Exhibit 1.1
GLOBALSTAR,
INC.
(a Delaware
corporation)
5.75% Convertible
Senior Notes due 2028
UNDERWRITING
AGREEMENT
Dated: April 10, 2008
GLOBALSTAR,
INC.
(a Delaware
corporation)
$135,000,000
5.75% Convertible Senior
Notes due 2028
UNDERWRITING AGREEMENT
April 10, 2008
MERRILL
LYNCH & CO.
Merrill Lynch, Pierce,
Fenner & Smith
Incorporated
4 World Financial
Center
New York, New
York 10080
DEUTSCHE BANK
SECURITIES INC.
Deutsche Bank
Securities Inc.
60 Wall
Street
New York, New
York 10005
Ladies and
Gentlemen:
Globalstar, Inc., a Delaware corporation
(the “Company”), confirms its agreement with Merrill
Lynch & Co., Merrill Lynch, Pierce, Fenner &
Smith Incorporated (“Merrill Lynch”), Deutsche Bank
Securities Inc. (“Deutsche Bank”) (collectively, the
“Underwriters,” which term shall also include any
underwriter substituted as hereinafter provided in Section 10
hereof), with respect to (i) the issue and sale by the Company
and the purchase by the Underwriters, acting severally and not
jointly, of the respective principal amounts set forth in
Schedule A hereto of $135,000,000 aggregate principal amount
of the Company’s 5.75% Convertible Senior Notes due 2028 (the
“Notes”), and (ii) the grant by the Company to the
Underwriters, acting severally and not jointly, of the option
described in Section 2(b) hereof to purchase all or any
part of an additional $15,000,000 aggregate principal amount of the
Notes to cover overallotments, if any. The aforesaid $135,000,000
aggregate principal amount of the Notes (the “Initial
Securities”) to be purchased by the Underwriters and all or
any part of the $15,000,000 aggregate principal amount of the Notes
subject to the option described in Section 2(b) hereof
(the “Option Securities”) are hereinafter called,
collectively, the “Securities.” The Securities
are to be issued pursuant to an indenture dated as of
April 15, 2008 (including any supplemental indenture relating
to the Securities, the “Indenture”) between the Company
and U.S. Bank, National Association, as trustee (the
“Trustee”). Securities issued in book-entry form
will be issued to Cede & Co., as nominee of The Depository
Trust Company (“DTC”) pursuant to a letter of
representations (the “DTC Agreement”), between the
Company and DTC.
The
Securities are convertible into shares of common stock, par value
$0.0001 per share (the “Common Stock”), of the Company
(the “Underlying Common Stock”) in accordance with the
terms of the Securities and the Indenture, at the initial
conversion rate specified in the Final Term Sheet (as defined
below), under the circumstances and subject to adjustment as set
forth in the Indenture.
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Concurrently with the offering and sale of the
Securities by the Company pursuant to the terms of this Agreement,
the Company is offering, in a transaction registered under the
Securities Act of 1933, as amended (the “1933 Act”),
and by means of a prospectus supplement, up to 36,144,570 shares of
the Company’s Common Stock (the “Concurrent
Offering”), which shares the Company has agreed to loan to
Merrill Lynch International (“MLI”), an affiliate of
Merrill Lynch, Pierce, Fenner & Smith Incorporated,
pursuant to the Share Lending Agreement dated April 10, 2008
between the Company, MLI and Merrill Lynch.
The
Company understands that the Underwriters propose to make a public
offering of the Securities as soon as the Underwriters deem
advisable after this Agreement has been executed and delivered and
the Indenture has been qualified under the Trust Indenture Act of
1939, as amended (the “1939 Act”).
