Exhibit 1.2
GLOBALSTAR,
INC.
(a Delaware
corporation)
21,936,020 Shares
of Common Stock (par value $0.0001 per share)
UNDERWRITING
AGREEMENT
Dated: April 10, 2008
GLOBALSTAR,
INC.
(a Delaware
corporation)
21,936,020 Shares
of Common Stock
(par value $0.0001
per share)
UNDERWRITING
AGREEMENT
April 10,
2008
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner &
Smith
Incorporated
Merrill Lynch International
4 World Financial
Center
New York, New York 10080
Ladies and
Gentlemen:
Globalstar, Inc., a Delaware corporation
(the “Company”), confirms its agreement with Merrill
Lynch & Co., Merrill Lynch, Pierce, Fenner &
Smith Incorporated (the “Underwriter”) and Merrill
Lynch International (“MLI”), subject to the terms and
conditions stated herein and pursuant to the Share Lending
Agreement (the “Share Lending Agreement”) dated
April 10, 2008, between the Company and MLI, through Merrill
Lynch & Co., Merrill Lynch, Pierce, Fenner &
Smith Incorporated, as agent (in such capacity, the
“Agent”), to issue and lend, from time to time, to MLI
as a share loan ( “Loan”) pursuant to and upon the
terms set forth in the Share Lending Agreement, up to an aggregate
of 36,144,570 shares of Common Stock, par value $0.0001 per
share, of the Company (“Common Stock”). The Underwriter
proposes to publicly offer 21,936,020 of such number of shares of
Common Stock in a fixed price offering as soon as the Underwriter
deems advisable after the date hereof (the “Initial
Securities”) and, following the offering of the Initial
Securities, MLI intends to publicly offer from time to time and at
varying prices an additional 14,208,550 shares of Common Stock (the
“Additional Securities” and together with the Initial
Securities, the “Securities”), all of which will be
offered under the Registration Statement (as defined below) by the
Underwriter and subject to the terms of this Agreement.
As
used herein, the “Additional Offering Period” means
period commencing on the date hereof and ending on the date of the
Final Sale. The term “Final Sale” means the sale
by the Underwriter of the last share of Additional
Securities.
Concurrently with the issuance of the
Securities, the Company is offering in an offering registered under
the Securities Act of 1933, as amended (the “1933 Act”)
and by means of a prospectus supplement, $135,000,000 aggregate
principal amount of the Company’s 5.75% Convertible Senior
Notes due 2028 (the “Notes”, and such offering, the
“Notes Offering”). Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated and
Deutsche Bank Securities Inc. are acting as the underwriters
(collectively, the “Note Underwriters”) in the Notes
Offering. The Company has granted the Note Underwriters an
option to purchase up to an additional $15,000,000 aggregate
principal amount of Notes. The Company and the Note
Underwriters will be entering into an underwriting agreement with
respect to the Notes Offering.
The
Company understands that the Underwriter proposes to make a public
offering of the Initial Securities as soon as the Underwriter deems
advisable after this Agreement has been executed and delivered, and
following the public offering of the Initial Securities, a public
offering of the Additional Securities on the terms and in the
amounts the Underwriter deems advisable.
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 Notes 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 Underwriter 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.
SECTION 1. Representations and
Warranties .
(a)
Representations and Warranties by the Company. The
Company represents and warrants to the Underwriter and MLI as of
the date hereof, the Applicable Time referred to in
Section 1(a)(i) hereof, as of each day during the
Additional Offering Period, and as of the Closing Time referred to
in Section 2(c) hereof, and as of each Additional
Securities Closing Time (if any) referred to in
Section 2(b) hereof, and agrees with the Underwriter and
MLI, as follows:
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(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 Underwriter pursuant to
Rule 430B(f)(2) of the 1933 Act Regulations, at the
Applicable Time, at the Closing Time, at any Additional Securities
Closing Time and on each day of the Additional Offering Period, the
Registration Statement complied and will comply in all material
respects with the requirements of the 1933 Act and the 1933 Act
Regulations and did not and will not contain an untrue statement of
a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading.
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, at the Closing Time, at any
Additional Securities Closing Time and on each day of the
Additional Offering Period, or at any time prior to the Closing
Time or any Additional Securities Closing Time and on each day of
the Additional Offering Period, 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 Underwriter 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) and on each day
during the Additional Offering Period (other than a Suspension
Day), neither (x) the Issuer General Use Free Writing
Prospectus(es) (as defined below) issued at or prior to the
Applicable Time or at or prior to such day during the Additional
Offering Period, the Statutory Prospectus (as defined below), 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.
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 Underwriter.
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“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 B 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 Underwriter 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 the
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, (d) on each day of the Additional
Offering Period and (e) at the Closing Time, any Additional
Securities Closing Time and date of settlement of any shares of
Common Stock sold in the Additional Offering Period, did not and,
prior to the Closing Time and any Additional Securities Closing
Time, 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.
(iii)
Independent Accountants . The accountants who
certified the financial statements and supporting schedules
included in the Registration Statement or incorporated by reference
in the
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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 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
5
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 C 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 and Description of Securities . The
Securities have been duly authorized for issuance pursuant to this
Agreement and, when issued and delivered by the Company and the
Loan Fee (as defined in the Share Lending Agreement) is paid in
accordance with the Share Lending Agreement and this Agreement,
will be validly issued and fully paid and non-assessable; the
Common Stock and the Securities conform to all statements relating
thereto contained in the Registration Statement, General Disclosure
Package or the Prospectus and such description conforms to the
rights set forth in the instruments defining the same; no holder of
the Securities will be subject to personal liability by reason of
being such a holder; and the issuance of the Securities is not
subject to the pre-emptive or other similar rights of any
securityholder of the Company.
(xi)
Share Lending Agreement . The Share Lending Agreement
has been duly authorized, executed and delivered by the Company and
constitutes a valid and legally binding agreement of the Company,
enforceable against the Company in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors’ rights and
to general equity principles.
(xii)
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 Share Lending Agreement and the
consummation of the transactions contemplated herein, therein and
in the Registration Statement, the General Disclosure Package and
the Prospectus (including the issuance and delivery of the
Securities by the Company), and compliance by the Company with its
obligations hereunder and under the Share Lending Agreement and the
consummation of the transactions contemplated hereby and thereby
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
6
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 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.
(xiii)
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.
(xiv)
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 in the Share Lending Agreement or the performance by the Company
of its obligations hereunder or thereunder; 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.
(xv)
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.
(xvi)
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.
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(xvii)
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.
(xviii)
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 or under the Share Lending Agreement,
in connection with the issuance or delivery of the Securities
hereunder or thereunder, or the consummation of the transactions
contemplated hereunder or thereunder, 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.
(xix)
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.
(xx)
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.
(xxi)
Investment Company Act . The Company is not required,
and upon the issuance and sale of the Securities as contemplated by
this Agreement and the Share Lending Agreement 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”).
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(xxii)
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, 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.
(xxiii)
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.
(xxiv)
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.
(xxv)
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.
(xxvi)
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
9
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 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.
(xxvii)
Accounting Controls and
Disclosure Controls . The Company and each of its
subsidiaries maintain a system of internal
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