary Prospectuses and the
Permitted Free Writing Prospectuses, if any; the Company has not, directly
or indirectly, prepared, used or referred to any Permitted Free Writing
Prospectus except in compliance with Rules 164 and 433 under the Act;
assuming that such Permitted Free Writing Prospectus is accompanied or
preceded by the most recent Preliminary Prospectus that contains a price
range or the Prospectus, as the case may be, and that such Permitted Free
Writing Prospectus is so sent or given after the Registration Statement was
filed with the Commission (and after such Permitted Free Writing Prospectus
was, if required pursuant to Rule 433(d) under the Act, filed with the
Commission), the sending or giving, by any Underwriter, of any Permitted
Free Writing Prospectus will satisfy the
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provisions of Rule 164 and Rule 433 (without reliance on subsections (b),
(c) and (d) of Rule 164); the Preliminary Prospectus dated November [ ],
2006 is a prospectus that, other than by reason of Rule 433 or Rule 431
under the Act, satisfies the requirements of Section 10 of the Act,
including a price range where required by rule; neither the Company nor the
Underwriters are disqualified, by reason of subsection (f) or (g) of Rule
164 under the Act, from using, in connection with the offer and sale of the
Shares, "free writing prospectuses" (as defined in Rule 405 under the Act)
pursuant to Rules 164 and 433 under the Act; the Company is not an
"ineligible issuer" (as defined in Rule 405 under the Act) as of the
eligibility determination date for purposes of Rules 164 and 433 under the
Act with respect to the offering of the Shares contemplated by the
Registration Statement; the parties hereto agree and understand that the
content of any and all "road shows" (as defined in Rule 433 under the Act)
related to the offering of the Shares contemplated hereby is solely the
property of the Company; the Company has caused there to be made available
at least one version of a "bona fide electronic road show" (as defined in
Rule 433 under the Act) in a manner that, pursuant to Rule 433(d)(8)(ii)
under the Act, causes the Company not to be required, pursuant to Rule
433(d) under the Act, to file, with the Commission, any Electronic Road
Show;
(d) as of the date of this Agreement, the Company has the authorized
and outstanding capitalization as set forth in the sections of the
Registration Statement, the Preliminary Prospectuses and the Prospectus
entitled "Capitalization" and "Description of capital stock" (and any
similar section or information, if any, contained in any Permitted Free
Writing Prospectus), and, as of the time of purchase and any additional
time of purchase, as the case may be, the Company shall have an authorized
and outstanding capitalization as set forth in the sections of the
Registration Statement, the Preliminary Prospectuses and the Prospectus
entitled "Capitalization" and "Description of capital stock" (and any
similar section or information, if any, contained in any Permitted Free
Writing Prospectus), subject, in each case, to the issuance of shares of
Common Stock upon exercise or conversion of stock options, warrants and
convertible securities disclosed as outstanding in the Registration
Statement (excluding the exhibits thereto), each Preliminary Prospectus and
the Prospectus and the grant of options, restricted stock units, stock
appreciation rights and other stock-based awards under existing stock
incentive plans described in the Registration Statement (excluding the
exhibits thereto), each Preliminary Prospectus and the Prospectus); all of
the issued and outstanding shares of capital stock, including the Common
Stock, of the Company have been duly authorized and validly issued and are
fully paid and non-assessable, have been issued in compliance with all
applicable securities laws and were not issued in violation of any
preemptive right, resale right, right of first refusal or similar right
binding on the Company; no further approval or authority of the
stockholders or the Board of Directors of the Company are required for the
issuance and sale of the Shares; prior to the time of purchase, all
outstanding shares of Series A Convertible Redeemable Preferred Stock, par
value $0.001 per share, and Series B Convertible Redeemable Preferred
Stock, par value $0.001 per share, of the Company shall convert into shares
of Common Stock in the manner described in the Registration Statement
(excluding the exhibits thereto), each Preliminary Prospectus and the
Prospectus; prior to the date hereof, the Company has duly effected and
completed a 2-for-3 reverse stock split of the Common Stock in the manner
described in the Registration Statement (excluding the exhibits thereto),
each
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Preliminary Prospectus and the Prospectus; and the Amended and Restated
Certificate of Incorporation of the Company and the Amended Bylaws, each in
the form filed as an exhibit to the Registration Statement, have been
heretofore duly authorized and approved in accordance with the Delaware
General Corporation Law and shall become effective and in full force and
effect at or before the time of purchase; the Shares are duly listed and
admitted and authorized for trading, subject to official notice of issuance
and evidence of satisfactory distribution and the Company is in compliance
with the applicable Marketplace Rules of the NASDAQ, including, without
limitation, the requirements for initial and continued listing of the
Common Stock on the NASDAQ;
(e) the Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware,
with full corporate power and authority to own, lease and operate its
properties and conduct its business as described in the Registration
Statement, the Preliminary Prospectuses, the Prospectus and the Permitted
Free Writing Prospectuses, if any, to execute and deliver this Agreement
and to issue, sell and deliver the Shares to be sold by it pursuant hereto
as contemplated herein;
(f) the Company is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction where the
ownership or leasing of its properties or the conduct of its business as
currently conducted requires such qualification, except where the failure
to be so qualified and in good standing would not, individually or in the
aggregate, either (i) have a material adverse effect on the business,
properties, financial condition, results of operations or prospects of the
Company and the Subsidiaries (as hereinafter defined) taken as a whole,
(ii) prevent or materially interfere with consummation of the transactions
contemplated hereby or (iii) prevent the shares of Common Stock from being
accepted for listing on, or result in the delisting of shares of Common
Stock from, the NASDAQ (the occurrence of any such effect or any such
prevention or interference or any such result described in the foregoing
clauses (i), (ii) and (iii) being herein referred to as a "Material Adverse
Effect");
(g) the Company has no subsidiaries (as defined under the Exchange
Act) other than the subsidiaries listed on Schedule B hereto (collectively,
excluding the entities identified on Schedule B as "dormant subsidiaries,"
the "Subsidiaries") and the entities identified as dormant on Schedule B
are accurately identified; the Company owns, directly or indirectly, all of
the issued and outstanding capital stock of each of the Subsidiaries, other
than Satcom International Group plc. and ORBCOMM Europe LLC; the Company
has no "significant subsidiary," as that term is defined in Rule 1-02(w) of
Regulation S-X under the Act (the "Significant Subsidiaries"), other than
Stellar Satellite Communications Ltd., a company established under the laws
of the British Virgin Islands; ORBCOMM LLC, a Delaware limited liability
company, and ORBCOMM License Corp., a Delaware corporation, are the only
subsidiaries through which the Company owns or operates satellites and
material related assets (the "Asset Subsidiaries" and, together with the
Significant Subsidiaries, the "Material Subsidiaries") and, with the
exception of the Material Subsidiaries, no subsidiary owns or possesses any
property or assets, or has any obligations or liabilities, or possesses any
rights (by contract, franchise, permit or otherwise) or engages in any
operations that are, individually or in the
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aggregate, material to the Company or its business, properties, financial
condition, results of operations or prospects of the Company; other than
the capital stock of the Subsidiaries, MITE Global Communications S.A. de
C.V., ORBCOMM Maghreb and European Datacomm Holdings, N.V., the Company
does not own, directly or indirectly, any shares of stock or any other
equity or long-term debt securities of any corporation or have any equity
interest in any firm, partnership, joint venture, association or other
entity; complete and correct copies of the charters and the bylaws (or
equivalent organizational or governing documents) of the Company and each
Material Subsidiary and all amendments thereto have been delivered to you,
and, except as set forth in the exhibits to the Registration Statement, no
changes therein will be made on or after the date hereof through and
including the time of purchase or, if later, any additional time of
purchase; each Material Subsidiary has been duly incorporated or formed and
is validly existing as a corporation or limited liability company in good
standing under the laws of the jurisdiction of its incorporation or
formation, with full corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Registration Statement, the Preliminary Prospectuses, the Prospectus and
the Permitted Free Writing Prospectuses, if any; each Material Subsidiary
is duly qualified to do business as a foreign corporation or limited
liability company and is in good standing in each jurisdiction where the
ownership or leasing of its properties or the conduct of its business
requires such qualification, except where the failure to be so qualified
and in good standing would not, individually or in the aggregate, have a
Material Adverse Effect; each Material Subsidiary is in compliance in all
respects with the laws, orders, rules, regulations and directives issued or
administered by such jurisdictions, except where the failure to be in
compliance would not, individually or in the aggregate, have a Material
Adverse Effect; all of the outstanding shares of capital stock of each of
the Material Subsidiaries have been duly authorized and validly issued, are
fully paid and non-assessable, have been issued in compliance with all
applicable federal and state securities laws, were not issued in violation
of any preemptive right, resale right, right of first refusal or similar
right and (except as otherwise described in this Section 3(g)) are owned by
the Company subject to no security interest, other encumbrance or adverse
claims;
(h) except as described in the Registration Statement, the Preliminary
Prospectuses and the Prospectus, there are no outstanding subscriptions,
rights, options, warrants, calls, convertible securities, commitments of
sales or other rights to purchase, agreements or other obligations to issue
or other rights to convert any obligation into shares of capital stock or
ownership interests in the Company or any of the Material Subsidiaries;
(i) the Shares to be sold by the Company pursuant hereto have been
duly and validly authorized and, when issued and delivered against payment
therefor as provided herein, will be duly and validly issued, fully paid
and non-assessable and free of any statutory and contractual preemptive
rights, resale rights, rights of first refusal and similar rights; the
Shares to be sold by the Company pursuant hereto, when issued and delivered
against payment therefor as provided herein, will be free of any
restriction upon the voting or transfer thereof pursuant to the Company's
charter or bylaws or other governing documents or any agreement or other
instrument to which the Company or any of the
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Subsidiaries is a party or by which any of them or any of their respective
properties may be bound or affected; the Shares to be sold by the Selling
Stockholders pursuant hereto have been duly and validly authorized and
issued and are and, after they are delivered against payment therefor as
provided herein, will be fully paid, non-assessable and free of statutory
preemptive rights, resale rights, rights of first refusal and similar
rights; the Shares to be sold by the Selling Stockholders pursuant hereto
are and, after they are delivered against payment therefor as provided
herein, will be free of any restriction upon the voting or transfer thereof
pursuant to the Company's charter or bylaws or any agreement or other
instrument to which the Company or any of the Subsidiaries is a party;
(j) the capital stock of the Company, including the Shares, conforms
in all material respects to the description thereof contained in the
Registration Statement, the Preliminary Prospectuses, the Prospectus and
the Permitted Free Writing Prospectuses, if any, and the certificates for
the Shares are in due and proper form and the holders of the Shares will
not be subject to personal liability by reason of being stockholders of the
Company;
(k) this Agreement has been duly authorized, executed and delivered by
the Company;
(l) neither the Company nor any of the Material Subsidiaries is in
breach or violation of or in default under (nor has any event occurred
which with notice, lapse of time or both would result in any breach or
violation of, constitute a default under or give the holder of any
indebtedness (or a person acting on such holder's behalf) the right to
require the repurchase, redemption or repayment of all or any part of such
indebtedness under) (A) its respective charter or bylaws (or equivalent
organizational or governing documents), in each case as amended to the date
hereof, (B) any indenture, mortgage, deed of trust, bank loan or credit
agreement or other evidence of indebtedness, or any license (including
without limitation the Communications Licenses (as defined below)), lease,
contract or other agreement or instrument to which the Company or any of
the Subsidiaries is a party or by which any of them or any of their
respective properties may be bound or affected, (C) any federal, state,
local or foreign law, regulation or rule, (D) any rule or regulation of any
self-regulatory organization or other non-governmental regulatory authority
(including, without limitation, the rules and regulations of the NASDAQ),
or (E) any decree, judgment or order applicable to the Company or any of
the Subsidiaries or any of their respective properties, except, in the case
of clauses (B), (C), (D) and (E), for any such breach, violation, default
or acceleration that is described in the Registration Statement, the
Preliminary Prospectuses and the Prospectus or any Permitted Free Writing
Prospectus or that would not, individually or in the aggregate, have a
Material Adverse Effect;
(m) the execution, delivery and performance of this Agreement, the
issuance and sale of the Shares to be sold by the Company pursuant hereto,
the sale of Shares to be sold by the Selling Stockholders pursuant hereto
and the consummation of the transactions contemplated hereby will not
conflict with, result in any breach or violation of or constitute a default
under (nor constitute any event which, with notice, lapse of time
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or both, would result in any breach or violation of, constitute a default
under or give the holder of any indebtedness (or a person acting on such
holder's behalf) the right to require the repurchase, redemption or
repayment of all or a part of such indebtedness under) (or result in the
creation or imposition of a lien, charge or encumbrance on any property or
assets of the Company or any Subsidiary pursuant to) (A) the charter or
bylaws of the Company or any of the Subsidiaries, (B) any indenture,
mortgage, deed of trust, bank loan or credit agreement or other evidence of
indebtedness, or any license, lease, contract or other agreement or
instrument to which the Company or any of the Subsidiaries is a party or by
