2,300,000 Shares
STARTEC GLOBAL COMMUNICATIONS CORPORATION
Common Stock
(Par Value $0.01 Per Share)
UNDERWRITING AGREEMENT
September __, 1997
Xxxxxx, Xxxxx Xxxxx, Incorporated
Boenning & Scattergood, Inc.
As Representatives of the
Several Underwriters Identified
In Schedule I Hereto,
c/o Ferris, Xxxxx Xxxxx, Incorporated
0000 Xxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Ladies and Gentlemen:
Section 1. Introduction. Startec Global Communications
Corporation, a Maryland corporation (the "Company"), proposes,
subject to the terms and conditions stated herein, to issue and
sell to the Underwriters named in Schedule I hereto (the
"Underwriters"), for which Xxxxxx, Xxxxx Xxxxx, Inc. and Boenning
& Scattergood, Inc. are acting as Representatives (the
"Representatives"), an aggregate of 2,300,000 shares and, at the
election of the Underwriters, up to 345,000 additional shares of
Common Stock, par value $0.01 per share ("Stock"), of the
Company. The 2,300,000 shares to be sold by the Company are
herein called the "Firm Shares" and the 345,000 additional shares
to be sold by the Company are herein called the "Optional
Shares." The Firm Shares and the Optional Shares that the
Underwriters elect to purchase pursuant to Section 3 hereof are
herein collectively called the "Shares."
Section 2. Representations and Warranties of the
Company. The Company represents and warrants to, and agrees
with, each of the Underwriters that:
(a) A registration statement on Form S-1 (File No.
333-32753) under the Securities Act of 1933, as amended (the
"Act"), with respect to the Shares, including a form of
prospectus subject to completion, has been prepared by the
Company in conformity with the requirements of the Act and the
rules and regulations of the Securities and Exchange Commission
(the "Commission") thereunder (the "Rules and Regulations").
Such registration statement has been filed with the Commission
under the Act and one or more amendments to such registration
statement may also have been so filed. After the execution of
this Agreement, the Company shall file with the Commission a
Prospectus (as hereinafter defined) which shall have been
provided to, and approved by, the Representatives prior to the
filing thereof. As used in this Agreement, the term
"Registration Statement" means such registration statement, as
amended and revised at the time when such registration statement
becomes effective, including all financial schedules and exhibits
thereto and any information omitted therefrom pursuant to Rule
430A under the Act and included in the Prospectus (as hereinafter
defined). The term "Preliminary Prospectus" means each prospectus
subject to completion contained in such registration statement or
any amendment thereto before the Registration Statement was or is
declared effective, or such prospectus subject to completion
filed pursuant to Rule 424(a) under the Act which omits the
information permitted under Rule 430A. The term "Prospectus"
means a prospectus, including any amendments or supplements
thereto, relating to the Registration Statement that includes all
the information contained in the most recently filed Preliminary
Prospectus in addition to such information which may have been
omitted in any Preliminary Prospectus pursuant to Rule 430A under
the Act. To the extent the Company relies on Rule 462(b) under
the Act to increase the maximum aggregate offering price, the
Company shall have made in a timely manner any filing required
under Rule 462(b) and such filing shall be in compliance with
such Rule. Copies of the Registration Statement, any amendment
thereto and any Preliminary Prospectus filed with the Commission
have been delivered by the Company to the Representatives on
behalf of the Underwriters. The Registration Statement any and
post-effective amendments thereto have been declared effective by
the Commission.
(b) The Commission has not issued any order suspending
the effectiveness of the Registration Statement, any
post-effective amendment thereto or Rule 462(b) Registration
Statement, if any, or preventing or suspending the use of any
Preliminary Prospectus, the Prospectus, the Registration
Statement or any amendment or supplement thereto or suspending
the registration of the Shares, nor has the Commission instituted
or threatened to institute any proceedings with respect to such
an order. 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 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 an
Underwriter through the Representatives expressly for use
therein.
(c) The Registration Statement conforms, and the
Prospectus (or the most recent Preliminary Prospectus) and any
further amendments or supplements to the Registration Statement
or the Prospectus will conform, in all material respects, to the
requirements of the Act and the Rules and Regulations thereunder.
The Registration Statement and any post-effective amendment
thereto, as of the applicable effective date or dates, and each
Preliminary Prospectus and Prospectus, as of the date each such
Preliminary Prospectus or Prospectus is filed and at all times
subsequent thereto up to and including the Closing Date (as
defined in Section 5 hereof) and any Option Closing Date (as
defined in Section 5 hereof), and during such longer period
during which the Prospectus may be required to be delivered in
connection with sales to any dealer and during such longer period
until any post-effective amendment thereto shall become
effective, do 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; 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 an Underwriter through the
Representatives expressly for use therein, and no event will have
occurred which should have been set forth in an amendment or
supplement to the Registration Statement or the Prospectus which
has not then been set forth in such an amendment or supplement.
(d) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws
of Maryland, its jurisdiction of incorporation, and has been duly
qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts
any business so as to require such qualification, except for
those jurisdictions in which the failure to so qualify has not
had and will not have a Material Adverse Effect (as hereinafter
defined), and has all power and authority necessary to own or
hold its properties and to conduct the business in which it is
engaged. Each subsidiary of the Company in existence as of the
date hereof (each a "Subsidiary" and together the "Subsidiaries")
has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its jurisdiction
of incorporation and each has been duly qualified as a foreign
corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it
owns or leases properties, or conducts any business so as to
require such qualification (except for those jurisdictions in
which the failure to so qualify has not had and will not have a
Material Adverse Effect (as hereinafter defined). "Material
Adverse Effect" means, when used in connection with the Company,
any development, change or effect that is materially adverse to
the business, properties, assets, net worth, condition (financial
or other), results of operations, or prospects of the Company and
its Subsidiaries, taken as a whole.
(e) The Company has the duly authorized capitalization
as set forth in the Prospectus (or most recent Preliminary
Prospectus) and will have the adjusted capitalization set forth
therein at the Closing Date, based on the assumptions set forth
therein. All of the shares of capital stock of the Company
issued and outstanding have been duly and validly authorized and
issued, are fully paid and non-assessable, without personal
liability attaching to the ownership thereof, and none of such
shares have been issued or are owned or held in violation of any
preemptive or other rights of security holders or other persons
to acquire securities of the Company. As of the Closing Date,
the securities of the Company including, without limitation, the
Stock, the Shares, the warrants (the "Underwriters' Warrants") to
be issued to the Representatives pursuant to the Underwriters'
Warrant Agreement of even date herewith (the "Underwriters'
Warrant Agreement") conform in all material respects to all
statements relating thereto contained in the Registration
Statement or the Prospectus. With respect to each Subsidiary of
the Company, all of the issued and outstanding shares of capital
stock are fully paid and non-assessable, without personal
liability attaching to the ownership thereof, and none of such
shares have been issued or are owned or held in violation of any
preemptive or other rights of security holders or other persons
to acquire securities of the Company and (except as otherwise
described in the Prospectus (or the most recent Preliminary
Prospectus)) are owned directly by the Company, free and clear of
all liens, encumbrances, equities or claims. Other than as
disclosed in the Prospectus (or the most recent Preliminary
Prospectus), there are no holders of the securities of the
Company having rights to registration thereof or preemptive
rights to purchase capital stock of the Company. Except as
created hereby or described in the Prospectus or most recently
filed Preliminary Prospectus, there are no commitments, plans or
arrangements to issue, and no outstanding options, warrants or
other rights, calling for issuance of, any shares of capital
stock of the Company or any of its Subsidiaries or any security
or other instrument which, by its terms, is convertible into,
exercisable for, or exchangeable for capital stock of the Company
or any of its Subsidiaries. Except as described in the
Prospectus or the most recently filed Preliminary Prospectus,
there is no outstanding security or other instrument which, by
its terms, is convertible into, exercisable for, or exchangeable
for capital stock of the Company or any of its Subsidiaries.
(f) The Shares and the Underwriters' Warrants have
been duly and validly authorized. When the Shares are issued and
delivered against payment therefor as provided herein, or when
the Underwriters' Warrants are issued and delivered in accordance
with the terms hereof, thereof and of the Underwriters' Warrant
Agreement, such Shares and such Underwriters' Warrants, will be
duly and validly issued, fully paid and non-assessable, will not
have been issued in violation of any preemptive or other rights
of security holders or other persons to acquire securities of the
Company and will conform in all material respects to all
statements relating thereto in the Registration Statement and the
Prospectus. Good and marketable title to the Shares and the
Underwriters' Warrants will pass to the Underwriters on the
Closing Date free and clear of any lien, encumbrance, security
interest, claim or other restriction whatsoever. The shares to
be issued upon exercise of the Underwriters' Warrants (the
"Warrant Shares") have been duly authorized and validly reserved
for issuance and, when issued, paid for and delivered in
accordance with the terms of the Underwriters' Warrants and the
Underwriters' Warrant Agreement will be duly and validly issued
and fully paid and non-assessable, will not have been issued in
violation of any preemptive or other rights of security holders
or other persons to acquire securities of the Company and will
conform in all material respects to all statements relating
thereto in the Registration Statement and the Prospectus (or most
recent Preliminary Prospectus). Good and marketable title, free
and clear of any lien, encumbrance, security interest, claim or
other restriction whatsoever, will pass to the holders of Warrant
Shares issued upon exercise of Underwriters' Warrants in
accordance with the terms thereof and of the Underwriters'
Warrant Agreement. The Company has received, subject to notice
of issuance, approval to have the Shares listed on The Nasdaq
National Market ("NNM") and the Company knows of no reason or set
of facts which is likely to adversely affect such approval.
(g) The financial statements and the related notes and
schedules thereto included in the Registration Statement and the
Prospectus or the most recent Preliminary Prospectus fairly
present the financial condition, results of operations,
stockholders' equity and cash flows, and the other information
purported to be shown therein, of the Company and its
Subsidiaries, on a consolidated basis at the respective dates and
for the respective periods specified therein. Such financial
statements and the related notes and schedules thereto have been
prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved
(except as otherwise noted therein) and have been properly
derived from the books and records of the Company and such
financial statements as are audited have been examined by Xxxxxx
Xxxxxxxx LLP, who are independent public accountants within the
meaning of the Act and the Rules and Regulations, as indicated in
their reports filed therewith. The selected financial
information and statistical data set forth under the captions
"Prospectus Summary Financial Data," "Capitalization," "Selected
Financial Data," "Management's Discussion and Analysis of
Financial Condition and Results of Operations" and "Business" in
the Prospectus (or the most recent Preliminary Prospectus) fairly
present, on the basis stated in the Prospectus or such
Preliminary Prospectus, the information included therein and have
been properly derived from the financial statements and other
operating records of the Company and its Subsidiaries. No other
financial statements or financial information, except that which
is contained in the Registration Statement, the Prospectus or the
most recent Preliminary Prospectus, is required by Form S-1, the
Rules and Regulations, or otherwise, to be included in the
Registration Statement, the Prospectus or such Preliminary
Prospectus.
(h) Since the respective dates as of which information
is given in the Prospectus (or the most recent Preliminary
Prospectus), and except as otherwise may be stated therein (i)
neither the Company, nor any of its Subsidiaries has entered into
any transaction or incurred any liability or obligation,
contingent or otherwise, which is material to the Company and its
Subsidiaries, taken as a whole, (ii) there has not been any
change in the outstanding capital stock of the Company or any of
its Subsidiaries, or any issuance of options, warrants or rights
to purchase the capital stock of the Company or any of its
Subsidiaries, or any material increase in the long-term debt of
the Company or any of its Subsidiaries, or any material adverse
change in the business, condition (financial or otherwise) or
results of operations of the Company or any of its Subsidiaries,
(iii) no loss or damage (whether or not insured) to the
properties of the Company or any of its Subsidiaries has been
sustained which has resulted in a Material Adverse Effect, (iv)
neither the Company nor any of its Subsidiaries has paid or
declared any dividend or other distribution with respect to its
capital stock, and (v) there has not been any change, contingent
or otherwise, in the direct or indirect control of the Company or
any of its Subsidiaries nor, to the best knowledge of the
Company, do there exist any circumstances which would likely
result in such a change.
