Exhibit 1.1
16,000,000 Shares
GHL ACQUISITION CORP.
Common Stock
UNDERWRITING AGREEMENT
September 23, 2009
Raymond James & Associates,
Inc.
RBC Capital Markets Corporation
Stifel, Nicolaus & Company,
Incorporated
As Representatives of the Several
Underwriters
listed on Schedule I hereto
c/o Raymond James & Associates,
Inc.
880 Carillon Parkway
St. Petersburg, Florida 33716
Ladies and Gentlemen:
GHL Acquisition Corp., a Delaware
corporation (the “Company”), and, from and after the
closing of the Company’s acquisition of Iridium Holdings LLC,
a Delaware limited liability company (“Iridium”),
Iridium Communications Inc., proposes, subject to the terms and
conditions stated herein, to issue and sell to the several
Underwriters named in Schedule I hereto (the
“Underwriters”), an aggregate of 16,000,000 shares of
its common stock, par value $0.001 per share (the “Common
Stock”), immediately after the closing of the Company’s
acquisition of Iridium. The aggregate of 16,000,000 shares to
be purchased from the Company are called the “Firm
Shares.” In addition, the Company has agreed to sell to
the Underwriters, upon the terms and conditions set forth herein,
up to an additional 2,400,000 shares of Common Stock (the
“Additional Shares”) to cover over-allotments by the
Underwriters, if any. The Firm Shares and the Additional
Shares are collectively referred to in this Agreement as the
“Shares.” Raymond James & Associates, Inc.,
RBC Capital Markets Corporation and Stifel, Nicolaus & Company,
Incorporated are acting as the representatives of the several
Underwriters and in such capacity are referred to in this Agreement
as the “Representatives.”
The Company (other than with respect to
Sections 6.2 and 8(b)) and Iridium (exclusively in respect to
Sections 5(m), 6.2, 8 (other than 8(a)), 10, 12, 14, 15, 16, 17 and
18) each wish to confirm as follows their respective agreement with
you and the other several Underwriters, on whose behalf you are
acting, in connection with the several purchases of the Shares from
the Company.
1.
Registration Statement and
Prospectus . The Company
has prepared and filed with the Securities and Exchange Commission
(the “Commission”) in accordance with the provisions of
the Securities Act of 1933, as amended, and the rules and
regulations of the Commission thereunder (collectively, the
“Act”), a registration statement on Form S-3 (File No.
333-159673) relating to securities to be issued from time to time
by the Company, including the Shares. Such registration
statement, as amended, including the financial statements, exhibits
and schedules thereto or incorporated by reference therein, at the
time it became effective and as thereafter amended by any
post-effective amendment, is referred to in this Agreement as the
“Registration Statement.” The prospectus in the
form included in the Registration Statement at the time of the
initial filing of such Registration Statement with the Commission
and as such prospectus is amended from time to time is referred to
in this Agreement as the “Base Prospectus.” The
preliminary prospectus supplement relating to the offering of the
Shares filed by the Company with the Commission pursuant to Rule
424(b) under the Act together with the Base Prospectus is referred
to in this Agreement as the “Pre-Pricing Prospectus.”
The final prospectus supplement relating to the offering of
the Shares filed by the Company with the Commission pursuant to
Rule 424(b) under the Act together with the Base Prospectus is
referred to in this Agreement as the “Prospectus.”
If the Company files another registration statement with the
Commission to register a portion of the Shares pursuant to Rule
462(b) under the Act (the “Rule 462 Registration
Statement”), then any reference to “Registration
Statement” herein shall be deemed to include the registration
statement on Form S-3 (File No. 333-159673) and the Rule 462
Registration Statement, as each such registration statement may be
amended pursuant to the Act. “Time of Sale
Information” shall mean the Pre-Pricing Prospectus, together
with the information to be conveyed orally identified in Schedule
II hereto. All references in this Agreement to the
Registration Statement, the Rule 462 Registration Statement, the
Base Prospectus, the Pre-Pricing Prospectus, the Prospectus or the
Time of Sale Information, or any amendments or supplements to any
of the foregoing, shall be deemed to refer to and include any
documents incorporated by reference therein, and shall include any
copy thereof filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval System
(“EDGAR”). Any reference in this Agreement to the
Registration Statement, the Base Prospectus, the Pre-Pricing
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 the
Registration Statement, the Base Prospectus, the Pre-Pricing
Prospectus or the Prospectus, as the case may be, and any reference
to any amendment or supplement to the Registration Statement, the
Base Prospectus, the Pre-Pricing Prospectus or the Prospectus shall
be deemed to refer to and include any documents filed after such
date under the Securities Exchange Act of 1934, as amended (the
“Exchange Act”) that, upon filing, are incorporated by
reference therein, as required by paragraph (b) of Item 12 of Form
S-3. As used herein, the terms (i) “Incorporated
Documents” means the documents that at the time of filing are
incorporated by reference in the Registration Statement, the Base
Prospectus, the Pre-Pricing Prospectus, the Prospectus or any
amendment or supplement thereto; and (ii) “Applicable
Time” means 8:30 a.m. (New York City time) September 24, 2009
or such other time as agreed by the Company, Iridium and the
Underwriters.