which any of them or any of their respective properties may be bound or
affected, (C) any federal, state, local or foreign law, regulation or rule,
(D) any rule or regulation of any self-regulatory organization or other
non-governmental regulatory authority (including, without limitation, the
rules and regulations of the NASDAQ), or (E) any decree, judgment or order
applicable to the Company or any of the Subsidiaries or any of their
respective properties, except, in the case of clause (B), for any such
breach, violation, default or acceleration that is described in the
Registration Statement, the Preliminary Prospectuses and the Prospectus or
any Permitted Free Writing Prospectus or that would not, individually or in
the aggregate, have a Material Adverse Effect;
(n) no approval, authorization, consent or order of or filing or
registration with any federal, state, local or foreign governmental or
regulatory commission, board, body, authority or agency, or of or with any
self-regulatory organization or other non-governmental regulatory authority
(including, without limitation, the NASDAQ), or approval of the
stockholders of the Company, is required in connection with the issuance
and sale of the Shares to be sold by the Company pursuant hereto, the sale
of the Shares to be sold by the Selling Stockholders pursuant hereto or the
consummation of the transactions contemplated hereby, other than (i)
registration of the Shares under the Act, which has been effected or, with
respect to any registration statement to be filed hereunder pursuant to
Rule 462(b) under the Act, will be effected in accordance herewith, (ii)
any necessary qualification under the securities or blue sky laws of the
various jurisdictions in which the Shares are being offered by the
Underwriters, (iii) under the rules and regulations of the National
Association of Securities Dealers, Inc. (the "NASD") or (iv) under the
rules and regulations of the U.S. Federal Communications Commission (the
"FCC"), all of which have been obtained;
(o) except as described in the Registration Statement (excluding the
exhibits thereto), the Preliminary Prospectuses and the Prospectus, (i) no
person has the right, contractual or otherwise, to cause the Company to
issue or sell to it any shares of Common Stock or shares of any other
capital stock or other equity interests of the Company, (ii) no person has
any preemptive rights, resale rights, rights of first refusal or other
rights to purchase from the Company any shares of Common Stock or shares of
any other capital stock of or other equity interests in the Company, (iii)
no person has the right to act as an underwriter or as a financial advisor
to the Company in connection with the offer and sale of the Shares and (iv)
no person has the right, contractual or otherwise, to cause the Company to
register under the Act any shares of Common Stock or shares of any other
capital stock of or other equity interests in the Company, or to include
any such shares or interests in the Registration Statement or the offering
contemplated thereby, in
-10-
the case of each of the foregoing clauses (i), (ii), (iii) and (iv),
whether as a result of the filing or effectiveness of the Registration
Statement or the sale of the Shares as contemplated hereby or otherwise;
(p) except as described in the Registration Statement (excluding the
exhibits thereto), the Preliminary Prospectuses or the Prospectus, each of
the Company and the Subsidiaries has all necessary governmental licenses,
authorizations, consents and approvals and has made all necessary filings
required under any federal, state, local or foreign law, regulation or
rule, and has obtained all necessary licenses, authorizations, consents and
approvals from other persons, in order to operate its respective properties
and conduct its respective business as currently conducted, except where
such failure would not, individually or in the aggregate, have a Material
Adverse Effect; neither the Company nor any of the Subsidiaries is in
violation of, or in default under, or has received notice of any
proceedings relating to revocation or modification of, any such license,
authorization, consent or approval or any federal, state, local or foreign
law, regulation or rule or any decree, order or judgment applicable to the
Company or any of the Subsidiaries, except where such violation, default,
revocation or modification would not, individually or in the aggregate,
have a Material Adverse Effect;
(q) all legal or governmental proceedings, statutes, regulations,
affiliate transactions and relationships, off-balance sheet transactions
(including, without limitation, transactions related to, and the existence
of, "variable interest entities" within the meaning of Financial Accounting
Standards Board Interpretation No. 46), contracts, licenses, agreements,
properties, leases or documents of a character required to be described in
the Registration Statement, the Preliminary Prospectuses or the Prospectus
or to be filed as an exhibit to the Registration Statement have been so
described or filed as required;
(r) except as described in the Registration Statement (excluding the
exhibits thereto), the Preliminary Prospectuses and the Prospectus, there
are no actions, suits, claims, investigations or proceedings pending or, to
the Company's knowledge, threatened or contemplated to which the Company or
any of the Subsidiaries or any of their respective directors or officers is
or would be a party or of which any of their respective properties is or
would be subject at law or in equity, before or by any federal, state,
local or foreign governmental or regulatory commission, board, body,
authority or agency, or before or by any self-regulatory organization or
other non-governmental regulatory authority (including, without limitation,
the rules and regulations of the NASDAQ), except any such action, suit,
claim, investigation or proceeding which, if resolved adversely to the
Company or any Subsidiary, would not, individually or in the aggregate,
have a Material Adverse Effect;
(s) Each of J.H. Cohn LLP and Deloitte & Touche LLP, whose reports on
the consolidated financial statements of the Company and the Subsidiaries
are included in the Registration Statement, the Preliminary Prospectuses,
the Prospectus or any Permitted Free Writing Prospectus, if any, is an
independent registered public accounting firm as required by the Act, the
Exchange Act and the rules and regulations of the Public Company Accounting
Oversight Board (the "PCAOB"); the Company has not engaged
-11-
either of J.H. Cohn LLP or Deloitte & Touche LLP to provide any "prohibited
activities" (as defined in Section 10A of the Exchange Act) on behalf of
the Company;
(t) the financial statements included in the Registration Statement,
the Preliminary Prospectuses, the Prospectus and the Permitted Free Writing
Prospectuses, if any, together with the related notes and schedules,
present fairly, in all material respects, the consolidated financial
position of the Company and the Subsidiaries as of the dates indicated and
the consolidated results of operations, cash flows and changes in
stockholder's equity of the Company for the periods specified and have been
prepared in compliance with the requirements of the Act and the Exchange
Act and in conformity with generally accepted accounting principles in the
United States applied on a consistent basis during the periods involved;
and the other financial, accounting and statistical information and data
related to the Company and its subsidiaries set forth in the Registration
Statement and Prospectus present fairly, in all material respects, the
information purported to be shown thereby at the respective dates and for
the respective periods to which they apply and, except as otherwise
disclosed therein, have been prepared on a basis consistent with the
financial statements and the books and records of the entities as to which
such information is shown; all pro forma financial statements or data
included in the Registration Statement, the Preliminary Prospectuses, the
Prospectus and the Permitted Free Writing Prospectuses, if any, comply with
the requirements of the Act and the Exchange Act, and the assumptions used
in the preparation of such pro forma financial statements and data are
reasonable, the pro forma adjustments used therein are appropriate to give
effect to the transactions or circumstances described therein and the pro
forma adjustments have been properly applied to the historical amounts in
the compilation of those statements and data; there are no financial
statements (historical or pro forma) that are required to be included in
the Registration Statement, the Preliminary Prospectuses, the Prospectus
and the Permitted Free Writing Prospectuses, if any, (including, without
limitation, as required by Rules 3-12 or 3-05 or Article 11 of Regulation
S-X under the Act) that are not included as required; the Company and the
Subsidiaries do not have any material liabilities or obligations, direct or
contingent (including any off-balance sheet obligations), not disclosed in
the Registration Statement, the Preliminary Prospectuses and the
Prospectus; except as disclosed in the Registration Statement, each
Preliminary Prospectus and the Prospectus, neither the Company nor any
Subsidiary is, together with its "related parties," the "primary
beneficiary" of any "variable interest entity" (as such terms are used in
Financial Accounting Standards Board Interpretation No. 46); and all
disclosures contained in the Registration Statement, the Preliminary
Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses,
if any, regarding "non-GAAP financial measures" (as such term is defined by
the rules and regulations of the Commission) comply with Regulation G of
the Exchange Act and Item 10 of Regulation S-K under the Act, to the extent
applicable;
(u) subsequent to the respective dates as of which information is
given in the Registration Statement, the Preliminary Prospectuses, the
Prospectus and the Permitted Free Writing Prospectuses, if any, in each
case excluding any amendments or supplements to the foregoing made after
the execution of this Agreement, there has not been (i) any material
adverse change, or any development involving a prospective material adverse
change, in the business, properties, management, financial condition or
-12-
results of operations of the Company and the Subsidiaries, taken as a
whole, (ii) except as contemplated by the Registration Statement (excluding
the exhibits thereto), the Preliminary Prospectuses, the Prospectus or any
Permitted Free Writing Prospectus, any transaction which is material to the
Company and the Subsidiaries, taken as a whole, (iii) any obligation,
direct or contingent (including any off-balance sheet obligations),
incurred by the Company or any Subsidiary, which is material to the Company
and the Subsidiaries, taken as a whole, (iv) except as contemplated by the
Registration Statement (excluding the exhibits thereto), the Preliminary
Prospectuses, the Prospectus or any Permitted Free Writing Prospectus, any
change in the capital stock or outstanding indebtedness of the Company or
any Subsidiaries or (v) any dividend or distribution of any kind declared,
paid or made on the capital stock of the Company or any Subsidiary;
(v) the Company has obtained for the benefit of the Underwriters the
agreement (a "Lock-Up Agreement"), in the form set forth as Exhibit A
hereto, of (i) each of its directors and "officers" (within the meaning of
Rule 16a-1(f) under the Act), (ii) each Selling Stockholder, (iii) each
holder of the outstanding shares of Common Stock named in Exhibit A-1
hereto (treating, for purposes of this Section 3(v), each holder of any
security convertible into or exercisable or exchangeable for shares of
Common Stock or any warrant or other right to acquire shares of Common
Stock or any such security named in Exhibit A-1 hereto as a holder of the
shares of Common Stock underlying such security, warrant or right, and
treating as outstanding, for purposes of this Section 3(v), each share of
Common Stock underlying any such security, warrant or right);
(w) neither the Company nor any Subsidiary is, and at no time during
which a prospectus is required by the Act to be delivered (whether
physically or through compliance with Rule 172 under the Act or any similar
rule) in connection with any sale of Shares or after giving effect to the
offering and sale of the Shares will any of them be, an "investment
company" or an entity "controlled" by an "investment company," as such
terms are defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act");
(x) except as would not, individually or in the aggregate, have a
Material Adverse Effect, the Company and each of the Subsidiaries have good
and marketable title to all property (real and personal) described in the
Registration Statement, the Preliminary Prospectuses, the Prospectus and
the Permitted Free Writing Prospectuses, if any, as being owned by each of
them, free and clear of all liens, claims, security interests or other
encumbrances; all the property described in the Registration Statement, the
Preliminary Prospectuses, the Prospectus and the Permitted Free Writing
Prospectuses, if any, as being held under lease by the Company or a
Subsidiary is held thereby under valid, subsisting and enforceable leases;
(y) except as described in the Registration Statement (excluding the
exhibits thereto), the Preliminary Prospectuses and the Prospectus, each of
the Company and the Subsidiaries owns, possesses or has the right to use
all inventions, patent applications, patents, trademarks (both registered
and unregistered), tradenames, service names, copyrights, trade secrets and
other proprietary information (collectively, the "Intellectual
-13-
Property") necessary for the conduct of, or material to, its businesses as
described in the Registration Statement, the Preliminary Prospectuses, the
Prospectus and the Permitted Free Writing Prospectuses, if any, and the
Company has not received any claim to the contrary or any challenge by any
other person to the rights of the Company or any of the Subsidiaries with
respect to the Intellectual Property; and, to the knowledge of the Company,
except where the failure to own, possess or have the right to use such
Intellectual Property would not, individually or in the aggregate, have a
Material Adverse Effect, neither the Company nor any of the Subsidiaries
has infringed or is infringing the intellectual property of a third party,
and neither the Company nor any Subsidiary has received notice of a claim
by a third party to the contrary;
(z) except as described in the Registration Statement (excluding the
exhibits thereto), the Preliminary Prospectuses or the Prospectus, the
Company and the Subsidiaries have filed with the FCC and the International
Telecommunication Union (the "ITU"), all reports, documents, instruments,
information and applications required to be filed pursuant to the rules and
regulations of the FCC and the ITU, and have obtained all licenses, orders
or other authorizations issued by the FCC and the ITU, and any equivalent
authority in each other jurisdiction in which the Company operates
(collectively, the "Communications Licenses") required for the operation of
the business of the Company and the Subsidiaries, and such Communications
Licenses are in full force and effect and, to the Company's knowledge,
there are no pending modification, amendment or revocation proceedings
initiated by the FCC or the ITU, or any equivalent authority in any other
jurisdiction in which the Company operates which, if determined against the
Company, would have a Material Adverse Effect; fees due and payable to
domestic and foreign governmental authorities pursuant to the rules
governing Communications Licenses held by the Company and the Subsidiaries,
the nonpayment of which, with the giving of notice or the lapse of time or
both would constitute grounds for revocation thereof, have been timely paid
and, except as disclosed in the Registration Statement, the Preliminary
Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses,
if any, each of the Company and the Subsidiaries is in compliance in all
material respects with the terms of the Communications Licenses, as
applicable, and there is no condition of which the Company or any of the