(i) The Company and each of its Subsidiaries has filed
all foreign, federal, state and local income, franchise and other
material tax returns required to be filed (or have obtained
extensions with respect thereto) and has paid all taxes shown as
due thereunder and all assessments received by it to the extent
that payment has become due, and the Company has no knowledge of
any tax deficiency which might be assessed against the Company or
any of its Subsidiaries which, if so assessed, would be
reasonably expected to have a Material Adverse Effect.
(j) The Company and each of its Subsidiaries maintains
insurance of the types and in amounts which the Company
reasonably believes to be adequate for its business, in such
amounts and with such deductibles as are customary for companies
in the same or similar business, all of which insurance is in
full force and effect.
(k) Other than as set forth in the Prospectus (or most
recent Preliminary Prospectus), there are no legal or
governmental proceedings pending to which the Company or any of
its Subsidiaries is a party or to which any property of the
Company or any of its Subsidiaries is the subject which (i)
challenges the validity of the capital stock of the Company or
this Agreement or the Underwriters' Warrant Agreement, or of any
action taken or to be taken by the Company pursuant to or in
connection herewith or therewith, (ii) is required to be
disclosed in the Registration Statement or Prospectus (or most
recent Preliminary Prospectus), or (iii) if determined adversely
to the Company or any of its Subsidiaries, could reasonably be
expected, individually or in the aggregate, to have a Material
Adverse Effect, and to the Company's best knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others. Any such proceedings that
are set forth in the Prospectus (or most recent Preliminary
Prospectus) are fairly and accurately summarized therein.
(l) The Company has full legal right, power and
authority to enter into this Agreement and the Underwriters'
Warrant Agreement and to consummate the transactions provided
for, and perform its obligations as provided, herein and therein.
All necessary corporate proceedings of the Company have been duly
taken to authorize the execution, delivery and performance by the
Company of this Agreement and the Underwriters' Warrant
Agreement. This Agreement and the Underwriters' Warrant
Agreement have been duly authorized, executed and delivered by
the Company and, assuming each is a binding agreement of yours,
constitutes a legal, valid and binding agreement of the Company
enforceable against the Company in accordance with its terms
(except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other laws
of general application relating to or affecting the enforcement
of creditors' rights and the application of equitable principles
relating to the availability of remedies and except as rights to
indemnity or contribution may be limited by federal or state
securities laws and the public policy underlying such laws).
(m) The Company's execution and performance of this
Agreement and the Underwriters' Warrant Agreement, including,
without limitation, application of the net proceeds of the
offering, if and when received, as described in the Prospectus
(or most recent Preliminary Prospectus) under the caption "Use of
Proceeds," will not violate any provision of the Charter or
Bylaws or any similar constitutive documents of the Company or
any of its Subsidiaries, or any law, rule or regulation
applicable to the Company or any of its Subsidiaries of any
government, court, regulatory body, administrative agency or
other governmental body having jurisdiction over the Company or
any of its Subsidiaries or any of their respective businesses or
properties, and will not result in the breach, or be in
contravention, of any loan agreement, lease, franchise, license,
note, bond, other evidence of indebtedness, indenture, mortgage,
deed of trust, voting trust agreement, stockholders' agreement,
note agreement or other agreement or instrument to which the
Company or any of its Subsidiaries is a party or by which their
respective properties are or may be subject, or any statute,
judgment, decree, order, rule or regulation applicable to the
Company or any of its Subsidiaries of any government, arbitrator,
court, regulatory body or administrative agency or other
governmental agency or body, domestic or foreign, having
jurisdiction over the Company or any of its Subsidiaries or any
of their respective businesses, activities or properties, except
those, if any, that are described in the Prospectus (or most
recent Preliminary Prospectus) or those which would not,
individually or in the aggregate, have a Material Adverse Effect.
(n) All executed agreements or copies of executed
agreements filed as exhibits to the Registration Statement to
which the Company or any of its Subsidiaries is a party or by
which any of them is or may be bound or to which any of their
respective assets, properties or businesses is or may be subject
have been duly and validly authorized, executed and delivered by
the Company or the relevant Subsidiary or Subsidiaries and,
assuming that each is a binding obligation of the other party or
parties thereto, constitutes the legal, valid and binding
agreement of the Company or such Subsidiary or Subsidiaries,
enforceable against it or them in accordance with its terms
(except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization or other similar laws
relating to enforcement of creditors' rights generally, and
general equitable principles relating to the availability of
remedies, and except as rights to indemnity or contribution may
be limited by federal or state securities laws and the public
policy underlying such laws). The descriptions in the Prospectus
and Preliminary Prospectus of contracts and other documents are
accurate and fairly present in all material respects the
information required to be disclosed with respect thereto by the
Act and the Rules and Regulations, and there are no contracts or
other documents which are required by the Act or the Rules and
Regulations to be described in the Prospectus or filed as
exhibits to the Registration Statement which are not described or
filed as required, and the exhibits which have been filed are
complete and correct copies of the documents of which they
purport to be copies.
(o) The Company and each of its Subsidiaries has good
and marketable title in fee simple to all real property and good
title to all other property and assets owned thereby as set forth
in the Prospectus (or most recent Preliminary Prospectus), in
each case free and clear of all liens, security interests,
pledges, charges, mortgages and other defects and encumbrances,
except such as are described in the Prospectus (or most recent
Preliminary Prospectus) or such as do not 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 its
Subsidiaries; and any real properties and buildings held under
lease by the Company or any of its Subsidiaries are held under
valid, subsisting and enforceable leases with such exceptions as
are not material and do not interfere with the use made and
proposed to be made of such property and buildings by the Company
and its Subsidiaries. No real property owned, leased, licensed
or used by the Company or any of its Subsidiaries is situated in
an area which is, or to the best knowledge of the Company, will
be subject to zoning, use, or building code restrictions which
would prohibit (and no state of facts relating to the actions or
inaction of another person or entity or his or its ownership,
leasing, licensing, or use of any real or personal property
exists or will exist which would prevent) the continued effective
ownership, leasing, licensing, or use of such real property in
the business of the Company or its Subsidiaries as presently
conducted or as the Prospectus (or most recent Preliminary
Prospectus) indicates any of them contemplate conducting such
business in the future, except as disclosed in the Prospectus (or
most recent Preliminary Prospectus).
(p) No consent, authorization, approval, order,
license, certificate, declaration or permit of or from, or filing
with, any governmental or regulatory authority, agent, board or
other body is required for the issue and sale of the Shares by
the Company and the execution, delivery or performance by the
Company of this Agreement or the Underwriters' Warrant Agreement,
or the issuance of the Warrant Shares in accordance with the
terms of the Underwriters' Warrants and the Underwriters' Warrant
Agreement, except for the registration under the Act of the
Shares and the registration of the Stock under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), each of
which has been made or obtained, and 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 Shares by the
Underwriters, and such approval as may be required from the NNM
to have the Shares listed thereon. No consent of any party to any
contract, agreement, instrument, lease, license, arrangement or
understanding to which the Company or any of its Subsidiaries is
a party, or to which any of their properties or assets are
subject, is required for the execution, delivery or performance
of this Agreement or the Underwriters' Warrant Agreement.
(q) Neither the Company nor any of its Subsidiaries is
in violation of its Charter or Bylaws or similar constitutive
documents; neither the Company nor any of its Subsidiaries is
(or, as a result of the passage of time or based on its projected
plans of operations, will be) 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,
which default may reasonably be expected to have, individually or
in the aggregate, a Material Adverse Effect, or which could in
any way, individually or in the aggregate, impair or delay the
consummation of the transactions contemplated by this Agreement
or the offering of the Shares in the manner contemplated herein
and in the Registration Statement and the Prospectus (or most
recent Preliminary Prospectus), and each such indenture,
mortgage, deed of trust, loan agreement lease or other agreement
or instrument is in full force and effect and is a legal, valid
and binding obligation of the Company or is Subsidiary or
Subsidiaries, as the case may be and, to the best knowledge of
the Company, of each other party thereto.
(r) The statements set forth in the Prospectus (or
most recent Preliminary Prospectus) under the caption
"Description of Capital Stock," insofar as they purport to
constitute a Summary of the terms of the Company's securities,
and under the captions "Shares Eligible for Future Sale,"
"Business," "Management" and "Underwriting" (except, with respect
to the statements under the caption "Underwriting," for
information furnished in writing to the Company by the
Underwriters through the Representatives expressly for use
therein), insofar as they purport to describe the provisions of
the laws and the provisions of documents referred to therein, are
accurate and fairly summarize such provisions.
(s) The Company is not and, after giving effect to the
offering and sale of the Shares, will not be, an "investment
company" or an "affiliated person" of or a "promoter" or
"principal underwriter" of or an entity "controlled" by an
"investment company," as such terms are defined in the Investment
Company Act of 1940 (the "Investment Company Act").
(t) The Company and each of its Subsidiaries owns or
is licensed or otherwise has sufficient right to use the
proprietary knowledge, inventions, patents, trademarks, service
marks, trade names, logo marks and copyrights ("Intellectual
Property") currently used in the conduct of their respective
businesses, except for those patents, trademarks, service marks,
trade names, logo marks or copyrights with respect to which the
failure to own or license same would not have a Material Adverse
Effect. To the best knowledge of the Company, none of the
activities engaged in by the Company or any of its Subsidiaries
infringes upon or otherwise conflicts with Intellectual Property
rights of others, except for any such conflicts that would not
have a Material Adverse Effect, and no claims have been asserted
against the Company or any of its Subsidiaries by any person with
respect to the use of any such rights or challenging or
questioning the validity or effectiveness of any such rights.
(u) No labor disturbance by, or labor dispute with,
the employees of the Company or any of its Subsidiaries exists
or, to the Company's knowledge, is threatened or imminent which
may have a Material Adverse Effect.
(v) Since its inception, the Company has not incurred
any liability arising under or as a result of the application of
the provisions of the Act.
(w) The Company and each of its Subsidiaries (i) is in
compliance with all environmental, safety, health or similar law
or regulation relating to the protection of human health and
safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("Environmental Laws")
applicable to its business, (ii) has received all permits,
licenses or other approvals required under applicable
Environmental Laws to conduct its business, and (iii) is in
compliance with all terms and conditions of any such permit,
license or approval, except where such noncompliance, failure to
receive such license or approval or failure to comply would not
have a Material Adverse Effect.
(x) The Company and each of its Subsidiaries is in
compliance with all federal or state laws, including the rules
and regulations promulgated thereunder, relating to
discrimination in the hiring, promotion or pay of employees, any
applicable federal or state wages and hours law, and the
provisions of the Employee Retirement Income Security Act of
1974, as amended, applicable to its business, except where such
noncompliance would not have a Material Adverse Effect.
(y) The Company and each of its Subsidiaries has full
corporate power and authority and has obtained and holds all
necessary consents, authorizations, approvals, orders,
certificates and permits of and from, and have made all
declarations and filings with, all U.S. and foreign, federal
state or provincial, local and other governmental authorities,
all self-regulatory organizations and all courts and other
tribunals, to own, lease, license and use its properties and
assets and to conduct its business in the manner described in the
Prospectus (or most recent Preliminary Prospectus), except to the
extent that the failure to obtain or file would not have Material
Adverse Effect, and except as otherwise described in the
Prospectus (or most recent Preliminary Prospectus). Neither the
Company nor any of its Subsidiaries has received any notice of
proceedings relating to, and does not have reason to believe that
any governmental body or agency is considering limiting,
suspending, modifying or revoking, any such consent,
authorization, approval, order, certificate or permit which,
individually or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would have a Material
Adverse Effect.
