16,666,667 Shares UNITEK GLOBAL SERVICES, INC. Common Stock UNDERWRITING AGREEMENT
16,666,667
Shares
Common
Stock
November
[ ],
2010
FBR
Capital Markets & Co.
▇▇▇▇
Capital Partners, LLC
As
Representatives of the Several Underwriters
c/o FBR
Capital Markets & Co.
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies
and Gentlemen:
UniTek
Global Services, Inc., a Delaware corporation (the “Company”), proposes,
subject to the terms and conditions stated herein, to issue and sell to the
several underwriters listed in Schedule I hereto (the “Underwriters”), an
aggregate of 16,666,667 authorized but unissued shares (the “Underwritten Shares”)
of Common Stock, par value $0.00002 per share (the “Common Stock”), of
the Company. The
Company has granted the Underwriters the option to purchase an aggregate of up
to 2,500,000 additional shares of Common Stock (the “Additional Shares”)
solely as may be necessary to cover over-allotments made in connection with the
offering. The Underwritten Shares and Additional Shares are
collectively referred to as the “Shares.” FBR Capital
Markets & Co. and ▇▇▇▇ Capital Partners, LLC, have agreed to act as the
representatives of the several Underwriters (in such capacity, the “Representatives”) in
connection with the offering and sale of the Shares.
The
Company and each Underwriter hereby confirm their agreement as
follows:
1. Registration
Statement and Prospectus. The Company has prepared and filed
with the Securities and Exchange Commission (the “Commission”) a
registration statement on Form S-1 (File No. 333-168854) under the Securities
Act of 1933, as amended (the “Securities Act”) and
the rules and regulations (the “Rules and
Regulations”) of the Commission thereunder, and such amendments to such
registration statement (including post effective amendments) as may have been
required to the date of this Agreement and a preliminary prospectus supplement
or “red ▇▇▇▇▇▇▇” pursuant to Rule 424(b) under the Securities
Act. Such registration statement, as amended (including any post
effective amendments) has been declared effective by the
Commission. Such registration statement, including amendments thereto
(including post effective amendments thereto) at such time, the exhibits and any
schedules thereto at such time and the documents and information otherwise
deemed to be a part thereof or included or incorporated by reference therein by
the Securities Act or otherwise pursuant to the Rules and Regulations at such
time, is herein called the “Registration
Statement.” If the Company has filed or files an abbreviated
registration statement pursuant to Rule 462(b) under the Securities Act (the
“Rule 462 Registration
Statement”), then any reference herein to the term Registration Statement
shall include such Rule 462 Registration Statement.
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The
Company is filing with the Commission pursuant to Rule 424 under the Securities
Act a final prospectus supplement relating to the Shares to a form of prospectus
included in the Registration Statement. Such prospectus in the form
in which it appears in the Registration Statement is hereinafter called the
“Base
Prospectus,” and such final prospectus supplement as filed, along with
the Base Prospectus, is hereinafter called the “Final
Prospectus.” Such Final Prospectus and any preliminary
prospectus supplement or “red ▇▇▇▇▇▇▇,” in the form in which they shall be filed
with the Commission pursuant to Rule 424(b) under the Securities Act (including
the Base Prospectus as so supplemented) is hereinafter called a “Prospectus.”
On or
prior to the Closing Date (as defined below), the Company will complete a series
of transactions (the “Reverse Stock Split”)
as described in the Time of Sale Disclosure Package (as defined below) and the
Prospectus.
For
purposes of this Agreement, all references to the Registration Statement, the
Rule 462 Registration Statement, the Base Prospectus, the Final Prospectus, the
Prospectus or any amendment or supplement to any of the foregoing shall be
deemed to include the copy filed with the Commission pursuant to its Electronic
Data Gathering, Analysis, and Retrieval system. All references in
this Agreement to amendments or supplements to the Registration Statement, the
Rule 462 Registration Statement, the Base Prospectus, the Final Prospectus or
the Prospectus shall be deemed to mean and include any document filed by the
Company under the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), that is deemed to be incorporated therein by reference
therein or otherwise deemed by the Rules and Regulations to be a part
thereof.
2. Representations
and Warranties of the Company Regarding the Offering.
(a) The
Company represents and warrants to, and agrees with, each Underwriter, as of the
date hereof and as of the Closing Date (as defined in Section 4(c) below),
except as otherwise indicated, as follows:
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(i) At
each time of effectiveness, at the date hereof and at the Closing Date, the
Registration Statement and any post-effective amendment thereto complied or will
comply in all material respects with the requirements of the Securities Act and
the Rules and Regulations and did not and will not contain any 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. The Time of Sale Disclosure Package (as defined in
Section 2(a)(iii)(A)(1) below) as of the date hereof and at the Closing Date,
any roadshow or investor presentations delivered to and approved by the
Representatives for use in connection with the marketing of the offering of the
Shares (the “Marketing
Materials”) as of the time of their use and at the Closing Date, and the
Final Prospectus, as amended or supplemented, as of its date, at the time of
filing pursuant to Rule 424(b) under the Securities Act and at the Closing Date,
did not and will not contain any 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. The representations and warranties set forth in
the two immediately preceding sentences shall not apply to statements in or
omissions from the Registration Statement or any Prospectus in reliance upon,
and in conformity with, written information furnished to the Company by the
Representatives specifically for use in the preparation thereof, which written
information is described in Section 7(f). The Registration Statement
contains all exhibits and schedules required to be filed by the Securities Act
or the Rules and Regulations. No order preventing or suspending the
effectiveness or use of the Registration Statement or any Prospectus is in
effect and no proceedings for such purpose have been instituted or are pending,
or, to the knowledge of the Company, are contemplated or threatened by the
Commission.
(ii) The
Company has not distributed any prospectus or other offering material in
connection with the offering and sale of the Shares other than the Time of Sale
Disclosure Package and the Marketing Materials.
(iii) (A)
The Company has provided a copy to the Representatives of each Issuer Free
Writing Prospectus (as defined below), if any, used in the sale of Shares.
The Company has filed all Issuer Free Writing Prospectuses required to be so
filed with the Commission, and no order preventing or suspending the
effectiveness or use of any Issuer Free Writing Prospectus is in effect and no
proceedings for such purpose have been instituted or are pending, or, to the
knowledge of the Company, are contemplated or threatened by the
Commission. When taken together with the rest of the Time of Sale
Disclosure Package or the Final Prospectus, since its first use and at
all relevant times since then, no Issuer Free Writing Prospectus has, does or
will include (1) any untrue statement of a material fact or
omission to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or (2) information that conflicted, conflicts or will
conflict with the information contained in the Registration Statement or the
Final Prospectus. The representations and warranties set forth in the
immediately preceding sentence shall not apply to statements in or omissions
from the Time of Sale Disclosure Package, the Final Prospectus or any Issuer
Free Writing Prospectus in reliance upon, and in conformity with, written
information furnished to the Company by the Representatives specifically for use
in the preparation thereof. As used in this paragraph and elsewhere
in this Agreement:
(1) “Time of Sale Disclosure
Package” means the Base Prospectus, the Prospectus most recently
filed with the Commission before the time of this Agreement, including any
preliminary prospectus supplement deemed to be a part thereof, each Issuer Free
Writing Prospectus, and any description of the transaction provided by the
Representatives included on Schedule II.
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(2) “Issuer Free Writing
Prospectus” means any “issuer free writing prospectus,” as defined in
Rule 433 under the Securities Act, relating to the Shares that (A) is required
to be filed with the Commission by the Company, or (B) is exempt from filing
pursuant to Rule 433(d)(5)(i) or (d)(8) under the Securities Act, in each
case in the form filed or required to be filed with the Commission or, if not
required to be filed, in the form retained in the Company’s records pursuant to
Rule 433(g) under the Securities Act.
(B) At
the time of filing of the Registration Statement and at the date hereof, the
Company was not and is not an “ineligible issuer,” as defined in Rule 405 under
the Securities Act or an “excluded issuer” as defined in Rule 164 under the
Securities Act.