2.
Agreements to Sell and
Purchase . Upon the
terms and conditions set forth herein, the Company hereby agrees to
issue and sell the Firm Shares to the Underwriters and, upon the
basis of the representations, warranties and agreements of the
Company and Iridium herein
- 2 -
contained and subject to all the terms
and conditions set forth herein, each Underwriter agrees, severally
and not jointly, to purchase from the Company at a purchase price
of $9.35 per Share (the “purchase price per Share”),
the number of Firm Shares set forth opposite the name of such
Underwriter in Schedule I hereto.
The Company hereby also agrees to sell to
the Underwriters, and, upon the basis of the representations,
warranties and agreements of the Company and Iridium herein
contained and subject to all the terms and conditions set forth
herein, the Underwriters shall have the right for 40 days from the
date of the Prospectus to purchase from the Company up to 2,400,000
Additional Shares at the purchase price per Share for the Firm
Shares. The Additional Shares may be purchased solely for the
purpose of covering over-allotments, if any, made in connection
with the offering of the Firm Shares. If any Additional
Shares are to be purchased, each Underwriter, severally and not
jointly, agrees to purchase the number of Additional Shares
(subject to such adjustments as you may determine to avoid
fractional shares) that bears the same proportion to the total
number of Additional Shares to be purchased by the Underwriters as
the number of Firm Shares set forth opposite the name of such
Underwriter in Schedule I hereto bears to the total number of Firm
Shares. The option to purchase Additional Shares may be
exercised at any time within 40 days after the date of the
Prospectus; provided, that if such date falls on a day that is not
a business day, the option to purchase Additional Shares will
expire on the next succeeding business day.
3.
Terms of Public Offering
. The Company has been advised by
you that the Underwriters propose to make a public offering of
their respective portions of the Shares as soon after the date
hereof as in your judgment is advisable and initially to offer the
Shares upon the terms set forth in the Time of Sale Information;
provided, that the closing of the sale of Shares under this
Agreement shall not take place until the consummation of the
acquisition by the Company, directly or indirectly, of all of the
outstanding interests of Iridium (the “Acquisition”)
pursuant to the terms and conditions of that certain Transaction
Agreement dated as of September 22, 2008 among the Company, Iridium
and each of the sellers (the “Sellers”) appearing on
the signature page thereof, as amended prior to the date hereof
(the “Transaction Agreement”).
Not later than 12:00 p.m. on the second
business day following the date the Firm Shares are released by the
Underwriters for sale to the public, the Company shall deliver or
cause to be delivered electronic copies of the Prospectus to the
Representatives and shall deliver or cause to be delivered hard
copies as soon as reasonably practical thereafter in such
quantities and at such places as the Representatives shall
reasonably request.
4.
Delivery of the Shares and Payment Therefor
. Delivery to the Underwriters of
the Firm Shares and payment therefor shall be made at the offices
of Simpson Thacher & Bartlett LLP, counsel to Iridium, 425
Lexington Avenue, New York, New York immediately following the
closing of the Acquisition, on September 29, 2009, or such
other place, time and date not later than 1:30 p.m., New York, New
York time, on October 5, 2009 as the parties shall agree (the time
and date of such closing are called the “Closing
Date”). The place of closing for the Firm Shares and
the Closing Date may be varied by agreement between the
Representatives and the Company. The Company hereby
acknowledges that circumstances under which the
- 3 -
Representatives may provide notice to
postpone the Closing Date as originally scheduled include any
determination by the Company or the Representatives to recirculate
to the public copies of an amended or supplemented Pre-Pricing
Prospectus or Prospectus or a delay as contemplated by the
provisions of Section 11 hereof.