The
Company has filed with the Securities and Exchange Commission (the
“Commission”) a registration statement on Form S-3
(No. 333-149798), including the related preliminary prospectus
or prospectuses, which registration statement was declared
effective under the rules and regulations of the Commission
under the 1933 Act (the “1933 Act Regulations”) on
April 1, 2008. Such registration statement covers the
registration of the Securities and the Underlying Common Stock
under the 1933 Act. Promptly after execution and delivery of this
Agreement, the Company will prepare and file a prospectus in
accordance with the provisions of Rule 430B
(“Rule 430B”) of the 1933 Act Regulations and
paragraph (b) of Rule 424
(“Rule 424(b)”) of the 1933 Act Regulations.
Any information included in such prospectus that was omitted from
such registration statement at the time it became effective but
that is deemed to be part of and included in such registration
statement pursuant to Rule 430B is referred to as
“Rule 430B Information.” Each prospectus
used in connection with the offering of the Securities that omitted
Rule 430B Information is herein called a “Preliminary
Prospectus.” Such registration statement, at any given
time, including the amendments thereto to such time, the exhibits
and any schedules thereto at such time, the documents incorporated
by reference therein pursuant to Item 12 of Form S-3 under the
1933 Act at such time and the documents otherwise deemed to be a
part thereof or included therein by 1933 Act Regulations, is herein
called the “Registration Statement.” The
Registration Statement at the time it originally became effective
is herein called the “Original Registration
Statement.” The final prospectus in the form first
furnished to the Underwriters for use in connection with the
offering of the Securities, including the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the
1933 Act at the time of the execution of this Agreement and any
Preliminary Prospectuses that form a part thereof, is herein called
the “Prospectus.” For purposes of this Agreement,
all references to the Registration Statement, any Preliminary
Prospectus, the Statutory Prospectus (as hereinafter defined), the
Prospectus or any Issuer Free Writing Prospectus (as hereinafter
defined) or any amendment or supplement to any of the foregoing
shall be deemed to include the copy filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval
system (“EDGAR”).
All
references in this Agreement to financial statements and schedules
and other information which is “contained,”
“included” or “stated” in the Registration
Statement, any Preliminary Prospectus, the Statutory Prospectus or
the Prospectus (or other references of like import) shall be deemed
to mean and include all such financial statements and schedules and
other information which is incorporated by reference in or
otherwise deemed by the 1933 Act Regulations to be a part of or
included in the Registration Statement, any Preliminary Prospectus,
the Statutory Prospectus or the Prospectus, as the case may be; and
all references in this Agreement to amendments or supplements to
the Registration Statement, any Preliminary Prospectus, the
Statutory Prospectus or the Prospectus shall be deemed to mean and
include the filing of any document under the Securities Exchange
Act of 1934 (the “1934 Act”) which is incorporated by
reference in or otherwise deemed by 1933 Act Regulations to be a
part of or included in the Registration Statement, such Preliminary
Prospectus, the Statutory Prospectus or the Prospectus, as the case
may be.
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SECTION 1.
Representations and Warranties .
(a)
Representations and Warranties by the Company . The
Company represents and warrants to each Underwriter as of the date
hereof, the Applicable Time referred to in
Section 1(a)(i) hereof and as of the Closing Time
referred to in Section 2(c) hereof, and as of each Date
of Delivery (if any) referred to in Section 2(b) hereof,
and agrees with each Underwriter, as follows:
(i)
Registration Statement, Prospectus and Disclosure at Time of
Sale . The Original Registration Statement was declared
effective under the 1933 Act Regulations on April 1,
2008. No stop order suspending the effectiveness of the
Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending
or, to the knowledge of the Company, are contemplated by the
Commission, and any request on the part of the Commission for
additional information has been complied with.
At
the respective times the Original Registration Statement and each
amendment thereto became effective, at each deemed effective date
with respect to the Underwriters pursuant to
Rule 430B(f)(2) of the 1933 Act Regulations and at the
Applicable Time and at the Closing Time (and, if any Option
Securities are purchased, at the Date of Delivery), the
Registration Statement complied and will comply in all material
respects with the requirements of the 1933 Act and the 1933 Act
Regulations and the 1939 Act and the rules and regulations of
the Commission under the 1939 Act (the “1939 Act
Regulations”), and did not and will not contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading.