(z) The Company and each of its Subsidiaries has all
necessary applications, statements, reports, information, forms,
consents, authorizations, approvals, orders, certificates and
permits ("Licenses") of and from all United States federal or
state authorities, including the Federal Communications
Commission (the "FCC") and State Public Utilities Commissions to
own, lease, license and use its properties and assets and to
conduct its business in the manner described in the Prospectus
(or most recent Preliminary Prospectus), except to the extent
that the failure to obtain or file would not have a Material
Adverse Effect, and except as described in the Prospectus (or
most recent Preliminary Prospectus).
(aa) The Licenses are in full force and effect without
conditions that would have a Material Adverse Effect, except for
such conditions imposed generally by the FCC upon such licenses
or conditions stated on the face of the Licenses, (ii) all
express conditions in the Licenses have been satisfied where the
failure to satisfy such conditions would have a Material Adverse
Effect, and (iii) neither the Company nor any of its Subsidiaries
has received any notification that any revocation or limitation
of the Licenses is threatened or pending that would have a
Material Adverse Effect.
(bb) The Licenses are validly issued. The Company and
each of its Subsidiaries has filed with the FCC all applications,
statements, reports, information, forms, or any other document
required under the Communications Act of 1934, as amended (the
"Communications Act") and the rules and regulations thereunder,
except where the failure to so file would not have a Material
Adverse Effect, such filings or submissions were in compliance
with applicable laws or regulations when filed or submitted and
no deficiencies have been asserted by the FCC with respect to
such filings or submissions, except where the deficiency is of
such a nature that failure to cure would not have a Material
Adverse Effect, and the information contained in such filings or
submissions was, in all material respects, accurate, complete and
up-to-date at the time the filings or submissions were made.
(cc) With respect to matters relating to the regulation
of long distance telecommunications carriers administered by
United States federal or state authorities, including, and not
limited to, the FCC and state and public utility commissions or
similar state governmental agencies (collectively "PUCs" and
individually a "PUC"), the execution and delivery by the Company
of, and the performance by the Company of its obligations under,
this Agreement and the Underwriters' Warrant Agreement will not
contravene any provisions of applicable law or any judgment,
order or decree of any governmental body, agency or court having
jurisdiction over the Company or any of its Subsidiaries, and no
consent, approval, authorization or order of, or qualification
with, any governmental body or agency is required for the
performance by the Company of its obligations hereunder or
thereunder.
(dd) There is no proceeding, formal or informal
complaint or investigation before the FCC against the Company or
any of its Subsidiaries or any of the Licenses or based on any
violation or alleged violation by the Company or any of its
Subsidiaries of the Communications Act, except for proceedings
affecting the industry generally to which neither the Company nor
any of its Subsidiaries is a specific party.
(ee) Neither the execution, delivery and performance of
this Agreement by the Company, nor the issuance and sale of the
Shares, the Underwriters' Warrants or the Warrant Shares, as
described in the Registration Statement and Prospectus (or most
recent Preliminary Prospectus), will conflict with, violate or
require any authorization, approval, or consent under the
Communications Act or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, or
cause any forfeiture or impairment of, any of the Licenses.
(ff) Neither the Company nor any other person
associated with or acting on behalf of the Company including,
without limitation, any director, officer, agent, or employee of
the Company has, directly or indirectly, while acting on behalf
of the Company (i) used any corporate funds for unlawful
contributions, gifts, entertainment, or other unlawful expenses
relating to political activity, (ii) made any unlawful
contribution to any candidate for foreign or domestic office, or
to any foreign or domestic government officials or employees or
other person charged with similar public or quasi-public duties,
other than payments required or permitted by the laws of the
United States or any jurisdiction thereof or to foreign or
domestic political parties or campaigns from corporate funds, or
failed to disclose fully any contribution in violation of law,
(iii) violated any provision of the Foreign Corrupt Practices Act
of 1977, as amended, or (iv) made any other unlawful payment.
(gg) Neither the Company nor, to the Company's best
knowledge, any employee or agent of the Company, has made any
payment of funds of the Company or received or retained any funds
which constitutes a violation by the Company of any law, rule or
regulation or of a character required to be disclosed in the
Prospectus (or most recent Preliminary Prospectus).
(hh) With respect to state certificates of public
convenience and necessity of other operating authorizations
issued by PUCs (such PUC certificates and authorizations are
hereinafter referred to collectively as the "State
Authorizations") held by the Company or any of its Subsidiaries,
such State Authorizations are in full force and effect and are
unimpaired by any act or omission of the Company or any of its
employees or agents or the Company's Subsidiaries, in each case
except where such authorization is not required or where the
failure to so hold any such State Authorization would not have a
Material Adverse Effect. The State Authorizations are all of the
licenses, authorizations, consents and approvals necessary from
the PUCs in order to allow the Company and each of its
Subsidiaries to own their respective assets and carry on their
respective businesses as currently being conducted, except where
the failure to so hold any State Authorizations would not have a
Material Adverse Effect. To the Company's best knowledge, there
are no proceedings of any kind, including but not limited to
rulemaking proceedings of general applicability in the industry
or industries in which the Company operates, by or before any
PUC, now pending or threatened, which, if adversely determined,
would have a Material Adverse Effect. Neither the execution and
delivery of this Agreement or the Underwriters' Warrant
Agreement, nor the consummation of the transactions contemplated
herein, therein and in the Registration Statement, will conflict
with or result in a breach of, or require any authorization,
approval or consent under the Communications Act, or the rules of
the FCC or the communications statutes of any state or the
policies or rules of any PUC. All applications, reports and
other filings required by the FCC or any PUC to be filed as of
the date hereof with respect to any FCC license or the State
Authorizations, as the case may be, have been duly and currently
filed as of the date hereof, except where the failure to so file
would not have a Material Adverse Effect.
(ii) The Company and each of its Subsidiaries has filed
with the applicable foreign and domestic regulatory authorities
each and every statement, report, information or form required by
any applicable law, regulation or order, except where the
failure to so file would not have a Material Adverse Effect, and
all such filings or submissions were in compliance with
applicable laws when filed, and no deficiencies have been
asserted by any regulatory commission, agency or authority with
respect to such filings or submissions, except where the failure
to so file or cure would not have a Material Adverse Effect. The
Company and each of its Subsidiaries has maintained in full force
and effect all licenses and permits necessary or proper for the
conduct of its business, except where the failure to do so would
not have a Material Adverse Effect, and neither the Company nor
any of its Subsidiaries has received any notification that any
revocation or limitation thereof is threatened or pending that
would have such an Effect. Except as disclosed in the
Registration Statement and the Prospectus (or most recent
Preliminary Prospectus), there is not pending any change under
any law, regulation, license or permit that would have a Material
Adverse Effect. Neither the Company nor any or its Subsidiaries
has received any notice of, or, to the best knowledge of the
Company, been threatened with or is under investigation with
respect to, a violation or a possible violation of any provision
of any law, regulation or order, except such violation or
violations as would not have a Material Adverse Effect.
(jj) The books, records and accounts and systems of
internal accounting controls of the Company currently comply with
the requirements of Section 13(b)(2) of the Exchange Act.
(kk) Neither the Company nor any of its officers,
directors or affiliates (within the meaning of the Rules and
Regulations) has taken, directly or indirectly, any action
designed to stabilize or manipulate the price of any security of
the Company, or which has constituted or which might in the
future reasonably 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 Shares or
otherwise.
(ll) The minute books of the Company and each of its
Subsidiaries are current and contain a correct and complete
record of all corporate action taken by the respective Boards of
Directors and stockholders of the Company and the Subsidiaries
and all signatures contained therein are true signatures of the
persons whose signatures they purport to be.
(mm) Except as described in the Prospectus (or most
recent Preliminary Prospectus), to the best knowledge of the
Company there is no loss or threatened loss of any key customer,
supplier, or account which loss would result in a Material
Adverse Effect.
(nn) Neither the Company nor any of its Subsidiaries
has incurred, directly or indirectly, any liability for a fee,
commission or other compensation on account of the employment of
a broker or finder in connection with the offering and sale of
the Shares contemplated by this Agreement.
(oo) There are no business relationships or related
party transactions of the nature described in Item 404 of
Regulation S-K of the Rules and Regulations involving the
Company, any of its Subsidiaries and any person referred to in
Items 401 or 404 of such Regulation S-K, except as required to be
described, and as so described, in the Prospectus (or most recent
Preliminary Prospectus).
Section 3. Purchase of Securities by the Underwriters.
On the basis of the representations, warranties, covenants and
agreements herein contained, and subject to the terms and
conditions herein set forth (i) the Company agrees to sell to
each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at a
purchase price per share of $_______, the number of Firm Shares
set forth opposite the name of such Underwriter in Schedule I
hereto and (ii) in the event and to the extent that the
Underwriters shall exercise the election to purchase Optional
Shares as provided below, the Company agrees to sell to each of
the Underwriters, and each of the Underwriters agrees, severally
and not jointly, to purchase from the Company, at the purchase
price per share set forth in clause (i) of this Section 3, its
proportionate share of the number of Optional Shares as to which
such election shall have been exercised (based on the monetary
obligation of the several Underwriters hereunder on account of
the purchase of Firm Shares).
The Company hereby grants to the Underwriters the right
to purchase at their election up to 345,000 Optional Shares, at
the purchase price per share set forth in the paragraph above,
for the sole purpose of covering over-allotments, if any, in the
sale of the Firm Shares. Each such election to purchase Optional
Shares may be exercised only by written notice from the
Representatives to the Company, given within a period of thirty
(30) calendar days after the date of this Agreement and setting
forth the aggregate number of Optional Shares to be purchased and
the date on which such Optional Shares are to be delivered, as
determined by you but in no event earlier than the Closing Date
or, unless you and the Company otherwise agree in writing, no
earlier than two (2) nor later than ten (10) business days after
the date of such notice.
Section 4. Offering of the Shares by the Underwriters.
Upon the authorization by the Representatives of the release of
the Firm Shares, the several Underwriters propose to offer the
Firm Shares for sale upon the terms and conditions set forth in
the Prospectus.
Section 5. Delivery of and Payment for the Shares.
(a) The Firm Shares to be purchased by each
Underwriter hereunder, in definitive form, and in such authorized
denominations and registered, in such names as the
Representatives may request upon at least forty-eight (48)
hours' prior notice to the Company shall be delivered by or on
behalf of the Company to the Representatives, for the account of
such Underwriter, against payment by or on behalf of such
Underwriter of the purchase price therefor in Federal (same day)
funds. The Company will cause the certificates representing the
Firm Shares to be made available for checking and packaging at
least twenty-four (24) hours prior to the Closing Date (as
defined below) with respect thereto at the office of Xxxxxx,
Xxxxx Xxxxx, Incorporated, 0000 Xxx Xxxxxx, X.X., Xxxxxxxxxx,
X.X. 00000 or such other location as the Representatives may
reasonably designate (the "Designated Office"). The time and
date of such delivery and payment shall be, with respect to the
Firm Shares, at ______ o'clock a.m., Washington, DC time, on
______________, 1997 or such other time and date as the
Representatives and the Company may agree. Such time and date for
delivery of the Firm Shares is herein called the "Closing Date."
(b) Delivery and payment of any Optional Shares to be
purchased by each Underwriter pursuant hereto shall be made at
the Designated Office at _____ o'clock a.m., Washington, DC time,
on the date specified by the Representatives in the written
notice of the Underwriters' election to purchase such Optional
Shares, or such other time and date as the Representatives and
the Company may agree. Such time and date for delivery of
Optional Shares, if not the Closing Date, is herein called the
"Option Closing Date."