Delivery to the Underwriters of and
payment for any Additional Shares to be purchased by the
Underwriters shall be made at the offices of Simpson Thacher &
Bartlett LLP, counsel to Iridium, at 425 Lexington Avenue, New
York, New York at 10:00 a.m., New York time, on such date or dates
(each an “Additional Closing Date”) (which may be the
same as the Closing Date, in which case delivery and payment shall
be made immediately following the closing of the Acquisition, but
shall in no event be earlier than the Closing Date nor earlier than
three nor later than 10 business days after the giving of the
notice hereinafter referred to) as shall be specified in a written
notice, from the Representatives on behalf of the Underwriters to
the Company, of the Underwriters’ determination to purchase a
number, specified in such notice, of Additional Shares. Such
notice may be given at any time within 40 days after the date of
the Prospectus and must set forth (i) the aggregate number of
Additional Shares as to which the Underwriters are exercising the
option and (ii) the names and denominations in which the
certificates for which the Additional Shares are to be registered;
provided, that if such date falls on a day that is not a business
day, the option to purchase Additional Shares will expire on the
next succeeding business day. The place of closing for the
Additional Shares and the Additional Closing Date may be varied by
agreement between you and the Company.
The Shares to be purchased hereunder
shall be delivered to you on the Closing Date or the Additional
Closing Date, as the case may be, against payment of the purchase
price therefor by wire transfer of immediately available funds to
an account specified in writing, not later than the close of
business on the business day preceding the Closing Date or any
Additional Closing Date, as the case may be, by the Company.
Payment for the Shares sold by the Company hereunder shall be
delivered by the Representatives to the Company. Delivery of
the Shares shall be made through the facilities of The Depositary
Trust Company unless the Underwriters shall otherwise
instruct.
It is understood that the Representatives
have been authorized, for their own account and the accounts of the
several Underwriters, to accept delivery of and receipt for, and
make payment of the purchase price per Share for the Firm Shares
and Additional Shares, if any, that the Underwriters have agreed to
purchase. Raymond James and Associates, Inc., individually
and not as a Representative of the Underwriters, may, but shall not
be obligated to, make payment for any Shares to be purchased by any
Underwriter whose funds shall not have been received by it by the
Closing Date or any Additional Closing Date, as the case may be,
for the account of such Underwriter, but any such payment shall not
relieve such Underwriter from any of its obligations under this
Agreement.
5.
Covenants and Agreements of the
Company . The Company
covenants and agrees with the several Underwriters as
follows:
(a)
The Company will use its best efforts to
cause the Registration Statement and any amendments thereto to
become effective, if it has not already become effective, and
will
- 4 -
advise you promptly and, if requested by
you, will confirm such advice in writing (i) when the Registration
Statement has become effective and the time and date of any filing
of any post-effective Registration Statement or any amendment or
supplement to the Base Prospectus or the Pre-Pricing Prospectus and
the time and date that any post-effective amendment to the
Registration Statement becomes effective, (ii) if Rule 430A under
the Act is employed, when the Prospectus has been timely filed
pursuant to Rule 424(b) under the Act, (iii) of the receipt of any
comments of the Commission, or any request by the Commission for
amendments or supplements to the Registration Statement, the Base
Prospectus, the Pre-Pricing Prospectus or the Prospectus or for
additional information, (iv) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration
Statement or of the suspension of qualification of the Shares for
offering or sale in any jurisdiction or the initiation of any
proceeding for such purposes and (v) within the period of time
referred to in Section 5(g) below, of any material adverse change,
or any development involving a prospective material adverse change,
in the condition (financial or other), business, properties or
results of operations of the Company, or of any event that comes to
the attention of the Company that makes any statement made in the
Registration Statement, the Pre-Pricing Prospectus or the
Prospectus (as then amended or supplemented) untrue in any material
respect or that requires the making of any additions thereto or
changes therein in order to make the statements therein (in the
case of the Pre-Pricing Prospectus and the Prospectus, in light of
the circumstances under which they were made) not misleading in any
material respect, or of the necessity to amend or supplement the
Prospectus (as then amended or supplemented) to comply with the Act
or any other law. If at any time the Commission shall issue
any stop order suspending the effectiveness of the Registration
Statement, the Company will make every reasonable effort to obtain
the withdrawal or lifting of such order at the earliest possible
time. The Company will provide the Underwriters with copies
of the form of Prospectus, in such number as the Underwriters may
reasonably request, and file with the Commission such Prospectus in
accordance with Rule 424(b) of the Act.
(b)
The Company will furnish to you, without
charge, two conformed copies of the Registration Statement as
originally filed with the Commission and of each amendment thereto,
including financial statements and all exhibits thereto.
(c)
The Company will promptly file with the
Commission any amendment or supplement to the Registration
Statement, the Pre-Pricing Prospectus or the Prospectus that may,
in the reasonable judgment of the Company, Iridium or the
Representatives be required by the Act or requested by the
Commission.
