Leap Wireless International,
Inc.
Common Stock, $0.0001 par value
Goldman, Sachs
& Co.
85 Broad Street
New York, New York 10004
Leap Wireless
International, Inc., a Delaware corporation (the
“Company”), proposes, subject to the terms and
conditions stated herein, to issue and sell to the Goldman, Sachs
& Co. (the “Underwriter”) an aggregate of 7,000,000
shares (the “Securities”) of common stock, par value
$0.0001 per share (the “Stock”), of the
Company.
1. The
Company represents and warrants to, and agrees with, the
Underwriter that:
(a) An
“automatic shelf registration statement” as defined
under Rule 405 under the Securities Act of 1933, as amended
(the “Act”) on Form S-3 (File No. 333-157690) in
respect of the Securities has been filed with the Securities and
Exchange Commission (the “Commission”) not earlier than
three years prior to the date hereof; such registration statement,
and any post-effective amendment thereto, became effective on
filing; and no stop order suspending the effectiveness of such
registration statement or any part thereof has been issued and no
proceeding for that purpose has been initiated or, to the best of
the Company’s knowledge, threatened by the Commission, and no
notice of objection of the Commission to the use of such
registration statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Act has been received by
the Company (the base prospectus filed as part of such registration
statement, in the form in which it has most recently been filed
with the Commission on or prior to the date of this Agreement, is
hereinafter called the “Basic Prospectus”; any
preliminary prospectus (including any preliminary prospectus
supplement) relating to the Securities filed with the Commission
pursuant to Rule 424(b) under the Act is hereinafter called a
“Preliminary
Prospectus”; the various parts of such
registration statement, including all exhibits thereto but
excluding Form T-1 and including any prospectus supplement relating
to the Securities that is filed with the Commission and deemed by
virtue of Rule 430B to be part of such registration statement,
each as amended at the time such part of the registration statement
became effective, are hereinafter collectively called the
“Registration Statement”; the Basic Prospectus, as
amended and supplemented immediately prior to the Applicable Time
(as defined in Section 1(c) hereof), is hereinafter called the
“Pricing Prospectus”; the form of the final prospectus
relating to the Securities filed with the Commission pursuant to
Rule 424(b) under the Act in accordance with Section 5(a) hereof is
hereinafter called the “Prospectus”; any reference
herein to the Basic Prospectus, the Pricing Prospectus, any
Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Act, as of the date
of such prospectus; any reference to any amendment or supplement to
the Basic Prospectus, any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any post-effective
amendment to the Registration Statement, any prospectus supplement
relating to the Securities filed with the Commission pursuant to
Rule 424(b) under the Act and any documents filed under the
Securities Exchange Act of 1934, as amended (the “Exchange
Act”), and incorporated therein, in each case after the date
of the Basic Prospectus, such Preliminary Prospectus, or the
Prospectus, as the case may be; any reference to any amendment to
the Registration Statement shall be deemed to refer to and include
any annual report of the Company filed pursuant to Section 13(a) or
15(d) of the Exchange Act after the effective date of the
Registration Statement that is incorporated by reference in the
Registration Statement; and any “issuer free writing
prospectus” as defined in Rule 433 under the Act
relating to the Securities is hereinafter called an “Issuer
Free Writing Prospectus”);
(b) No order
preventing or suspending the use of any Preliminary Prospectus or
any Issuer Free Writing Prospectus has been issued by the
Commission, and each Preliminary Prospectus, at the time of filing
thereof, conformed in all material respects to the requirements of
the Act and the rules and regulations of the Commission thereunder,
and did 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, in the light of the circumstances
under which they were made, not misleading; provided, however, that
this representation and warranty shall not apply to any statements
or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by the Underwriter
expressly for use therein;
(c) For the
purposes of this Agreement, the “Applicable Time” is
6:00 a.m. (Eastern time) on the date of this Agreement. The Pricing
Prospectus, when considered together with the public offering price
of the Securities and the number of Securities as set forth on the
cover page of the Prospectus, as of the Applicable Time, did not
include any untrue statement of a material fact or omit 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; and each
Issuer Free Writing Prospectus listed on Schedule II(a) hereto
does not conflict with the information contained in the