(C) Each
Issuer Free Writing Prospectus satisfied, as of its issue date and at all
subsequent times through the Prospectus Delivery Period, all other conditions as
may be applicable to its use as set forth in Rules 164 and 433 under the
Securities Act, including any legend, record-keeping or other
requirements.
(iv) The
financial statements of the Company, together with the related notes, included
or incorporated by reference in the Registration Statement, the Time of Sale
Disclosure Package and the Final Prospectus comply in all material respects with
the applicable requirements of the Securities Act and the Exchange Act and
fairly present the financial condition of the Company as of the dates indicated
and the results of operations and changes in cash flows for the periods therein
specified in conformity with generally accepted accounting principles
consistently applied throughout the periods involved; and the supporting
schedules included in the Registration Statement present fairly the information
required to be stated therein. No other financial statements, pro
forma financial information or schedules are required under the Securities Act
to be included or incorporated by reference in the Registration Statement, the
Time of Sale Disclosure Package or the Final Prospectus. To the
Company’s knowledge, each of Ernst & Young LLP and BDO ▇▇▇▇▇▇▇ LLP, which
have expressed their opinion with respect to the financial statements and
schedules filed as a part of the Registration Statement and included in the
Registration Statement, the Time of Sale Disclosure Package and the Final
Prospectus are independent public accounting firms with respect to the Company
within the meaning of the Securities Act and the Rules and
Regulations.
(v) The
Company had a reasonable basis for, and made in good faith, each
“forward-looking statement” (within the meaning of Section 27A of the Act or
Section 21E of the Exchange Act) contained or incorporated by reference in the
Registration Statement, the Time of Sale Disclosure Package, the Final
Prospectus or the Marketing Materials.
(vi) All
statistical or market-related data included or incorporated by reference in the
Registration Statement, the Time of Sale Disclosure Package or the Final
Prospectus, or included in the Marketing Materials, are based on or derived from
sources that the Company reasonably believes to be reliable and accurate, and
the Company has obtained the written consent to the use of such data from such
sources, to the extent required.
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(vii) The
Common Stock is registered pursuant to Section 12(b) of the Exchange Act and is
included or approved for inclusion on the Nasdaq Global Market. There is no
action pending by the Company or, to the Company’s knowledge, the Nasdaq Global
Market to delist the Common Shares from the Nasdaq Global Market, nor has the
Company received any notification that the Nasdaq Global Market is contemplating
terminating such listing. When issued, the Shares will be listed on
the Nasdaq Global Market.
(viii) The
Company has not taken, directly or indirectly, any action that is designed to or
that has constituted or that would reasonably be expected to cause or result in
the stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Shares.
(ix) The
Company is not and, after giving effect to the offering and sale of the Shares
and the application of the net proceeds thereof, will not be an “investment
company,” as such term is defined in the Investment Company Act of 1940, as
amended.
(b) Any
certificate signed by any officer of the Company and delivered to the
Representatives or to the Representatives’ counsel shall be deemed a
representation and warranty by the Company to the Underwriters as to the matters
covered thereby.
3. Representations
and Warranties Regarding the Company.
(a) The
Company represents and warrants to and agrees with each Underwriter, except as
set forth in the Registration Statement, the Time of Sale Disclosure Package and
the Prospectus, as follows:
(i) Each
of the Company and its subsidiaries has been duly organized and is validly
existing as a corporation in good standing under the laws of its jurisdiction of
incorporation. Each of the Company and its subsidiaries has the corporate power
and authority to own its properties and conduct its business as currently being
carried on and as described in the Registration Statement, the Time of Sale
Disclosure Package and the Prospectus, and is duly qualified to do business as a
foreign corporation in good standing in each jurisdiction in which it owns or
leases real property or in which the conduct of its business makes such
qualification necessary and in which the failure to so qualify would have or is
reasonably likely to result in a material adverse effect upon the business,
prospects, properties, operations, condition (financial or otherwise) or results
of operations of the Company and its subsidiaries, taken as a whole, or in its
ability to perform its obligations under this Agreement or to consummate the
Reverse Stock Split (“Material Adverse
Effect”).
(ii) The
Company has the power and authority to enter into this Agreement and to
authorize, issue and sell the Shares as contemplated by this
Agreement. This Agreement has been duly authorized, executed and
delivered by the Company, and constitutes a valid, legal and binding obligation
of the Company, enforceable against the Company in accordance with its terms,
except as rights to indemnity hereunder may be limited by federal or state
securities laws and except as such enforceability may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting the rights of creditors
generally and subject to general principles of equity.
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(iii) The
execution, delivery and performance of this Agreement, the consummation of the
transactions herein contemplated and by the Reverse Stock Split will not (A)
result in a breach or violation of any of the terms and provisions of, or
constitute a default under, any law, rule or regulation to which the Company or
any subsidiary is subject, or by which any property or asset of the Company or
any subsidiary is bound or affected, (B) conflict with, result in any violation
or breach of, or constitute a default (or an event that with notice or lapse of
time or both would become a default) under, or give to others any right of
termination, amendment, acceleration or cancellation (with or without notice,
lapse of time or both) of, any agreement, lease, credit facility, debt, note,
bond, mortgage, indenture or other instrument (the “Contracts”) or
obligation or other understanding to which the Company or any subsidiary is a
party of by which any property or asset of the Company or any subsidiary is
bound or affected, except to the extent that such conflict, default,
termination, amendment, acceleration or cancellation right is not reasonably
likely to result in a Material Adverse Effect, or (C) result in a breach or
violation of any of the terms and provisions of, or constitute a default under,
the Company’s charter or by-laws.
(iv) Neither
the Company nor any of its subsidiaries is in violation, breach or default under
its certificate of incorporation, by-laws or other equivalent organizational or
governing documents, except where the violation, breach or default is not
reasonably likely to result in a Material Adverse Effect.
(v) All
consents, approvals, orders, authorizations and filings required on the part of
the Company and its subsidiaries in connection with the execution, delivery or
performance of this Agreement and the Reverse Stock Split have been obtained or
made, other than such consents, approvals, orders and authorizations the failure
of which to make or obtain is not reasonably likely to result in a Material
Adverse Effect.
(vi) All
of the issued and outstanding shares of capital stock of the Company are duly
authorized and validly issued, fully paid and nonassessable, and have been
issued in compliance with all applicable securities laws, and conform to the
description thereof in the Registration Statement, the Time of Sale Disclosure
Package and the Prospectus. Except for the issuances of options or
restricted stock in the ordinary course of business, since the respective dates
as of which information is provided in the Registration Statement, the Time of
Sale Disclosure Package or the Prospectus, the Company has not entered into or
granted any convertible or exchangeable securities, options, warrants,
agreements, contracts or other rights in existence to purchase or acquire from
the Company any shares of the capital stock of the Company. The
Shares, when issued, will be duly authorized and validly issued, fully paid
and nonassessable, will be issued in compliance with all applicable securities
laws, and will be free of preemptive, registration or similar
rights.
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(vii) Each
of the Company and its subsidiaries has filed all returns (as hereinafter
defined) required to be filed with taxing authorities prior to the date hereof
or has duly obtained extensions of time for the filing thereof, other than any
which the Company or any of its subsidiaries is contesting in good
faith. Each of the Company and its subsidiaries has paid all taxes
(as hereinafter defined) shown as due on such returns that were filed and has
paid all taxes imposed on or assessed against the Company or such respective
subsidiary. The provisions for taxes payable, if any, shown on the
financial statements filed with or as part of the Registration Statement are
sufficient for all accrued and unpaid taxes, whether or not disputed, and for
all periods to and including the dates of such consolidated financial
statements. Except as disclosed to the Representatives in writing,
(i) no issues have been raised (and are currently pending) by any taxing
authority in connection with any of the returns or taxes asserted as due from
the Company or its subsidiaries, and (ii) no waivers of statutes of limitation
with respect to the returns or collection of taxes have been given by or
requested from the Company or its subsidiaries. The term “taxes” mean all
federal, state, local, foreign, and other net income, gross income, gross
receipts, sales, use, ad valorem, transfer, franchise, profits, license, lease,
service, service use, withholding, payroll, employment, excise, severance,
stamp, occupation, premium, property, windfall profits, customs, duties or other
taxes, fees, assessments, or charges of any kind whatever, together with any
interest and any penalties, additions to tax, or additional amounts with respect
thereto. The term “returns” means all
returns, declarations, reports, statements, and other documents required to be
filed in respect to taxes.