(d)
The Company will furnish a copy of any
amendment or supplement to the Registration Statement, the
Pre-Pricing Prospectus or to the Prospectus to you, counsel for
Underwriters and Iridium and obtain your and Iridium’s
consent prior to filing any of those with the Commission; which
consent will not be unreasonably withheld or delayed.
(e)
The Company will not make any offer
relating to the Common Stock that constitutes or would constitute a
free writing prospectus (as defined in Rule 405 of the Act) or a
portion thereof required to be filed by the Company with the
Commission or retained by the Company under Rule 433 of the
Act.
- 5 -
(f)
Prior to the execution and delivery of
this Agreement, the Company has delivered or will deliver to you,
without charge, in such quantities as you have requested or may
hereafter reasonably request, copies of each form of the
Pre-Pricing Prospectus. Consistent with the provisions of
Section 5(g) hereof, the Company consents to the use, in accordance
with the provisions of the Act and with the securities or Blue Sky
laws of the jurisdictions in which the Shares are offered by the
several Underwriters and by dealers, prior to the date of the
Prospectus, of each Pre-Pricing Prospectus so furnished by the
Company.
(g)
As soon after the execution and delivery
of this Agreement as is practicable and thereafter from time to
time for such period as in the reasonable opinion of counsel for
the Underwriters a Prospectus is required by the Act to be
delivered in connection with sales by any Underwriter or a dealer
(the “Prospectus Delivery Period”), and for so long a
period as you may request for the distribution of the Shares, the
Company will deliver to each Underwriter and each dealer, without
charge, as many copies of the Prospectus and the Time of Sale
Information (and of any amendment or supplement thereto) as they
may reasonably request. The Company consents to the use of the
Prospectus and the Time of Sale Information (and of any amendment
or supplement thereto) in accordance with the provisions of the Act
and with the securities or Blue Sky laws of the jurisdictions in
which the Shares are offered by the several Underwriters and by all
dealers to whom Shares may be sold, both in connection with the
offering and sale of the Shares and for such period of time
thereafter as the Prospectus is required by the Act to be delivered
in connection with sales by any Underwriter or dealer. If at any
time prior to the later of (i) the completion of the distribution
of the Shares pursuant to the offering contemplated by the
Registration Statement or (ii) the expiration of prospectus
delivery requirements with respect to the Shares under Section 4(3)
of the Act and Rule 174 thereunder, any event shall occur that in
the reasonable judgment of the Company or in the opinion of counsel
for the Underwriters is required to be set forth in the Prospectus
(as then amended or supplemented) or should be set forth therein in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it
is necessary to supplement or amend the Prospectus to comply with
the Act or any other law, the Company will forthwith prepare and,
subject to Section 5(a) hereof, file with the Commission and use
its best efforts to cause to become effective as promptly as
possible an appropriate supplement or amendment thereto, and will
furnish to each Underwriter who has previously requested
Prospectuses, without charge, a reasonable number of copies
thereof.
(h)
During the Prospectus Delivery Period,
the Company will file all documents required to be filed with the
Commission pursuant to Sections 13, 14 and 15 of the Exchange Act
in the manner and within the time periods required by the Exchange
Act.
(i)
The Company will cooperate with the
Representatives and counsel for the Underwriters in connection with
the registration or qualification of the Shares for offering and
sale by the several Underwriters and by dealers under the
securities or Blue Sky laws of such jurisdictions as the
Representatives may reasonably designate and will file such
consents to service of process or other documents as may be
reasonably necessary in order to effect and maintain such
registration or qualification for so long as required to complete
the distribution of the Shares; provided, that in no event shall
the Company be obligated to (i) qualify to do business in any
jurisdiction where it is not now so qualified or to take any action
that would
- 6 -
subject it to general service of process
in suits, other than those arising out of the offering or sale of
the Shares, as contemplated by this Agreement and the Prospectus,
in any jurisdiction where it is not now so subject; or (ii) subject
it to taxation in any jurisdiction where it is not now so subject.
In the event that the qualification of the Shares in any
jurisdiction is suspended, the Company shall so advise you promptly
in writing.
(j)
The Company will make generally available
to its security holders a consolidated earnings statement (in form
complying with the provisions of Rule 158), which need not be
audited, covering a twelve-month period commencing after the
effective date of the Registration Statement and the Rule 462
Registration Statement, if any, and ending not later than 15 months
thereafter, as soon as practicable after the end of such period,
which consolidated earnings statement shall satisfy the provisions
of Section 11(a) of the Act.