At
the time of filing the Original Registration Statement, at the
earliest time thereafter that the Company or another offering
participant made a bona fide offer (within the meaning of
Rule 164(h)(2) of the 1933 Act Regulations) of the
Securities and at the date hereof, the Company was not and is not
an “ineligible issuer,” as defined in
Rule 405.
Neither the Prospectus nor any amendments or
supplements thereto, at the time the Prospectus or any such
amendment or supplement was issued and at the Closing Time (and, if
any Option Securities are purchased, at the Date of Delivery),
included or will include an untrue statement of a material fact or
omitted or will omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading.
Each Preliminary Prospectus (including the
prospectus or prospectuses filed as part of the Original
Registration Statement or any amendment thereto) complied when so
filed in all material respects with the 1933 Act Regulations and
each Preliminary Prospectus and the Prospectus delivered to the
Underwriters for use in connection with this offering was identical
to the electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
As
of the Applicable Time (as hereinafter defined), neither
(x) the Issuer General Use Free Writing Prospectus(es) (as
defined below) issued at or prior to the Applicable Time, the
Statutory Prospectus, the Final Term Sheet (as defined below) and
the Preliminary Prospectus, all considered together (collectively,
the “General Disclosure Package”), nor (y) any
individual Issuer Limited Use Free Writing Prospectus, when
considered together with the General Disclosure Package, included
any untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading.
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As
used in this subsection and elsewhere in this Agreement:
“Applicable Time” means 9:30 am
(Eastern time) on April 10, 2008 or such other time as agreed
by the Company and the Underwriters.
“Issuer Free Writing Prospectus”
means any “issuer free writing prospectus,” as defined
in Rule 433 of the 1933 Act Regulations
(“Rule 433”), relating to the Securities that
(i) is required to be filed with the Commission by the
Company, including the Final Term Sheet, (ii) is a “road
show that is a written communication” within the meaning of
Rule 433(d)(8)(i), whether or not required to be filed with
the Commission or (iii) is exempt from filing pursuant to
Rule 433(d)(5)(i) because it contains a description of
the Securities or of the offering that does not reflect the final
terms, in each case in the form filed or required to be filed with
the Commission or, if not required to be filed, in the form
retained in the Company’s records pursuant to
Rule 433(g).
“Issuer General Use Free Writing
Prospectus” means any Issuer Free Writing Prospectus that is
intended for general distribution to prospective investors, as
evidenced by its being specified in Schedule C hereto.
“Issuer Limited Use Free Writing
Prospectus” means any Issuer Free Writing Prospectus that is
not an Issuer General Use Free Writing Prospectus.
“Statutory Prospectus” as of any
time means the prospectus relating to the Securities that is
included in the Registration Statement immediately prior to that
time, including any document incorporated by reference therein and
any Preliminary Prospectus or other prospectus deemed to be a part
thereof.
Each Issuer Free Writing Prospectus, as of its
issue date and at all subsequent times through the completion of
the public offer and sale of the Securities or until any earlier
date that the issuer notified or notifies the Underwriters as
described in Section 3(e), did not, does not and will not
include any information that conflicted, conflicts or will conflict
with the information contained in the Registration Statement or the
Prospectus, including any document incorporated by reference
therein and any preliminary or other prospectus deemed to be a part
thereof that has not been superseded or modified.
The
representations and warranties in this subsection shall not apply
to statements in or omissions from the Registration Statement, the
Statutory Prospectus, any Preliminary Prospectus, the Prospectus,
or any Issuer Free Writing Prospectus made in reliance upon and in
conformity with written information furnished to the Company by any
Underwriter expressly for use therein.