(viii) Since
the respective dates as of which information is given in the Registration
Statement, the Time of Sale Disclosure Package or the Prospectus, (a) neither
the Company nor any of its subsidiaries has incurred any material liabilities or
obligations, direct or contingent, or entered into any material transactions
other than in the ordinary course of business, (b) the Company has not declared
or paid any dividends or made any distribution of any kind with respect to its
capital stock; (c) there has not been any change in the capital stock of the
Company or any of its subsidiaries (other than a change in the number of
outstanding shares of Common Stock due to the issuance of shares upon the
exercise of outstanding options or warrants or the issuance of restricted stock
awards or restricted stock units under the Company’s existing stock awards
plan, or any new grants thereof in the ordinary course of business), (d)
there has not been any material change in the Company’s long-term or short-term
debt, and (e) there has not been the occurrence of any Material Adverse
Effect.
(ix) The
Company makes and keeps accurate books and records and maintains a system of
internal accounting controls sufficient to provide reasonable assurance that
(a) transactions are executed in accordance with management’s general or
specific authorization, (b) transactions are recorded as necessary to
permit preparation of financial statements conformity with generally accepted
accounting principles consistently applied and to maintain accountability for
assets, (c) access to assets is permitted only in accordance with
management’s general or specific authorization and (d) the recorded
accountability for assets is compared with existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
Except as disclosed in the Time of Sale Disclosure Package, there has not been a
material weakness in the Company’s internal control over financial reporting
(whether or not remediated) and since December 31, 2008, there has been no
change in the Company’s internal control over financial reporting that has
materially affected, or is reasonably likely to materially affect, the Company’s
internal control over financial reporting.
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(x) The
Company has established and maintains disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15(e) and 15d-15(e)), which (a) are
designed to ensure that material information relating to the Company, including
its consolidated subsidiaries, is made known to the Company’s principal
executive officer and its principal financial officer by others within those
entities, particularly during the periods in which the periodic reports required
under the Exchange Act are being prepared, (b) have been evaluated by management
of the Company for effectiveness as of a date within 90 days prior to the
earlier of the date that the Company filed its most recent annual or quarterly
report with the Commission and the date of the Time of Sale Disclosure Package
and the Prospectus and (c) are effective in all material respects to perform the
functions for which they were established. The Company is not aware
of (a) any significant deficiencies or material weaknesses in the design or
operation of internal control over financial reporting which are reasonably
likely to adversely affect the Company’s ability to record, process, summarize
and report financial information or (b) any fraud, whether or not material, that
involves management or other employees who have a significant role in the
Company’s internal control over financial reporting. The Company is
not aware of any change in its internal control over financial reporting that
has occurred during its most recent fiscal quarter that has materially affected,
or is reasonably likely to materially affect, the Company’s internal control
over financial reporting.
(xi) Except
as described in the Registration Statement, the Time of Sale Disclosure Package
or the Prospectus, there is not pending or, to the knowledge of the Company,
threatened, any action, suit or proceeding to which the Company or any of its
subsidiaries is a party or of which any property or assets of the Company or its
subsidiaries is the subject before or by any court or governmental agency,
authority or body, or any arbitrator or mediator, which is reasonably likely to
result in a Material Adverse Effect.
(xii) The
Company and each of its subsidiaries holds, and is in compliance with, all
franchises, grants, authorizations, licenses, permits, easements, consents,
certificates and orders (“Permits”) of any
governmental or self-regulatory agency, authority or body required for the
conduct of its business, and all such Permits are in full force and effect, in
each case except where the failure to hold, or comply with, any of them is not
reasonably likely to result in a Material Adverse Effect.
(xiii) The
Company and its subsidiaries have good and marketable title to all property
(whether real or personal) described in the Registration Statement, the Time of
Sale Disclosure Package and the Prospectus as being owned by them that are
material to the business of the Company, in each case free and clear of all
liens, claims, security interests, other encumbrances or defects, except those
that are either described in the Registration Statement, the Time of Sale
Disclosure Package and the Prospectus or are not reasonably likely to result in
a Material Adverse Effect. The property held under lease by the
Company and its subsidiaries is held by them under valid, subsisting and
enforceable leases with only such exceptions with respect to any particular
lease as do not interfere in any material respect with the conduct of the
business of the Company and its subsidiaries.
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(xiv) The
Company and each of its subsidiaries owns or possesses or has valid right to use
all patents, patent applications, trademarks, service marks, trade names,
trademark registrations, service ▇▇▇▇ registrations, copyrights, licenses,
inventions, trade secrets and similar rights (“Intellectual
Property”) necessary for the conduct of the business of the Company and
its subsidiaries as currently carried on and as described in the Registration
Statement, the Time of Sale Disclosure Package and the Prospectus. To
the knowledge of the Company, no action or use by the Company or any of its
subsidiaries will involve or give rise to any infringement of, or license or
similar fees for, any Intellectual Property of others, except where such action,
use, license or fee is not reasonably likely to result in a Material Adverse
Effect. Neither the Company nor any of its subsidiaries has received
any written notice alleging any such infringement or fee.
(xv) The
Company and each of its subsidiaries has complied with, is not in violation of,
and has not received any notice of violation relating to any law, rule or
regulation relating to the conduct of its business, or the ownership or
operation of its property and assets, including, without limitation, (a) the
Currency and Foreign Transactions Reporting Act of 1970, as amended, or any
money laundering laws, rules or regulations, (b) any laws, rules or regulations
related to health, safety or the environment, including those relating to the
regulation of hazardous substances, (c) the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and
regulations of the Commission thereunder, (d) the Foreign Corrupt Practices Act
of 1977 and the rules and regulations thereunder, and (e) the Employment
Retirement Income Security Act of 1974 and the rules and regulations thereunder,
in each case except where the failure to be in compliance is not reasonably
likely to result in a Material Adverse Effect.
(xvi) Neither
the Company nor any of its subsidiaries nor, to the knowledge of the Company,
any director, officer, employee, representative, agent or affiliate of the
Company or any of its subsidiaries is currently subject to any U.S. sanctions
administered by the Office of Foreign Assets Control of the U.S. Treasury
Department (“OFAC”); and the
Company will not directly or indirectly use the proceeds of the offering of the
Shares contemplated hereby, or lend, contribute or otherwise make available such
proceeds to any person or entity, for the purpose of financing the activities of
any person currently subject to any U.S. sanctions administered by
OFAC.
(xvii) The
Company and each of its subsidiaries carries, or is covered by, insurance in
such amounts and covering such risks as is adequate for the conduct of its
business and the value of its properties and as is customary for companies
engaged in similar businesses in similar industries.
(xviii) No
labor dispute with the employees of the Company or any of its subsidiaries
exists or, to the knowledge of the Company, is imminent, that is reasonably
likely to result in a Material Adverse Effect.
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(xix) Neither
the Company, its subsidiaries nor, to its knowledge, any other party is in
violation, breach or default of any Contract where such violation, breach or
default is reasonably likely to result in a Material Adverse
Effect.
(xx) No
supplier, customer, distributor or sales agent of the Company
has notified the Company that it intends to discontinue
or decrease the rate of business done with the Company, except
where such decrease is not reasonably likely to result in a Material Adverse
Effect.
(xxi) Except
as disclosed to the Representatives in writing, there are no claims, payments,
issuances, arrangements or understandings for services in the nature of a
finder’s, consulting or origination fee with respect to the introduction of the
Company to the Underwriters’ or the sale of the Shares hereunder or any other
arrangements, agreements, understandings, payments or issuances with respect to
the Company that may affect the Underwriters’ compensation, as determined by
FINRA.