(k)
Except in the case of termination under
Section 11 or Section 12 hereof, if this Agreement shall terminate
or shall be terminated after execution pursuant to any provision
hereof, or if this Agreement shall be terminated by the
Underwriters because of any inability, failure or refusal on the
part of the Company to perform in all material respects any
agreement herein or to comply in all material respects with any of
the terms or provisions hereof or to fulfill in all material
respects any of the conditions of this Agreement, the Company
agrees to reimburse you and the other Underwriters for all
out-of-pocket expenses (including travel expenses and reasonable
fees and expenses of counsel for the Underwriters, but excluding
wages and salaries paid by you) reasonably incurred by you in
connection herewith.
(l)
The Company will apply the net proceeds
from the sale of the Shares to be sold by it hereunder in
accordance in all material respects with the statements under the
caption “Use of Proceeds” in the Pre-Pricing Prospectus
and the Prospectus.
(m)
For a period of 90 days after the date of
the Prospectus (the “Lock-Up Period”), the Company will
not, directly or indirectly, (1) offer for sale, sell, pledge, or
otherwise dispose of (or enter into any transaction or device that
is designed to, or could be expected to, result in the disposition
by any person at any time in the future of) any shares of Common
Stock or securities convertible into or exchangeable for Common
Stock, (2) enter into any swap or other derivatives transaction
that transfers to another, in whole or in part, any of the economic
benefits or risks of ownership of such shares of Common Stock,
whether any such transaction described in clause (1) or (2) above
is to be settled by delivery of Common Stock or other securities,
in cash or otherwise, or (3) publicly disclose the intention to do
any of the foregoing, in each case without the prior written
consent of Raymond James & Associates, Inc., and the Company
and Iridium agree to cause each officer, director or stockholder of
the Company or Iridium, respectively, set forth on Schedule
III hereto to furnish to the Representatives, prior to the
Initial Delivery Date, a letter or letters, substantially in the
form of Exhibit A hereto (the “Lock-Up
Agreements”); notwithstanding the foregoing, if (1) during
the last 17 days of the Lock-Up Period, the Company issues an
earnings release or announces material news
or a material event relating to the Company occurs or (2) prior to
the expiration of the Lock-Up Period, the Company announces that it
will release earnings results during the 16-day period beginning on
the last day of the Lock-Up Period, then the restrictions imposed
in the preceding paragraph shall continue to apply until the
expiration of the 18-day period beginning on the date
- 7 -
of issuance of the
earnings release or the announcement of the material news or the
occurrence of the material event, unless Raymond James &
Associates, Inc., on behalf of the Underwriters, waives such
extension in writing.
The foregoing restrictions shall not
apply to: (a) the offer and sale of shares of Common Stock to the
Underwriters pursuant to this Agreement, (b) the grant or the
exercise of stock options or other securities convertible into or
exchangeable for shares of Common Stock granted pursuant to the
Company’s stock option, stock bonus or other stock plans or
arrangements in effect as of the date hereof and as contemplated
for Iridium officers following the closing of the Acquisition
(including, but not limited to, the Company’s 401(k) plan and
the 2009 Stock Incentive Plan), (c) the conversion into shares of
Common Stock of the promissory note, which Greenhill & Co.
Europe Limited purchased from Iridium on or about October 24, 2008,
(d) the offer and sale of shares of Common Stock or warrants as
consideration for the purchase or exchange of the Company’s
warrants from certain warrantholders in the Exchanges (as defined
in the Prospectus) and the Forward Purchases (as defined in the
Prospectus), (e) the exercise of currently outstanding warrants,
warrants issued in the Exchanges or securities convertible into or
exchangeable for shares of Common Stock, (f) the issuance of shares
of Common Stock to holders of common units in Iridium in connection
with the Acquisition and (g) the issuance of Common Stock or
warrants to Motorola Inc. (“Motorola”) or to any third
party to which Motorola has assigned its intellectual property
rights under certain license agreements between Motorola and
Iridium (the “Motorola Assignee”); provided, that
Motorola and/or the Motorola Assignee agree to similar lock-up
agreements for the remainder of the Lock-Up Period.
The Company agrees not to file, or cause
to be filed, during the Lock-Up Period any registration statement,
including any amendments to a registration statement, with respect
to the registration of any shares of Common Stock or securities
convertible, exercisable or exchangeable into Common Stock or any
other securities of the Company other than (i) a shelf registration
statement that allows for the exercise and resale of 14,368,525
restructured warrants issued in connection with the Exchanges, the
resale of 14,368,525 shares of Common Stock underlying such
restructured warrants and the resale of 1,244,831 shares of Common
Stock issued in the Exchanges, (ii) a shelf registration
statement to permit holders of 13,526,667 warrants to convert such
warrants and receive 13,526,667 shares of Common Stock and
(iii) a shelf registration statement to provide for the resale
of 3,655,500 shares of Common Stock currently held by Banc of
America Securities LLC (“Banc of America”), if Banc of
America makes a written demand for such registration
statement.