Subsidiaries has received notice, nor, to the Company's knowledge, is there
any proceeding threatened, by any domestic or foreign governmental
authority, which would cause the termination, suspension, cancellation or
non-renewal of any of the Communications Licenses, or the imposition of a
penalty or fine by any domestic or foreign regulatory authority; the
Company and the Subsidiaries have all necessary consents, authorizations
and approvals to utilize the Communications Licenses in the manner and for
the purposes described in the Registration Statement, the Preliminary
Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses,
if any;
(aa) except as would not, individually or in the aggregate, have a
Material Adverse Effect, (i) there is (A) no unfair labor practice
complaint pending or, to the Company's knowledge, threatened against the
Company or any of the Subsidiaries before the National Labor Relations
Board, and no grievance or arbitration proceeding arising out of or under
collective bargaining agreements is pending or, to the Company's knowledge,
threatened, (B) no strike, labor dispute, slowdown or stoppage pending or,
to
-14-
the Company's knowledge, threatened against the Company or any of the
Subsidiaries and (C) no union representation dispute currently existing
concerning the employees of the Company or any of the Subsidiaries; (ii) to
the Company's knowledge, no union organizing activities are currently
taking place concerning the employees of the Company or any of the
Subsidiaries; and (iii) there has been no violation of any federal, state,
local or foreign law relating to discrimination in the hiring, promotion or
pay of employees, any applicable wage or hour laws or any provision of the
Employee Retirement Income Security Act of 1974, as amended, or the rules
and regulations promulgated thereunder ("ERISA") concerning the employees
of the Company or any of the Subsidiaries;
(bb) except as would not, individually or in the aggregate, have a
Material Adverse Effect, (i) the Company and the Subsidiaries and their
properties, assets and operations are in compliance with Environmental Laws
(as defined below); (ii) there are no events, conditions, circumstances,
activities, practices, actions, omissions or plans that could reasonably be
expected to give rise to any material costs or liabilities to the Company
or any Subsidiary under, or to interfere with or prevent compliance by the
Company or any Subsidiary with, Environmental Laws, except for operational
costs or liabilities subsumed within the financial statements included in
the Registration Statement and (iii) neither the Company nor any of the
Subsidiaries (A) to the knowledge of the Company, is the subject of any
investigation, (B) has received any notice or claim, (C) is a party to any
pending or, to the Company's knowledge, threatened action, suit or
proceeding, (D) is bound by any judgment, decree or order or (E) has
entered into any agreement, in each case relating to any alleged violation
of any Environmental Law or any actual or alleged release or threatened
release or cleanup at any location of any Hazardous Materials (as defined
below) (as used herein, "Environmental Law" means any federal, state, local
or foreign law, statute, ordinance, rule, regulation, order, decree,
judgment, injunction, permit, license, authorization or other binding
requirement, or common law, relating to human health, or safety with
respect to Hazardous Materials or the protection, cleanup or restoration of
the environment or natural resources, including those relating to the
distribution, processing, generation, treatment, storage, disposal,
transportation, other handling or release or threatened release of
Hazardous Materials, and "Hazardous Materials" means any material
(including, without limitation, pollutants, contaminants, hazardous or
toxic substances or wastes) that is regulated by or may give rise to
liability under any Environmental Law);
(cc) all tax returns required to be filed by the Company or any of the
Subsidiaries have been timely filed, and all taxes and other assessments of
a similar nature (whether imposed directly or through withholding)
including any interest, additions to tax or penalties applicable thereto
due or claimed to be due from such entities have been timely paid, other
than those being contested in good faith and for which adequate reserves
have been provided, except, in each case, as the same would not,
individually or in the aggregate, have a Material Adverse Effect;
(dd) the Company and each of the Subsidiaries maintain insurance
covering their respective properties, operations, personnel and businesses
as the Company reasonably deems adequate; such insurance insures against
such losses and risks to an extent which the Company reasonably deems
adequate given the Company's financial
-15-
condition and the cost of obtaining such coverage relative to the benefits
of such coverage, taking into due consideration customary industry
practice; all such insurance is fully in force on the date hereof and will
be fully in force at the time of purchase and each additional time of
purchase, if any; neither the Company nor any Subsidiary has reason to
believe that it will not be able to renew any such insurance, the absence
of which would not, individually or in the aggregate, have a Material
Adverse Effect, as and when such insurance expires;
(ee) the Company and each of the Subsidiaries (i) maintain accurate
books and records and (ii) maintain systems of internal accounting controls
sufficient to provide reasonable assurance that (1) except as described in
the second and third sentences of the second paragraph under the heading
"Risk factors--We have material weaknesses and significant deficiencies in
our internal control over financial reporting" on page [13] of the
Preliminary Prospectus and the Prospectus included in the Registration
Statement, transactions are executed in accordance with management's
general or specific authorization; (2) transactions are recorded as
necessary to permit preparation of financial statements in conformity with
GAAP and to maintain accountability for assets; (3) access to assets is
permitted only in accordance with management's general or specific
authorization; and (4) the recorded accountability for assets is compared
with existing assets at reasonable intervals and appropriate action is
taken with respect to any differences;
(ff) the Company has established and maintains and evaluates
"disclosure controls and procedures" (as such term is defined in Rule
13a-15 and 15d-15 under the Exchange Act); such disclosure controls and
procedures are designed to ensure that material information relating to the
Company, including its consolidated subsidiaries, is made known to the
Company's Chief Executive Officer and its Chief Financial Officer by others
within those entities, and such disclosure controls and procedures are
effective to perform the functions for which they were established; the
Company's independent auditors and the Audit Committee of the Board of
Directors of the Company have been advised of (i) all significant
deficiencies and material weaknesses in the design or operation of internal
control over financial reporting which could adversely affect the Company's
ability to record, process, summarize, and report financial data and (ii)
any fraud, whether or not material, that involves management or other
employees who have a significant role in the Company's internal control
over financial reporting; since the date of the most recent evaluation of
such disclosure controls and procedures, except as described in the
Registration Statement, the Preliminary Prospectus and the Prospectus,
there have been no significant changes in internal control over financial
reporting or in other factors that could significantly affect internal
control over financial reporting, including any corrective actions with
regard to significant deficiencies and material weaknesses; and the Company
has taken or will take all necessary actions to ensure that the Company and
the Subsidiaries and their respective officers and directors, in their
capacities as such, will be in compliance in all material respects with all
applicable and effective provisions of the Sarbanes-Oxley Act of 2002 and
the related rules and regulations of the Commission and the NASDAQ
promulgated thereunder upon the effectiveness of such requirements, rules
and regulations on the Company and the Subsidiaries; it being understood
that the Company and the Subsidiaries have not yet
-16-
been required to report, and have not reported, on the Company's internal
control over financial reporting pursuant to Item 308 of Regulation S-K
promulgated by the Commission and the Company's independent auditors have
not yet audited the Company's internal control over financial reporting;
(gg) the Company and, to the knowledge of the Company, the Company's
directors or officers, in their capacities as such, are each in compliance
in all material respects with Section 402 of the Sarbanes-Oxley Act of 2002
and the rules and regulations promulgated thereunder;
(hh) each "forward-looking statement" (within the meaning of Section
27A of the Act or Section 21E of the Exchange Act) contained in the
Registration Statement, the Preliminary Prospectuses, the Prospectus and
the Permitted Free Writing Prospectuses, if any, has been made or
reaffirmed with a reasonable basis and has been disclosed in good faith;
(ii) the Company has not, prior to the date hereof, made any offer or
sale of securities which could be "integrated" for purposes of the Act with
the offer and sale of the Shares pursuant to the Registration Statement and
the Prospectus; and except as disclosed in the Registration Statement, the
Preliminary Prospectuses and the Prospectus, the Company has not sold or
issued any security during the 180-day period preceding the date of the
Prospectus, including but not limited to any sales pursuant to Rule 144A or
Regulation D or S under the Act, other than shares of Common Stock used
pursuant to employee benefit plans, qualified stock option plans or the
employee compensation plans or pursuant to outstanding options, rights or
warrants as described in the Registration Statement, the Preliminary
Prospectuses and the Prospectus;
(jj) all statistical or market-related data included in the
Registration Statement, the Preliminary Prospectuses, the Prospectus and
the Permitted Free Writing Prospectuses, if any, are based on or derived
from sources that the Company reasonably believes to be reliable and
accurate in all material respects, and the Company has obtained the written
consent to the use of such data from such sources to the extent required;
and all financial and statistical data included in the Registration
Statement, the Preliminary Prospectuses, the Prospectus and the Permitted
Free Writing Prospectuses, if any, are accurately and fairly presented in
all material respects;
(kk) neither the Company nor any of the Subsidiaries nor, to the
knowledge of the Company, any director, officer, agent, employee or
affiliate of the Company or any of the Subsidiaries is aware of or has
taken any action, directly or indirectly, that would result in a violation
by such persons of the Foreign Corrupt Practices Act of 1977, as amended,
and the rules and regulations thereunder (the "Foreign Corrupt Practices
Act"), including, without limitation, making use of the mails or any means
or instrumentality of interstate commerce corruptly in furtherance of an
offer, payment, promise to pay or authorization of the payment of any
money, or other property, gift, promise to give, or authorization of the
giving of anything of value to any "foreign official" (as such term is
defined in the Foreign Corrupt Practices Act) or any foreign political
party or official thereof or any candidate for foreign political office, in
contravention of the Foreign
-17-
Corrupt Practices Act; and the Company, the Subsidiaries and, to the
knowledge of the Company, its affiliates have conducted their businesses in
compliance in all material respects with the Foreign Corrupt Practices Act
and have instituted and maintain policies and procedures designed to
ensure, and which are reasonably expected to continue to ensure, continued
compliance in all material respects therewith;
(ll) the operations of the Company and the Subsidiaries are and have
been conducted at all times in compliance in all material respects with
applicable financial recordkeeping and reporting requirements of the
Currency and Foreign Transactions Reporting Act of 1970, as amended, the
"United and Strengthening America by Providing Appropriate Tools Required
to Intercept and Obstruct Terrorism Act of 2001" (the "Patriot Act") or the
money laundering statutes of all jurisdictions, the rules and regulations
thereunder and any related or similar rules, regulations or guidelines,
issued, administered or enforced by any governmental agency;
(mm) neither the Company nor any of the Material Subsidiaries nor, to
the knowledge of the Company, any director, officer, agent, employee or
affiliate of the Company or any of the Subsidiaries is currently subject to
any U.S. sanctions administered by OFAC; and the Company will not directly
or indirectly use the proceeds of the offering, or lend, contribute or
otherwise make available such proceeds to any Subsidiary, joint venture
partner or other person or entity, for the purpose of financing the
activities of any person currently subject to any U.S. sanctions
administered by OFAC;
(nn) no Subsidiary is currently prohibited, directly or indirectly,
from paying any dividends to the Company, from making any other
distribution on such Subsidiary's capital stock, from repaying to the
Company any loans or advances to such Subsidiary from the Company or from
transferring any of such Subsidiary's property or assets to the Company or
any other Subsidiary of the Company, except as described in the
Registration Statement (excluding the exhibits thereto), the Preliminary
Prospectuses and the Prospectus;
(oo) immediately after the issuance and sale of the Shares to be sold
by the Company and the sale of the Shares to be sold by the Selling
Stockholders as contemplated hereby, no shares of preferred stock of the
Company shall be issued or outstanding; and the issuance and sale of the
Shares as contemplated hereby will not cause any holder of any shares of
capital stock, securities convertible into or exchangeable or exercisable
for capital stock or options, warrants or other rights to purchase capital
stock or any other securities of the Company to have any right to acquire
any shares of preferred stock of the Company;
(pp) except pursuant to this Agreement, neither the Company nor any of
the Subsidiaries has incurred any liability for any finder's or broker's
fee or agent's commission in connection with the execution and delivery of
this Agreement or the consummation of the transactions contemplated hereby
or by the Registration Statement;
(qq) neither the Company nor any of the Subsidiaries nor any of their
respective directors, officers, affiliates or controlling persons has
taken, directly or
-18-
indirectly, any action designed, or which has constituted or might
reasonably be expected to cause or result in the stabilization or
manipulation of the price of any security of the Company to facilitate the
sale or resale of the Shares; and
(rr) to the Company's knowledge, there are no affiliations or
associations between (i) any member of the NASD and (ii) the Company or any
of the Company's officers, directors, 5% or greater security holders or any
beneficial owner of the Company's unregistered equity securities that were
acquired at any time on or after the 180th day immediately preceding the
date the Registration Statement was initially filed with the Commission,
except as disclosed in the Registration Statement (excluding exhibits
thereto), the Preliminary Prospectuses and the Prospectus.
In addition, any certificate signed by any officer of the Company or
any of the Subsidiaries and delivered to the Underwriters or counsel for the
Underwriters in connection with the offering of the Shares shall be deemed to be
a representation and warranty by the Company or Subsidiary, as the case may be,
as to matters covered thereby, to each Underwriter.