(xxii) Except
as disclosed to the Representatives in writing, the Company has not made any
direct or indirect payments (in cash, securities or otherwise) to (i) any
person, as a finder’s fee, investing fee or otherwise, in consideration of such
person raising capital for the Company or introducing to the Company persons who
provided capital to the Company, (ii) any FINRA member, or (iii) any person or
entity that has any direct or indirect affiliation or association with any FINRA
member within the 12-month period prior to the date on which the Registration
Statement was filed with the Commission (“Filing Date”) or
thereafter.
(xxiii) None
of the net proceeds of the offering will be paid by the Company to any
participating FINRA member or any affiliate or associate of any participating
FINRA member, except as specifically authorized herein.
(xxiv) There
are no business relationships or related-party transactions involving the
Company or any of its subsidiaries or any other person required to be described
in any Prospectus which have not been described as
required.
(xxv) Since
the adoption of Section 13(k) of the Exchange Act, neither the Company nor any
of its subsidiaries has extended or maintained credit, arranged for the
extension of credit, or renewed any extension of credit, in the form of a
personal loan, to or for any director or executive officer (or equivalent
thereof) of the Company and/or such subsidiary except for such extensions of
credit as are expressly permitted by Section 13(k) of the Exchange
Act.
(xxvi) To
the Company’s knowledge, no (i) officer or director of the Company or its
subsidiaries, (ii) owner of 5% or more of the Company’s unregistered securities
or that of its subsidiaries or (iii) owner of any amount of the Company’s
unregistered securities acquired within the 180-day period prior to the Filing
Date, has any direct or indirect affiliation or association with any FINRA
member. The Company will advise the Representatives and their counsel
if it becomes aware that any officer, director or stockholder of the Company or
its subsidiaries is or becomes an affiliate or associated person of a FINRA
member participating in the offering.
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(xxvii) Other
than the Underwriters, no person has the right to act as an underwriter or as a
financial advisor to the Company in connection with the transactions
contemplated hereby.
(xxviii) The
consummation of the Reverse Stock Split and the transactions contemplated
thereby have been duly authorized by the Company.
4. Purchase,
Sale and Delivery of Shares.
(a) On
the basis of the representations, warranties and agreements herein contained,
but subject to the terms and conditions herein set forth, the Company agrees to
issue and sell the Underwritten Shares to the Underwriters, and the Underwriters
agree, severally and not jointly, to purchase the number of Underwritten Shares
set forth opposite their names on Schedule I. The
purchase price for each Underwritten Share shall be $[_____] per share (the
“Per Share
Price”).
Payment
of the purchase price for and delivery of the Additional Shares shall be made at
the Option Closing Date in the same manner and at the same office as the payment
for the Underwritten Shares as set forth in subparagraph (c)
below. For the purpose of expediting the checking of the certificate
for the Additional Shares by the Representatives, the Company agrees to make a
form of such certificate available to the Representatives for such purpose at
least one full business day preceding the Option Closing Date.
11
(c) The
Underwritten Shares will be delivered by the Company to the Representatives for
the account of the Underwriters against payment of the purchase price therefor
by wire transfer of same day funds payable to the order of the Company at the
offices of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, or such other location as may be mutually acceptable, at
6:00 a.m. PST, on the third (or if the Underwritten Shares are priced, as
contemplated by Rule 15c6-1(c) under the Exchange Act, after 4:30 p.m. Eastern
time, the fourth) full business day following the date hereof, or at such other
time and date as the Representatives and the Company determine pursuant to Rule
15c6-1(a) under the Exchange Act, or, in the case of the Additional Shares, at
such date and time set forth in the Option Notice. The time and date
of delivery of the Underwritten Shares or the Additional Shares, as applicable,
is referred to herein as the “Closing
Date.” If the Representatives so elect, delivery of the
Underwritten Shares and Additional Shares may be made by credit through full
fast transfer to the account at The Depository Trust Company designated by the
Representatives. Certificates representing the Shares, in definitive
form and in such denominations and registered in such names as the
Representatives may request upon at least two business days’ prior notice to the
Company, will be made available for checking and packaging not later than 10:30
a.m. PDT on the business day next preceding the Closing Date at the above
addresses, or such other location as may be mutually acceptable.
(d) It
is understood that the Representatives have been authorized, for their own
account and the accounts of the several Underwriters, to accept delivery of and
receipt for, and make payment of the purchase price for, the Underwritten Shares
and any Additional Shares the Underwriters have agreed to purchase. FBR
Capital Markets & Co. and ▇▇▇▇ Capital Partners LLC, individually and not as
the Representatives of the Underwriters, may (but shall not be obligated to)
make payment for any Shares to be purchased by any Underwriter whose funds shall
not have been received by the Representatives by the applicable Closing Date, as
the case may be, for the account of such Underwriter, but any such payment shall
not relieve such Underwriter from any of its obligations under this
Agreement.
5. Covenants.
(a) The
Company covenants and agrees with each Underwriter as follows:
(i) During
the period beginning on the date hereof and ending on the later of the Closing
Date or such date as determined by the Representatives the Prospectus is no
longer required by law to be delivered in connection with sales by an
underwriter or dealer (the “Prospectus Delivery
Period”), prior to amending or supplementing the Registration Statement,
including any Rule 462 Registration Statement, the Time of Sale Disclosure
Package or the Prospectus, the Company shall furnish to the Underwriter for
review and comment a copy of each such proposed amendment or supplement, and the
Company shall not file any such proposed amendment or supplement to which the
Representatives reasonably object.
12
(ii) From
the date of this Agreement until the end of the Prospectus Delivery Period, the
Company shall promptly advise the Representatives in writing (A) of the receipt
of any comments of, or requests for additional or supplemental information from,
the Commission, (B) of the time and date of any filing of any post-effective
amendment to the Registration Statement or any amendment or supplement to the
Time of Sale Disclosure Package, the Prospectus or any Issuer Free Writing
Prospectus, (C) of the time and date that any post-effective amendment to the
Registration Statement becomes effective and (D) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending its use or the use of the
Time of Sale Disclosure Package or any Issuer Free Writing Prospectus, or of any
proceedings to remove, suspend or terminate from listing or quotation the Common
Stock from any securities exchange upon which it is listed for trading or
included or designated for quotation, or of the threatening or initiation of any
proceedings for any of such purposes. If the Commission shall enter
any such stop order at any time during the Prospectus Delivery Period, the
Company will use its reasonable efforts to obtain the lifting of such order at
the earliest possible moment. Additionally, the Company agrees that
it shall comply with the provisions of Rules 424(b), 430A and 430B, as
applicable, under the Securities Act and will use its reasonable efforts to
confirm that any filings made by the Company under Rule 424(b) or Rule 433 were
received in a timely manner by the Commission (without reliance on Rule
424(b)(8) or 164(b) of the Securities Act).
(iii) (A)
During the Prospectus Delivery Period, the Company will comply with all
requirements imposed upon it by the Securities Act, as now and hereafter
amended, and by the Rules and Regulations, as from time to time in force, and by
the Exchange Act, as now and hereafter amended, so far as necessary to permit
the continuance of sales of or dealings in the Shares as contemplated by the
provisions hereof, the Time of Sale Disclosure Package, the Registration
Statement and the Prospectus. If during such period any event occurs
the result of which the Prospectus (or if the Prospectus is not yet available to
prospective purchasers, the Time of Sale Disclosure Package ) would include an
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances then existing,
not misleading, or if during such period it is necessary or appropriate in the
opinion of the Company or its counsel or the Representatives or their counsel to
amend the Registration Statement or supplement the Prospectus (or if the
Prospectus is not yet available to prospective purchasers, the Time of Sale
Disclosure Package ) to comply with the Securities Act, the Company will
promptly notify the Representatives, allow the Representatives the opportunity
to provide reasonable comments on such amendment, Prospectus supplement or
document, and will amend the Registration Statement or supplement the Prospectus
(or if the Prospectus is not yet available to prospective purchasers, the Time
of Sale Disclosure Package) so as to correct such statement or omission or
effect such compliance.