(n)
The Company will not at any time,
directly or indirectly, take any action designed, or which might
reasonably be expected to cause or result in, or which will
constitute, stabilization or manipulation of the price of the
shares of Common Stock to facilitate the sale or resale of any of
the Shares; provided, that any action by the Company, directly or
indirectly, in compliance with the U.S. securities laws shall be
deemed to be in compliance with this provision.
(o)
The Company will ensure that the Shares
will, upon issuance, be listed on a national securities exchange
selected by the Company and Iridium and will timely file
with
- 8 -
such securities exchange all documents
and notices required by such securities exchange of companies that
have or will issue securities that are traded on such securities
exchange.
6.
Representations and
Warranties .
6.1
Representations and Warranties of the
Company . For purposes
of this Section 6.1, references to the “Company” shall
refer only to GHL Acquisition Corp. and shall not include Iridium.
The Company hereby represents and warrants to each
Underwriter on the date hereof, and shall be deemed to represent
and warrant to each Underwriter on the Closing Date and the
Additional Closing Date, as the case may be, that:
(a)
The Registration Statement conformed, and
any amendment to the Registration Statement filed after the date
hereof will conform in all material respects when filed with the
Commission, to the requirements of the Act. The Pre-Pricing
Prospectus conformed, and the Prospectus will conform, in all
material respects when filed with the Commission pursuant to Rule
424(b) to the requirements of the Act. The Company satisfies
all of the requirements of the Act for use of Form S-3 for the
offering of Shares contemplated hereby.
(b)
The Registration Statement does 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 and the Pre-Pricing
Prospectus does not contain an untrue statement of material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading; provided,
that no representation or warranty is made as to information
contained in or omitted from the Registration Statement or the
Pre-Pricing Prospectus in reliance upon and in conformity with
written information furnished to the Company through the
Representatives by or on behalf of any Underwriter specifically for
inclusion therein and included therein as described in Section 8(c)
(the “Underwriter Information”).
(c)
The Prospectus will not contain an untrue
statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
that no representation or warranty is made as to Underwriter
Information contained in or omitted from the Prospectus. The
Incorporated Documents heretofore filed, when they were filed (or,
if any amendment with respect to any such document was filed, when
such amendment was filed), conformed in all material respects with
the requirements of the Exchange Act and the rules and regulations
thereunder, and any further Incorporated Documents so filed will,
when they are filed, conform in all material respects with the
requirements of the Exchange Act and the rules and regulations
thereunder; no such Incorporated Document when it was filed (or, if
an amendment with respect to any such document was filed, when such
amendment was filed), contained an untrue statement of a material
fact or omitted to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading; and no such further
Incorporated Document, when it is filed, will contain an untrue
statement of a material fact 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.
- 9 -
(d)
The Time of Sale Information did not, as
of the Applicable Time, contain an untrue statement of a material
fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading ; provided, that no
representation or warranty is made as to Underwriter Information
contained in or omitted from the Time of Sale
Information.
(e)
The capitalization of the Company is as
set forth in the Pre-Pricing Prospectus, and will be as
contemplated by the Time of Sale Information. All the
outstanding shares of Common Stock of the Company have been, and as
of the Closing Date and the Additional Closing Date, as the case
may be, will be, duly authorized and validly issued, are fully paid
and nonassessable and are free of any preemptive or similar rights;
except as set forth in or contemplated by the Time of Sale
Information, the Company is not a party to or bound by any
outstanding options, warrants or similar rights to subscribe for,
or contractual obligations to issue, sell, transfer or acquire, any
of its capital stock or any securities convertible into or
exchangeable for any of such capital stock; the Shares to be issued
and sold to the Underwriters by the Company hereunder have been
duly authorized and, when issued and delivered to the Underwriters
against full payment therefor in accordance with the terms hereof
will be validly issued, fully paid and nonassessable and free of
any preemptive or similar rights; the capital stock of the Company
conforms to the description thereof in the Registration Statement,
the Time of Sale Information and the Prospectus (or any amendment
or supplement thereto); and the delivery of the Shares being sold
by the Company against payment therefor pursuant to the terms of
this Agreement will pass valid title to the Shares being sold by
the Company, free and clear of any claim, encumbrance or defect in
title, to the several Underwriters purchasing such shares in good
faith and without notice of any lien, claim or encumbrance.