(ii)
Incorporated Documents . The documents incorporated or
deemed to be incorporated by reference in the Registration
Statement and the Prospectus, when they became effective or at the
time they were or hereafter are filed with the Commission, complied
and will comply in all material respects with the requirements of
the 1933 Act and the 1933 Act Regulations or the 1934 Act and the
rules and regulations of the Commission thereunder (the
“1934 Act Regulations”), as applicable, and, when read
together with the other information in the General Disclosure
Package and the Prospectus, (a) at the time the Original
Registration Statement became effective, (b) at the Applicable
Time, (c) at the earlier of the time the Prospectus was first
used and the date and time of the first contract of sale of
Securities in this offering and (d) at the Closing Time (and
if any Option Securities are purchased, at the Date of Delivery),
did not and will not contain an untrue statement of a material fact
or omit to state a
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material fact required to be stated therein or
necessary to make the statements therein not
misleading.
(iii)
Independent Accountants . The accountants who
certified the financial statements and supporting schedules
included in the Registration Statement or incorporated by reference
in the Registration Statement, the General Disclosure Package or
the Prospectus are an independent registered public accounting firm
as required by the 1933 Act and the 1933 Act Regulations.
(iv)
Financial Statements . The financial statements
included or incorporated by reference in the Registration
Statement, the General Disclosure Package and the Prospectus,
together with the related schedules and notes, present fairly the
financial position of the Company and its consolidated subsidiaries
at the dates indicated and the statement of operations,
stockholders’ equity and cash flows of the Company and its
consolidated subsidiaries for the periods specified; said financial
statements have been prepared in conformity with generally accepted
accounting principles (“GAAP”) applied on a consistent
basis throughout the periods involved. The supporting
schedules, if any, present fairly in accordance with GAAP the
information required to be stated therein. The selected
financial data and the summary financial information included in
the General Disclosure Package and the Prospectus present fairly
the information shown therein and have been compiled on a basis
consistent with that of the audited financial statements included
or incorporated by reference in the Registration Statement.
(v)
No Material Adverse Change in Business . Since the
respective dates as of which information is given in the
Registration Statement, the General Disclosure Package or the
Prospectus, except as otherwise stated therein, (A) there has
been no material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of
business (a “Material Adverse Effect”), (B) there
have been no transactions entered into by the Company or any of its
subsidiaries, other than those in the ordinary course of business,
which are material with respect to the Company and its subsidiaries
considered as one enterprise, and (C) except as described in
the Prospectus there has been no dividend or distribution of any
kind declared, paid or made by the Company on any class of its
capital stock.
(vi)
Good Standing of the Company . The Company has been
duly organized and is validly existing as a corporation in good
standing under the laws of the State of Delaware and has corporate
power and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement,
the General Disclosure Package or the Prospectus and to enter into
and perform its obligations under this Agreement; and the Company
is duly qualified as a foreign corporation to transact business and
is in good standing in each other jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result in
a Material Adverse Effect.
(vii)
Good Standing of Subsidiaries . Each
“significant subsidiary” of the Company (as such term
is defined in Rule 1-02 of Regulation S-X) (each a
“Subsidiary” and, collectively, the
“Subsidiaries”) has been duly organized and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and
authority to own, lease and operate its properties and to conduct
its business as described in the Registration Statement, the
General Disclosure Package or the Prospectus and is duly qualified
as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property
or the conduct of business, except where the failure so to qualify
or to be in good standing would not
5
result in a Material Adverse Effect; except as
otherwise disclosed in the Registration Statement, all of the
issued and outstanding capital stock of each such Subsidiary has
been duly authorized and validly issued, is fully paid and
non-assessable and is owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity except as described in
the Registration Statement, the General Disclosure Package or the
Prospectus; none of the outstanding shares of capital stock of any
Subsidiary was issued in violation of the pre-emptive or similar
rights of any securityholder of such Subsidiary. The only
subsidiaries of the Company are the subsidiaries listed on Schedule
D hereto.