(B) If
at any time following the issuance of an Issuer Free Writing Prospectus there
occurred or occurs an event or development the result of which such Issuer Free
Writing Prospectus conflicted or would conflict with the information contained
in the Registration Statement or any Prospectus or included or would include an
untrue statement of a material fact or omitted or would omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances prevailing at that subsequent time, not misleading, the Company
has promptly notified or promptly will notify the Representatives and has
promptly amended or will promptly amend or supplement, at its own expense, such
Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue
statement or omission.
13
(iv) The
Company shall take or cause to be taken all necessary action to qualify the
Shares for sale under the securities laws of such jurisdictions as the
Representatives reasonably designate and to continue such qualifications in
effect so long as required for the distribution of the Shares, except that the
Company shall not be required in connection therewith to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction in which it is not
so qualified, to execute a general consent to service of process in any state or
to subject itself to taxation in respect of doing business in any jurisdiction
in which it is not otherwise subject.
(v) The
Company will furnish to the Representatives and counsel for the Representatives
copies of the Registration Statement, each Prospectus, any Issuer Free Writing
Prospectus, and all amendments and supplements to such documents, in each case
as soon as available and in such quantities as the Underwriter may from time to
time reasonably request.
(vi) The
Company will make generally available to its security holders (including without
limitation by filing with the Commission under the Exchange Act) as soon as
practicable, but in any event not later than 15 months after the end of the
Company’s current fiscal quarter, an earnings statement (which need not be
audited) covering a 12-month period that shall satisfy the provisions of Section
11(a) of the Securities Act and Rule 158 of the Rules and
Regulations.
(vii) The
Company, whether or not the transactions contemplated hereunder are consummated
or this Agreement is terminated, will pay or cause to be paid (A) all
expenses (including transfer taxes allocated to the respective transferees)
incurred in connection with the delivery to the Underwriters of the Shares, (B)
all expenses and fees (including, without limitation, fees and expenses of the
Company’s counsel) in connection with the preparation, printing, filing,
delivery, and shipping of the Registration Statement (including the financial
statements therein and all amendments, schedules, and exhibits thereto), the
Shares, the Time of Sale Disclosure Package, the Prospectus, any Issuer Free
Writing Prospectus and any amendment thereof or supplement thereto, (C) all
reasonable filing fees and reasonable fees and disbursements of the
Underwriters’ counsel incurred in connection with the qualification of the
Shares for offering and sale by the Underwriters or by dealers under the
securities or blue sky laws of the states and other jurisdictions that the
Representatives shall designate, (D) the fees and expenses of any transfer agent
or registrar, (E) the reasonable filing fees and reasonable fees and
disbursements of Underwriters’ counsel incident to any required review and
approval by FINRA, of the terms of the sale of the Shares, (F) listing fees, if
any, and (G) all other costs and expenses incident to the performance of its
obligations hereunder that are not otherwise specifically provided for
herein. In addition to the foregoing, the Company will pay the
Underwriters, on the Closing Date, an amount equal to 1.5% of the gross proceeds
received by the Company from the sale of the Underwritten Shares and the
Additional Shares, as applicable, as a non-accountable reimbursement of the
Underwriters’ other expenses (the “Underwriters’
Expenses”); provided however, if the transactions contemplated herein are
consummated, the fees and reimbursements set forth in (A) – (G) above, will be
credited against the Underwriters’ Expenses, and no additional amount shall be
paid by the Company to the Underwriters other than the Underwriters’
Expenses. If this Agreement is terminated by the Representatives in
accordance with the provisions of Section 6 or Section 9, the Company will
reimburse the Underwriters for all out-of-pocket disbursements (including, but
not limited to, reasonable fees and disbursements of counsel, travel expenses,
postage, facsimile and telephone charges) incurred by the Underwriters in
connection with its investigation, preparing to market and marketing the Shares
or in contemplation of performing its obligations
hereunder. Notwithstanding anything contained herein, the maximum
amount payable by the Company for Underwriters’ counsel fees, disbursements and
other out-of-pocket expenses pursuant to this Section 5(a)(vii) exclusive of the
Underwriters’ Expenses shall be $200,000.
14
(viii) The
Company intends to apply the net proceeds from the sale of the Shares to be sold
by it hereunder for the purposes set forth in the Time of Sale Disclosure
Package and in the Final Prospectus.
(ix) The
Company has not taken and will not take, directly or indirectly, during the
Prospectus Delivery Period, any action designed to or which might reasonably be
expected to cause or result in, or that has constituted, the stabilization or
manipulation of the price of any security of the Company to facilitate the sale
or resale of the Shares.
(x) The
Company represents and agrees that, unless it obtains the prior written consent
of the Representatives, and the Representatives represent and agree that, unless
they obtain the prior written consent of the Company, they have not made and
will not make any offer relating to the Shares that would constitute an Issuer
Free Writing Prospectus; provided that the prior written consent of the parties
hereto shall be deemed to have been given in respect of the free writing
prospectuses included in Schedule II. Any such free
writing prospectus consented to by the Company and the Representatives are
hereinafter referred to as a “Permitted Free Writing
Prospectus.” The Company represents that it has treated or
agrees that it will treat each Permitted Free Writing Prospectus as an “issuer
free writing prospectus,” as defined in Rule 433, and has complied or will
comply with the requirements of Rule 433 applicable to any Permitted Free
Writing Prospectus, including timely Commission filing where required, legending
and record-keeping.
15
(xi) The
Company hereby agrees that, without the prior written consent of the
Representatives, it will not, during the period ending 180 days after the date
hereof (“Lock-Up
Period”), (i) offer, pledge, issue, sell, contract to sell, purchase,
contract to purchase, lend, or otherwise transfer or dispose of, directly or
indirectly, any shares of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock; or (ii) enter into any swap or
other arrangement that transfers to another, in whole or in part, any of the
economic consequences of ownership of the Common Stock, whether any such
transaction described in clause (i) or (ii) above is to be settled by delivery
of Common Stock or such other securities, in cash or otherwise; or (iii) file
any registration statement with the Commission relating to the offering of any
shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock. The restrictions contained in the
preceding sentence shall not apply to (1) the Shares to be sold hereunder, (2)
the issuance of Common Stock upon the exercise of options or warrants
or other convertible securities disclosed as outstanding in the Registration
Statement (excluding exhibits thereto) or the Prospectus, or (3) the issuance of
employee stock options not exercisable during the Lock-Up Period and the grant
of restricted stock awards or restricted stock units pursuant to equity
incentive plans described in the Registration Statement (excluding exhibits
thereto) and the Prospectus. Notwithstanding the foregoing, if (x)
the Company issues an earnings release or material news, or a material event
relating to the Company occurs, during the last 17 days of the Lock-Up Period,
or (y) prior to the expiration of the Lock-Up Period, the Company announces that
it will release earnings results during the 16-day period beginning on the last
day of the Lock-Up Period, the restrictions imposed by this clause shall
continue to apply until the expiration of the 18-day period beginning on the
issuance of the earnings release or the occurrence of the material news or
material event, unless the Representatives waive such extension in
writing.
(xii) During
the Lock-Up Period, the Company will enforce all existing agreements between the
Company and any of its security holders that prohibit the sale, transfer,
assignment, pledge or hypothecation of any of the Company’s
securities. In addition, the Company will direct its transfer agent
to place stop transfer restrictions upon any such securities of the Company that
are bound by such existing “lock-up” agreements for the duration of the periods
contemplated in such agreements, including, without limitation, “lock-up”
agreements entered into by the Company’s officers and directors pursuant to
Section 6(i) hereof.