Registration Statement, the Pricing Prospectus or the Prospectus
and each such Issuer Free Writing Prospectus, as supplemented by
and taken together with the Pricing Prospectus, the public offering
price of the Securities and the number of Securities as set forth
on the cover page of the Prospectus, as of the Applicable Time, did
not include any untrue statement of a material fact or omit 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; provided, however, the representations and
warranties in this Section 1(c) shall not apply to statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by the Underwriter;
(d) Each document
filed or to be filed pursuant to the Exchange Act and incorporated
by reference in the Pricing Prospectus or the Prospectus complied
or will comply when they became effective or were filed with the
Commission, as the case may be, in all material respects with the
Exchange Act and the applicable rules and regulations of the
Commission thereunder;
(e) The
Registration Statement conforms, and the Prospectus and any further
amendments or supplements to the Registration Statement and the
Prospectus will conform, in all material respects to the
requirements of the Act and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable
effective date as to each part of the Registration Statement and as
of the applicable filing date as to the Prospectus and any
amendment or supplement thereto, 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; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in
writing to the Company by the Underwriter expressly for use
therein;
(f) Neither the
Company nor any of its subsidiaries has sustained since the date of
the latest audited financial statements included in the Pricing
Prospectus and the Prospectus any material loss or interference
with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as
set forth or contemplated in the Pricing Prospectus and the
Prospectus; and, since the respective dates as of which information
is given in the Pricing Prospectus and the Prospectus, there has
not been any change in the capital stock or long-term debt of the
Company or any of its subsidiaries or any material adverse effect
on the general affairs, management, current or future consolidated
financial position, stockholders’ equity or results of
operations of the Company and its subsidiaries, taken as a whole (a
“Material Adverse Effect”), or any development
involving a prospective Material Adverse Effect, otherwise than as
set forth or contemplated in the Pricing Prospectus and the
Prospectus and
otherwise than
as a result of the issuance of stock upon the exercise of
outstanding warrants, or pursuant to an employee stock purchase
plan, or upon the exercise of stock options or the award of
restricted stock or deferred stock units, in each case in the
ordinary course of business pursuant to the Stock Plans (as defined
below) as described in the Pricing Prospectus and the
Prospectus;
(g) Each of the
Company and its subsidiaries has been duly incorporated or
organized and is validly existing as a corporation or a limited
liability company, as applicable, in good standing under the laws
of the jurisdiction in which it is chartered or organized with full
corporate or limited liability company, as applicable, power and
authority to own or lease, as the case may be, and operate its
properties and conduct its business as described in the Pricing
Prospectus and the Prospectus;
(h) The Company
has an authorized equity capitalization as set forth in the Pricing
Prospectus and the Prospectus and all of the issued and outstanding
shares of capital stock of the Company and each subsidiary have
been duly authorized and validly issued and are fully paid and
nonassessable, and, except as otherwise set forth in the Pricing
Prospectus and the Prospectus, all outstanding shares of capital
stock of the Company’s subsidiaries are owned directly or
indirectly by the Company free and clear of any security interest,
claim, lien or encumbrance;
(i) The unissued
Securities to be issued and sold by the Company to the Underwriter
hereunder have been duly and validly authorized and, when issued
and delivered against payment therefor as provided herein, will be
duly and validly issued and fully paid and non-assessable and will
conform to the description of the Securities contained in the
Prospectus, and, except as otherwise set forth in the Pricing
Prospectus and the Prospectus, all outstanding shares of capital
stock of the Company’s subsidiaries are owned directly or
indirectly by the Company free and clear of any security interest,
claim, lien or encumbrance;
(j) The issue and
sale of the Securities and the compliance by the Company with this
Agreement and the consummation of the transactions herein
contemplated will not (i) conflict with or result in a breach
or violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or
any of its subsidiaries is a party or by which the Company or any
of its subsidiaries is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject, except