(viii)
Capitalization . Except as otherwise disclosed in the
Registration Statement, the General Disclosure Package or the
Prospectus, the authorized, issued and outstanding capital stock of
the Company is as set forth in the Registration Statement, the
General Disclosure Package or the Prospectus under the caption
“Capitalization” (except for subsequent issuances, if
any, pursuant to this Agreement, pursuant to reservations,
agreements or employee benefit plans referred to in the
Registration Statement, the General Disclosure Package or the
Prospectus or pursuant to the exercise of convertible securities or
options referred to in the Registration Statement, the General
Disclosure Package or the Prospectus). The shares of issued
and outstanding capital stock of the Company have been duly
authorized and validly issued and are fully paid and
non-assessable; none of the outstanding shares of capital stock of
the Company was issued in violation of the pre-emptive or other
similar rights of any securityholder of the Company, except as
otherwise disclosed in the Registration Statement, the General
Disclosure Package or the Prospectus.
(ix)
Authorization of Agreement . This Agreement has been
duly authorized, executed and delivered by the Company.
(x)
Authorization of the Indenture . The Indenture has
been duly authorized by the Company and duly qualified under the
1939 Act and, when duly executed and delivered by the Company and
the Trustee, will constitute a valid and binding agreement of the
Company, enforceable against the Company in accordance with its
terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or
similar laws affecting enforcement of creditors’ rights
generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law).
(xi)
Authorization of Pledge and Escrow Agreement . The
Pledge and Escrow Agreement by and among the Company, the Trustee
and the Escrow Agent, to be dated as of the Closing Time (the
“Pledge and Escrow Agreement”) has been duly authorized
and, when executed and delivered by the Company, will constitute a
legal, valid and binding instrument enforceable against the Company
in accordance with its terms, except as the enforcement thereof may
be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of
creditors’ rights generally and except as enforcement thereof
is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at
law).
(xii)
Authorization of the Securities . The Securities have
been duly authorized and, at the Closing Time (and if any Option
Securities are purchased, at the Date of Delivery), will have been
duly executed by the Company and, when authenticated, issued and
delivered in the manner provided for in the Indenture and delivered
against payment of the purchase price therefor as provided in this
Agreement, will constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their
terms, except as the enforcement
6
thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws
affecting enforcement of creditors’ rights generally and
except as enforcement thereof is subject to general principles of
equity (regardless of whether enforcement is considered in a
proceeding in equity or at law), and will be in the form
contemplated by, and entitled to the benefits of, the
Indenture.
(xiii)
Description of the Securities and the Indenture . The
Securities and the Indenture will conform in all material respects
to the respective statements relating thereto contained in the
Registration Statement, the General Disclosure Package and the
Prospectus and will be in substantially the respective forms filed
or incorporated by reference, as the case may be, as exhibits to
the Registration Statement.
(xiv)
Authorization and Description of the Underlying Common Stock
. The Underlying Common Stock conforms to all statements
relating thereto contained or incorporated by reference in the
Registration Statement, the General Disclosure Package and the
Prospectus. Upon issuance and delivery of the Securities in
accordance with this Agreement and the Indenture, the Securities
will be convertible at the option of the holder thereof for shares
of the Underlying Common Stock in accordance with the terms of the
Securities and the Indenture; the shares of the Underlying Common
Stock issuable upon conversion of the Securities have been duly
authorized and reserved for issuance upon such conversion by all
necessary corporate action and such shares, when issued upon such
conversion, will be validly issued and will be fully paid and
non-assessable; no holder of such shares will be subject to
personal liability by reason of being such a holder; and the
issuance of such shares upon such conversion will not be subject to
the pre-emptive or other similar rights of any securityholder of
the Company.