(c) The documents to be delivered at the Closing Date
or any Option Closing Date, as the case may be, by or on behalf
of the parties hereto pursuant to Section 8 hereof, including the
cross-receipt for the Shares and any additional documents
requested by the Underwriters will be delivered at the offices of
Venable, Baetjer, Xxxxxx & Civiletti, LLP, 0000 Xxx Xxxx Xxxxxx,
XX, Xxxxxxxxxx, XX 00000 (the "Closing Location"), and the Shares
will be delivered at the Designated Office, on the Closing Date
or the Option Closing Date, as the case may be.
(d) A meeting will be held at the Closing Location at
2:00 p.m., Washington, D.C. time, on the business day next
preceding Closing Date or any Option Closing Date, as the case
may be, or at such other time as is mutually agreed upon by the
parties hereto, at which meeting the final drafts of the
documents to be delivered pursuant to the preceding paragraph
will be available for review by the parties hereto.
Section 6. Covenants of the Company. The Company
covenants and agrees with each of the Underwriters as follows:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the time of execution
of this Agreement, and any amendments thereto, to become
effective as promptly as practicable. If required, the Company
will file the Prospectus and any amendments or supplements
thereto with the Commission in the manner and within the time
period required by Rule 424(b). During any time when a
prospectus relating to the Shares is required to be delivered
under the Act, the Company will comply with all requirements
imposed upon it by the Act and the Rules and Regulations to the
extent necessary to permit the continuance of sales of or
dealings in the Shares in accordance with the provisions hereof
and of the Prospectus, as then amended or supplemented. With
respect to any registration statement, prospectus, amendment, or
supplement to be filed with the Commission in connection with the
Shares, the Company will provide a copy of each such document to
each of the Representatives a reasonable time prior to the date
such document is proposed to be filed with the Commission and
will not file any such document without the consent of the
Representatives. Any such registration statement, prospectus,
amendment or supplement, when filed, will comply with the Act.
In the event that the Registration Statement is effective at the
time of execution of this Agreement, but the total number of
Shares subject to this Agreement exceeds the number of Shares
covered by the Registration Statement, the Company will promptly
file with the Commission on the date hereof a registration
statement pursuant to Rule 462(b) in accordance with the
requirements of such Rule and will make payment of the filing fee
therefor in accordance with the requirements of Rule 111(b) under
the Act.
(b) The Company will advise the Representatives promptly (i)
when the Registration Statement, as amended, has become
effective; (ii) if the provisions of Rule 430A promulgated under
the Act will be relied upon, when the Prospectus has been filed
in accordance with said Rule 430A; (iii) when any post-effective
amendment to the Registration Statement becomes effective; (iv)
of any request made by the Commission for amendments or
supplements to the Registration Statement, any Preliminary
Prospectus or Prospectus or for additional information; (v) of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or any post-effective
amendment thereto or any order preventing or suspending the use
of any Preliminary Prospectus or Prospectus or any amendment or
supplement thereto or the institution or threat of any
investigation or proceeding for that purpose, and will use its
best efforts to prevent the issuance of any such order; and (vi)
of the receipt of any comments from the Commission regarding the
Registration Statement, any post-effective amendment thereto, the
Preliminary Prospectus, the Prospectus, or any amendment or
supplement thereto. The Company will use its best efforts to
prevent the issuance of any stop order by the Commission, and if
at any time the Commission shall issue any stop order, the
Company will use its best efforts to obtain the withdrawal of
such stop order at the earliest possible moment.
(c) The Company will cooperate with the Representatives,
their counsel and the Underwriters in qualifying or registering
the Shares for sale, or obtaining an exemption therefrom, under
the blue sky laws of such jurisdictions as the Representatives
shall designate, and will continue such qualifications or
registrations or exemptions in effect so long as reasonably
requested by the Representatives to effect the distribution of
the Shares. The Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of
process in any such jurisdiction where it is not presently
qualified.
(d) The Company consents to the use of the Prospectus (and
any amendment or supplement thereto) by the Underwriters and all
dealers to whom the Shares may be sold, in connection with the
offering or sale of the Shares and for such period of time
thereafter as the Prospectus is required by law to be delivered
in connection therewith. If, at any time when a prospectus
relating to the Shares is required to be delivered under the Act,
any event occurs as a result of which the Prospectus, as then
amended or supplemented, would include any untrue statement of a
material fact or omit to state a material fact necessary to make
the statements therein not misleading, or if it becomes necessary
at any time to amend or supplement the Prospectus to comply with
the Act or the Rules and Regulations, the Company promptly will
so notify the Representatives and will prepare and file with the
Commission an amendment to the Registration Statement or an
amendment or supplement to the Prospectus which will correct such
statement or omission or effect such compliance; each such
amendment or supplement to be reasonably satisfactory to counsel
to the Underwriters.
(e) As soon as practicable, but in any event not later than
forty-five (45) calendar days after the end of the 12-month
period beginning on the day after the end of the fiscal quarter
of the Company during which the effective date of the
Registration Statement occurs (90 calendar days in the event that
such quarter is the Company's last fiscal quarter), the Company
will make generally available to its securityholders, in the
manner specified in Rule 158(b) of the Rules and Regulations, and
will deliver to each of the Representatives, an earnings
statement which will be in the detail required by, and will
otherwise comply with, the provisions of Section 11(a) of the Act
and Rule 158(a) of the Rules and Regulations, which statement
need not be audited unless required by the Act or the Rules and
Regulations, covering a period of at least twelve (12)
consecutive months after the effective date of the Registration
Statement.
(f) During the period of five (5) years commencing with the
date hereof, the Company will deliver to the Representatives:
(i) within ninety (90) calendar days after the end of
each fiscal year, financial statements for the Company, certified
by the Company's independent certified public accountants,
including a balance sheet, statement of operations, statement of
stockholders' equity and statement of cash flows, with supporting
schedules, prepared in accordance with generally accepted
accounting principles, as at the end of such fiscal year and for
the twelve (12) months then ended, accompanied by a copy of the
certificate or report thereon of such independent certified
public accountants; provided that if, during such five-year
period, the Company has active subsidiaries, the foregoing
financial statements will be on a consolidated basis to the
extent that the accounts of the Company and its subsidiaries are
consolidated, and will be accompanied by similar financial
statements for any significant subsidiary which is not so
consolidated;
(ii) as soon as practicable after filing with the
Commission, all such reports, forms or other documents as may be
required from time to time, under the Act, the Rules and
Regulations, the Exchange Act and the rules and regulations
thereunder;
(iii) as soon as they are available, copies of all
information (financial or other) mailed to stockholders;
(iv) as soon as they are available, copies of all
reports and financial statements furnished to or filed with the
National Association of Securities Dealers, Inc.("NASD"), the NNM
or any other securities exchange or market;
(v) promptly following release by the Company, every
press release and every material news item or article of interest
to the financial community in respect of the Company or its
affairs which was released or prepared by the Company; and
(vi) as soon as possible following receipt of a
request, any additional information of a public nature concerning
the Company or its business which the Representatives may
reasonably request.
(g) The Company will maintain a transfer agent and, if
necessary under the jurisdiction of incorporation of the Company,
a registrar (which may be the same entity as the Transfer Agent)
for its Stock.
(h) The Company will furnish, without charge, to the
Representatives or on the Representatives' order, at such place
as the Representatives may designate, copies of the Preliminary
Prospectus, the Registration Statement and any pre-effective or
post-effective amendments thereto, and any registration statement
filed pursuant to Rule 462(b) (of which three (3) copies will be
signed and will include all financial statements and exhibits)
and the Prospectus, and all amendments and supplements thereto in
each case as soon as available and in such quantities as the
Representatives may reasonably request.
(i) Except pursuant to this Agreement, the Company will not,
directly or indirectly, without the prior written consent of the
Representatives, issue, offer, sell, offer to sell, contract to
sell, grant any option to purchase, pledge or otherwise dispose
(or announce any issuance, offer, sale, offer of sale, contract
of sale, grant of any option to purchase, pledge or other
disposition) of any shares of Stock or any securities convertible
into, or exchangeable or exercisable for, shares of Stock for a
period of one hundred eighty (180) calendar days after the date
hereof, other than issuances pursuant to the exercise of stock
options outstanding on or granted subsequent to the date hereof,
pursuant to a stock option or other employee benefit plan in
existence on the date hereof. With respect to securities issued
or issuable under stock option plans and employee benefit plans,
the Company will not file any registration statement on Form S-8
(or other applicable form) for a period of one hundred eighty
(180) calendar days after the date hereof.
(j) The Company will cause the Shares to be duly approved
for listing on the NNM prior to the Closing Date. The Company
shall take all necessary and appropriate action such that the
Shares are authorized for quotation on the NNM as soon as
practicable after the effectiveness of the Registration Statement
and the Shares shall remain so authorized for at least thirty-six
(36) months thereafter.
(k) Neither the Company nor any of its officers or
directors, nor affiliates of any of them (within the meaning of
the Rules and Regulations) will take, directly or indirectly, any
action designed to, or which might in the future reasonably be
expected to, cause or result in, or which will constitute,
stabilization or manipulation of the price of any securities of
the Company.
(l) The Company will apply the net proceeds of the offering
received in the manner set forth under the caption "Use of
Proceeds" in the Prospectus. The Company will operate its
business in such a manner and, pending application of the net
proceeds of the offering for the purposes and in the manner set
forth under the caption "Use of Proceeds" in the Prospectus, will
invest such net proceeds in such securities so as not to become
an "investment company" as such term is defined under the
Investment Company Act.
(m) The Company will timely file all such reports, forms or
other documents as may be required from time to time, under the
Act, the Rules and Regulations, the Exchange Act and the rules
and regulations thereunder, and all such reports, forms and
documents so filed will comply as to form and substance with the
applicable requirements under the Act, the Rules and Regulations,
the Exchange Act and the rules and regulations thereunder which
may from time to time be applicable to the Company. Without
limiting the generality of the foregoing, the Company has filed a
registration statement on Form 8-A covering the Shares pursuant
to Section 12(g) of the Exchange Act and will use its best
efforts to cause said registration statement to become effective
on the Effective Date. The Company shall comply with the
provisions of all undertakings contained in the Registration
Statement.
(n) Except as described in the Prospectus, the Company will
not, until the earlier to occur of (i) thirty (30) calendar days
following the date of this Agreement or (ii) the Option Closing
Date immediately after which all Optional Shares shall have been
so purchased, incur any liability or obligation, direct or
contingent, or enter into any material transaction, other than in
the ordinary course of business.
(o) For a period of thirty (30) calendar days following the
date of this Agreement the Company will not acquire any of the
Company's capital stock, declare or pay any dividend or make any
other distribution upon its capital stock payable to its holders
of record on a date prior to the expiration of such 30-day
period.
(p) The Company will comply or cause to be complied with the
conditions to the Underwriters' obligations set forth in Section
8 hereof.
(q) On the Closing Date, the Company will enter into the
Underwriters' Warrant Agreement and, pursuant thereto will sell
to the Representatives the Underwriters' Warrants to purchase in
the aggregate, 150,000 shares of Stock at an aggregate price of
$1,500.
(r) During the period of thirty (30) calendar days commencing
with the date of this Agreement, the Company shall neither issue
any press release or other communication, directly or indirectly,
nor hold any press conference with respect to the offering of the
Shares, the Company, its Subsidiaries or its business, results of
operations, condition (financial or otherwise), property, assets,
liabilities or prospects of the Company or any of its
Subsidiaries, without the prior written consent of the
Representatives, which consent shall not unreasonably be denied
or delayed; provided, however, that if counsel to the Company is
of the opinion that the issuance of a press release or other
communication or a press conference is required to comply with or
avoid a violation of applicable law, and having been so informed
the Representatives decline to consent thereto, the Company shall
be permitted to issue such press release or other communication
or hold such press conference in the manner advised by its
counsel.