4. Representations and Warranties of the Selling Stockholders. Each Selling
Stockholder, severally and not jointly with the other Selling Stockholders,
represents and warrants to each of the Underwriters that:
(a) all Selling Stockholders Statements (as defined below) with
respect to such Selling Stockholder included (i) in the Registration
Statement, any Preliminary Prospectus or the Prospectus complied and will
comply in all material respects with all applicable provisions of the Act
or (ii) in the Registration Statement did not, as of the Effective Time,
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make such Selling
Stockholder Statements not misleading; at no time during the period that
begins on the earlier of the date of such Preliminary Prospectus and the
date such Preliminary Prospectus was filed with the Commission and ends at
the time of purchase did or will any Selling Stockholder Statements with
respect to such Selling Stockholder in any such Preliminary Prospectus, as
then amended or supplemented, include an untrue statement of a material
fact or omit to state a material fact necessary in order to make such
Selling Stockholder Statements, in the light of the circumstances under
which they were made, not misleading, and at no time during such period did
or will any Preliminary Prospectus, as then amended or supplemented,
together with any combination of one or more of the then issued Permitted
Free Writing Prospectuses, if any, contain any Selling Stockholder
Statements with respect to such Selling Stockholder that include an untrue
statement of a material fact or omit to state a material fact necessary in
order to make such Selling Stockholder Statements, in the light of the
circumstances under which they were made, not misleading; at no time during
the period that begins on the earlier of the date of the Prospectus and the
date the Prospectus is filed with the Commission and ends at the later of
the time of purchase, the latest additional time of purchase, if any, and
the end of the period during which a prospectus is required by the Act to
be delivered (whether physically or through compliance with Rule 172 under
the Act or any similar rule) in connection with any sale of Shares did or
will the Prospectus, as then amended or supplemented, contain any Selling
Stockholder Statements with respect to such Selling
-19-
Stockholder that include an untrue statement of a material fact or omit to
state a material fact necessary in order to make such Selling Stockholder
Statements, in the light of the circumstances under which they were made,
not misleading; at no time during the period that begins on the date of
such Permitted Free Writing Prospectus and ends at the time of purchase did
or will any Permitted Free Writing Prospectus, contain any Selling
Stockholder Statements with respect to such Selling Stockholder that
include an untrue statement of a material fact or omit to state a material
fact necessary in order to make such Selling Stockholder Statements, in the
light of the circumstances under which they were made, not misleading (as
used herein "Selling Stockholder Statements" are the statements set forth
in the sections of the Registration Statement, any Preliminary Prospectus,
the Prospectus or any Permitted Free Writing Prospectus entitled "Selling
stockholders" and "Principal stockholders";
(b) such Selling Stockholder has not, prior to the execution of this
Agreement, offered or sold any Shares by means of any "prospectus" (within
the meaning of the Act), or used any "prospectus" (within the meaning of
the Act) in connection with the offer or sale of the Shares, in each case
other than the then most recent Preliminary Prospectus;
(c) neither the execution, delivery and performance of this Agreement
or the Custody Agreement or Power of Attorney to which such Selling
Stockholder is a party nor the sale by such Selling Stockholder of the
Shares to be sold by such Selling Stockholder pursuant to this Agreement
nor the consummation of the transactions contemplated hereby or thereby
will conflict with, result in any breach or violation of or constitute a
default under (or constitute any event which with notice, lapse of time or
both would result in any breach or violation of or constitute a default
under) (i) if such Selling Stockholder is not an individual, the charter or
bylaws or other organizational instruments of such Selling Stockholder,
(ii) any indenture, mortgage, deed of trust, bank loan or credit agreement
or other evidence of indebtedness, or any license, lease, contract or other
agreement or instrument to which such Selling Stockholder is a party or by
which such Selling Stockholder or any of its properties may be bound or
affected, (iii) any federal, state, local or foreign law, regulation or
rule, (iv) or any rule or regulation of any self-regulatory organization or
other non-governmental regulatory authority (including, without limitation,
the rules and regulations of the NASDAQ), or (v) any decree, judgment or
order applicable to such Selling Stockholder or any of its properties,
except, in the case of clause (ii), for any such breach, violation, default
or acceleration that is described in the Registration Statement (excluding
the exhibits thereto), the Preliminary Prospectuses and the Prospectus or
that would not, individually or in the aggregate, have a Material Adverse
Effect.
(d) no approval, authorization, consent or order of or filing with any
federal, state, local or foreign governmental or regulatory commission,
board, body, authority or agency, or of or with any self-regulatory
organization or other non-governmental regulatory authority (including,
without limitation, the NASDAQ), is required in connection with the sale of
the Shares to be sold by such Selling Stockholder pursuant to this
Agreement or the consummation by such Selling Stockholder of the
transactions contemplated hereby or by the Custody Agreement or Power of
Attorney to which such Selling Stockholder is a party other than (i)
registration of the Shares under the Act,
-20-
which has been effected or, with respect to any registration statement to
be filed hereunder pursuant to Rule 462(b) under the Act, will be effected
in accordance herewith, (ii) any necessary qualification under the
securities or blue sky laws of the various jurisdictions in which the
Shares are being offered by the Underwriters or (iii) under the rules and
regulations of the NASD, all of which have been obtained;
(e) neither such Selling Stockholder nor any of its affiliates has
taken, directly or indirectly, any action designed to, or which has
constituted or might reasonably be expected to cause or result in the
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Shares;
(f) there are no affiliations or associations between any member of
the NASD and such Selling Stockholder, except as disclosed in the
Registration Statement (excluding the exhibits thereto), the Preliminary
Prospectuses and the Prospectus; none of the proceeds received by such
Selling Stockholder from the sale of the Shares to be sold by such Selling
Stockholder pursuant to this Agreement will be paid to a member of the NASD
or any affiliate of (or person "associated with," as such terms are used in
the Rules of the NASD) such member;
(g) such Selling Stockholder now is and, at the time of delivery of
such Shares (whether the time of purchase or any additional time of
purchase, as the case may be), will be the lawful owner of the number of
Shares to be sold by such Selling Stockholder pursuant to this Agreement
and has and, at the time of delivery of such Shares, will have valid and
marketable title to such Shares, and upon delivery of and payment for such
Shares (whether at the time of purchase or any additional time of purchase,
as the case may be), the Underwriters will acquire valid and marketable
title to such Shares free and clear of any claim, lien, encumbrance,
security interest, community property right, restriction on transfer or
other defect in title;
(h) such Selling Stockholder has and, at the time of delivery of the
Shares to be sold by such Selling Stockholder pursuant to this Agreement
(whether the time of purchase or any additional time of purchase, as the
case may be), will have full legal right, power and capacity, and all
authorizations and approvals required by law (other than those imposed by
the Act and state securities or blue sky laws), to (i) enter into this
Agreement and the Custody Agreement (as defined below) and to execute a
Power of Attorney, (ii) sell, assign, transfer and deliver the Shares to be
sold by such Selling Stockholder pursuant to this Agreement in the manner
provided in this Agreement and (iii) make the representations, warranties
and agreements made by such Selling Stockholder herein;
(i) this Agreement and the custody agreement (the "Custody
Agreement"), dated November [__], 2006, between Mellon Investor Services
LLC, as custodian (the "Custodian"), and such Selling Stockholder and the
Power of Attorney to which such Selling Stockholder is a party have each
been duly executed and delivered by (or, in the case of this Agreement, on
behalf of) such Selling Stockholder;
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(j) such Selling Stockholder has duly and irrevocably authorized the
Representative of the Selling Stockholders, on behalf of such Selling
Stockholder, to execute and deliver this Agreement and any other documents
necessary or desirable in connection with the transactions contemplated
hereby or thereby and to deliver the Shares to be sold by such Selling
Stockholder pursuant to this Agreement and receive payment therefor
pursuant hereto;
(k) the sale of the Shares to be sold by such Selling Stockholder
pursuant to this Agreement is not prompted by any information concerning
the Company or any Subsidiary which is not set forth in the Registration
Statement (excluding the exhibits thereto), each Preliminary Prospectus and
the Prospectus;
(l) at the time of purchase and each additional time of purchase, all
stock transfer or other taxes (other than income taxes), if any, that are
required to be paid in connection with the sale and transfer of the Shares
to be sold by such Selling Stockholder to the several Underwriters
hereunder will be fully paid or provided for by such Selling Stockholder,
and all laws imposing such taxes will be fully complied with;
(m) pursuant to the Custody Agreement to which such Selling
Stockholder is a party, certificates in negotiable form for the Shares to
be sold by such Selling Stockholder pursuant to this Agreement have been
placed in custody for the purpose of making delivery of such Shares in
accordance with this Agreement; such Selling Stockholder agrees that (i)
such Shares represented by such certificates are for the benefit of, and
coupled with and subject to the interest of, the Custodian, the
Representative of the Selling Stockholders, the Underwriters and the
Company, (ii) the arrangements made by such Selling Stockholder for custody
and for the appointment of the Custodian and the Representative of the
Selling Stockholders by such Selling Stockholder are irrevocable, and (iii)
the obligations of such Selling Stockholder hereunder shall not be
terminated by operation of law, whether by the death, disability or
incapacity of such Selling Stockholder (or, if such Selling Stockholder is
not an individual, the liquidation, dissolution, merger or consolidation of
such Selling Stockholder) or the occurrence of any other event (each, an
"Event"); if an Event occurs before the delivery of the Shares hereunder,
certificates for the Shares shall be delivered by the Custodian in
accordance with the terms and conditions of the Power of Attorney to which
such Selling Stockholder is a party, the Custody Agreement to which such
Selling Stockholder is a party and this Agreement, and actions taken by the
Custodian and the Representative of the Selling Stockholders pursuant to
such Power or Attorney or such Custody Agreement shall be as valid as if
such Event had not occurred, regardless of whether or not the Custodian or
the Representative of the Selling Stockholders, or either of them, shall
have received notice thereof; and
In addition, any certificate signed by any Selling Stockholder (or,
with respect to any Selling Stockholder that is not an individual, any officer
of such Selling Stockholder or of any of such Selling Stockholder's
subsidiaries) or by the Representative of the Selling Stockholders and delivered
to the Underwriters or counsel for the Underwriters in connection with the
offering of the Shares shall be deemed to be a representation and warranty by
such Selling Stockholder, as to matters covered thereby, to each Underwriter.
-22-
5. Certain Covenants of the Company. The Company hereby agrees:
(a) to furnish such information as may be required and otherwise to
cooperate in qualifying the Shares for offering and sale under the
securities or blue sky laws of such states or other jurisdictions as you
may designate and to maintain such qualifications in effect so long as you
may request for the distribution of the Shares; provided, however, that the
Company shall not be required to qualify as a foreign corporation or to
consent to the service of process under the laws of any such jurisdiction
(except service of process with respect to the offering and sale of the
Shares); and to promptly advise you of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Shares for offer or sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose;
(b) to make available to the Underwriters in New York City, as soon as
practicable after this Agreement becomes effective, and thereafter from
time to time to furnish to the Underwriters, as many copies of the
Prospectus (or of the Prospectus as amended or supplemented if the Company
shall have made any amendments or supplements thereto after the effective
date of the Registration Statement) as the Underwriters may request for the
purposes contemplated by the Act; in case any Underwriter is required to
deliver (whether physically or through compliance with Rule 172 under the
Act or any similar rule), in connection with the sale of the Shares, a
prospectus after the nine-month period referred to in Section 10(a)(3) of
the Act, the Company will prepare, at its expense, promptly upon request
such amendment or amendments to the Registration Statement and the
Prospectus as may be necessary to permit compliance with the requirements
of Section 10(a)(3) of the Act;
(c) if, at the time this Agreement is executed and delivered, it is
necessary or appropriate for a post-effective amendment to the Registration
Statement, or a Registration Statement under Rule 462(b) under the Act, to
be filed with the Commission and become effective before the Shares may be
sold, the Company will use its best efforts to cause the Registration
Statement or such post-effective amendment to be filed and become
effective, and will pay any applicable fees in accordance with the Act, as
soon as possible, and the Company will advise you promptly and, if
requested by you, will confirm such advice in writing, (i) when the
Registration Statement and any such post-effective amendment thereto has
become effective, and (ii) if Rule 430A under the Act is used, when the
Prospectus is filed with the Commission pursuant to Rule 424(b) under the
Act (which the Company agrees to file in a timely manner in accordance with
such Rules);
(d) to advise you promptly, confirming such advice in writing, of any
request by the Commission for amendments or supplements to the Registration
Statement or the Exchange Act Registration Statement, any Preliminary
Prospectus, the Prospectus or any Permitted Free Writing Prospectus or for
additional information with respect thereto, or of notice of institution of
proceedings for, or the entry of a stop order, suspending the effectiveness
of the Registration Statement and, if the Commission should enter a stop
order suspending the effectiveness of the Registration Statement, to use
its best efforts to obtain the lifting or removal of such order as soon as
possible; to advise you promptly of
-23-
any proposal to amend or supplement the Registration Statement or the
Exchange Act Registration Statement, any Preliminary Prospectus or the
Prospectus and to provide you and Underwriters' counsel copies of any such
documents for review and comment a reasonable amount of time prior to any
proposed filing, and to file no such amendment or supplement to which you
shall reasonably object in writing;
(e) to file promptly all reports and documents and any preliminary or
definitive proxy or information statement required to be filed by the
Company with the Commission in order to comply with the Exchange Act for so
long as a prospectus is required by the Act to be delivered (whether
physically or through compliance with Rule 172 under the Act or any similar
rule) in connection with the offering or sale of the Shares; and to provide
you, for your review and comment, with a copy of such reports and
statements and other documents to be filed by the Company pursuant to
Section 13, 14 or 15(d) of the Exchange Act during such period a reasonable
amount of time prior to any proposed filing, and to file no such report,
statement or document to which you shall reasonably and timely object in
writing and to promptly notify you of such filing;
(f) to advise the Underwriters promptly of the happening of any event
within the period during which a prospectus is required by the Act to be