(xv)
Absence of Defaults and Conflicts . Except as
described in the Registration Statement, the General Disclosure
Package or the Prospectus, neither the Company nor any of its
subsidiaries is in violation of its charter or by-laws or in
default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note,
lease or other agreement or instrument to which the Company or any
of its subsidiaries is a party or by which it or any of them may be
bound, or to which any of the property or assets of the Company or
any subsidiary is subject (collectively, “Agreements and
Instruments”) except for such defaults that would not result
in a Material Adverse Effect; and the execution, delivery and
performance of this Agreement, the Indenture, the DTC Agreement,
the Pledge and Escrow Agreement and the Securities and the
consummation of the transactions contemplated herein and therein
and in the Registration Statement, the Pledge and Escrow Agreement,
the General Disclosure Package and the Prospectus (including the
issuance and sale of the Securities and the use of the proceeds
from the sale of the Securities as described in the Registration
Statement, the General Disclosure Package and the Prospectus under
the caption “Use of Proceeds”), and the issuance of the
shares of Underlying Stock issuable upon conversion of the
Securities), and compliance by the Company with its obligations
hereunder and under the Indenture, the Pledge and Escrow Agreement
and the Securities have been duly authorized by all necessary
corporate action and do not and will not, whether with or without
the giving of notice or passage of time or both, conflict with or
constitute a breach of, or default or Repayment Event (as defined
below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or
any subsidiary pursuant to, the Agreements and Instruments (except
for such conflicts, breaches, defaults or Repayment Events or
liens, charges or encumbrances that would not result in a Material
Adverse Effect), nor will such action result in any violation of
the provisions of the charter or by-laws of the Company or any
subsidiary or any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
instrumentality or
7
court, domestic or foreign, having jurisdiction
over the Company or any subsidiary or any of their assets,
properties or operations (including, without limitation, the
Federal Communications Commission (the “FCC”)).
As used herein, a “Repayment Event” means any event or
condition which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such
holder’s behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by
the Company or any subsidiary.
(xvi)
Absence of Labor Dispute . No labor dispute with the
employees of the Company or any subsidiary exists or, to the
knowledge of the Company, is imminent, and the Company is not aware
of any existing or imminent labor disturbance by the employees of
any of its or any subsidiary’s principal suppliers,
manufacturers, customers or contractors, which, in either case, is
likely to result in a Material Adverse Effect.
(xvii)
Absence of Proceedings . There is no action, suit,
proceeding, inquiry or investigation before or brought by any court
or governmental agency or body, domestic or foreign, now pending,
or, to the knowledge of the Company, threatened, against or
affecting the Company or any subsidiary, which is required to be
disclosed in the Registration Statement, the General Disclosure
Package or the Prospectus (other than as disclosed therein), or
which might result in a Material Adverse Effect, or which might
materially and adversely affect the properties or assets thereof or
the consummation of the transactions contemplated in this Agreement
or the performance by the Company of its obligations hereunder; the
aggregate of all pending legal or governmental proceedings to which
the Company or any subsidiary is a party or of which any of their
respective property or assets is the subject which are not
described in the Registration Statement, General Disclosure Package
and the Prospectus, including ordinary routine litigation
incidental to the business, would not reasonably be expected to
result in a Material Adverse Effect.
(xviii)
Accuracy of Exhibits . There are no contracts or
documents which are required to be described in the Registration
Statement, the General Disclosure Package or the Prospectus or the
documents incorporated by reference therein or to be filed as
exhibits thereto which have not been so described and filed as
required.
(xix)
Possession of Intellectual Property . The Company and
its subsidiaries own or possess, or can acquire on reasonable
terms, adequate patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks, trade names or
other intellectual property (collectively, “Intellectual
Property”) necessary to carry on the business now operated by
them, and neither the Company nor any of its subsidiaries has
received any notice or is otherwise aware of any infringement of or
conflict with asserted rights of others with respect to any
Intellectual Property or of any facts or circumstances which would
render any Intellectual Property invalid or inadequate to protect
the interest of the Company or any of its subsidiaries therein, and
which infringement or conflict (if the subject of any unfavorable
decision, ruling or finding) or invalidity or inadequacy, singly or
in the aggregate, would result in a Material Adverse Effect.