6. Conditions of the
Underwriters’ Obligations. The obligations of the Underwriters
hereunder to purchase the Shares are subject to the accuracy, as of the date
hereof and at the Closing Date (as if made at the Closing Date), of and
compliance with all representations, warranties and agreements of the Company
contained herein, the performance by the Company of its obligations hereunder
and the following additional conditions:
(a) If
filing of the Prospectus, or any amendment or supplement thereto, or any Issuer
Free Writing Prospectus, is required under the Securities Act or the Rules and
Regulations, the Company shall have filed the Prospectus (or such amendment or
supplement) or such Issuer Free Writing Prospectus with the Commission in the
manner and within the time period so required (without reliance on Rule
424(b)(8) or 164(b) under the Securities Act); the Registration Statement shall
remain effective; no stop order suspending the effectiveness of the Registration
Statement or any part thereof, any Rule 462 Registration Statement, or any
amendment thereof, nor suspending or preventing the use of the Time of Sale
Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus shall
have been issued; no proceedings for the issuance of such an order shall have
been initiated or threatened; any request of the Commission or the
Representatives for additional information (to be included in the Registration
Statement, the Time of Sale Disclosure Package, the Prospectus, any Issuer Free
Writing Prospectus or otherwise) shall have been complied with to the
Representatives’ satisfaction.
16
(b) The
Shares shall be qualified for listing on the NASDAQ Global Market.
(c) FINRA
shall have raised no objection to the fairness and reasonableness of the
underwriting terms and arrangements.
(d) The
Representatives shall not have reasonably determined, and advised the Company,
that the Registration Statement, the Time of Sale Disclosure Package or the
Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free
Writing Prospectus, contains an untrue statement of fact which, in the
Representatives’ reasonable opinion, is material, or omits to state a fact
which, in the Representatives’ reasonable opinion, is material and is required
to be stated therein or necessary to make the statements therein not
misleading.
(e) On
or after the date hereof (i) no downgrading shall have occurred in the rating
accorded any of the Company’s securities by any “nationally recognized
statistical organization,” as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the Securities Act, and (ii) no such
organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any of the Company’s
securities.
(f) On
the Closing Date, there shall have been furnished to the Representatives the
opinion and negative assurance letters of ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, dated
the Closing Date and addressed to the Underwriters, in form and substance
reasonably satisfactory to the Representatives, to the effect set forth in Schedule III.
(g) The
Representatives shall have received a letter of each of Ernst & Young LLP
and BDO ▇▇▇▇▇▇▇, LLP, on the date hereof and on the Closing Date addressed to
the Underwriters, confirming that they are independent public accountants within
the meaning of the Securities Act and are in compliance with the applicable
requirements relating to the qualifications of accountants under Rule 2-01 of
Regulation S-X of the Commission, and confirming, as of the date of each such
letter (or, with respect to matters involving changes or developments since the
respective dates as of which specified financial information is given in the
Time of Sale Disclosure Package, as of a date not prior to the date hereof or
more than five days prior to the date of such letter), the conclusions and
findings of said firm with respect to the financial information and other
matters required by the Representatives.
(h) On
the Closing Date, there shall have been furnished to the Representatives a
certificate, dated the Closing Date and addressed to the Underwriters, signed by
the chief executive officer and the chief financial officer of the Company, in
their capacity as officers of the Company, to the effect that:
(i) The
representations and warranties of the Company in this Agreement that are
qualified by materiality or by reference to any Material Adverse Effect are true
and correct in all respects, and all other representations and warranties of the
Company in this Agreement are true and correct, in all material respects, as if
made at and as of the Closing Date, and the Company has complied with all the
agreements and satisfied all the conditions on its part to be performed or
satisfied at or prior to the Closing Date;
17
(ii) No
stop order or other order (A) suspending the effectiveness of the Registration
Statement or any part thereof or any amendment thereof, (B) suspending the
qualification of the Shares for offering or sale, or (C) suspending or
preventing the use of the Time of Sale Disclosure Package, the Prospectus or any
Issuer Free Writing Prospectus, has been issued, and no proceeding for that
purpose has been instituted or, to their knowledge, is contemplated by the
Commission or any state or regulatory body; and
(iii) There
has been no occurrence of any event resulting or reasonably likely to result in
a Material Adverse Effect during the period from and after the date of this
Agreement and prior to the Closing Date.
(i) On
or before the date hereof, the Representatives shall have received duly executed
“lock-up” agreements, in a form acceptable to the Representatives, between the
Representatives and the persons set forth on Schedule IV.
(j) The
Company shall have furnished to the Representatives and their counsel such
additional documents, certificates and evidence as the Representatives or their
counsel may have reasonably requested.
(k) The
Reverse Stock Split, as described in the Time of Sale Disclosure Package and the
Prospectus, shall have been consummated.
If any
condition specified in this Section 6 shall not have been fulfilled when and as
required to be fulfilled, this Agreement may be terminated by the
Representatives by notice to the Company at any time at or prior to the Closing
Date and such termination shall be without liability of any party to any other
party, except that Section 5(a)(vii), Section 7 and Section 8 shall survive any
such termination and remain in full force and effect.
7. Indemnification
and Contribution.
(a) The
Company agrees to indemnify, defend and hold harmless each Underwriter, its
affiliates, directors and officers and employees, and each person, if any, who
controls such Underwriter within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act, from and against any losses, claims,
damages or liabilities to which the Underwriter or such person may become
subject, under the Securities Act or otherwise (including in settlement of any
litigation if such settlement is effected with the written consent of the
Company), insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon (i) an untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement, including the information deemed to be a part of the Registration
Statement at the time of effectiveness and, if applicable, at any subsequent
time pursuant to Rules 430A and 430B of the Rules and Regulations, or arise out
of or are based upon the omission from the Registration Statement, or alleged
omission to state therein, a material fact required to be stated therein or
necessary to make the statements therein not misleading or (ii) an untrue
statement or alleged untrue statement of a material fact contained in the Time
of Sale Disclosure Package, the Prospectus, or any amendment or supplement
thereto (including any documents filed under the Exchange Act and deemed to be
incorporated by reference into the Registration Statement or the Prospectus),
any Issuer Free Writing Prospectus or the Marketing Materials or in any other
materials used in connection with the offering of the Shares, 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, in
light of the circumstances under which they were made, not misleading, and will
reimburse the Underwriters for any legal or other expenses reasonably incurred
by them in connection with evaluating, investigating or defending against such
loss, claim, damage, liability or action; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage, liability or action arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
the Registration Statement, the Time of Sale Disclosure Package, the Prospectus,
or any amendment or supplement thereto or any Issuer Free Writing Prospectus, in
reliance upon and in conformity with written information furnished to the
Company by the Representatives specifically for use in the preparation thereof,
which written information is described in Section 7(f).
18
(b) Each
Underwriter will, severally and not jointly, indemnify, defend and hold harmless
the Company, its affiliates, directors, officers and employees, and each
person, if any, who controls the Company within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act, from and against any
losses, claims, damages or liabilities to which the Company may become subject,
under the Securities Act or otherwise (including in settlement of any
litigation, if such settlement is effected with the written consent of such
Underwriter), insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement, the Time of Sale Disclosure Package, the Prospectus, or any amendment
or supplement thereto or any Issuer Free Writing Prospectus, 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, 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 the Registration Statement, the Time of Sale Disclosure Package, the
Prospectus, or any amendment or supplement thereto or any Issuer Free Writing
Prospectus in reliance upon and in conformity with written information furnished
to the Company by the Representatives specifically for use in the preparation
thereof, and will reimburse the Company for any legal or other
expenses reasonably incurred by the Company in connection with defending against
any such loss, claim, damage, liability or action.