delivered (whether physically or through compliance with Rule 172 under the
Act or any similar rule) in connection with any sale of Shares, which event
could require the making of any change in the Prospectus then being used so
that the Prospectus would not include an untrue statement of material fact
or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they are made, not
misleading, and to advise the Underwriters promptly if, during such period,
it shall become necessary to amend or supplement the Prospectus to cause
the Prospectus to comply with the requirements of the Act, and, in each
case, during such time, to prepare and furnish, at the Company's expense,
to the Underwriters promptly such amendments or supplements to such
Prospectus as may be necessary to reflect any such change or to effect such
compliance;
(g) to make generally available to its security holders, and to
deliver to you, an earnings statement of the Company (which will satisfy
the provisions of Section 11(a) of the Act) covering a period of twelve
months beginning after the effective date of the Registration Statement (as
defined in Rule 158(c) under the Act) as soon as is reasonably practicable
after the termination of such twelve-month period but in any case not later
than eighteen months after the effective date of the Registration
Statement;
(h) to furnish to you one copy for each Managing Underwriter and one
copy for Milbank, Tweed, Hadley & McCloy LLP of the Registration Statement,
as initially filed with the Commission, and of all amendments thereto
(including all exhibits thereto) and sufficient copies of the foregoing
(other than exhibits) for distribution of a copy to each of the other
Underwriters;
(i) to furnish to you as early as practicable prior to the time of
purchase and any additional time of purchase, as the case may be, but not
later than two Business Days prior thereto, a copy of the latest available
unaudited interim consolidated financial
-24-
statements, if any, of the Company and the Subsidiaries which have been
read by the Company's independent registered public accountants, as stated
in their letter to be furnished pursuant to Section 9(h) and (i) hereof;
(j) to apply the net proceeds to the Company from the sale of the
Shares in the manner set forth under the caption "Use of proceeds" in the
Prospectus and to file such reports with the Commission with respect to the
sale of the Shares and the application of the proceeds therefrom as may be
required by Rule 463 under the Act;
(k) to comply with Rule 433(d) under the Act and with Rule 433(g)
under the Act;
(l) beginning on the date hereof and ending on, and including, the
date that is 180 days after the date of the Prospectus (the "Lock-Up
Period"), without the prior written consent of UBS, not to (i) issue, sell,
offer to sell, contract or agree to sell, hypothecate, pledge, grant any
option to purchase or otherwise dispose of or agree to dispose of, directly
or indirectly, or establish or increase a put equivalent position or
liquidate or decrease a call equivalent position within the meaning of
Section 16 of the Exchange Act and the rules and regulations of the
Commission promulgated thereunder, with respect to, any Common Stock or any
other securities of the Company that are substantially similar to Common
Stock, or any securities convertible into or exchangeable or exercisable
for, or any warrants or other rights to purchase, the foregoing, (ii) file
or cause to become effective a registration statement under the Act
relating to the offer and sale of any Common Stock or any other securities
of the Company that are substantially similar to Common Stock, or any
securities convertible into or exchangeable or exercisable for, or any
warrants or other rights to purchase, the foregoing, (iii) enter into any
swap or other arrangement that transfers to another, in whole or in part,
any of the economic consequences of ownership of Common Stock or any other
securities of the Company that are substantially similar to Common Stock,
or any securities convertible into or exchangeable or exercisable for, or
any warrants or other rights to purchase, the foregoing, whether any such
transaction is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise or (iv) publicly announce an intention to
effect any transaction specified in clause (i), (ii) or (iii), except, in
each case, for (A) the registration of the offer and sale of the Shares as
contemplated by this Agreement, (B) issuances of Common Stock upon the
exercise of options or warrants disclosed as outstanding in the
Registration Statement (excluding the exhibits thereto), the Preliminary
Prospectuses and the Prospectus, and (C) the issuance of employee and
director stock options, restricted stock units, stock appreciation rights
or other stock-based awards not exercisable during the Lock-Up Period
pursuant to stock incentive plans described in the Registration Statement
(excluding the exhibits thereto), each Preliminary Prospectus and the
Prospectus; provided, however, that if (a) during the period that begins on
the date that is fifteen (15) calendar days plus three (3) Business Days
before the last day of the Lock-Up Period and ends on the last day of the
Lock-Up Period, the Company issues an earnings release or material news or
a material event relating to the Company occurs; or (b) prior to the
expiration of the Lock-Up Period, the Company announces that it will
release earnings results during the sixteen (16) day period beginning on
the last day of the Lock-Up Period, then the restrictions imposed by
-25-
this Section 5(l) shall continue to apply until the expiration of the date
that is fifteen (15) calendar days plus three (3) Business Days after the
date on which the issuance of the earnings release or the material news or
material event occurs;
(m) prior to the time of purchase or any additional time of purchase,
as the case may be, to issue no press release or other communication
directly or indirectly and hold no press conferences with respect to the
Company or any Subsidiary, the financial condition, results of operations,
business, properties, assets, or liabilities of the Company or any
Subsidiary, or the offering of the Shares, without your prior consent,
which consent shall not be unreasonably withheld, conditioned or delayed;
(n) not, at any time at or after the execution of this Agreement, to,
directly or indirectly, offer or sell any Shares by means of any
"prospectus" (within the meaning of the Act), or use any "prospectus"
(within the meaning of the Act) in connection with the offer or sale of the
Shares, in each case other than the Prospectus;
(o) not to, and to cause its Subsidiaries not to, take, directly or
indirectly, any action designed, or which will constitute, or has
constituted or might reasonably be expected to cause or result in, under
the Exchange Act, the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Shares;
(p) to use its best efforts to cause the Common Stock to be listed on
the NASDAQ and to maintain such listing; and
(q) to maintain a transfer agent and, if necessary under the
jurisdiction of incorporation of the Company, a registrar for the Common
Stock.
6. Certain Covenants of the Selling Stockholders. Each Selling Stockholder
hereby agrees:
(a) not, at any time at or after the execution of this Agreement, to
offer or sell any Shares by means of any "prospectus" (within the meaning
of the Act), or use any "prospectus" (within the meaning of the Act) in
connection with the offer or sale of the Shares, in each case other than
the Prospectus;
(b) not to take, directly or indirectly, any action designed, or which
will constitute, or has constituted, or might reasonably be expected to
cause or result in, under the Exchange Act, the stabilization or
manipulation of the price of any security of the Company to facilitate the
sale or resale of the Shares;
(c) to pay or cause to be paid all taxes, if any, on the transfer and
sale of the Shares being sold by such Selling Stockholder;
(d) to advise you promptly, and if requested by you, confirm such
advice in writing, so long as a prospectus is required by the Act to be
delivered (whether physically or through compliance with Rule 172 under the
Act or any similar rule) in connection with any sale of Shares, of (i) any
change in any information in the Registration Statement, the Preliminary
Prospectuses, the Prospectus and the Permitted Free Writing
-26-
Prospectuses, if any, that was furnished to the Company by such Selling
Stockholder (in writing expressly for use therein) or (ii) any new material
information relating to the Selling Stockholder required to be stated in
the Registration Statement, the Preliminary Prospectuses, the Prospectus
and the Permitted Free Writing Prospectuses, if any;
(e) prior to or concurrently with the execution and delivery of this
Agreement, to execute and deliver to the Underwriters a Power of Attorney,
Custody Agreement and a Lock-Up Agreement;
(f) in order to document the Underwriters' compliance with the
reporting and withholding provisions of the Tax Equity and Fiscal
Responsibility Act of 1982 with respect to the transactions herein
contemplated, such Selling Stockholder will deliver to the Representative
of the Selling Stockholders prior to or at the date of the closing of the
purchase of the Firm Shares a properly completed and executed U.S. Treasury
Department Form W-9 (or other applicable form or statement specified by the
U.S. Treasury Department regulations evidencing such Selling Stockholder's
exemption from backup withholding tax);
(g) to furnish such information relating to such Selling Stockholder
as may be required and otherwise to cooperate in qualifying the Shares for
offering and sale under the securities or blue sky laws of such states or
other jurisdictions as you may designate and to maintain such
qualifications in effect so long as you may request for the distribution of
the Shares; provided that such Selling Stockholder shall not be required to
consent to the service of process under the laws of any such jurisdiction
(except service of process with respect to the offering and sale of the
Shares); and
(h) to advise the Underwriters and the Company promptly of the
happening of any event within the time during which a prospectus relating
to the Shares is required to be delivered (whether physically or through
compliance with Rule 172 under the Act or any similar rule) under the Act
which could require the making of any change in the Prospectus, as it
relates to such Selling Stockholder, then being used so that the Prospectus
would not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they are made, not misleading.
7. Covenant to Pay Costs. The Company agrees to pay all costs, expenses,
fees and taxes in connection with (i) the preparation and filing of the
Registration Statement, each Preliminary Prospectus, the Prospectus, each
Permitted Free Writing Prospectus and any amendments or supplements thereto, and
the printing and furnishing of copies of each thereof to the Underwriters and to
dealers (including costs of mailing and shipment), (ii) the registration, issue,
sale and delivery of the Shares including any stock or transfer taxes and stamp
or similar duties payable upon the sale, issuance or delivery of the Shares to
the Underwriters, (iii) the qualification of the Shares for offering and sale
under state or foreign laws and the determination of their eligibility for
investment under state or foreign law (including the reasonable legal fees and
filing fees and other reasonable disbursements of counsel for the Underwriters
related thereto) and the printing and furnishing of copies of any blue sky
surveys or legal investment surveys to the Underwriters and to dealers, (iv) any
listing of the Shares on the NASDAQ, (v)
-27-
any filing for review of the public offering of the Shares by the NASD,
including the legal fees and filing fees and other disbursements of counsel to
the Underwriters relating to NASD matters, (vi) the fees and disbursements of
any transfer agent or registrar for the Shares, (vii) the costs and expenses of
the Company and the Selling Stockholders relating to presentations or meetings
undertaken in connection with the marketing of the offering and sale of the
Shares to prospective investors and the Underwriters' sales forces, including,
without limitation, third-party expenses associated with the production of road
show slides and graphics, fees and expenses of any consultants engaged by the
Company in connection with the road show presentations, travel, lodging and
other expenses incurred by the officers of the Company or by such Selling
Stockholder and any such consultants, and the cost of any aircraft chartered in
connection with the road show, provided that the Underwriters shall reimburse
the Company an amount equal to the full, undiscounted, unrestricted first class
airfare on a major commercial airline for an equivalent route for each person
affiliated with the Underwriters who travels on such chartered aircraft, (viii)
the costs and expenses of qualifying the Shares for inclusion in the book-entry
settlement system of the DTC, (ix) the preparation and filing of the Exchange
Act Registration Statement, including any amendments thereto and (x) the
performance of the Company's and such Selling Stockholder's other obligations
hereunder. It is understood, however, that except as provided in this Section 7
and Sections 8 and 12 hereof, the Underwriters will pay all of their own costs
and expenses, including the fees and disbursements of their counsel.
8. Reimbursement of Underwriters' Expenses. If the Shares are not delivered
for any reason other than the termination of this Agreement pursuant to the
fifth paragraph of Section 11 hereof or the default by one or more of the
Underwriters in its or their respective obligations hereunder, the Company
shall, in addition to paying the amounts described in Section 7 hereof,
reimburse the Underwriters for all of their out-of-pocket expenses, including
the fees and disbursements of their counsel.
9. Conditions of Underwriters' Obligations. The several obligations of the
Underwriters hereunder are subject to the accuracy of the respective
representations and warranties on the part of the Company and each Selling
Stockholder on the date hereof, at the time of purchase and, if applicable, at
the additional time of purchase, the performance by the Company and each Selling
Stockholder of each of their respective obligations hereunder and to the
following additional conditions precedent:
(a) The Company shall furnish to you at the time of purchase and, if
applicable, at the additional time of purchase, an opinion and negative
assurance letter of Chadbourne & Parke LLP, counsel for the Company,
addressed to the Underwriters, and dated the time of purchase or the
additional time of purchase, as the case may be, with executed copies for
each of the other Underwriters and in form and substance satisfactory to
Milbank, Tweed, Hadley & McCloy LLP, counsel for the Underwriters, in the
forms set forth in Exhibits B and C hereto.
(b) The Company shall furnish to you at the time of purchase and, if
applicable, at the additional time of purchase, an opinion of Wilkinson
Barker Knauer LLP, special counsel for the Company with respect to
regulatory matters, including without limitation, FCC matters, addressed to
the Underwriters, and dated the time of purchase or the additional time of
purchase, as the case may be, with executed copies for
-28-
each of the other Underwriters, and in form and substance satisfactory to
Milbank, Tweed, Hadley & McCloy LLP, counsel for the Underwriters, in the
form set forth in Exhibit D hereto.
(c) The Company shall furnish to you at the time of purchase and, if
applicable, at the additional time of purchase, an opinion of Christian G.
Le Brun, General Counsel of the Company, addressed to the Underwriters, and
dated the time of purchase or the additional time of purchase, as the case
may be, with executed copies for each of the other Underwriters, and in
form and substance satisfactory to Milbank, Tweed, Hadley & McCloy LLP,
counsel for the Underwriters, in the form set forth in Exhibit E hereto.
(d) The Company shall furnish to you at the time of the purchase and,
if applicable, at the additional time of purchase, an opinion of Conyers
Dill & Pearman, special British Virgin Islands counsel to Stellar Satellite
Communications Ltd., addressed to the Underwriters, and dated the time of
purchase or the additional time of purchase, as the case may be, with
executed copies for each of the other Underwriters and in form and
substance satisfactory to Milbank, Tweed, Hadley & McCloy LLP, counsel for
the Underwriters, in the form set forth in Exhibit F hereto.
(e) The Selling Stockholders shall furnish to you at the time of
purchase and, if applicable, at the additional time of purchase, an opinion
of (i) Chadbourne & Parke LLP, as New York counsel for the Selling
Stockholders, to the effect set forth in Exhibit G hereto, and (ii) in the
case of Selling Stockholders that are a corporation, limited liability
company or partnership, an opinion of local counsel for such Selling
Stockholders (which may be an in-house counsel) to the effect set forth
Exhibit H hereto, addressed to the Underwriters, and dated the time of
purchase, or the additional time of purchase, as the case may be, with
executed copies for each of the other Underwriters, and in form and
substance reasonably satisfactory to Milbank, Tweed, Hadley & McCloy LLP,
counsel for the Underwriters.