(xx)
Absence of Manipulation . Neither the Company nor any
affiliate of the Company has taken, nor will the Company or any
affiliate take, directly or indirectly, any action which is
designed to or which has constituted or which would be expected to
cause or result in stabilization or manipulation of the price of
any security of the Company to facilitate the sale or resale of the
Securities.
8
(xxi)
Absence of Further Requirements . No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Company
of its obligations hereunder, in connection with the offering,
issuance or sale of the Securities hereunder, the issuance of
shares of Underlying Common Stock upon conversion of the
Securities, the consummation of the transactions contemplated by
this Agreement or for the due execution, delivery or performance of
the Indenture by the Company, except such as have been already
obtained or as may be required under the 1933 Act or the 1933 Act
Regulations or state securities laws and except for the
qualification of the Indenture under the 1939 Act.
(xxii)
Possession of Licenses and Permits . The Company and
its subsidiaries possess such permits, licenses, approvals,
consents and other authorizations (collectively,
“Governmental Licenses”) issued by the appropriate
federal, state, local or foreign regulatory agencies or bodies
(including, without limitation, the FCC) necessary to conduct the
business now operated by them, except where the failure so to
possess would not, singly or in the aggregate, result in a Material
Adverse Effect; the Company and its subsidiaries are in compliance
with the terms and conditions of all such Governmental Licenses,
except where the failure so to comply would not, singly or in the
aggregate, result in a Material Adverse Effect; all of the
Governmental Licenses are valid and in full force and effect,
except when the invalidity of such Governmental Licenses or the
failure of such Governmental Licenses to be in full force and
effect would not, singly or in the aggregate, result in a Material
Adverse Effect; and neither the Company nor any of its subsidiaries
has received any notice of proceedings relating to the revocation
or modification of any such Governmental Licenses which, singly or
in the aggregate, if the subject of an unfavorable decision, ruling
or finding, would result in a Material Adverse Effect.
(xxiii)
Title to Property . The Company and its subsidiaries
have good and marketable title to all real property owned by the
Company and its subsidiaries and good title to all other properties
owned by them, in each case, free and clear of all mortgages,
pledges, liens, security interests, claims, restrictions or
encumbrances of any kind except such as (a) are described in
the Registration Statement, General Disclosure Package or the
Prospectus or (b) do not, singly or in the aggregate,
materially affect the value of such property and do not interfere
with the use made and proposed to be made of such property by the
Company or any of its subsidiaries; and all of the leases and
subleases material to the business of the Company and its
subsidiaries, considered as one enterprise, and under which the
Company or any of its subsidiaries holds properties described in
the Registration Statement, the General Disclosure Package or the
Prospectus, are in full force and effect, and neither the Company
nor any subsidiary has any notice of any material claim of any sort
that has been asserted by anyone adverse to the rights of the
Company or any subsidiary under any of the leases or subleases
mentioned above, or affecting or questioning the rights of the
Company or such subsidiary to the continued possession of the
leased or subleased premises under any such lease or sublease.
(xxiv)
Investment Company Act . The Company is not required,
and upon the issuance and sale of the Securities as herein
contemplated and the application of the net proceeds therefrom as
described in the Registration Statement, the General Disclosure
Package or the Prospectus will not be required, to register as, an
“investment company” under the Investment Company Act
of 1940, as amended (the “1940 Act”).