19
(c) Promptly
after receipt by an indemnified party under subsection (a) or (b) above of
notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party under such
subsection, notify the indemnifying party in writing of the commencement
thereof; but the failure to notify the indemnifying party shall not relieve the
indemnifying party from any liability that it may have to any indemnified party
except to the extent such indemnifying party has been materially prejudiced by
such failure. In case any such action shall be brought against any
indemnified party, and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
in, and, to the extent that it shall wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party, and after notice from the indemnifying
party to such indemnified party of the indemnifying party’s election so to
assume the defense thereof, the indemnifying party shall not be liable to such
indemnified party under such subsection for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof; provided,
however, that if (i)
the indemnified party has reasonably concluded (based on advice of counsel) that
there may be legal defenses available to it or other indemnified parties that
are different from or in addition to those available to the indemnifying party,
(ii) a conflict or potential conflict exists (based on advice of counsel to the
indemnified party) between the indemnified party and the indemnifying party (in
which case the indemnifying party will not have the right to direct the defense
of such action on behalf of the indemnified party), or (iii) the indemnifying
party has not in fact employed counsel reasonably satisfactory to the
indemnified party to assume the defense of such action within a reasonable time
after receiving notice of the commencement of the action, the indemnified party
shall have the right to employ a single counsel to represent it in any claim in
respect of which indemnity may be sought under subsection (a) or (b) of this
Section 7, in which event the reasonable fees and expenses of such separate
counsel shall be borne by the indemnifying party or parties and reimbursed to
the indemnified party as incurred.
The
indemnifying party under this Section 7 shall not be liable for any settlement
of any proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party against any loss, claim, damage,
liability or expense by reason of such settlement or judgment. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement, compromise or consent to the entry of judgment in
any pending or threatened action, suit or proceeding in respect of which any
indemnified party is a party or could be named and indemnity was or would be
sought hereunder by such indemnified party, unless such settlement, compromise
or consent (a) includes an unconditional release of such indemnified party from
all liability for claims that are the subject matter of such action, suit or
proceeding and (b) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any indemnified
party.
20
(d) If
the indemnification provided for in this Section 7 is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above, (i) in such proportion
as is appropriate to reflect the relative benefits received by the Company on the one hand and the
Underwriters on the other from the offering and sale 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 the Company on
the one hand and the Underwriters on the other in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as the
total net proceeds from the offering (before deducting expenses) received by the
Company bear to the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page of the
Final Prospectus. The 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’ relevant intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The Company and
the Underwriters agree that it would not be just and equitable if contributions
pursuant to this subsection (d) were to be determined by pro rata allocation or
by any other method of allocation that does not take account of the equitable
considerations referred to in the first sentence of this subsection
(d). The amount paid by an indemnified party as a result of the
losses, claims, damages or liabilities referred to in the first sentence of this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
against any action or claim that is the subject of this subsection
(d). Notwithstanding the provisions of this subsection (d), the Underwriters shall not
be required to contribute any amount in excess of the amount of the
Underwriters’ commissions referenced in Section 4(a) actually received by such
Underwriter pursuant to this Agreement. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters’
obligations to contribute pursuant to this Section 7 are several, and not
joint, in proportion to their respective underwriting commitments as set forth
opposite their respective names on Schedule I. For
purposes of this Section 7, each officer and employee of an Underwriter and
each person, if any, who controls an Underwriter within the meaning of the
Securities Act or the Exchange Act shall have the same rights to contribution as
such Underwriter, and each director of the Company, each officer of the Company
who signed the Registration Statement, and each person, if any, who controls the
Company with the meaning of the Securities Act and the Exchange Act shall have
the same rights to contribution as the Company.
(e) The
obligations of the Company under this Section 7 shall be in addition to any
liability that the Company may otherwise have and the benefits of such
obligations shall extend, upon the same terms and conditions, to each person, if
any, who controls the Underwriters within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act; and the obligations of the
Underwriters under this Section 7 shall be in addition to any liability that the
Underwriters may otherwise have and the benefits of such obligations shall
extend, upon the same terms and conditions, to the Company, and its officers,
directors and each person who controls the Company within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act.
(f) For
purposes of this Agreement, the Representatives confirm, and the Company
acknowledges, that there is no information concerning the Underwriters furnished
in writing to the Company by the Representatives specifically for preparation of
or inclusion in the Registration Statement, the Time of Sale Disclosure Package,
the Prospectus or any Issuer Free Writing Prospectus, other than the statements
set forth in the last paragraph on the cover page of the Prospectus and the
statements set forth in the “Underwriting” section of the Prospectus and Time of
Sale Disclosure Package, only insofar as such statements relate to the amount of
selling concession and re-allowance or to over-allotment and related activities
that may be undertaken by the Underwriters.
21
(g) If,
on any Closing Date, any one or more of the several Underwriters shall fail or
refuse to purchase Shares that it or they have agreed to purchase hereunder on
such date, and the aggregate number of Shares which such defaulting Underwriter
or Underwriters agreed but failed or refused to purchase does not exceed 10% of
the aggregate number of the Shares to be purchased on such date, the
Representatives may make arrangements satisfactory to the Company for the
purchase of such Shares by other persons, including any of the Underwriters, but
if no such arrangements are made by such Closing Date, the other Underwriters
shall be obligated, severally and not jointly, in the proportions that the
number of Underwritten Shares set forth opposite their respective names on Schedule I bears to the
aggregate number of Underwritten Shares set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as may be specified by
the Representatives with the consent of the non-defaulting Underwriters, to
purchase the Shares which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase on such date. If, on any Closing Date, any one or
more of the Underwriters shall fail or refuse to purchase Shares and the
aggregate number of Shares with respect to which such default occurs exceeds 10%
of the aggregate number of Shares to be purchased on such date, and arrangements
satisfactory to the Representatives and the Company for the purchase of such
Shares are not made within 48 hours after such default, this Agreement shall
terminate without liability of any party to any other party except that the
provisions of Section 5(a)(vii) and Section 7 shall at all times be
effective and shall survive such termination. In any such case either
the Representatives or the Company shall have the right to postpone the Closing
Date, but in no event for longer than seven days in order that the required
changes, if any, to the Registration Statement and the Prospectus or any other
documents or arrangements may be effected.
8. Representations
and Agreements to Survive Delivery. All representations,
warranties, and agreements of the Company herein or in certificates delivered
pursuant hereto, including, but not limited to, the agreements of the
Underwriters and the Company contained in Section 5(a)(vii) and Section 7
hereof, shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of the Underwriter or any controlling person
thereof, or the Company or any of its officers, directors, or controlling
persons, and shall survive delivery of, and payment for, the Shares to and by
the Underwriters hereunder.
9. Termination of
this Agreement.
(a) The
Representatives shall have the right to terminate this Agreement by giving
notice to the Company as hereinafter specified at any time at or prior to the
Closing Date, if in the discretion of the Representatives, (i) there has
occurred any material adverse change in the securities markets or any event, act
or occurrence that has materially disrupted, or in the reasonable opinion of the
Representatives, will in the future materially disrupt, the securities markets
or there shall be such a material adverse change in general financial, political
or economic conditions or the effect of international conditions on the
financial markets in the United States is such as to make it, in the
reasonable judgment of the Representatives, inadvisable or impracticable to
market the Shares or enforce contracts for the sale of the Shares (ii) (A)
trading in the Company’s Common Stock shall have been suspended by the
Commission or the Nasdaq Global Market or (B) trading in securities generally on
the Nasdaq Global Market, New York Stock Exchange or NYSE Amex shall have been
suspended, (iii) minimum or maximum prices for trading shall have been fixed, or
maximum ranges for prices for securities shall have been required, on the Nasdaq
Global Market, New York Stock Exchange or NYSE Amex, by such exchange or by
order of the Commission or any other governmental authority having jurisdiction,
(iv) a banking moratorium shall have been declared by federal or state
authorities, (v) there shall have occurred any attack on, outbreak or escalation
of hostilities or act of terrorism involving the United States, any declaration
by the United States of a national emergency or war, any substantial change or
development involving a prospective substantial change in United States or
international political, financial or economic conditions or any other calamity
or crisis, (vi) the Company suffers any loss by strike, fire, flood, earthquake,
accident or other calamity, whether or not covered by insurance, or (vii) in the
judgment of the Representatives, there has been, since the time of execution of
this Agreement or since the respective dates as of which information is given in
the Prospectus, any material adverse change in the assets, properties,
condition, financial or otherwise, or in the results of operations, business
affairs or business prospects of the Company and its subsidiaries considered as
a whole, whether or not arising in the ordinary course of
business. Any such termination shall be without liability of any
party to any other party except that the provisions of Section 5(a)(vii) and
Section 7 hereof shall at all times be effective and shall survive such
termination.
