EXHIBIT 1.1
Crown Castle International Corp.
Common Stock
---------------
U.S. Underwriting Agreement
, 1999
Xxxxxxx, Xxxxx & Co.,
Xxxxxxx Xxxxx Barney Inc.,
Xxxxxx Brothers Inc.,
Credit Suisse First Boston Corporation,
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated,
As representatives (the "Representatives")
of the several Underwriters
named in Schedule I hereto,
c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Crown Castle International Corp., a Delaware corporation (the "Company"),
RC Investors Corp., a Delaware corporation, and BC Investors Corp., a Delaware
corporation (collectively, the "Crown Selling Stockholders"), certain executive
officers of the Company named in Schedule II hereto (the "Executive Selling
Stockholders") and certain financial sponsor stockholders, certain other
stockholders who are affiliates of such financial sponsors and certain directors
of the Company named on Schedule II hereto (collectively, the "Sponsor Selling
Stockholders") propose, subject to the terms and conditions stated herein, to
sell to the Underwriters named in Schedule I hereto (the "Underwriters") an
aggregate of 22,160,000 shares (the "Firm Shares") of the Company's Common
Stock, par value $.01 per share ("Stock"). Of the 22,160,000 Firm Shares, the
Company is selling 18,686,131 shares, the Crown Selling Stockholders are selling
1,586,000 shares, the Executive Selling Stockholders are selling 319,813 shares
and the Sponsor Selling Stockholders are selling 1,568,056 shares. In addition,
the Executive Selling Stockholders and the Sponsor Selling Stockholders propose,
subject to the terms and conditions stated herein, to grant to the Underwriters
an option to purchase up to an additional 3,298,043 Shares of Stock on the terms
and for the purposes set forth in Section 2 hereof (the "Optional Shares").
This is to confirm the agreement concerning the purchase by the Underwriters of
the Firm Shares from the Company, the Crown Selling Stockholders, the Executive
Selling Stockholders and the Sponsor Selling Stockholders, and of the Optional
Shares, if purchased, from the Executive Selling Stockholders and the Sponsor
Selling Stockholders. The Firm Shares and the Optional Shares, if purchased,
are hereinafter collectively called the "Shares," and the Crown Selling
Stockholders, the Executive Selling Stockholders and the Sponsor Selling
Stockholders are hereinafter collectively referred to as the "Selling
Stockholders."
It is understood and agreed to by all parties that the Company is and the
Selling Stockholders are concurrently entering into an agreement (the
"International Underwriting Agreement") providing for the sale by the Company
and the Selling Stockholders of up to a total of 5,540,000 shares of Stock (the
"International Shares"), including the overallotment option thereunder, through
arrangements with certain underwriters outside the United States (the
"International Underwriters"), for whom Xxxxxxx Xxxxx International and Xxxxxxx
Xxxxx Barney Inc. are acting as lead managers. Anything herein or therein to
the contrary notwithstanding, the respective closings under this Agreement and
the International Underwriting Agreement are hereby expressly made conditional
on one another. The Underwriters hereunder and the International Underwriters
are simultaneously entering into an Agreement between U.S. and International
Underwriting Syndicates (the "Agreement between Syndicates") which provides,
among other things, for the transfer of shares of Stock between the two
syndicates. Two forms of prospectus are to be used in connection with the
offering and sale of shares of Stock contemplated by the foregoing, one relating
to the Shares hereunder and the other relating to the International Shares. The
latter form of prospectus will be identical to the former except for certain
substitute pages as mentioned below. Except as used in Sections 2, 3, 4, 11 and
13 herein, and except as the context may otherwise require, references
hereinafter to the Shares shall include all the shares of Stock which may be
sold pursuant to either this Agreement or the International Underwriting
Agreement, and references herein to any prospectus whether in preliminary or
final form, and whether as amended or supplemented, shall include both the U.S.
and the international versions thereof.
The Company and the Underwriters, in accordance with the requirements of
Rule 2720 ("Rule 2720") of the National Association of Securities Dealers, Inc.
(the "NASD") and subject to the terms and conditions stated herein, also hereby
confirm the engagement of the services of Xxxxxx Brothers Inc. (the "Independent
Underwriter") as a "qualified independent underwriter" within the meaning of
Section (b)(15) of Rule 2720 in connection with the offering and sale of the
Shares.