(f) You shall have received from J.H. Cohn LLP letters dated,
respectively, the date of this Agreement, the date of the Prospectus, the
time of purchase and, if applicable, the additional time of purchase, and
addressed to the Underwriters (with executed copies for each of the
Underwriters) in the forms satisfactory to UBS, which letters shall cover,
without limitation, the various financial disclosures contained in the
Registration Statement, the Preliminary Prospectuses, the Prospectus and
the Permitted Free Writing Prospectuses, if any.
(g) You shall have received from Deloitte & Touche LLP letters dated,
respectively, the date of this Agreement, the date of the Prospectus, the
time of purchase and, if applicable, the additional time of purchase, and
addressed to the Underwriters (with executed copies for each of the
Underwriters) in the forms satisfactory to UBS, which letters shall cover,
without limitation, the various financial disclosures contained in the
Registration Statement, the Preliminary Prospectuses, the Prospectus and
the Permitted Free Writing Prospectuses, if any.
-29-
(h) You shall have received at the time of purchase and, if
applicable, at the additional time of purchase, the favorable opinion of
Milbank, Tweed, Hadley & McCloy LLP, counsel for the Underwriters, dated
the time of purchase or the additional time of purchase, as the case may
be, in form and substance reasonably satisfactory to you.
(i) No Prospectus or amendment or supplement to the Registration
Statement or the Prospectus shall have been filed to which you shall have
objected in writing.
(j) The Registration Statement, the Exchange Act Registration
Statement, and any registration statement required to be filed, prior to
the sale of the Shares, under the Act pursuant to Rule 462(b), shall have
been filed and shall have become effective under the Act or the Exchange
Act, as the case may be. If Rule 430A under the Act is used, the Prospectus
shall have been filed with the Commission pursuant to Rule 424(b) under the
Act at or before 5:30 P.M., New York City time, on the second full Business
Day after the date of this Agreement (or such earlier time as may be
required under the Act).
(k) Prior to and at the time of purchase, and, if applicable, the
additional time of purchase, (i) no stop order with respect to the
effectiveness of the Registration Statement shall have been issued under
the Act or proceedings initiated under Section 8(d) or 8(e) of the Act;
(ii) the Registration Statement and all amendments thereto shall not
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; (iii) none of the Preliminary Prospectuses or the
Prospectus, and no amendment or supplement thereto, shall include an untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they are made, not misleading; (iv) no Disclosure Package, and
no amendment or supplement thereto, shall include an untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
are made, not misleading; and (v) none of the Permitted Free Writing
Prospectuses, if any, shall include an untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they are made, not
misleading.
(l) The Company will, at the time of purchase and, if applicable, at
the additional time of purchase, deliver to you a certificate of its Chief
Executive Officer and its Chief Financial Officer, dated the time of
purchase or the additional time of purchase, as the case may be, in the
form attached as Exhibit I hereto.
(m) The Selling Stockholders will, at the time of purchase and, if
applicable, at the additional time of purchase, deliver to you a
certificate signed by the Representative of the Selling Stockholders, dated
the time of purchase or the additional time of purchase, as the case may
be, in the form attached as Exhibit J hereto.
(n) You shall have received each of the signed Lock-Up Agreements
referred to in Section 3(v) hereof, of each of the Company's directors and
officers and each holder of the Company's Common Stock or any security
convertible or exercisable or exchangeable for Common Stock, or any warrant
or other right to purchase Common
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Stock or any such security named in Exhibit A-1 hereto and each such
Lock-Up Agreement shall be in full force and effect at the time of purchase
and the additional time of purchase, as the case may be.
(o) The Company shall have furnished to you such other documents and
certificates as to the accuracy and completeness of any statement in the
Registration Statement, any Preliminary Prospectus, the Prospectus or any
Permitted Free Writing Prospectus as of the time of purchase and, if
applicable, the additional time of purchase, as you may reasonably request.
(p) Each Selling Stockholder shall have furnished to you such other
documents and certificates as to the accuracy and completeness of any
statement in the Registration Statement, any Preliminary Prospectus, the
Prospectus or any Permitted Free Writing Prospectus, in each case only to
the extent such statement reflects written information provided by such
Selling Stockholder, as of the time of purchase and, if applicable, the
additional time of purchase, as you may reasonably request.
(q) The Shares shall have been approved for listing on the NASDAQ,
subject only to notice of issuance at or prior to the time of purchase or
the additional time of purchase, as the case may be.
(r) The NASD shall not have raised any objection with respect to the
fairness or reasonableness of the underwriting, or other arrangements of
the transactions, contemplated hereby.
(s) Each Selling Stockholder shall have delivered to you a duly
executed Power of Attorney and a duly executed Custody Agreement, in each
case in form and substance satisfactory to UBS.
10. Effective Date of Agreement; Termination. This Agreement shall become
effective when the parties hereto have executed and delivered this Agreement.
The obligations of the several Underwriters hereunder shall be subject
to termination in the absolute discretion of UBS, if (1) since the time of
execution of this Agreement or the earlier respective dates as of which
information is given in the Registration Statement, the Preliminary
Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if
any, there has been any change or any development involving a prospective change
in the business, properties, management, financial condition or results of
operations of the Company and the Subsidiaries taken as a whole, the effect of
which change or development is, in the sole judgment of UBS, so material and
adverse as to make it impractical or inadvisable to proceed with the public
offering or the delivery of the Shares on the terms and in the manner
contemplated in the Registration Statement, the Preliminary Prospectuses, the
Prospectus and the Permitted Free Writing Prospectuses, if any, or (2) since the
time of execution of this Agreement, there shall have occurred: (A) a suspension
or material limitation in trading in securities generally on the New York Stock
Exchange, the American Stock Exchange or the NASDAQ; (B) a suspension or
material limitation in trading in the Company's securities on the NASDAQ; (C) a
general moratorium on commercial banking activities declared by either federal
or New
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York State authorities or a material disruption in commercial banking or
securities settlement or clearance services in the United States; (D) an
outbreak or escalation of hostilities or acts of terrorism involving the United
States or a declaration by the United States of a national emergency or war; or
(E) any other calamity or crisis or any change in financial, political or
economic conditions in the United States or elsewhere, if the effect of any such
event specified in clause (D) or (E), in the sole judgment of UBS, makes it
impractical or inadvisable to proceed with the public offering or the delivery
of the Shares on the terms and in the manner contemplated in the Registration
Statement, the Preliminary Prospectuses, the Prospectus and the Permitted Free
Writing Prospectuses, if any, or (3) since the time of execution of this
Agreement, there shall have occurred any downgrading, or any notice or
announcement shall have been given or made of: (A) any intended or potential
downgrading or (B) any watch, review or possible change that does not indicate
an affirmation or improvement in the rating accorded any securities of or
guaranteed by the Company or any Subsidiary by any "nationally recognized
statistical rating organization," as that term is defined in Rule 436(g)(2)
under the Act.
If UBS elects to terminate this Agreement as provided in this Section
10, the Company, the Selling Stockholders and each other Underwriter shall be
notified promptly in writing.
If the sale to the Underwriters of the Shares, as contemplated by this
Agreement, is not carried out by the Underwriters for any reason permitted under
this Agreement, or if such sale is not carried out because the Company or any
Selling Stockholder, as the case may be, shall be unable to comply with any of
the terms of this Agreement, the Company and the Selling Stockholders shall not
be under any obligation or liability under this Agreement (except to the extent
provided in Sections 7, 8 and 12 hereof), and the Underwriters shall be under no
obligation or liability to the Company or any Selling Stockholder under this
Agreement (except to the extent provided in Section 12 hereof) or to one another
hereunder.
11. Increase in Underwriters' Commitments. Subject to Sections 9 and 10
hereof, if any Underwriter shall default in its obligation to take up and pay
for the Firm Shares to be purchased by it hereunder (otherwise than for a
failure of a condition set forth in Section 9 hereof or a reason sufficient to
justify the termination of this Agreement under the provisions of Section 10
hereof) and if the number of Firm Shares which all Underwriters so defaulting
shall have agreed but failed to take up and pay for does not exceed 10% of the
total number of Firm Shares, the non-defaulting Underwriters (including the
Underwriters, if any, substituted in the manner set forth below) shall take up
and pay for (in addition to the aggregate number of Firm Shares they are
obligated to purchase pursuant to Section 1 hereof) the number of Firm Shares
agreed to be purchased by all such defaulting Underwriters, as hereinafter
provided. Such Shares shall be taken up and paid for by such non-defaulting
Underwriters in such amount or amounts as you may designate with the consent of
each Underwriter so designated or, in the event no such designation is made,
such Shares shall be taken up and paid for by all non-defaulting Underwriters
pro rata in proportion to the aggregate number of Firm Shares set forth opposite
the names of such non-defaulting Underwriters in Schedule A.
Without relieving any defaulting Underwriter from its obligations
hereunder, the Company and each Selling Stockholder each agree with the
non-defaulting Underwriters that they will not sell any Firm Shares hereunder
unless all of the Firm Shares are purchased by the
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Underwriters (or by substituted Underwriters selected by you with the approval
of the Company or selected by the Company with your approval).
If a new Underwriter or Underwriters are substituted by the
Underwriters or by the Company for a defaulting Underwriter or Underwriters in
accordance with the foregoing provision, the Company or you shall have the right
to postpone the time of purchase for a period not exceeding five Business Days
in order that any necessary changes in the Registration Statement and the
Prospectus and other documents may be effected.
The term "Underwriter" as used in this Agreement shall refer to and
include any Underwriter substituted under this Section 11 with like effect as if
such substituted Underwriter had originally been named in Schedule A hereto.
If the aggregate number of Firm Shares which the defaulting
Underwriter or Underwriters agreed to purchase exceeds 10% of the total number
of Firm Shares which all Underwriters agreed to purchase hereunder, and if
neither the non-defaulting Underwriters nor the Company shall make arrangements
within the five Business Day period stated above for the purchase of all the
Firm Shares which the defaulting Underwriter or Underwriters agreed to purchase
hereunder, this Agreement shall terminate without further act or deed and
without any liability on the part of the Company or any Selling Stockholder to
any non-defaulting Underwriter and without any liability on the part of any
non-defaulting Underwriter to the Company or to any Selling Stockholder;
provided, however, that, for avoidance of doubt, in the case of such a
termination on account of a default with respect to any Additional Shares, this
Agreement shall not terminate as to the Firm Shares or any Additional Shares
purchased by the Underwriters from the Company or the Selling Stockholders
pursuant to this Agreement prior to such termination. Nothing in this paragraph,
and no action taken hereunder, shall relieve any defaulting Underwriter from
liability in respect of any default of such Underwriter under this Agreement.
12. Indemnity and Contribution.
(a) The Company agrees to indemnify, defend and hold harmless each
Underwriter, its partners, directors and officers, and any person who
controls any Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, and the successors and assigns of all of
the foregoing persons, from and against any loss, damage, expense,
liability or claim (including the reasonable cost of investigation) which,
jointly or severally, any such Underwriter or any such person may incur
under the Act, the Exchange Act, the common law or otherwise, insofar as
such loss, damage, expense, liability or claim arises out of or is based
upon (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement (or in the Registration
Statement as amended by any post-effective amendment thereof by the
Company) or arises out of or is based upon any omission or alleged omission
to state a material fact required to be stated therein or necessary to make
the statements therein not misleading, except insofar as any such loss,
damage, expense, liability or claim arises out of or is based upon any
untrue statement or alleged untrue statement of a material fact contained
in, and in conformity with information concerning such Underwriter
furnished in writing by or on behalf of such Underwriter through UBS to the
Company expressly
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for use in, the Registration Statement or arises out of or is based upon
any omission or alleged omission to state a material fact in the
Registration Statement in connection with such information, which material
fact was not contained in such information and which material fact was
required to be stated in such Registration Statement or was necessary to
make such information not misleading, or (ii) any untrue statement or
alleged untrue statement of a material fact included in any Prospectus (the
term Prospectus for the purpose of this Section 12 being deemed to include
any Preliminary Prospectus, the Prospectus and any amendments or
supplements to the foregoing), in any Permitted Free Writing Prospectus, in
any "issuer information" (as defined in Rule 433 under the Act) of the
Company, which "issuer information" is required to be, or is, filed with
the Commission, or in any Prospectus together with any combination of one
or more of the Permitted Free Writing Prospectuses, if any, or arises out
of or is based upon any omission or alleged omission to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except, with
respect to such Prospectus or Permitted Free Writing Prospectus, insofar as
any such loss, damage, expense, liability or claim arises out of or is
based upon any untrue statement or alleged untrue statement of a material
fact contained in, and in conformity with information concerning such
Underwriters furnished in writing by or on behalf of such Underwriter
through you to the Company expressly for use in, such Prospectus or
Permitted Free Writing Prospectus or arises out of or is based upon any
omission or alleged omission to state a material fact in such Prospectus or
Permitted Free Writing Prospectus in connection with such information,
which material fact was not contained in such information and which
material fact was necessary in order to make the statements in such
information, in the light of the circumstances under which they were made,
not misleading.