(s) Neither the Company nor any of its Subsidiaries will
grant any person or entity registration rights with respect to
any of its securities, except such rights as are subordinate to
the registration rights contained in the Underwriters' Warrant
Agreement and are exercisable no earlier than six (6) months
after the securities to be registered upon exercise of such
registration rights contained in the Underwriters' Warrant
Agreement have been offered for sale pursuant to an effective
registration statement under the Act and registered or qualified
for sale under the blue sky or state securities law, rules or
regulations of the jurisdictions in which such securities are to
be offered for sale.
Section 7. Expenses. (a) If the Underwriters purchase the
Firm Shares, in accordance with the terms of this Agreement, the
Company will pay the Representatives, out of the first proceeds
of the offering contemplated by this Agreement, a non-accountable
expense allowance of one percent (1%) of the gross proceeds
raised, in order to compensate the Representatives for their
expenses in connection with the transactions contemplated hereby
The costs and expenses of registration, filings and fees of all
counsel in completing the applications and in clearing the
offering contemplated by this Agreement through the state
securities commissions or similar regulatory authorities of the
various states or other jurisdictions shall be borne and paid by
the Company in addition to the non-accountable expense allowance
referred to in the immediately preceding sentence.
(b) If the purchase of the Firm Shares as herein
contemplated is not consummated for any reason other than the
Underwriters' default under this Agreement or other than by
reason of Section 11(a), the Company shall reimburse the several
Underwriters, in an amount not to exceed $100,000 in the
aggregate, for their out-of-pocket expenses (including but not
limited to counsel fees and disbursements) in connection with any
investigation made by them, and any preparation made by them in
respect of marketing of the Shares or in contemplation of the
performance by them of their obligations hereunder.
Section 8. Conditions of the Underwriters' Obligations.
The obligations of each Underwriter to purchase and pay for the
Shares set forth opposite the name of such Underwriter in
Schedule I are subject to the continuing accuracy of the
representations and warranties of the Company herein as of the
date hereof, as of the Closing Date, and as of each Option
Closing Date, if any, as if they had been made on and as of the
Closing Date or Option Closing Date, as the case may be; the
accuracy on and as of the Closing Date, and each Option Closing
Date, if any, of the statements of officers of the Company made
pursuant to the provisions hereof; the performance by the Company
on and as of the Closing Date, and each Option Closing Date, as
the case may be, of their respective covenants and agreements
hereunder; and the following additional conditions:
(a) The Registration Statement shall have been declared
effective, and the Prospectus (containing the information omitted
pursuant to Rule 430(A)) shall have been filed with the
Commission not later than the Commission's close of business on
the second business day following the date hereof or such later
time and date to which the Representatives shall have consented.
No stop order suspending the effectiveness of the Registration
Statement or any amendment thereto shall have been issued, and no
proceedings for that purpose shall have been instituted or
threatened or, to the best knowledge of the Company or the
Representatives, shall be contemplated by the Commission. The
Company shall have complied with any request of the Commission
for additional information (to be included in the Registration
Statement or the Prospectus or otherwise).
(b) The Representatives shall not have advised the Company
that the Registration Statement, or any amendment thereto,
contains an untrue statement of fact which, in the
Representatives' opinion, is material, or omits to state a fact
which, in the Representatives' opinion, is material and is
required to be stated therein or is necessary to make the
statements therein not misleading, or that the Prospectus, or any
supplement thereto, contains an untrue statement of fact which,
in the Representatives' opinion, is material, or omits to state a
fact which, in the Representatives' opinion, is material and is
required to be stated therein or is necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading.
(c) On or prior to the Closing Date, and any Option Closing
Date, as the case may be, the Representatives shall have received
from counsel to the Underwriters, such opinion or opinions with
respect to the issuance and sale of the Firm Shares, the
Registration Statement and the Prospectus and such other related
matters as the Representatives reasonably may request and such
counsel shall have received such documents and other information
as they request to enable them to pass upon such matters.
(d) On the Closing Date, the Underwriters shall have
received the opinion, dated the Closing Date, of Shulman, Rogers,
Gandal, Pordy & Xxxxx, P.A., counsel to the Company (which
opinion may rely, with respect to certain regulatory matters,
upon the opinion, dated the Closing Date, of Xxxxxx Xxxx & Xxxxxx
LLP, regulatory counsel to the Company, copies of which shall be
provided to counsel for the Underwriters and shall be attached to
the opinion of counsel of the Company and may be referred to
therein), to the effect set forth below:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws
of Maryland, its jurisdiction of incorporation, and has been duly
qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts
any business so as to require such qualification, (except for
those jurisdictions in which the failure to so qualify has not
had and will not have a Material Adverse Effect). Each of the
Subsidiaries has been duly incorporated and is validly existing
as a corporation in good standing under the laws of its
jurisdiction of incorporation and each has been duly qualified as
a foreign corporation for the transaction of business and is in
good standing under the laws of each other jurisdiction in which
it owns or leases properties, or conducts any business so as to
require such qualification (except for those jurisdictions in
which the failure to so qualify has not had and will not have a
Material Adverse Effect).
(ii) The Company has the duly authorized capitalization
as set forth in the Prospectus. All of the shares of capital
stock of the Company issued and outstanding immediately prior to
the Closing Date or an Option Closing Date, as the case may be,
have been duly and validly authorized and issued, are fully paid
and non-assessable, without personal liability attaching to the
ownership thereof, and none of such shares have been issued or
are owned or held in violation of any preemptive or other rights
of security holders or other persons to acquire securities of the
Company. The securities of the Company including, without
limitation, the Shares, the Stock, the Underwriters' Warrants and
the Warrant Shares, conform to all statements relating thereto
contained in the Registration Statement or the Prospectus. With
respect to each Subsidiary of the Company, all of the issued and
outstanding shares of capital stock are fully paid and
non-assessable, without personal liability attaching to the
ownership thereof, and none of such shares have been issued or
are owned or held in violation of any preemptive or other rights
of security holders or other persons to acquire securities of the
Company and (except as otherwise described in the Prospectus) are
owned directly by the Company, free and clear of all liens,
encumbrances, equities or claims. Other than as disclosed in the
Prospectus, to the best knowledge of such counsel, there are no
holders of the securities of the Company or any of its
Subsidiaries having rights to registration thereof or preemptive
rights to purchase capital stock of the Company or any such
Subsidiary. Except as created hereby or described in the
Prospectus, to the best knowledge of such counsel, there are no
commitments, plans or arrangements to issue, and no outstanding
options, warrants or other rights, calling for issuance of, any
shares of capital stock of the Company or any of its Subsidiaries
or any security or other instrument which, by its terms, is
convertible into, exercisable for, or exchangeable for capital
stock of the Company or any of its Subsidiaries.
(iii) The Shares and the Underwriters' Warrants have
been duly and validly authorized and, when the Shares are issued
and delivered against payment therefor as provided herein, or
when such Underwriters' Warrants are issued and delivered in
accordance with the terms thereof and of the Underwriters'
Warrant Agreement, will be duly and validly issued and fully paid
and non-assessable, will not have been issued in violation of any
preemptive or other rights of security holders or other persons
to acquire securities of the Company and will conform to all
statements relating thereto in the Registration Statement and the
Prospectus. Good and marketable title to the Shares and the
Underwriters' Warrants will pass to the Underwriters on the
Closing Date free and clear of any lien, encumbrance, security
interest, claim or other restriction whatsoever. The Warrant
Shares have been duly authorized and validly reserved for
issuance and, when issued, paid for and delivered in accordance
with the terms of the Underwriters' Warrant Agreement and the
Underwriters' Warrants, the Warrant Shares will be duly and
validly issued and fully paid and non-assessable, will not have
been issued in violation of any preemptive or other rights of
security holders or other persons to acquire securities of the
Company and will conform to all statements relating thereto in
the Prospectus. Good and marketable title, free and clear of any
lien, encumbrance, security interest, claim or any other
restriction will pass to the holders of Warrant Shares issued
upon exercise of Underwriters' Warrants in accordance with the
terms thereof and of this Agreement and the Underwriters' Warrant
Agreement.
(iv) The Shares have been duly approved for listing on
the NNM.
(v) The Registration Statement is effective under the
Act. Any required filing of a registration statement pursuant to
Rule 462(b) has been made in the manner and within the time
period required by Rule 462(b). The Prospectus has been filed
with the Commission pursuant to the appropriate subparagraph of
Rule 424(b) under the Act and no stop order suspending the
effectiveness of the Registration Statement or any amendment
thereto has been issued, and no proceedings for that purpose have
been instituted or are pending or, to the best knowledge of such
counsel, are threatened or contemplated under the Act.
(vi) The registration statement originally filed with
respect to the Shares and each amendment thereto, each
Preliminary Prospectus and Prospectus and, if any, each amendment
and supplement thereto (except for the financial statements,
schedules and other financial data included therein, as to which
such counsel need not express any opinion), complies as to form
in all material respects with the requirements of the Act and the
Rules and Regulations.
(vii) The descriptions and summaries contained in the
Prospectus of contracts, agreements, instruments leases, licenses
and other documents, are accurate and fairly represent, in all
material respects, the information required to be disclosed with
respect thereto by the Act and the Rules and Regulations. To the
best knowledge of such counsel, all contracts, agreements,
instruments, leases, licenses or other documents which are
required by the Act or the Rules and Regulations to be described
in the Prospectus or to be filed as exhibits to the Registration
Statement have been so described or filed.
(viii) To the best knowledge of such counsel, there is
not pending or threatened against the Company any action, suit or
proceeding by any person or any action, suit, proceeding or
investigation before or by any court, regulatory body, or
administrative agency or any other governmental agency or body,
domestic or foreign, of a character required to be disclosed in
the Registration Statement or the Prospectus which is not so
disclosed therein.
(ix) The statements set forth under the captions "Risk
Factors," "Use of Proceeds," "Business," "Management," "Shares
Eligible for Future Sale," and "Description of Capital Stock" in
the Prospectus, insofar as such statements constitute summaries
of the legal matters, documents or proceedings referred to
therein, fairly and accurately summarize such legal matters,
documents and proceedings.
(x) The Company has full legal right, power, and
authority to enter into this Agreement and the Underwriters'
Warrant Agreement and to consummate the transactions provided for
herein and therein. All necessary corporate proceedings of the
Company have been taken to authorize the execution, delivery and
performance, by the Company, of this Agreement and the
Underwriters' Warrant Agreement. This Agreement and the
Underwriters' Warrant Agreement have been duly authorized,
executed and delivered by the Company and, assuming due
authorization, execution and delivery by each other party hereto
or thereto, constitute the valid and binding agreements of the
Company, enforceable in accordance with their respective terms,
except as limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other laws now or hereafter in
effect relating to or affecting creditors' rights generally or by
general principles of equity relating to the availability of
remedies and except as rights to indemnity and contribution may
be limited by federal or state securities laws or the public
policy underlying such laws.
(xi) All required consents from any party to any
material contract, agreement, instrument, lease, license, or
other document, or any arrangement or understanding to which the
Company or any of its Subsidiaries is a party, or to which any
of the property, assets or business of the Company or any of its
Subsidiaries is subject, is required for the execution, delivery
and performance of this Agreement and the Underwriters Warrant
Agreement have been obtained. None of the Company's execution
and delivery of this Agreement and the Underwriters Warrant
Agreement, performance of its obligations hereunder and
thereunder, consummation of the transactions contemplated herein
or therein, and application of the net proceeds of the offering
in the manner set forth under the caption "Use of Proceeds" in
the Prospectus will conflict with or results in any breach or
violation of any of the terms or provisions of, or constitute a
default under, or entitle any other party to terminate or call a
default under, or result in the creation or imposition of any
lien, charge or encumbrance upon, any property or asset of the
Company or any of its Subsidiaries pursuant to the terms of (i)
the Charter or Bylaws of the Company or any of its Subsidiaries;
(ii) the terms of any indenture, mortgage, deed of trust, voting
trust agreement, stockholders agreement, note agreement or other
agreement or instrument known to such counsel after reasonable
investigation to which the Company or any of its Subsidiaries is
a party or by which the Company or any of its Subsidiaries is or
may be bound or to which any of their respective properties,
assets or businesses may be subject; (iii) any statute, rule or
regulation of any regulatory body or administrative agency or
other governmental agency or body, domestic or foreign, having
jurisdiction over the Company or any of its Subsidiaries or any
of their respective businesses, activities or properties; or (iv)
any order or decree of any government, arbitrator, court,
regulatory body or administrative agency or other governmental
agency or body, domestic or foreign, having such jurisdiction.