1. (a) The Company represents and warrants to, and agrees with, each of
the Underwriters and the Independent Underwriter that:
(i) A registration statement on Form S-1 (File No. 333-74553) (as
amended by each pre-effective amendment thereto, the "Initial Registration
Statement") in respect of the Shares has been filed with the Securities and
Exchange Commission (the "Commission"); the Initial Registration Statement
and any post-effective amendment thereto, (each in the form heretofore
delivered to you excluding exhibits thereto) for each of the other
Underwriters, have been declared effective by the Commission in such form;
other than a registration statement, if any, increasing the size of the
offering (a "Rule 462(b) Registration Statement"), filed pursuant to Rule
462(b) under the Securities Act of 1933, as amended (the "Act"), which
became effective upon filing, no other document with respect to the Initial
Registration Statement has heretofore been filed with the Commission; and
no stop order suspending the effectiveness of the Initial Registration
Statement, any post-effective amendment thereto or the Rule 462(b)
Registration Statement, if any, has been issued and no proceeding for that
purpose has been initiated or threatened by the Commission (any preliminary
prospectus included in the Initial Registration Statement or filed with the
Commission pursuant to Rule 424(a) of the rules and regulations of the
Commission under the Act is hereinafter called a "Preliminary Prospectus");
the various parts of the Initial Registration Statement and the Rule 462(b)
Registration Statement, if any, including all exhibits thereto and
including
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the information contained in the form of final prospectus filed with the
Commission pursuant to Rule 424(b) under the Act in accordance with Section
6(a) hereof and deemed by virtue of Rule 430A under the Act to be part of
the Initial Registration Statement at the time it was declared effective,
each as amended at the time such part of the Initial Registration Statement
became effective or such part of the Rule 462(b) Registration Statement, if
any, became or hereafter becomes effective, are hereinafter collectively
called the "Registration Statement"; and such final prospectus, in the form
first filed pursuant to Rule 424(b) under the Act, is hereinafter called
the "Prospectus";
(ii) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the Act and the rules and regulations of
the Commission thereunder, and did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter through
Xxxxxxx, Sachs & Co. or by the Independent Underwriter expressly for use
therein or by a Selling Stockholder expressly for use in the preparation of
the answers therein to Items 7 and 11(m) of Form S-1;
(iii) The Registration Statement conforms, and the 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 of the Commission thereunder and do
not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company
by an Underwriter through Xxxxxxx, Xxxxx & Co. or by the Independent
Underwriter expressly for use therein or by a Selling Stockholder expressly
for use in the preparation of the answers therein to Items 7 and 11(m) of
Form S-1;
(iv) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included in the
Prospectus any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus; and, since
the respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been any change in the capital
stock or long-term debt of the Company or any of its subsidiaries or any
material adverse change, or any development involving a prospective
material adverse change, except such as are described in the Prospectus or
such as would not be reasonably expected, in the aggregate, to result in a
material adverse effect on the condition (financial or other), business,
prospects, properties or results of operations of the Borrower and its
"significant subsidiaries" as
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defined in Rule 405 of the rules and regulations of the Commission
promulgated under the Act, taken as a whole ("Material Adverse Effect");
(v) The Company and its subsidiaries have good and indefeasible title
to all real property and good and marketable title to all personal property
owned by them, in each case free and clear of all liens, encumbrances and
defects except such as are described in the Prospectus; and any real
property and buildings held under lease by the Company and its subsidiaries
are held by them under valid, subsisting and enforceable leases with such
exceptions as would not be reasonably expected, in the aggregate, to result
in a Material Adverse Effect;
(vi) The Company is a corporation duly incorporated and validly
existing and in good standing under the laws of the State of Delaware with
all requisite corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus, and
is duly registered and qualified to conduct its business and is in good
standing in each jurisdiction or place where the nature of its properties
or the conduct of its business requires such registration or qualification,
except where the failure so to register or qualify or to be in good
standing would not have a Material Adverse Effect; and each subsidiary of
the Company has been duly incorporated and is validly existing as a
corporation (or in the case of Crown Atlantic Holding Company LLC, as a
limited liability company) in good standing under the laws of its
jurisdiction of incorporation;
(vii) None of the subsidiaries of the Company (other than Crown
Communication, Inc. ("CCI"), Castle Transmission Services (Holdings) Ltd.