(b) Each Selling Stockholder agrees to indemnify, defend and hold
harmless the Company, each Underwriter, their respective partners,
directors and officers, and any person who controls the Company or any
Underwriter within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act, and the successors and assigns of all of the foregoing
persons, from and against any loss, damage, expense, liability or claim
(including the reasonable cost of investigation) which, jointly or
severally, any of the foregoing persons may incur under the Act, the
Exchange Act, the common law or otherwise, insofar as such loss, damage,
expense, liability or claim arises out of or is based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement (or in the Registration Statement as amended by any
post-effective amendment thereof by the Company), as such Registration
Statement relates to such Selling Stockholder, or arises out of or is based
upon any omission or alleged omission to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading or (ii) any untrue statement or alleged untrue statement of a
material fact included in any Prospectus, in any Permitted Free Writing
Prospectus or in any Prospectus together with any combination of one or
more of the Permitted Free Writing Prospectuses, if any, in each case as
such document(s) relate to such Selling Stockholder, or arises out of or is
based upon any omission or alleged omission to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, in each of cases
(i) and (ii) to the extent, but only to the extent, that such untrue
statement or alleged
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untrue statement or omission or alleged omission was made in reliance upon
and in conformity with written information furnished to the Company by such
Selling Stockholder expressly for use therein; provided, however, that no
Selling Stockholder shall be responsible, pursuant to this Section 12(b),
for losses, damages, expenses, liabilities or claims for an amount in
excess of the aggregate initial public offering price of the Shares sold by
such Selling Stockholder to the Underwriters pursuant hereto.
Notwithstanding anything herein to the contrary, in no event shall the
liability of any Selling Stockholder to provide indemnity pursuant to this
Section 12(b), or contribution pursuant to Section 12(e), exceed an amount
equal to the aggregate initial public offering price of the Shares sold by
such Selling Stockholder to the Underwriters pursuant hereto.
(c) Each Underwriter severally agrees to indemnify, defend and hold
harmless the Company, its directors and officers, each Selling Stockholder
and any person who controls the Company within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act, and the successors and assigns
of all of the foregoing persons, from and against any loss, damage,
expense, liability or claim (including the reasonable cost of
investigation) which, jointly or severally, the Company, such Selling
Stockholder or any such person may incur under the Act, the Exchange Act,
the common law or otherwise, insofar as such loss, damage, expense,
liability or claim arises out of or is based upon (i) any untrue statement
or alleged untrue statement of a material fact contained in, and in
conformity with information concerning such Underwriter furnished in
writing by or on behalf of such Underwriter through you to the Company
expressly for use in, the Registration Statement (or in the Registration
Statement as amended by any post-effective amendment thereof by the
Company), or arises out of or is based upon any omission or alleged
omission to state a material fact in such Registration Statement in
connection with such information, which material fact was not contained in
such information and which material fact was required to be stated in such
Registration Statement or was necessary to make such information not
misleading or (ii) any untrue statement or alleged untrue statement of a
material fact contained in, and in conformity with information concerning
such Underwriter furnished in writing by or on behalf of such Underwriter
through you to the Company expressly for use in, a Prospectus or a
Permitted Free Writing Prospectus, or arises out of or is based upon any
omission or alleged omission to state a material fact in such Prospectus or
Permitted Free Writing Prospectus in connection with such information,
which material fact was not contained in such information and which
material fact was necessary in order to make the statements in such
information, in the light of the circumstances under which they were made,
not misleading.
(d) If any action, suit or proceeding (each, a "Proceeding") is
brought against a person (an "indemnified party") in respect of which
indemnity may be sought against the Company, a Selling Stockholder or an
Underwriter (as applicable, the "indemnifying party") pursuant to
subsection (a), (b) or (c), respectively, of this Section 12, such
indemnified party shall promptly notify such indemnifying party in writing
of the institution of such Proceeding and such indemnifying party shall
assume the defense of such Proceeding, including the employment of counsel
reasonably satisfactory to such indemnified party and payment of all fees
and expenses; provided, however, that the omission to so notify such
indemnifying party shall not relieve such indemnifying party
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from any liability which such indemnifying party may have to any
indemnified party or otherwise, except to the extent that the indemnifying
party has been prejudiced in any material respect by such failure through
the forfeiture of substantive rights or defenses. The indemnified party or
parties shall have the right to employ its or their own counsel in any such
case, but the fees and expenses of such counsel shall be at the expense of
such indemnified party or parties unless the employment of such counsel
shall have been authorized in writing by the indemnifying party (or, in the
case such indemnifying party is a Selling Stockholder, by such Selling
Stockholder or by the Representative of the Selling Stockholders) in
connection with the defense of such Proceeding or the indemnifying party
shall not have, within a reasonable period of time in light of the
circumstances, employed counsel to defend such Proceeding or such
indemnified party or parties shall have reasonably concluded that there may
be defenses available to it or them which are different from, additional to
or in conflict with those available to such indemnifying party (in which
case such indemnifying party shall not have the right to direct the defense
of such Proceeding on behalf of the indemnified party or parties), in any
of which events such fees and expenses shall be borne by such indemnifying
party and paid as incurred (it being understood, however, that such
indemnifying party shall not be liable for the expenses of more than one
separate counsel (in addition to any local counsel) in any one Proceeding
or series of related Proceedings in the same jurisdiction representing the
indemnified parties who are parties to such Proceeding). The indemnifying
party shall not be liable for any settlement of any Proceeding effected
without its written consent (or, in the case such indemnifying party is a
Selling Stockholder, without the written consent of either such Selling
Stockholder or the Representative of the Selling Stockholders) but, if
settled with its written consent (or, in the case such indemnifying party
is a Selling Stockholder, with the written consent of such Selling
Stockholder or of the Representative of the Selling Stockholders), such
indemnifying party agrees to indemnify and hold harmless the indemnified
party or parties from and against any loss or liability by reason of such
settlement. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party (or, where
such indemnifying party is a Selling Stockholder, requested such Selling
Stockholder or the Representative of the Selling Stockholders) to reimburse
the indemnified party for fees and expenses of counsel as contemplated by
the second sentence of this Section 12(d), then the indemnifying party
agrees that it shall be liable for any settlement of any Proceeding
effected without its written consent if (i) such settlement is entered into
more than 90 Business Days after receipt by such indemnifying party (or,
where such indemnifying party is a Selling Stockholder, receipt by such
Selling Stockholder or by the Representative of the Selling Stockholders)
of the aforesaid request, (ii) such indemnifying party shall not have fully
reimbursed the indemnified party in accordance with such request prior to
the date of such settlement, unless there is a bona fide dispute between
such indemnifying party and indemnified party regarding such reimbursement
of such fees and expenses and the indemnifying party shall have fully
reimbursed the indemnified party for the undisputed fees and expenses, and
(iii) such indemnified party shall have given the indemnifying party (or,
where such indemnifying party is a Selling Stockholder, given such Selling
Stockholder or the Representative of the Selling Stockholders) at least 45
days' prior notice of its intention to settle. No indemnifying party shall,
without the prior written
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consent of the indemnified party (or, where such indemnified party is a
Selling Stockholder, the prior written consent of such Selling Stockholder
or of the Representative of the Selling Stockholders), effect any
settlement of any pending or threatened Proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have
been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such Proceeding and does
not include an admission of fault or culpability or a failure to act by or
on behalf of such indemnified party.
(e) If the indemnification provided for in this Section 12 is
unavailable to an indemnified party under subsections (a), (b) and (c) of
this Section 12 or insufficient to hold an indemnified party harmless in
respect of any losses, damages, expenses, liabilities or claims referred to
therein, then each applicable indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of such
losses, damages, expenses, liabilities or claims (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company and
the Selling Stockholders on the one hand and the Underwriters on the other
hand from the offering of the Shares or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Company and the Selling
Stockholders on the one hand and of the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
damages, expenses, liabilities or claims, as well as any other relevant
equitable considerations. The relative benefits received by the Company and
the Selling Stockholders on the one hand and the Underwriters on the other
shall be deemed to be in the same respective proportions as the total
proceeds from the offering (net of underwriting discounts and commissions
but before deducting expenses) received by the Company and the Selling
Stockholders, and the total underwriting discounts and commissions received
by the Underwriters, bear to the aggregate public offering price of the
Shares. The relative fault of the Company and the Selling Stockholders on
the one hand and of the Underwriters on the other shall be determined by
reference to, among other things, whether the untrue statement or alleged
untrue statement of a material fact or omission or alleged omission relates
to information supplied by the Company or the Selling Stockholders or by
the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The amount paid or payable by a party as a result of the losses,
damages, expenses, liabilities and claims referred to in this subsection
shall be deemed to include any legal or other fees or expenses reasonably
incurred by such party in connection with investigating, preparing to
defend or defending any Proceeding.
(f) The Company, the Selling Stockholders and the Underwriters agree
that it would not be just and equitable if contribution pursuant to this
Section 12 were determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations
referred to in subsection (e) above. Notwithstanding the provisions of this
Section 12, no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Shares
underwritten by such
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Underwriter and distributed to the public were offered to the public
exceeds the amount of any damage which such Underwriter has otherwise been
required to pay by reason of such untrue statement or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Section 12 are several in proportion to their respective
underwriting commitments and not joint.
(g) The indemnity and contribution agreements contained in this
Section 12 and the covenants, warranties and representations of the Company
and the Selling Stockholders contained in this Agreement shall remain in
full force and effect regardless of any investigation made by or on behalf
of any Underwriter, its partners, directors or officers or any person
(including each partner, officer or director of such person) who controls
any Underwriter within the meaning of Section 15 of the Act or Section 20
of the Exchange Act, or by or on behalf of the Company or the Selling
Stockholders, their respective directors or officers or any person who
controls the Company or any Selling Stockholder within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, and shall survive
any termination of this Agreement or the issuance and delivery of the
Shares to be sold by the Company pursuant hereto and the delivery of the
Shares to be sold by the Selling Stockholders pursuant hereto. The Company,
the Selling Stockholders and each Underwriter agree promptly to notify each
other of the commencement of any Proceeding against it and, in the case of
the Company or a Selling Stockholder, against any of their respective
officers or directors in connection with the issuance and sale of the
Shares, or in connection with the Registration Statement, any Preliminary
Prospectus, the Prospectus or any Permitted Free Writing Prospectus.
13. Information Furnished by the Underwriters. The statements set forth in
the last paragraph on the cover page of the Prospectus and the statements set
forth under the caption (1) ["Underwriting--Commissions and Discounts" regarding
the amount of selling concession and reallowance and (2) "--Price Stabilization,
Short Positions" in the Prospectus, only insofar as such statements relate to
the amount of selling concession and reallowance or to over-allotment and
stabilization activities that may be undertaken by the Underwriters], constitute
the only information furnished by or on behalf of the Underwriters as such
information is referred to in Sections 3, 4 and 12 hereof.
14. Notices. Except as otherwise herein provided, all statements, requests,
notices and agreements shall be in writing or by telegram or facsimile and, if
to the Underwriters, shall be sufficient in all respects if delivered or sent to
UBS Securities LLC, 299 Park Avenue, New York, New York 10171-0026, Attention:
Syndicate Department and, if to the Company, shall be sufficient in all respects
if delivered or sent to the Company at the offices of the Company at ORBCOMM
Inc., 2115 Linwood Ave., Suite 100, Fort Lee, New Jersey 07024, Attention: Jerry
Eisenberg, President and Chief Executive Officer, and, if to any Selling
Stockholder, shall be sufficient in all respects if delivered or sent to the
Representative of the Selling Stockholders at ORBCOMM Inc., 2115 Linwood Ave.,
Suite 100, Fort Lee, New Jersey 07024, Attention: [ ].
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15. Governing Law; Construction. This Agreement and any claim, counterclaim
or dispute of any kind or nature whatsoever arising out of or in any way
relating to this Agreement ("Claim"), directly or indirectly, shall be governed
by, and construed in accordance with, the internal laws of the State of New
York. The section headings in this Agreement have been inserted as a matter of
convenience of reference and are not a part of this Agreement.
16. Submission to Jurisdiction. Except as set forth below, no Claim may be
commenced, prosecuted or continued in any court other than the courts of the
State of New York located in the City and County of New York or in the United
States District Court for the Southern District of New York, which courts shall
have jurisdiction over the adjudication of such matters, and the Company, the
Selling Stockholders and the Underwriters each consent to the jurisdiction of
such courts and personal service with respect thereto. Each Underwriter and the
Company (on its behalf and, to the extent permitted by applicable law, on behalf
of its stockholders and affiliates) and each Selling Stockholder (on its behalf
and, in the case such Selling Stockholder is not an individual, to the extent
permitted by applicable law, on behalf of its stockholders) each waive all right
to trial by jury in any action, proceeding or counterclaim (whether based upon
contract, tort or otherwise) in any way arising out of or relating to this
Agreement. The Company, the Selling Stockholders and the Underwriters each agree
that a final judgment in any such action, proceeding or counterclaim brought in
any such court shall be conclusive and binding upon the Company, each Selling
Stockholder and the Underwriters and may be enforced in any other courts to the
jurisdiction of which the Company, any Selling Stockholder or any Underwriter is
or may be subject, by suit upon such judgment.
17. Parties at Interest. The Agreement herein set forth has been and is
made solely for the benefit of the Underwriters and the Company and the Selling
Stockholders and to the extent provided in Section 12 hereof the controlling
persons, partners, directors and officers referred to in such section, and their
respective successors, assigns, heirs, personal representatives and executors
and administrators. No other person, partnership, association or corporation
(including a purchaser, as such purchaser, from any of the Underwriters) shall
acquire or have any right under or by virtue of this Agreement.