(f)
The Company is a corporation duly
organized and validly existing as a corporation in good standing
under the laws of the State of Delaware with full corporate power
and authority to own, lease and operate its properties and to
conduct its business as presently conducted and as described in the
Registration Statement, the Time of Sale Information and the
Prospectus (and any amendment or supplement thereto) and is duly
registered and qualified to conduct its business and is in good
standing in each jurisdiction or place where the nature of its
properties or the conduct of its business requires such
registration or qualification, except where the failure to so
register or qualify has not had or will not have a material adverse
effect on, or will not cause a prospective material adverse change
to, the condition (financial or other), business, properties or
results of operations of the Company (a “Company Material
Adverse Effect”).
(g)
The Company has no subsidiaries
immediately prior to the Acquisition.
(h)
Except as would not reasonably be
expected to have, individually or in the aggregate, a Company
Material Adverse Effect, there are no legal or governmental
proceedings pending or, to the Company’s knowledge,
threatened, against the Company, that are required to be described
in the Registration Statement, the Time of Sale Information or the
Prospectus (or any amendment or supplement thereto) but are not
described as required. Except as described in the
Registration Statement, the Time of Sale Information and
Prospectus, there is no action, suit, proceeding or investigation
by or before any court or governmental or other regulatory
or
- 10 -
administrative agency or commission
pending or, to the Company’s knowledge, threatened, against
the Company, which might individually or in the aggregate prevent
or materially adversely affect the transactions contemplated by
this Agreement or result in a Company Material Adverse Effect.
(i)
There are no agreements, contracts,
indentures, leases or other instruments to which the Company is a
party that are required to be described in the Registration
Statement, the Time of Sale Information or the Prospectus (or any
amendment or supplement thereto) or to be filed as an exhibit to
the Registration Statement that are not described, filed or
incorporated by reference in the Registration Statement, the Time
of Sale Information or the Prospectus as required by the Act.
All such contracts to which the Company is a party have been
duly authorized, executed and delivered by the Company, constitute
valid and binding agreements of the Company and are enforceable
against the Company in accordance with the terms thereof, except to
the extent enforceability may be limited by (i) the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting
creditors’ rights generally, (ii) general equitable
principles (whether considered in a proceeding in equity or at
law), (iii) an implied covenant of good faith and fair dealing,
(iv) the effects of the possible judicial application of foreign
laws or foreign governmental or judicial action affecting
creditors’ rights, (v) considerations of public policy and
(vi) by federal or state securities laws with respect to the
provisions regarding indemnity and contribution hereunder.
The Company has not received notice or been made aware that
any other party is in breach of or default to the Company under any
of such contracts.
(j)
The Company is not: (i) in violation of
(A) its certificate of incorporation or bylaws, or other
organizational documents, (B) any law, ordinance, administrative or
governmental rule or regulation applicable to the Company, the
violation of which would reasonably be expected to have,
individually or in the aggregate, a Company Material Adverse Effect
or (C) any decree of any court or governmental agency or body
having jurisdiction over the Company that would not reasonably be
expected to have, individually or in the aggregate, a Company
Material Adverse Effect; or (ii) in default in any material respect
in the performance of any obligation, agreement or condition
contained in (A) any bond, debenture, note or any other evidence of
indebtedness or (B) any agreement, indenture, lease or other
instrument (each of (A) and (B), an “Existing
Instrument”) to which the Company is a party or by which any
of its properties may be bound, which default, in each of clauses
(A) and (B), would not reasonably be expected to have, individually
or in the aggregate, a Company Material Adverse Effect; and there
does not exist any state of facts that constitutes an event of
default on the part of the Company as defined in such Existing
Instruments or that, with notice or lapse of time or both, would
constitute such an event of default.
(k)
The Company’s execution and
delivery of this Agreement and the performance by the Company of
its obligations under this Agreement have been duly and validly
authorized by the Company and has been duly executed and delivered
by the Company.