(xii) All legally required proceedings in connection
with the authorization, issue and sale of the Shares, the
Underwriters' Warrants and the Warrant Shares by the Company in
accordance with the provisions of this Agreement and the
Underwriters' Warrant Agreement have been taken and no consent,
approval, authorization, order, license, certificate, declaration
or permit from or of any court, regulatory body or administrative
agency or other governmental agency or body, domestic or foreign
has been or is required for the Company's performance of this
Agreement and the Underwriters Warrant Agreement or the
consummation of the transactions contemplated hereby and thereby,
except such as may be required under federal or state securities
laws in connection with the purchase and distribution by the
Underwriters of the Shares.
(xiii) To such counsel's best knowledge, the conduct of
the business of the Company and each of its Subsidiaries is not
in violation of any federal, state or local statute,
administrative regulation or other law, which violation could
have a Material Adverse Effect. The Company and each of its
Subsidiaries possesses all licenses, permits, approvals and other
governmental authorizations required for the conduct of its
business, as described in the Prospectus; all such licenses,
permits and other governmental authorizations are in full force
and effect and the Company and each of its Subsidiaries is in all
material respects in compliance therewith. To such counsel's
best knowledge, there is no reason why the Company would not
receive, or would be unlikely to receive, such licenses, permits,
approvals and other governmental authorization as would be
required for the conduct of the Company's business as
contemplated by the Prospectus.
(xiv) Neither the Company nor any of its Subsidiaries
is in violation or breach of its respective Charter or Bylaws or
similar constitutive documents. To such counsel's best, except
as disclosed in the Prospectus, none of the Company, any of its
Subsidiaries, or any other party is now in violation or breach
of, or in default with respect to complying with, any material
provision of any indenture, mortgage, deed of trust, debenture,
note or other evidence of indebtedness, contract, agreement,
instrument, lease or license, or arrangement or understanding
which is material to the Company, and each such indenture,
mortgage, deed of trust, debenture, note or other evidence of
indebtedness, contract, agreement, instrument, lease or license
is in full and force and is the legal, valid and binding
obligation of the Company or its Subsidiary or Subsidiaries,
except to the extent that the enforceability of the rights and
remedies of the Company or any of its Subsidiaries under any such
lease or other agreement may be limited by bankruptcy,
insolvency, or similar laws generally affecting the rights of
creditors and by equitable principles limiting the right to
specific performance or other equitable relief.
(xv) To such counsel's best knowledge, the Company and
each of its Subsidiaries has good and marketable title, in fee
simple, to all the real property owned thereby as set forth in
the Prospectus, subject to no lien, mortgage, pledge, charge or
encumbrance of any kind or nature whatsoever except those, if
any, referred to in the Prospectus (or reflected in the financial
statements included therein) or which, in the aggregate, are not
material to the Company and its business and do not materially
affect the value of such property; and the real properties held
or used by the Company and each of its Subsidiaries under
material leases or other material agreements as set forth in the
Prospectus are held under valid, subsisting and enforceable
leases or other agreements with respect to which neither the
Company nor any of its Subsidiaries is in default, except to the
extent that the enforceability of the rights and remedies of the
Company or any of its Subsidiaries under any such lease or other
agreement may be limited by bankruptcy, insolvency, or similar
laws generally affecting the rights of creditors and by equitable
principles limiting the right to specific performance or other
equitable relief.
(xvi) The Company is not and, after giving effect to
the offering and sale of the Shares, will not be an "investment
company," or an "affiliated person" of or a "promoter" or
"principal underwriter" of or an entity "controlled" by an
"investment company," as such terms are defined in the Investment
Company Act.
(xvii) Neither the Company nor any other person
associated with or acting on behalf of the Company including,
without limitation, any director, officer, agent, or employee of
the Company has, directly or indirectly, while acting on behalf
of the Company, (i) used any corporate funds for unlawful
contributions, gifts, entertainment, or other unlawful expenses
relating to political activity; (ii) made any unlawful
contribution to any candidate for foreign or domestic office, or
to any foreign or domestic government officials or employees or
other person charged with similar public or quasi-public duties,
other than payments required or permitted by the laws of the
United States or any jurisdiction thereof or to foreign or
domestic political parties or campaigns from corporate funds, or
failed to disclose fully any contribution in violation of law;
(iii) violated any provision of the Foreign Corrupt Practices Act
of 1977, as amended; or (iv) made any other unlawful payment.
(xviii) To the best knowledge of such counsel, since
the effective date of the Registration Statement or the later
effective date of any amendment thereto, no event has occurred
which should have been set forth in an amendment or supplement to
the Registration Statement or Prospectus which has not been so
set forth.
(xix) Schedule 1 hereto accurately and completely
lists all of the licenses, permits, and authorizations issued by
the FCC (collectively, the "Licenses") necessary for the Company
to carry on its business as described in the Registration
Statement and Prospectus. Schedule 2 hereto accurately and
completely lists all pending applications filed by the Company
with the FCC.
(xx) To the best knowledge of such counsel, the
Licenses are validly issued. "Validly issued" as used herein
means that the Licenses have been issued through the means of
regular FCC procedures applied in conformity with the
Communications Act and prior FCC practice and there is no legal
basis under the Communications Act to conclude that the Company
cannot hold one or more of the Licenses as a matter of law. To
the best of knowledge of such counsel (i) the Licenses are in
full force and effect without conditions that would have a
Material Adverse Effect, except for such conditions imposed
generally by the FCC upon such licenses or conditions stated on
the face of the Licenses, (ii) all express conditions in the
Licenses have been satisfied where the failure to satisfy such
conditions would have a Material Adverse Effect, and (iii) the
Company has not received any notification that any revocation or
limitation of the Licenses is threatened or pending that would
have a Material Adverse Effect.
(xxi) Except as specified in Schedule 3 hereto, the
Company has filed with the FCC all applications, statements,
reports, information, forms, or any other document required under
the Communications Act, except where the failure to so file would
not have a Material Adverse Effect, and, to the best knowledge of
such counsel, such filings or submissions were in compliance with
applicable laws or regulations when filed or submitted and no
deficiencies have been asserted by the FCC with respect to such
filings or submissions except where the deficiency is of such a
nature that failure to cure any such deficiency would not have a
Material Adverse Effect, and the information contained in such
filings or submissions was, in all material respects, accurate,
complete and up-to-date at the time the filings or submissions
were made.
(xxii) The Company has filed with the applicable
foreign and domestic regulatory authorities each and every
statement, report, information or form required by any applicable
law, regulation or order, except where the failure to so file
would not have a Material Adverse Effect, and all such filings or
submissions were in compliance with applicable laws when filed,
and no deficiencies have been asserted by any regulatory
commission, agency or authority with respect to such filings or
submissions, except where the failure to so file or cure any such
deficiency would not have a Material Adverse Effect. The
Company has maintained in full force and effect all licenses and
permits necessary or proper for the conduct of its business,
except where the failure to do so would not have a Material
Adverse Effect, and the Company has not received any notification
that any revocation or limitation thereof is threatened or
pending that would have such an effect. Except as disclosed in
the Registration Statement and the Prospectus, there is not
pending any change under any law, regulation, license or permit
that would have a Material Adverse Effect. The Company has not
received any notice of, or, to the best knowledge of such
counsel, been threatened with or is under investigation with
respect to, a violation or a possible violation of any provision
of any law, regulation or order, except such violation or
violations as would not have a Material Adverse Effect.
(xxiii) With respect to State Authorizations issued by
PUCs held by the Company, such State Authorizations are in full
force and effect and are unimpaired by any act or omission of the
Company or any of its employees or agents, in each case except
where such authorization is not required or where the failure to
so hold any such State Authorization would not have a Material
Adverse Effect. The State Authorizations are all of the licenses,
authorizations, consents and approvals necessary from the PUCs in
order to allow the Company to own its assets and carry on its
business as currently being conducted, except where the failure
to so hold any State Authorizations would not have a Material
Adverse Effect. To the best knowledge of such counsel, there are
no proceedings of any kind, including but not limited to
rulemaking proceedings of general applicability in the industry
or industries in which the Company operates, by or before any
PUC, now pending or threatened, which, if adversely determined,
would have a Material Adverse Effect. Neither the execution and
delivery of this Agreement and the Underwriters' Warrant
Agreement nor the consummation of the transactions contemplated
herein and therein and in the Registration Statement will
conflict with or result in a breach of, or require any
authorization, approval or consent under the Communications Act
or the rules of the FCC or the communications statutes of any
state or the policies or rules of any PUC.
(xxiv) To the best knowledge of such counsel, there is
no proceeding, formal or informal complaint or investigation
before the FCC or any PUC against the Company or any of the
Licenses identified in Schedule 1 or based on any violation or
alleged violation by the Company of the Communications Act or any
state law, except for proceedings affecting the industry
generally to which the Company is not a specific party. In
addition, such counsel shall state that in the course of the
preparation of the Registration Statement and the Prospectus,
such counsel has participated in conferences with officers and
representatives of the Company and its Subsidiaries, with the
Company's independent public accountants, and with the
Representatives, at which conferences such counsel made inquiries
of such officers, representatives and accountants and discussed
the contents of the Registration Statement and the Prospectus and
on the basis of the foregoing, nothing has come to such counsel's
attention that would lead such counsel to believe that either the
Registration Statement or any amendment thereto, as of the date
the Registration Statement or such amendment is or was declared
effective, and as of the Closing Date or any Option Closing Date,
as the case may be, or the Prospectus as of the date thereof and
as of the Closing Date or any Option Closing Date, as the case
may be, contained or contains any untrue statement of a material
fact or omitted or omits 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 (it being understood that such counsel need not
express any belief with respect to the financial statements, and
the notes and schedules related thereto and other financial
information or statistical data included in the Registration
Statement, any amendment thereto, or the Prospectus). In
rendering any such opinions, such counsel may rely, (i) as to
matters of fact, to the extent such counsel deems proper, on
certificates of responsible officers of the Company provided that
copies of any such certificates shall be delivered to counsel for
the Underwriters; and (ii) to the extent such counsel deems
proper, upon written statements or certificates of public
officials, provided that copies of any such statements or
certificates shall be delivered to counsel for the Underwriters.
References to the Registration Statement and the Prospectus in
this paragraph (d) shall include any amendment or supplement
thereto at the date of such opinion.
(e) On or prior to the Closing Date or any Option Closing
Date, as the case may be, counsel to the Underwriters shall have
been furnished such documents, certificates and opinions as they
may reasonably require in order to evidence the accuracy,
completeness or satisfaction of any of the representations or
warranties of the Company or conditions herein contained.
(f) At the time that this Agreement is executed by the
Company the Underwriters shall have received from Xxxxxx Xxxxxxxx
LLP a letter as of the date of this Agreement in form and
substance satisfactory to the Representatives (the "Original
Letter"), and on the Closing Date and any Option Closing Date the
Underwriters shall have received from such firm a letter dated
the Closing Date or such Option Closing Date, stating that, as of
a specified date not earlier than five (5) calendar days prior to
the Closing Date or Option Closing Date, as the case may be,
nothing has come to the attention of such firm to suggest that
the statements made in the Original Letter are not true and
correct.