for such conflicts, breaches, violations or defaults that would
not, individually or in the aggregate, affect the ability of the
Company to consummate the transactions herein contemplated or have
a Material Adverse Effect, (ii) result in any violation of the
provisions of the Amended and Restated Certificate of Incorporation
or Amended and Restated By-laws of the Company, nor (iii) result in
any violation of any statute or any
order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of
their properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of
the Securities or the consummation by the Company of the
transactions contemplated by this Agreement, except (X) the
registration under the Act of the Securities, and (Y) such
consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue
Sky laws in connection with the purchase and distribution of the
Securities by the Underwriter, and (Z) such consent, approval,
authorization, registrations or qualifications that would not,
individually or in the aggregate, affect the ability of the Company
to consummate the transactions herein contemplated or have a
Material Adverse Effect;
(k) Neither the
Company nor any of its subsidiaries is (i) in violation of its
charter or bylaws or other comparable constituting documents,
(ii) in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party or by which it or
any of its properties may be bound, or (iii) in violation of
any statute, law, rule, regulation, judgment, order or decree of
any court, regulatory body, administrative agency, governmental
body, arbitrator or other authority having jurisdiction over the
Company or any of its subsidiaries or any of its or their
properties, except, in the case of (ii) or (iii) above,
for such defaults or violations as would not, individually or in
the aggregate, have a Material Adverse Effect;
(l) The statements
set forth in the Pricing Prospectus and the Prospectus under the
caption “Description of Capital Stock”, insofar as they
purport to constitute a summary of the terms of the Stock, under
the caption “Material United States Federal Income Tax
Consequences to Non-U.S. Holders”, insofar as they purport to
describe the provisions of the laws and documents referred to
therein, and under the caption “Underwriting”, insofar
as they purport to describe the provisions of this Agreement, are
accurate and complete in all material respects;
(m) Other than as
set forth in the Pricing Prospectus and the Prospectus, there are
no legal or governmental proceedings pending to which the Company,
any of its subsidiaries or, to the best of the Company’s
knowledge, LCW Wireless, LLC or any of its subsidiaries or Denali
Spectrum, LLC or any of its subsidiaries (each, a “Designated
Entity” and collectively, the “Designated
Entities”) is a party or of which any property of the
Company, any of its subsidiaries or, to the best of the
Company’s knowledge, any Designated Entity is the subject,
which, if determined adversely to the Company, any of its
subsidiaries or any Designated Entity, would individually or in the
aggregate have a Material Adverse Effect; and, to the best of the
Company’s knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by
others;
(n) The Company is
not and, after giving effect to the offering and sale of the
Securities and the application of the proceeds thereof, will not be
an “investment company”, as such term is defined in the
Investment Company Act of 1940, as amended (the “Investment
Company Act”);
(o) (A)
(i) At the time of filing the Registration Statement,
(ii) at the time of the most recent amendment thereto for the
purposes of complying with Section 10(a)(3) of the Act
(whether such amendment was by post-effective amendment,
incorporated report filed pursuant to Section 13 or 15(d) of
the Exchange Act or form of prospectus), and (iii) at the time
the Company or any person acting on its behalf (within the meaning,
for this clause only, of Rule 163(c) under the Act) made any offer
relating to the Securities in reliance on the exemption of
Rule 163 under the Act, the Company was a “well-known
seasoned issuer” as defined in Rule 405 under the Act;
and (B) at the earliest time after the filing of the
Registration Statement that the Company or another offering
participant made a bona fide offer (within the meaning of
Rule 164(h)(2) under the Act) of the Securities, the Company
was not an “ineligible issuer” as defined in
Rule 405 under the Act;
(p)
PricewaterhouseCoopers LLP, who have certified certain financial
statements of the Company and its consolidated subsidiaries and
delivered their report with respect to the audited consolidated
financial statements and schedules included or incorporated by
reference in the Pricing Prospectus and the Prospectus, are
independent public accountants with respect to the Company within
the meaning of the Act;
(q) Except as
otherwise disclosed in the Prospectus, the Company and its
subsidiaries maintain a system of internal accounting controls
sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with
management’s general or specific authorizations;
(ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles in the United States and to maintain
asset accountability; (iii) access to assets is permitted only
in accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. Except
as otherwise disclosed in the Prospectus: (x) the Company has
established and maintains “disclosure controls and
procedures” (as such term is defined in Rule 13a-15(e)
under the Exchange Act); (y) such disclosure controls and
procedures have been designed to ensure that material information
relating to the Company and its subsidiaries is made known to the
principal executive officer and principal financial officer of the
Company by others within those entities, and such disclosure
controls and procedures are reasonably effective to perform the
functions for which they were established subject to the
limitations of any such control system; and (z) since the date
of the most recent evaluation of such disclosure controls and
procedures, there have been no significant changes in the
Company’s internal control over financial reporting or
in
other factors
that could significantly adversely affect the Company’s
internal control over financial reporting;
(r) The Company
and its subsidiaries and their respective officers and directors
are in compliance with Section 402 of the Sarbanes-Oxley Act
of 2002 and the applicable rules and regulations thereunder (the
“Sarbanes-Oxley Act”) related to loans, and the Company
has filed the certifications required by Sections 302 and 906
of the Sarbanes-Oxley Act;
(s) The
consolidated historical financial statements and schedules of the
Company and its consolidated subsidiaries and other entities
required to be consolidated under generally accepted accounting
principles in the United States (collectively, the
“Consolidated Group”) included or incorporated by
reference in the Pricing Prospectus and Prospectus present fairly
in all material respects the financial condition, results of
operations and cash flows of the Consolidated Group as of the dates
and for the periods indicated, comply as to form in all material
respects with the applicable accounting requirements of
Regulation S-X under the Act and have been prepared in
conformity with generally accepted accounting principles in the
United States applied on a consistent basis throughout the periods
involved (except as otherwise noted therein); the selected
financial data set forth under the caption “Selected
Financial Data” in the Company’s Annual Report on Form
10-K for the year ended December 31, 2008, incorporated by
reference in the Pricing Prospectus and Prospectus, fairly present
in all material respects, on the basis stated in the
Company’s Annual Report on Form 10-K for the year ended
December 31, 2008, incorporated by reference in the Pricing
Prospectus and Prospectus, the information included
therein;
(t) There are no
stamp or other issuance or transfer taxes or duties or other
similar fees or charges required to be paid in connection with the
execution and delivery of this Agreement or the issuance or sale by
the Company of the Securities;
(u) The Company
has filed all applicable tax returns that are required to be filed
or has requested extensions thereof (except in any case in which
the failure so to file would not have a Material Adverse Effect and
except as set forth in or contemplated in the Pricing Prospectus
and Prospectus (exclusive of any amendment or supplement thereto))
and has paid all taxes required to be paid by it and any other
assessment, fine or penalty levied against it, to the extent that
any of the foregoing is due and payable, except for any such
assessment, fine or penalty that is currently being contested in
good faith or as would not have a Material Adverse Effect and
except as set forth in or contemplated in the Pricing Prospectus
and Prospectus (exclusive of any amendment or supplement
thereto);
(v) No labor
problem or dispute with the employees of the Company or any of its
subsidiaries exists or, to the knowledge of the Company, is
threatened,
except as would
not have a Material Adverse Effect and except as set forth in or
contemplated in the Pricing Prospectus and Prospectus (exclusive of
any amendment or supplement thereto);
(w) Except as
would not have a Material Adverse Effect and except as set forth in
or contemplated in the Pricing Prospectus and Prospectus (exclusive
of any amendment or supplement thereto), (i) the Company and
each of its subsidiaries are insured by insurers of recognized
financial responsibility against such losses and risks and in such
amounts as are prudent and customary in the businesses in which
they are engaged; (ii) all policies of insurance and fidelity
or surety bonds insuring the Company or any of its subsidiaries or
their respective businesses, assets, employees, officers and
directors are in full force and effect; and (iii) neither the
Company nor any of its subsidiaries has any reason to believe that
it will not be able to renew its existing insurance coverage as and