(l)
None of the issuance and sale of the
Shares by the Company nor the execution, delivery or performance of
this Agreement by the Company (i) requires any consent, approval,
authorization or other order of or registration or filing with, any
court, regulatory body,
- 11 -
administrative agency or other
governmental body, agency or official (except such as may be
required for the registration of the Shares under the Act, the
listing of the Shares for trading on the NYSE Amex (the
“AMEX”), the transfer of the listing of the Common
Stock (including the Shares) from the AMEX to the Nasdaq Stock
Market, Inc. (the “NASDAQ ”), the registration of the Common Stock
under the Exchange Act and the rules and regulations of the
Commission thereunder (the “Exchange Act Rules”) and
compliance with the securities or Blue Sky laws of various
jurisdictions, all of which will be, or have been, effected in
accordance with this Agreement and except for the Financial
Industry Regulatory Authority, Inc.’s (“FINRA”)
clearance of the underwriting terms of the offering contemplated
hereby as required under FINRA’s Rules of Fair Practice),
(ii) conflicts with or will conflict with or constitutes or will
constitute a breach of, or a default under, the Company’s
certificate of incorporation or the Company’s bylaws or any
agreement, indenture, lease or other instrument to which the
Company is a party or by which any of its properties may be bound,
(iii) violates any statute, law, regulation, ruling, filing,
judgment, injunction, order or decree applicable to the Company or
any of its properties, or (iv) results in a breach of, or default
under, or results in the creation or imposition of any lien, charge
or encumbrance upon any property or assets of the Company pursuant
to, or requires the consent of any other party to, any Existing
Instrument, except, in each of clauses (i), (ii), (iii) and (iv),
for such conflicts, breaches, defaults, liens, charges or
encumbrances that would not reasonably be expected to have,
individually or in the aggregate, a Company Material Adverse
Effect.
(m)
Except as described in or contemplated by
the Time of Sale Information and the Prospectus and except as
contemplated by clauses (b) and (f) to the second paragraph of
Section 5(m), the Company does not have outstanding, and at the
Closing Date and the Additional Closing Date, as the case may be,
will not have outstanding, any options to purchase, or any warrants
to subscribe for, or any securities or obligations convertible
into, or any contracts or commitments to issue or sell, any shares
of Common Stock or any such warrants or convertible securities or
obligations. Except as set forth in or contemplated by the
Registration Statement, the Time of Sale Information or the
Prospectus, no holder of securities of the Company has rights to
the registration of any securities of the Company, as a result of
or in connection with the filing of the Registration Statement that
have not been satisfied or heretofore waived in writing.
(n)
Each of Ernst & Young LLP and Eisner
LLP, the certified public accountants who have certified the
Company’s financial statements (including the related notes
thereto and supporting schedules) filed as part of the Registration
Statement, the Time of Sale Information and the Prospectus (or any
amendment or supplement thereto), are independent public
accountants as required by the Act and the Exchange Act.
(o)
The financial statements of the Company,
together with related schedules and notes, included in the
Registration Statement, the Time of Sale Information and the
Prospectus (and any amendment or supplement thereto), present
fairly in all material respects the financial condition, results of
operations, cash flows and changes in financial position of the
Company on the basis stated in the Registration Statement, the Time
of Sale Information and the Prospectus at the respective dates or
for the respective periods to which they apply; such statements and
related schedules and notes have been prepared in accordance with
generally
- 12 -
accepted accounting principles
consistently applied throughout the periods involved, except as
disclosed therein; and the other financial and statistical
information and data set forth in the Registration Statement, the
Time of Sale Information and the Prospectus (and any amendment or
supplement thereto) is accurately presented and prepared on a basis
consistent with such financial statements and the books and records
of the Company. No other financial statements or schedules of
the Company are required to be included in the Registration
Statement.
(p)
Except as disclosed in or contemplated by
the Registration Statement, the Time of Sale Information and the
Prospectus (or any amendment or supplement thereto), (i) the
Company has not incurred any material liabilities or obligations,
indirect, direct or contingent, or entered into any transaction
that is not in the ordinary course of business, (ii) the Company
has not sustained any material loss or interference with its
business or properties from fire, flood, windstorm, accident or
other calamity, whether or not covered by insurance, (iii) the
Company has not paid or declared any dividends or other
distributions with respect to its capital stock and the Company is
not in default under the terms of any class of capital stock of the
Company or any outstanding debt obligations, (iv) there has not
been any change in the authorized or outstanding capital stock of
the Company or any material change in the indebtedness of the
Company (other than in the ordinary course of business) and (v)
there has not been any material adverse change, or any development
involving or that would not reasonably be expected to have,
individually or in the aggregate, a Company Material Adverse
Effect.
(q)
All offers and sales by the Company of
the Company’s capital stock and other debt or other
securities prior to the date hereof were made in compliance with or
were the subject of an available exemption from the Act and all
other applicable state and federal laws or regulations, or any
actions under the Act or any other applicable state or federal laws
or regulations in respect of any such offers or sales are
effectively barred by effective waivers or statutes of
limitation.
(r)
Other than excepted activity under the
Exchange Act or any action by the Company, directly or indirectly,
in compliance with the U.S. securities laws, the Company has not
taken and will not take, directly or indirectly, any action that
constituted, or any action designed to, or that might reasonably be
expected to cause or result in or constitute, under the Act or
otherwise, stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Shares or for any other purpose.
(s)
Except as would not reasonably be
expected to have, individually or in the