(g) On the Closing Date and any Option Closing Date, the
Underwriters shall have received a certificate, dated the Closing
Date or such Option Closing Date, as the case may be, of the
principal executive officer and the principal financial or
accounting officer of the Company to the effect that each such
person has carefully examined the Registration Statement and the
Prospectus and any amendments or supplements thereto and this
Agreement, and that:
(i) the representations and warranties of the Company
in this Agreement are true and correct, as if made on and as of
the Closing Date or the Option Closing Date, as the case may be,
and the Company has complied with all agreements and covenants
and satisfied all conditions contained in this Agreement on its
part to be performed or satisfied at or prior to the Closing Date
or such Option Closing Date;
(ii) No stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceedings for
that purpose have been instituted or are pending or, to the best
knowledge of each such person, are contemplated or threatened
under the Act and any and all filings required by Rule 424, Rule
430A and Rule 462(b) have been timely made;
(iii) The Registration Statement and Prospectus and,
if any, each amendment and each supplement thereto, contain all
statements and information required by the Act or the Rules and
Regulations to be included therein, and neither the Registration
Statement or the Prospectus nor any amendment or supplement
thereto includes any untrue statement of a material fact or omits
to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; and
(iv) Subsequent to the respective dates as of which
information is given in the Registration Statement and the
Prospectus or any amendment or supplement thereto, up to and
including the Closing Date or the Option Closing Date, as the
case may be, neither the Company nor any of its Subsidiaries has
incurred, other than in the ordinary course of its business or as
described in the Prospectus or in an amended or supplemented
Prospectus, any material liabilities or obligations, direct or
contingent; the Company has not purchased any of its outstanding
capital stock or paid or declared any dividends or other
distributions on its capital stock; neither the Company nor any
of its Subsidiaries has entered into any transactions not in the
ordinary course of business; and there has not been any change in
the capital stock or long-term debt or any increase in the
short-term borrowings (other than any increase in short-term
borrowings in the ordinary course of business) of the Company or
any material adverse change to the business, properties, assets,
net worth, condition (financial or other), results of operations
or prospects of the Company; the Company has not sustained any
material loss or damage to its property or assets, whether or not
insured; there is no litigation which is pending or threatened
against the Company which is required under the Act or the Rules
and Regulations to be set forth in an amended or supplemented
Prospectus which has not been set forth; and there has not
occurred any event required to be set forth in an amended or
supplemented Prospectus which has not been set forth. References
to the Registration Statement and the Prospectus in this
paragraph (g) are to such documents as amended and supplemented
at the date of the certificate required hereby.
(h) Subsequent to the respective dates as of which
information is given in the Registration Statement and the
Prospectus up to and including the Closing Date or any Option
Closing Date, as the case may be, there has not been (i) any
change or decrease specified in the letter or letters referred to
in paragraph (f) of this Section 8 or (ii) any change, or any
development involving a prospective change, in the business or
properties of the Company which change or decrease in the case of
clause (i) or change or development in the case of clause (ii)
makes it impractical or inadvisable in the Representatives'
judgment to proceed with the public offering or the delivery of
the Shares as contemplated by the Prospectus.
(i) No order suspending the sale of the Shares in any
jurisdiction designated by you pursuant to Section 6(c) hereof
has been issued on or prior to the Closing Date or any Option
Closing Date, as the case may be, and no proceedings for that
purpose have been instituted or, to the best knowledge of such
persons or that of the Company, have been or are contemplated.
(j) The Representatives shall have received from each person
who is a director or officer of the Company, each stockholder,
and each other person, if any, who has the right to acquire more
than five percent (5%) or more of the outstanding shares of
Stock, assuming exercise of currently exercisable stock options
on a fully diluted basis, an agreement to the effect that such
person will not, directly or indirectly, without the prior
written consent of the Representatives, on behalf of the
Underwriters, offer, sell, offer to sell, contract to sell, grant
any option to purchase, pledge or otherwise dispose (or announce
any offer, sale, offer of sale, contract of sale, grant of an
option to purchase, pledge or other disposition) of any shares of
Common Stock or any securities convertible into, or exchangeable
or exercisable for, shares of Common Stock for a period of 180
calendar days after the date of this Agreement.
(k) The Shares shall have been duly authorized for listing
on the NNM.
(l) The NASD, upon review of the terms of the public
offering of the Shares contemplated hereby, shall have indicated
that it has no objection to the underwriting arrangements
pertaining to the sale of the Shares and the Underwriters'
participation in the sale of the Shares as so contemplated.
(m) The Company shall have furnished the Underwriters with
such further opinions, letters, certificates or documents as the
Representatives or counsel for the Underwriters may reasonably
request. All opinions, certificates, letters and documents to be
furnished by the Company will comply with the provisions hereof
only if they are reasonably satisfactory in all material respects
to the Underwriters and to counsel for the Underwriters. The
Company shall furnish the Underwriters with manually signed or
conformed copies of such opinions, certificates, letters and
documents in such quantities as you reasonably request. The
certificates delivered under this Section 8 shall constitute
representations, warranties and agreements of the Company as to
all matters set forth therein as fully and effectively as if such
matters had been set forth in Section 2 of this Agreement. If
any condition to the Underwriters' obligations hereunder to be
satisfied prior to or at either the Closing Date or any Option
Closing Date is not so satisfied, this Agreement, at the
Representatives' election, will terminate upon notification to
the Company without liability on the part of any Underwriter
(including the Representatives) or the Company, except for the
expenses to be paid by the Company pursuant to Section 7 hereof
and except to the extent provided in Section 9 hereof.
Section 9. Indemnification. (a) The Company agrees to
indemnify and hold harmless each Underwriter, and its officers,
directors, partners, employees, agents and counsel, and each
person, if any, who controls such Underwriter within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act,
against any and all losses, claims, damages, liabilities or
expenses whatsoever (which shall include, for all purposes of
this Section 9, but not be limited to, attorneys' fees and any
and all fees and expenses whatsoever incurred in investigating,
preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever and any and all amounts paid
in settlement), joint or several (and actions in respect
thereof), to which such Underwriter, officer, director, partner,
employee, agent, counsel or controlling person may become
subject, under the Act or other federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses,
claims, damages, liabilities, expenses or actions arise out of or
are based upon any untrue statement or alleged untrue statement
of any material fact contained in the Registration Statement or
the Prospectus or any Preliminary Prospectus, or any amendment or
supplement thereto, or any blue sky application or other document
executed by the Company specifically for the purposes of
qualifying, or based upon written information furnished by the
Company in any state or other jurisdiction in order to qualify,
any or all of the Shares under the securities or blue sky laws
thereof (any such application, document or information being
hereinafter called a "Blue Sky Application"), or arise out of or
are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to
make the statements therein not misleading, and will reimburse,
as incurred, expenses of such Underwriter, partner, employee,
agent, counsel or controlling person in connection with
investigating, defending or appearing as a third party witness in
connection with any such loss, claim, damage, liability, expense
or action; provided, however, that the Company will not be liable
in any such case to the extent that any such loss, claim, damage,
liability, expense or action arises out of or is based upon any
untrue statement or alleged untrue statement or omission or
alleged omission made in any of such documents in reliance upon
and in conformity with information furnished in writing to the
Company on behalf of such Underwriter through the Representatives
expressly for use therein, and provided, further, that such
indemnity with respect to any Preliminary Prospectus shall not
inure to the benefit of any Underwriter (or to the benefit of any
person controlling such Underwriter) from whom the person
asserting any such loss, claim, damage, liability or action
purchased Shares which are the subject thereof to the extent that
any such loss, claim, damage, liability or action (i) results
from the fact that such Underwriter failed to send or give a copy
of the Prospectus (as amended or supplemented) to such person at
or prior to the confirmation of the sale of such Shares to such
person in any case where such delivery is required by the Act and
(ii) arises out of or is based upon an untrue statement or
omission of a material fact contained in such Preliminary
Prospectus that was corrected in the Prospectus (as amended and
supplemented), unless such failure resulted from non-compliance
by the Company with Section 6(h) hereof. The indemnity agreement
in this paragraph (a) shall be in addition to any liability which
the Company may otherwise have.
(b) Each of the Underwriters agrees severally, but not
jointly, to indemnify and hold harmless the Company, each of its
directors, each of its officers who has signed the Registration
Statement and each person, if any, who controls the Company
within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act against any and all losses, claims, damages,
liabilities or expenses whatsoever (which shall include, for all
purposes of this Section 9, but not be limited to, attorneys'
fees and any and all fees and expenses whatsoever incurred in
investigating, preparing or defending against any litigation,
commenced or threatened, or any claim whatsoever and any and all
amounts paid in settlement), (and actions in respect thereof) to
which the Company or any such director, officer, or controlling
person may become subject, under the Act or other federal or
state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages, liabilities, expenses or
actions arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the
Registration Statement or the Prospectus or any Preliminary
Prospectus, or any amendment or supplement thereto or in any Blue
Sky Application, or arise out of or are based upon the omission
or the alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements not
misleading, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in
conformity with information furnished in writing by that
Underwriter through the Representatives to the Company expressly
for use therein. The Company acknowledges that the statements
with respect to the public offering of the Shares set forth under
the caption "Underwriting" and the stabilization legend in the
Prospectus have been furnished by the Underwriters to the Company
expressly for use therein and constitute the only information
furnished in writing by or on behalf of the Underwriters for
inclusion in the Prospectus. The indemnity agreement contained
in this paragraph (b) shall be in addition to any liability which
the Underwriters may otherwise have.
(c) Promptly after receipt by an indemnified party under
this Section 9 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof it to be
made against one or more indemnifying parties under this Section
9, notify such indemnifying party or parties of the commencement
thereof; but the failure so to notify the indemnifying party
shall not relieve it from any liability which it may have to any
indemnified party otherwise than under paragraph (a) or (b) of
this Section 9 to the extent that the indemnifying party was not
adversely affected by such omission. In case any such action is
brought against an indemnified party and it notifies an
indemnifying party or parties of the commencement thereof, the
indemnifying party or parties against which a claim is to be made
will be entitled to participate therein and, to the extent that
it or they may wish, to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party; provided,
however, that if the defendants in any such action include both
the indemnified party and the indemnifying party and the
indemnified party has reasonably concluded that there may be
legal defenses available to it and/or other indemnified parties
which are different from or additional to those available to the
indemnifying party, the indemnified party or parties shall have
the right to select separate counsel to assume such legal
defenses and otherwise to participate in the defense of such
action on behalf of such indemnified party or parties. Upon
receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and
approval by the indemnified party of counsel, the indemnifying
party will not be liable to such indemnified party under this
Section 9 for any legal or other expenses (other than the
reasonable costs of investigation) subsequently incurred by such
indemnified party in connection with the defense thereof unless
(i) the indemnified party has employed such counsel in connection
with the assumption of such different or additional legal
defenses in accordance with the proviso to the immediately
preceding sentence, (ii) the indemnifying party has not employed
counsel reasonably satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after
notice of commencement of the action, or (iii) the indemnifying
party has authorized in writing the employment of counsel for the
indemnified party at the expense of the indemnifying party.