18. No Fiduciary Relationship. The Company and the Selling Stockholders
each hereby acknowledge that the Underwriters are acting solely as underwriters
in connection with the purchase and sale of the Company's securities. The
Company and the Selling Stockholders each further acknowledge that the
Underwriters are acting pursuant to a contractual relationship created solely by
this Agreement entered into on an arm's length basis, and in no event do the
parties intend that the Underwriters act or be responsible as a fiduciary to the
Company or any Selling Stockholder, their respective management, stockholders or
creditors or any other person in connection with any activity that the
Underwriters may undertake or have undertaken in furtherance of the purchase and
sale of the Company's securities, either before or after the date hereof. The
Underwriters hereby expressly disclaim any fiduciary or similar obligations to
the Company or any Selling Stockholder, either in connection with the
transactions contemplated by this Agreement or any matters leading up to such
transactions, and the Company and the Selling Stockholders each hereby confirm
their understanding and agreement to that effect. The Company, the Selling
Stockholders and the Underwriters agree that they are each responsible for
making their own independent judgments with respect to any such transactions and
that any opinions or views expressed by the Underwriters to the Company or any
Selling Stockholder
-39-
regarding such transactions, including, but not limited to, any opinions or
views with respect to the price or market for the Company's securities, do not
constitute advice or recommendations to the Company or any Selling Stockholder.
The Company and the Selling Stockholders each hereby waive and release, to the
fullest extent permitted by law, any claims that the Company or any Selling
Stockholder may have against the Underwriters with respect to any breach or
alleged breach of any fiduciary or similar duty to the Company or any Selling
Stockholder in connection with the transactions contemplated by this Agreement
or any matters leading up to such transactions.
19. Counterparts. This Agreement may be signed by the parties in one or
more counterparts (including facsimile copies) which together shall constitute
one and the same agreement among the parties.
20. Successors and Assigns. This Agreement shall be binding upon the
Underwriters and the Company and the Selling Stockholders and their successors
and assigns and any successor or assign of any substantial portion of the
Company's, any Selling Stockholder's and any of the Underwriters' respective
businesses and/or assets.
21. Miscellaneous. UBS, an indirect, wholly owned subsidiary of UBS AG, is
not a bank and is separate from any affiliated bank, including any U.S. branch
or agency of UBS AG. Because UBS is a separately incorporated entity, it is
solely responsible for its own contractual obligations and commitments,
including obligations with respect to sales and purchases of securities.
Securities sold, offered or recommended by UBS are not deposits, are not insured
by the Federal Deposit Insurance Corporation, are not guaranteed by a branch or
agency, and are not otherwise an obligation or responsibility of a branch or
agency.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGE FOLLOWS]
-40-
If the foregoing correctly sets forth the understanding among the
Company, the Selling Stockholders and the several Underwriters, please so
indicate in the space provided below for that purpose, whereupon this Agreement
and your acceptance shall constitute a binding agreement among the Company, the
Selling Stockholders and the Underwriters, severally.
Very truly yours,
ORBCOMM INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
THE SELLING STOCKHOLDERS NAMED IN
SCHEDULE C HERETO
By: [ ], Attorney-in-Fact
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Accepted and agreed to as of the date first above written, on behalf of itself
and the other several Underwriters named in Schedule A
UBS SECURITIES LLC
By: UBS SECURITIES LLC
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
SCHEDULE A
Number of
Underwriter Firm Shares
- ----------- -----------
UBS SECURITIES LLC.............................................. [____]
MORGAN STANLEY & CO. INCORPORATED............................... [____]
BANC OF AMERICA SECURITIES LLC.................................. [____]
COWEN AND COMPANY, LLC.......................................... [____]
------
Total........................................................ [____]
======
SCHEDULE B
Subsidiary Jurisdiction of Organization % Owned
- ---------- ---------------------------- -------
ORBCOMM LLC Delaware 100%
ORBCOMM License Corp. Delaware 100%
ORBCOMM Canada Corp. Canada 100%
ORBCOMM Canada Inc. Canada 100%
ORBCOMM Curacao Gateway N.V. Curacao 100%
ORBCOMM International Holdings LLC Delaware 100%
ORBCOMM New Zealand Limited New Zealand 100%
Leosatellite Services de Ecuador S.A. Ecuador 100%
ORBCOMM Central America Holdings LLC Delaware 100%
ORBCOMM de Honduras, S.A. Honduras 100%
ORBCOMM Panama Incorporated Inc. Panama 100%
ORBCOMM Guatemala S.A. Guatemala 100%
Bonimix S.A. Uruguay 100%
ORBCOMM Australia Gateway Company Australia 100%
Pty. Limited
LeoSat Dominican Republic, S.A.(1) Dominican Republic 100%
Stellar Satellite Communications Ltd. British Virgin Islands 100%
Sistron International LLC(1) Delaware 100%
Satcom International Group plc. England and Wales 51.14%
ORBCOMM Europe LLC Delaware 25.57%
- ----------
(1) Dormant subsidiaries.
SCHEDULE C
Number Number of
of Firm Additional
Shares Shares
Company [ ] [ ]
Selling Stockholders
----- -----
Total [ ] [ ]
===== =====
SCHEDULE D
(PERMITTED FREE WRITING PROSPECTUSES)
EXHIBIT A
ORBCOMM Inc.
Common Stock
($0.001 Par Value Per Share)
Lock-Up Agreement
_________, 2006
UBS Securities LLC
Together with the other Underwriters
Named in Schedule A to the Underwriting Agreement
Referred to herein
c/o UBS Securities LLC
299 Park Avenue
New York, New York 10171-0026
Ladies and Gentlemen:
This Lock-Up Agreement is being delivered to you in connection with
the proposed Underwriting Agreement (the "Underwriting Agreement") to be entered
into by ORBCOMM Inc., a Delaware corporation (the "Company"), the Selling
Stockholders named therein, you and the other underwriters named in Schedule A
to the Underwriting Agreement (the "Underwriters"), with respect to the public
offering (the "Offering") of common stock, par value $0.001 per share, of the
Company (the "Common Stock").
In order to induce you to enter into the Underwriting Agreement, the
undersigned agrees that, for a period (the "Lock-Up Period") beginning on the
date hereof and ending on, and including, the date that is 180 days after the
date of the final prospectus relating to the Offering, the undersigned will not,
without the prior written consent of UBS Securities LLC and the Company, (i)
sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any
option to purchase or otherwise dispose of or agree to dispose of, directly or
indirectly, or file (or participate in the filing of) a registration statement
with the Securities and Exchange Commission (the "Commission") in respect of, or
establish or increase a put equivalent position or liquidate or decrease a call
equivalent position within the meaning of Section 16 of the Securities Exchange
Act of 1934, as amended, and the rules and regulations of the Commission
promulgated thereunder (the "Exchange Act") with respect to, any Common Stock or
any other securities of the Company that are substantially similar to Common
Stock, or any securities convertible into or exchangeable or exercisable for, or
any warrants or other rights to purchase the foregoing (collectively, the
"Company Securities"), (ii) enter into any swap or other arrangement that
transfers to another, in whole or in part, any of the economic consequences of
ownership of Company Securities, whether any such transaction is to be settled
by delivery of Common Stock or such other securities, in cash or otherwise or
(iii) publicly announce an
A-1
intention to effect any transaction specified in clause (i) or (ii). In the
event UBS Securities LLC and the Company consent to release any holder of
Company Securities (a "Released Stockholder") from any restrictions similar to
those set forth in this Lock-Up Agreement, the undersigned shall be similarly
released from this Lock-Up Agreement with respect to the percentage of
securities that is equal to the percentage of securities as to which such
Released Stockholder was released (as determined by dividing the number of
securities released by the aggregate number of securities held by such Released
Stockholder on a fully-diluted basis); provided, however, that the undersigned
shall not be so released from the restrictions set forth in this Lock-Up
Agreement, if holders of Company Securities owning a majority of the Company
Securities (which majority must include PCG Satellite Investments LLC) subject
to lock-up agreements with restrictions similar to those in this Lock-Up
Agreement shall have consented in writing to the release of the Released
Stockholder. The foregoing sentence shall not apply to (a) the registration of
the offer and sale of Common Stock as contemplated by the Underwriting Agreement
and the sale of Common Stock to the Underwriters (as defined in the Underwriting
Agreement) in the Offering, (b) bona fide gifts, (c) dispositions to any trust
for the direct or indirect benefit of the undersigned and/or the immediate
family of the undersigned, (d) distributions to partners, members, shareholders
or affiliates of the undersigned (and to any direct or indirect partner, member,
shareholders or affiliates thereof), (e) the exercise of options or warrants
(including a cashless exercise) or conversion of convertible securities
outstanding on the date hereof, provided that the Common Stock received upon
such exercise or conversion shall be subject to the Terms of this Lock-Up
Agreement, (f) transfers of Common Stock or other securities convertible into or
exchangeable or exercisable for Common Stock by will or intestate succession,
(g) a bona fide pledge of Common Stock, made in the ordinary course of business,
for the sole purpose of obtaining financing for the undersigned or (h)
transactions relating to Common Stock or other securities convertible into or
exchangeable or exercisable for Common Stock acquired in open market
transactions after completion of the Offering, provided no filing is required to
be made with the Commission related to such transaction; provided that in the
case of any gift, disposition, transfer, or pledge pursuant to clause (b), (c),
(d), (f) or (g), such donee, trust, distributee, transferee, pledgee or other
recipient of such Common Stock or securities convertible into or exchangeable or
exercisable for Common Stock agrees in writing with the Underwriters to be bound
by the terms of this Lock-Up Agreement. For purposes of this paragraph,
"immediate family" shall mean the undersigned and the spouse, any lineal
descendent, father, mother, brother or sister of the undersigned.
Notwithstanding anything herein to the contrary, the restrictions in
the preceding paragraph shall not apply to the sale of Firm Shares or Additional
Shares by any Selling Stockholder to the Underwriters pursuant to the
Underwriting Agreement.
In addition, the undersigned hereby waives any rights the undersigned
may have to require registration of Common Stock in connection with the filing
of a registration statement relating to the Offering. The undersigned further
agrees that, for the Lock-Up Period, the undersigned will not, without the prior
written consent of UBS Securities LLC, make any demand for, or exercise any
right with respect to, the registration of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock, or warrants or
other rights to purchase Common Stock or any such securities.
A-2
Notwithstanding the above, if (a) during the period that begins on the
date that is fifteen (15) calendar days plus three (3) Business Days before the
last day of the Lock-Up Period and ends on the last day of the Lock-Up Period,
the Company issues an earnings release or material news or a material event
relating to the Company occurs; or (b) prior to the expiration of the Lock-Up
Period, the Company announces that it will release earnings results during the
sixteen (16) day period beginning on the last day of the Lock-Up Period, then
the restrictions imposed by this Lock-Up Agreement shall continue to apply until
the expiration of the date that is fifteen (15) calendar days plus three (3)
Business Days after the date on which the issuance of the earnings release or
the material news or material event occurs.
In addition, the undersigned hereby waives any and all preemptive
rights, participation rights, resale rights, rights of first refusal and similar
rights that the undersigned may have solely in connection with the Offering or
with any issuance or sale by the Company of any equity or other securities prior
to the date of this Lock-Up Agreement, except for any such rights as have been
heretofore duly exercised.
The undersigned hereby confirms that the undersigned has not, directly
or indirectly, taken, and hereby covenants that the undersigned will not,
directly or indirectly, take, any action designed, or which has constituted or
will constitute or might reasonably be expected to cause or result in, under the
Exchange Act or otherwise, the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of shares of Common
Stock.
* * *
A-3
If (i) the Company notifies you in writing that it does not intend to
proceed with the Offering, (ii) the registration statement filed with the
Commission with respect to the Offering is withdrawn, (iii) for any reason the
Underwriting Agreement shall be terminated prior to the "time of purchase" (as
defined in the Underwriting Agreement) or (iv) the Offering is not consummated
prior to December 15, 2006, this Lock-Up Agreement shall be terminated and the
undersigned shall be released from its obligations hereunder.
Yours very truly,
Name of Investor:
----------------------
(please print)
Signed by:
-----------------------------
Name:
----------------------------------
Title:
---------------------------------
Notice Address
for Investor:
--------------------------
(please complete)
----------------------
----------------------
Facsimile:
-----------------------------
Agreed and Accepted:
ORBCOMM Inc.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
A-4
EXHIBIT A-1
LIST OF PARTIES TO EXECUTE LOCK-UP AGREEMENTS
A-1-1
EXHIBIT B
OPINION OF CHADBOURNE & PARKE LLP
B-1
EXHIBIT C
OPINION OF CHADBOURNE & PARKE LLP
C-1
EXHIBIT D
OPINION OF WILKINSON BARKER KNAUER LLP
D-1
EXHIBIT E
OPINION OF CHRISTIAN LE BRUN, GENERAL COUNSEL TO THE COMPANY
E-1
EXHIBIT F
OPINION OF CONYERS DILL & PEARMAN
F-1
EXHIBIT G
OPINION OF CHADBOURNE & PARKE LLP
AS SELLING STOCKHOLDERS' NEW YORK COUNSEL
G-1
EXHIBIT H
FORM OF OPINION OF LOCAL COUNSEL TO THE SELLING STOCKHOLDERS
H-1
EXHIBIT I
OFFICERS' CERTIFICATE
I-1
EXHIBIT J
CERTIFICATE OF THE REPRESENTATIVE OF THE SELLING STOCKHOLDERS
J-1