22
(b) If
the Representatives elect to terminate this Agreement as provided in this
Section, the Company shall be notified promptly by the Representatives by
telephone, confirmed by letter.
10. Notices. Except
as otherwise provided herein, all communications hereunder shall be in writing
and, if to Representatives, shall be mailed, delivered or telecopied to FBR
Capital Markets & Co., ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇, Attention: General Counsel;
and to ▇▇▇▇ Capital Partners, LLC, ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇, Attention: Managing Director; with a
copy to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇, Attention: B. ▇▇▇▇▇▇
▇▇▇▇▇▇▇, Esq.; and if to the Company, shall be mailed, delivered or telecopied
to it at UniTek Global Services, Inc., ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ West, ▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇,
Attention: Chief Financial Officer; with a copy to ▇▇▇▇▇▇, ▇▇▇▇▇
& Bockius LLP, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, telecopy number:
(▇▇▇) ▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. Chairman, Esq., or in each case to such
other address as the person to be notified may have requested in
writing. Any party to this Agreement may change such address for
notices by sending to the parties to this Agreement written notice of a new
address for such purpose.
11. Persons Entitled
to Benefit of Agreement. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and assigns and the controlling persons, officers and directors
referred to in Section 7. Nothing in this Agreement is intended or
shall be construed to give to any other person, firm or corporation any legal or
equitable remedy or claim under or in respect of this Agreement or any provision
herein contained. The term “successors and assigns” as herein used
shall not include any purchaser, as such purchaser, of any of the Shares from
the Underwriters.
23
12. Absence of
Fiduciary Relationship. The Company acknowledges and agrees
that: (a) the Underwriters have been retained solely to act as underwriter in
connection with the sale of the Shares and that no fiduciary, advisory or agency
relationship between the Company and the Underwriters has been created in
respect of any of the transactions contemplated by this Agreement, irrespective
of whether the Underwriters have advised or is advising the Company on other matters; (b)
the price and other terms of the Shares set forth in this Agreement were
established by the Company following discussions and arms-length negotiations
with the Underwriters and the Company is capable of evaluating and understanding
and understands and accepts the terms, risks and conditions of the transactions
contemplated by this Agreement; (c) it has been advised that the Underwriters
and their affiliates are engaged in a broad range of transactions that may
involve interests that differ from those of the Company and that the
Underwriters have no obligation to disclose such interest and transactions to
the Company by virtue of any fiduciary, advisory or agency relationship; (d) it
has been advised that the Underwriters are acting, in respect of the
transactions contemplated by this Agreement, solely for the benefit of the
Underwriters, and not on behalf of the Company.
13. Amendments and
Waivers. No supplement, modification or waiver of this
Agreement shall be binding unless executed in writing by the party to be bound
thereby. The failure of a party to exercise any right or remedy shall
not be deemed or constitute a waiver of such right or remedy in the
future. No waiver of any of the provisions of this Agreement shall be
deemed or shall constitute a waiver of any other provision hereof (regardless of
whether similar), nor shall any such waiver be deemed or constitute a continuing
waiver unless otherwise expressly provided.
14. Partial
Unenforceability. The invalidity or unenforceability of any
section, paragraph, clause or provision of this Agreement shall not affect the
validity or enforceability of any other section, paragraph, clause or
provision.
15. Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
16. Submission to
Jurisdiction. The Company irrevocably (a) submits to the
jurisdiction of any court of the State of New York for the purpose of any suit,
action, or other proceeding arising out of this Agreement, or any of the
agreements or transactions contemplated by this Agreement, the Registration
Statement and the Prospectus (each a “Proceeding”), (b)
agrees that all claims in respect of any Proceeding may be heard and determined
in any such court, (c) waives, to the fullest extent permitted by law, any
immunity from jurisdiction of any such court or from any legal process therein,
(d) agrees not to commence any Proceeding other than in such courts, and (e)
waives, to the fullest extent permitted by law, any claim that such Proceeding
is brought in an inconvenient forum. THE COMPANY (ON BEHALF OF ITSELF
AND, TO THE FULLEST EXTENT PERMITTED BY LAW, ON BEHALF OF ITS RESPECTIVE EQUITY
HOLDERS AND CREDITORS) HEREBY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY CLAIM BASED UPON, ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, THE REGISTRATION
STATEMENT, AND THE PROSPECTUS.
17. Counterparts. This
Agreement may be executed in one or more counterparts and, if executed in more
than one counterpart, the executed counterparts shall each be deemed to be an
original and all such counterparts shall together constitute one and the same
instrument.
24
Please
sign and return to the Company the enclosed duplicates of this letter whereupon
this letter will become a binding agreement between the Company and the
Underwriters in accordance with its terms.
|
Very
truly yours,
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
Confirmed
as of the date first above-
mentioned
by the Underwriters.
FBR
CAPITAL MARKETS & CO.
▇▇▇▇
CAPITAL PARTNERS, LLC
Acting
as Representatives of the Several Underwriters
named in Schedule I
FBR
CAPITAL MARKETS & CO.
|
By:
|
||
|
Name:
|
||
|
Title:
|
▇▇▇▇
CAPITAL PARTNERS, LLC
|
By:
|
|
Name:
|
|
|
|
Title:
|
|
[Signature
page to Underwriting Agreement]
SCHEDULE
I
|
Number of
Underwritten Shares
to be Purchased
|
Number of Additional
Shares to be
Purchased
|
|||||||
|
Underwriters
|
||||||||
|
FBR
Capital Markets & Co.
|
||||||||
|
▇▇▇▇
Capital Partners, LLC
|
||||||||
|
▇.▇.
▇▇▇▇▇▇▇▇ & Co.
|
||||||||
|
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ LLC
|
||||||||
|
Total
|
16,666,667 | 2,500,000 | ||||||
SCHEDULE
II
FREE
WRITING PROSPECTUS
Filed
Pursuant to Rule 433
Supplementing
the Preliminary Prospectus Supplement dated October
[ ],
2010
Registration
Statement No. 333-168854
Dated October
[ ],
2010
16,666,667 Shares
of Common Stock
Final
Term Sheet
|
Issuer:
|
UniTek
Global Services, Inc. (the “Company”)
|
|
|
Symbol:
|
UNTK
|
|
|
Security:
|
Common
stock, par value $ 0.00002 per share
|
|
|
Size:
|
16,666,667
shares of common stock
|
|
|
Over-allotment
option:
|
2,500,000
additional shares of common stock
|
|
|
Public
offering price:
|
$6.00
per share
|
|
|
Underwriting
discounts and commissions:
|
$[______]
per share
|
|
|
Net
proceeds (excluding the over-allotment):
|
$[____________]
(after deducting the underwriter’s discounts and commissions and estimated
offering expenses payable by the Company)
|
|
|
Trade
date:
|
November
[ ], 2010
|
|
|
Settlement
date:
|
November
[ ], 2010
|
|
|
Underwriters:
|
|
FBR
Capital Markets & Co.
▇▇▇▇
Capital Partners, LLC
▇.▇.
▇▇▇▇▇▇▇▇ & Co.
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ LLC
|
The
issuer has filed a registration statement (including a prospectus) with the SEC
for the offering to which this communication relates. Before you
invest, you should read the prospectus in that registration statement and other
documents the issuer has filed with the SEC for more complete information about
the issuer and this offering. You may get these documents for free by
visiting ▇▇▇▇▇ on the SEC Web site at ▇▇▇.▇▇▇.▇▇▇. Alternatively, the
issuer, any underwriter or any dealer participating in the offering will arrange
to send you the prospectus if you request it from FBR Capital Markets & Co.
at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇ or
from ▇▇▇▇ Capital Partners, LLC, Attention: Syndicate Department, ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇, ▇▇▇▇▇, by telephone at ▇-▇▇▇-▇▇▇-▇▇▇▇, by e-mail
to ▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇, by fax to (▇▇▇) ▇▇▇-▇▇▇▇.