when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its
business;
(x) The Company,
each subsidiary and, to the best of the Company’s knowledge,
each Designated Entity possess such valid and current licenses and
authorizations issued by the Federal Communications Commission (the
“FCC”) necessary to conduct their respective businesses
as currently conducted, and none of the Company, any subsidiary or,
to the best of the Company’s knowledge, any Designated Entity
has received any notice of proceedings relating to the revocation
or modification of, or non-compliance with, any such license or
authorization which, individually or in the aggregate, assuming an
unfavorable decision, ruling or finding, would have a Material
Adverse Effect;
(y) Except as
would not have a Material Adverse Effect and except as set forth in
or contemplated in the Pricing Prospectus and Prospectus (exclusive
of any amendment or supplement thereto), the Company and its
subsidiaries are (i) in compliance with any and all applicable
laws and regulations relating to the protection of human health and
safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants (“Environmental Laws”);
(ii) have received and are in compliance with all permits,
licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses; and
(iii) have not received notice of any actual or potential
liability under any Environmental Law. Except as set forth in the
Pricing Prospectus and Prospectus, to the knowledge of the Company,
neither the Company nor any of its subsidiaries has been named as a
“potentially responsible party” under the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as
amended;
(z) The business
of the Company and its subsidiaries, as described in the Pricing
Prospectus and Prospectus, is being conducted in compliance with
applicable requirements under the Federal Communications Act of
1934, as amended, the Telecommunications Act of 1996 and the
regulations issued thereunder, all relevant rules, regulations and
published policies of the FCC and
any applicable
state telecommunications laws and regulations of a state public
service commission or similar state governmental authority
(“State PUC”) (collectively, the
“Telecommunications Laws”), except as would not have a
Material Adverse Effect. All licenses and authorizations issued by
the FCC required for the operations of the Company, its
subsidiaries and, to the best of the Company’s knowledge, the
Designated Entities as currently conducted as described in the
Pricing Prospectus and Prospectus are in full force and effect.
Except for certain license renewal filings made by the Company in
the ordinary course, there are no pending modifications or
amendments to any licenses issued by the FCC to the Company or any
of its subsidiaries (the “FCC Licenses”), or, to the
best of the Company’s knowledge, to any licenses issued by
the FCC to any Designated Entity (the “DE Licenses”),
or any revocation proceedings pending with respect to any of such
FCC Licenses, or, to the best of the Company’s knowledge, to
any of such DE Licenses, in each case, which, if implemented or
adversely decided, would have a Material Adverse Effect. No event
has occurred with respect to such FCC Licenses, or to the best of
the Company’s knowledge, to such DE Licenses, which, with the
giving of notice or the lapse of time or both, would constitute
grounds for revocation of any of the FCC Licenses or the DE
Licenses, respectively, other than the expiration of such FCC
Licenses or such DE Licenses, respectively, in accordance with
their terms. Except as disclosed in the Pricing Prospectus and the
Prospectus, there is no condition, event or occurrence existing,
nor, to the best of the Company’s knowledge, is there any
proceeding being conducted or threatened by any governmental
authority, which would reasonably be expected to cause the
termination, suspension, cancellation, or nonrenewal of any of the
FCC Licenses, or, to the best of the Company’s knowledge, the
DE Licenses, or the imposition of any penalty or fine by any
regulatory body with respect to any of the FCC Licenses, or, to the
best of the Company’s knowledge, the DE Licenses, or the
Company or its subsidiaries, in each case which would have a
Material Adverse Effect;
(aa) All stock
options granted under the Company’s 2004 Stock Option,
Restricted Stock and Deferred Stock Unit Plan, as amended (the
“2004 Stock Plan”) and 2009 Employment Inducement
Equity Incentive Plan (the “2009 Stock Plan” and
collectively with the 2004 Stock Plan, the “Stock
Plans”) have been granted in compliance with, in all material
respects, the terms of applicable law and the Stock Plans and have
(or with respect to any such options which have been exercised as
of the date of this Agreement, had) a per-share exercise price that
is (or with respect to any such options which have been exercised
as of the date of this Agreement, was) at least equal to the fair
market value of a share of the Company’s common stock as of
the date the option was granted. Neither t
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