(xxv)
Environmental Laws . Except as described in the
Registration Statement, the General Disclosure Package or the
Prospectus and except as would not, singly or in the aggregate, be
likely to result in a Material Adverse Effect, (A) neither the
Company nor any of its subsidiaries is in violation of any federal,
state, local or foreign statute, law, rule, regulation,
9
ordinance, code, policy or rule of common
law or any judicial or administrative interpretation thereof,
including any judicial or administrative order, consent, decree or
judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface
water, groundwater, land surface or subsurface strata) or wildlife,
including, without limitation, laws and regulations relating to the
release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products, asbestos-containing materials or
mold (collectively, “Hazardous Materials”) or to the
manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials
(collectively, “Environmental Laws”), (B) the
Company and its subsidiaries have all permits, authorizations and
approvals required under any applicable Environmental Laws and are
each in compliance with their requirements, (C) there are no
pending or threatened administrative, regulatory or judicial
actions, suits, demands, demand letters, claims, liens, notices of
noncompliance or violation, investigation or proceedings relating
to any Environmental Law against the Company or any of its
subsidiaries and (D) there are no events or circumstances that
would reasonably be expected to form the basis of an order for
clean-up or remediation, or an action, suit or proceeding by any
private party or governmental body or agency, against or affecting
the Company or any of its subsidiaries relating to Hazardous
Materials or any Environmental Laws.
(xxvi)
Registration Rights . Except for such rights as have
been satisfied or waived, there are no persons with registration
rights or other similar rights to have any securities registered
pursuant to the Registration Statement or otherwise registered by
the Company under the 1933 Act.
(xxvii)
ERISA . Except as set forth or incorporated by
reference in the Registration Statement, the General Disclosure
Package or the Prospectus, neither the Company nor any of its
subsidiaries has violated any provisions of the Employee Retirement
Income Security Act of 1974, as amended, except for violations
which, singly or in the aggregate, would not result in a Material
Adverse Effect.
(xxviii) Foreign
Corrupt Practices Act . Neither the Company nor, to the
knowledge of the Company, any director, officer, agent, employee,
affiliate or other person acting on behalf of the Company or any of
its subsidiaries is aware of or has taken any action, directly or
indirectly, that would result in a violation by such persons of the
Foreign Corrupt Practices Act of 1977, as amended, and the
rules and regulations thereunder (the “FCPA”),
including without limitation, making use of the mails or any means
or instrumentality of interstate commerce corruptly in the
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
FCPA) or any foreign political party or official thereof or any
candidate for foreign political office, in contravention of the
FCPA and the Company and to the knowledge of the Company, its
affiliates have conducted their businesses in compliance with the
FCPA and have instituted and maintain policies and procedures
designed to ensure and which are reasonable expected to continue to
ensure, continued compliance therewith.
(xxix)
Insurance . The Company and its subsidiaries carry or
are entitled to the benefits of insurance, with financially sound
and reputable insurers, in such amounts and covering such risks as
is generally maintained by companies of established repute engaged
in the same or similar business, and all such insurance is in full
force and effect. The Company has no reason to believe that
it or any subsidiary will not be able (A) to renew its
existing insurance coverage as and when such policies expire or
(B) to obtain comparable coverage from similar institutions as
may be necessary or appropriate to conduct its business as now
conducted and at a cost that
10
would not result in a Material Adverse Effect.
Neither of the Company nor any subsidiary has been denied any
insurance coverage which it has sought or for which it has
applied.
(xxx)
Accounting Controls and Disclosure Controls . The
Company and each of its subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurances
that (1) 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 the existing assets at reasonable
intervals and appropriate action is taken with respect to any
differences. Except as described in the General Disclosure
Package and the Prospectus, since the end of the Company’s
most recent audited fiscal year, there has been (I) no
material weakness in the Company’s internal control over
financial reporting (whether or not remediated) and (II) no
change in the Company’s internal control over financial
reporting that has materially affected, or is reasonably likely to
materially affect, the Company’s internal control over
financial reporting.
The
Company and its consolidated subsidiaries employ disclosure
controls and procedures that are designed to ensure that
information required to be disclosed by the Company in the reports
that it files or submits under the 1934 Act is recorded, processed,
summarized and reported, within the time periods spe
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