(d) If the indemnification provided for in this Section 9 is
unavailable or insufficient to hold harmless an indemnified party
under paragraph (a) or (b) above in respect of any losses,
claims, damages, liabilities or expenses (or actions in respect
thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages, liabilities
or expenses (or actions in respect thereof) (i) in such
proportion as is appropriate to reflect the relative benefits
received by each of the contributing parties, on the one hand,
and the party to be indemnified, on the other hand, from the
offering of the Shares or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative
fault of each of the contributing parties, on the one hand, and
the party to be indemnified, on the other hand in connection with
the statements or omissions that resulted in such losses, claims,
damages or liabilities, as well as any other relevant equitable
considerations. In any case where the Company is a contributing
party and the Underwriters are the indemnified party, the
relative benefits received by the Company on the one hand, and
the Underwriters, on the other hand, shall be deemed to be in the
same proportion as the total net proceeds from the offering of
the Shares (before deducting expenses) bear to the total
underwriting discounts received by the Underwriters hereunder, in
each case as set forth in the table on the cover page of the
Prospectus. Relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the
Company or the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The amount paid or
payable by an indemnified party as a result of the losses,
claims, damages, liabilities or expenses (or actions in respect
thereof) referred to above in this paragraph (d) shall be deemed
to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the
provisions of this paragraph (d), the Underwriters shall not be
required to contribute any amount in excess of the underwriting
discounts applicable to the Shares purchased by the Underwriters
hereunder. The Underwriters' obligations to contribute pursuant
to this paragraph (d) are several in proportion to their
respective underwriting obligations, and not joint. No person
guilty of fraudulent misrepresentations (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent
misrepresentation. For purposes of this paragraph (d), (i) each
person, if any, who controls an Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act shall
have the same rights to contribution as such Underwriter and (ii)
each director of the Company, each officer of the Company who has
signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act shall have the same rights to
contribution as the Company. Any party entitled to contribution
will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect to which
claim for contribution may be made against another party or
parties under this paragraph (d), notify such party or parties
from whom contribution may be sought, but the omission so to
notify such party or parties shall not relieve the party or
parties from whom contribution may be sought from any other
obligation (x) it or they may have hereunder or otherwise than
under this paragraph (d) or (y) to the extent that such party or
parties were not adversely affected by such omission. The
contribution agreement set forth above shall be in addition to
any liabilities which any indemnifying party may otherwise have.
Section 10. Representations, Etc. to Survive Delivery. The
respective representations, warranties, agreements, covenants,
indemnities and statements of, and on behalf of, the Company and
its officers and the Underwriters, respectively, set forth in or
made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of
the Underwriters, and will survive delivery of and payment for
the Shares. Any successors to the Underwriters shall be entitled
to the indemnity, contribution and reimbursement agreements
contained in this Agreement.
Section 11. Effective Date and Termination. (a) This
Agreement shall become effective at _____ a.m., Washington, D.
C. time, on the first business day following the date hereof, or
at such earlier time after the Registration Statement becomes
effective as the Representatives, in their sole discretion, shall
release the Shares for the sale to the public, unless prior to
such time the Representatives shall have received written notice
from the Company that it elects that this Agreement shall not
become effective, or the Representatives shall have given written
notice to the Company that the Representatives on behalf of the
Underwriters elect that this Agreement shall not become
effective; provided, however, that the provisions of this Section
11 and of Section 7 and Section 9 hereof shall at all times be
effective. For purposes of this Section 11(a), the Shares to be
purchased hereunder shall be deemed to have been so released upon
the earlier of notification by the Representatives to securities
dealers releasing such Shares for offering or the release by the
Representatives for publication of the first newspaper
advertisement which is subsequently published relating to the
Shares.
(b) This Agreement (except for the provisions of Sections 7
and 9 hereof) may be terminated by the Representatives by notice
to the Company in the event that the Company has failed to comply
in any respect with any of the provisions of this Agreement
required on its part to be performed at or prior to the Closing
Date or any Option Closing Date, as the case may be, or if any of
the representations or warranties of the Company are not accurate
in any respect or if the covenants, agreements or conditions of,
or applicable to, the Company herein contained have not been
complied with in any respect or satisfied within the time
specified on the Closing Date or any Option Closing Date, as the
case may be, or if prior to the Closing Date or any such Option
Closing Date:
(i) the Company shall have sustained a loss by strike,
fire, flood, accident or other calamity of such a character as to
interfere materially with the conduct of the business and
operations of the Company regardless of whether or not such loss
was insured;
(ii) trading in the Stock shall have been suspended by
the Commission or the NNM or trading in securities generally on
the New York Stock Exchange or the NNM shall have been suspended
or a material limitation on such trading shall have been imposed
or minimum or maximum prices shall have been established on
either such exchange or market;
(iii) a banking moratorium shall have been declared by
New York or United States authorities;
(iv) there shall have been an outbreak or escalation of
hostilities between the United States and any foreign power or an
outbreak or escalation of any other insurrection or armed
conflict involving the United States;
(v) there shall have been commenced any action, suit
or proceeding at law or in equity against the Company, or by any
federal, state or other commission, board or agency, wherein any
unfavorable decision would materially adversely affect the
business, properties or financial condition of the Company;
(vi) there shall have occurred any material adverse
market conditions, of which the Representatives shall be the sole
judge;
(vii) Company's independent public accountants shall
have imposed qualifications in certifying to, or its attorneys in
opining upon, material items including, without limitation,
information in the footnotes to the financial statements or
matters incident to the issuance and sale of the Shares,
corporate proceedings or other subjects; or
(viii) there shall have been a material adverse change
in (i) general economic, political or financial conditions or
(ii) the present or prospective business or condition (financial
or other) of the Company that, in each case, in the
Representatives' judgment makes it impracticable or inadvisable
to make or consummate the public offering, sale or delivery of
the Company's Shares on the terms and in the manner contemplated
in the Prospectus and the Registration Statement.
(c) Termination of this Agreement under this Section 11 or
Section 12 after the Firm Shares have been purchased by the
Underwriters hereunder shall be applicable only to the Optional
Shares. Termination of this Agreement shall be without liability
of any party to any other party other than as provided in
Sections 7 and 9 hereof.
Section 12. Substitution of Underwriters. If one or more of
the Underwriters shall fail or refuse (otherwise than for a
reason sufficient to justify the termination of this Agreement
under the provisions of Section 8 or 11 hereof) to purchase and
pay for (a) in the case of the Closing Date, the number of Firm
Shares agreed to be purchased by such Underwriter or Underwriters
upon tender to the Representatives such Firm Shares in accordance
with the terms hereof or (b) in the case of any Option Closing
Date, the number of Optional Shares agreed to be purchased by
such Underwriter or Underwriters upon tender to the
Representatives of such Optional Shares in accordance with the
terms hereof, and the number of such Shares shall not exceed ten
percent (10%) of the Firm Shares or Optional Shares required to
be purchased on the Closing Date or such Option Closing Date, as
the case may be, then, each of the non-defaulting Underwriters
shall purchase and pay for (in addition to the number of such
Shares which it has severally agreed to purchase hereunder) its
proportionate share (based on the monetary obligations of the
several Underwriters hereunder on account of the purchase of Firm
Shares, excluding the Firm Shares allocable to the defaulting
Underwriter or Underwriters) which the defaulting Underwriter or
Underwriters shall have so failed or refused to purchase on such
Closing Date or Option Closing Date, as the case may be. In such
case, the Representatives, on behalf of the Underwriters, shall
have the right to postpone the Closing Date or the Option Closing
Date, as the case may be, to a date not exceeding seven (7) full
business days after the date originally fixed as such Closing
Date or the Option Closing Date, as the case may be, pursuant to
the terms hereof in order that any necessary changes in the
Registration Statement, the Prospectus or any other documents or
arrangements may be made. If one or more of the Underwriters
shall fail or refuse (otherwise than for a reason sufficient to
justify the termination of this Agreement under the provisions of
Section 8 or 11 hereof) to purchase and pay for (a) in the case
of the Closing Date, the number of Firm Shares agreed to be
purchased by such Underwriter or Underwriters upon tender to you
of such Firm Shares in accordance with the terms hereof or (b) in
the case of the Option Closing Date, the number of Optional
Shares agreed to be purchased by such Underwriter or Underwriters
upon tender to you of such Optional Shares in accordance with the
terms hereof, and the number of such Shares shall exceed ten
percent (10%) of the Firm Shares or Optional Shares required to
be purchased by all the Underwriters on the Closing Date or the
Option Closing Date, as the case may be, then (unless within
forty-eight (48) hours after such default arrangements to your
satisfaction shall have been made for the purchase of the
defaulted Shares by an Underwriter or Underwriters) and subject
to the provisions of Section 11(b) hereof, this Agreement will
terminate without liability on the part of any non-defaulting
Underwriter or on the part of the Company except as otherwise
provided in Sections 7 and 9 hereof. As used in this Agreement,
the term "Underwriter" includes any person substituted for an
Underwriter under this paragraph. Nothing in this Section 12,
and no action taken hereunder, shall relieve any defaulting
Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
Section 13. Notices. All communications hereunder shall be
in writing and if sent to the Representatives shall be mailed or
delivered or sent by facsimile transmission and confirmed by
letter to Xxxxxx, Xxxxx Xxxxx, Incorporated at 0000 Xxx Xxxxxx,
X.X., Xxxxxxxxxx, X.X. 00000, Attention: Xxxxxxx X. Xxxxx
(facsimile number: (000) 000-0000) or, if sent to the Company,
shall be mailed or delivered or sent by facsimile transmission
and confirmed by letter to the Company at 00000 Xxxxx Xxxx Xxxxx,
Xxxxxxxx, Xxxxxxxx 00000, attention: Ram Xxxxxxx (facsimile
number: (000) 000-0000).
Section 14. Successors. This Agreement shall inure to the
benefit of and be binding upon the Company and each Underwriter
and the Company's and each Underwriter's respective successors
and legal representatives, and nothing expressed or mentioned in
this Agreement is intended or shall be construed to give any
other person any legal or equitable right, remedy or claim under
or in respect of this Agreement, or any provisions herein
contained, this Agreement and all conditions and provisions
hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person,
except that the representatives, warranties, indemnities and
contribution agreements of the Company contained in this
Agreement shall also be for the benefit of the partners,
employees agents of each Underwriter and any person or persons,
if any, who control any Underwriter within the meaning of Section
15 of the Act or Section 20 of the Exchange Act, and except that
the Underwriters' indemnity and contribution agreements shall
also be for the benefit of the directors of the Company, the
officers of the Company who have signed the Registration
Statement and any person or persons, if any, who control the
Company within the meaning of Section 15 of the Act or Section 20
of the Exchange Act. No purchaser of Shares from the
Underwriters will be deemed a successor because of such purchase.
Section 15. Applicable Law; Jurisdiction. This Agreement
shall be governed by and construed in accordance with the laws of
the State of Maryland, without giving effect to the choice of law
or conflict of law principles thereof. Each party hereto
consents to the jurisdiction of each court in which any action is
commenced seeking indemnity or contribution pursuant to Section 9
above and agrees to accept, either directly or through an agent,
service of process of each such court.
Section 16. Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be deemed to be
an original, and all of which together shall be deemed to be one
and the same instrument.
If the foregoing is in accordance with your understanding,
please sign and return to us three (3) counterparts hereof, and
upon the acceptance hereof by you, on behalf of each of the
Underwriters, this letter and such acceptance hereof shall
constitute a binding agreement among each of the Underwriters and
the Company. It is understood that your acceptance of this
letter on behalf of each of the Underwriters is pursuant to the
authority set forth in a form of Agreement among Underwriters,
the form of which shall be submitted to the Company for
examination, upon request, but without warranty on your part as
to the authority of the signers thereof.
Very truly yours,
STARTEC Global Communications, Inc.
By: _________________________________
Name: ______________________________
Title: _______________________________
Accepted as of the date hereof
XXXXXX, XXXXX XXXXX, INCORPORATED
0000 Xxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
By: XXXXXX, XXXXX XXXXX, INCORPORATED
On behalf of each of the Underwriters
By:
Name:
Title:
SCHEDULE I
NUMBER OF SHARES TO BE PURCHASED BY EACH UNDERWRITER
Name of Underwriter Percentage Number of Firm Shares to be
Purchased from the Company
Xxxxxx, Xxxxx Xxxxx,
Incorporated
Boenning & Scattergood