("CTSH"), Castle Transmission International, Ltd. ("CTI"), Crown Castle
Investment Corp. ("CC Investment"), Crown Castle Investment Corp. (II) ("CC
Investment II"), CCA Investment Corp. ("CCAIC"), Crown Atlantic Holding
Company LLC ("Crown Atlantic Holdings"), Crown Atlantic Holding Sub LLC
("Crown Atlantic Sub") and Crown Atlantic Company LLC ("Crown Atlantic")
(collectively, the "Significant Subsidiaries")) is a "significant
subsidiary," as such term is defined in Rule 405 of the rules and
regulations under the Act;
(viii) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued, are fully paid
and non-assessable and conform to the description of the Stock contained in
the Prospectus; and all of the issued shares of capital stock of each
subsidiary of the Company have been duly and validly authorized and issued,
are fully paid and non-assessable and (except for directors' qualifying
shares and except as set forth in the Prospectus) are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims, except as set forth in the Prospectus;
(ix) The unissued Shares to be issued and sold by the Company to the
Underwriters hereunder and under the International Underwriting Agreement
have been duly and validly authorized and, when issued and delivered
against payment therefor as provided herein, will be duly and validly
issued and fully paid and non-assessable and will conform to the
description of the Stock contained in the Prospectus;
(x) The issue and sale of the Shares to be sold by the Company
hereunder and under the International Underwriting Agreement and the
compliance by the Company with all of the provisions of this Agreement and
the International Underwriting
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Agreement and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation of
any of the terms or provisions of, or (with the giving of notice or the
lapse of time or both) constitute a default under, (A) any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the property
or assets of the Company or any of its subsidiaries is subject, (B) the
provisions of the charter, by-laws or other constitutive documents of the
Company or any of its subsidiaries or (C) any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction
over the Company or any of its subsidiaries or any of their properties or
assets except in the cases of clause (A) or (C), such breaches, violations
or defaults that in the aggregate would not have a Material Adverse Effect;
and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the issue and sale of the Shares or the consummation by the
Company of the transactions contemplated by this Agreement and the
International Underwriting Agreement, except (A) the registration under the
Act of the Shares and (B) such consents, approvals, authorizations,
registrations or qualifications as (1) may be required under the Exchange
Act and applicable state or foreign securities laws in connection with the
purchase and distribution of the Shares by the Underwriters and the
International Underwriters, (2) as may have already been obtained or made
and (3) the failure to obtain or make would not, individually or in the
aggregate, have a Material Adverse Effect;
(xi) Neither the Company nor any of its subsidiaries (A) is in
violation of its charter, by-laws or other constitutive documents, (B) is
in default in any material respect, and no event has occurred which, with
notice or lapse of time or both, would constitute such a default, in the
due performance or observance of any term, covenant or condition contained
in any material indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which it is a party or by which it is bound or
to which any of its properties or assets is subject or (C) is in violation
in any material respect of any law, ordinance, governmental rule,
regulation or court decree to which it or its property or assets may be
subject or has failed to obtain any material license, permit, certificate,
franchise or other governmental authorization or permit necessary to the
ownership of its property or to the conduct of its business, except for, in
the cases of clause (B) or (C), such defaults, violations or failures to
obtain that in the aggregate would not have a Material Adverse Effect;
(xii) The statements set forth in the Prospectus under the caption
"Description of Capital Stock", insofar as they purport to constitute a
summary of the terms of the Stock, under the caption "Certain US Income Tax
Considerations for Non-U.S. Holders" and under the caption "Underwriting",
insofar as they purport to describe the provisions of the laws and
documents referred to therein, are accurate, complete and fair;
(xiii) Other than as set forth in the Prospectus, there are no legal
or governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of
its subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, would individually or in the aggregate
have a Material Adverse Effect; and, to the best of the Company's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
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(xiv) The Company is not and, after giving effect to the offering and
sale of the Shares, will not be an "investment company", as such term is
defined in the Investment Company Act of 1940, as amended (the "Investment
Company Act");
(xv) Neither the Company nor any of its affiliates does business with
the government of Cuba or with any person or affiliate located in Cuba
within the meaning of Section 517.075, Florida Statutes;
(xvi) KPMG LLP, who have certified certain financial statements of the
Company and its subsidiaries and of certain other business operations to be
acquired by the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder;
(xvii) The Company has reviewed its operations and that of its
subsidiaries and any third parties with which the Company or any of its
subsidiaries has a material relationship to evaluate the extent to which
the business or operations of the Company or any of its subsidiaries will
be affected by the Year 2000 Problem. As a result of such review, the
Company has no reason to believe, and does not believe, that the Year 2000
Problem will have a material adverse effect on the general affairs,
management, the current or future consolidated financial position, business
prospects, stockholders' equity or results of operations of the Company and
its subsidiaries or result in any material loss or interference with the
Company's business or operations. The "Year 2000 Problem" as used herein
means any significant risk that computer hardware or software used in the
receipt, transmission, processing, manipulation, storage, retrieval,
retransmission or other utilization of data or in the operation of
mechanical or electrical systems of any kind will not, in the case of dates
or time periods occurring after December 31, 1999, function at least as
effectively as in the case of dates or time periods occurring prior to
January 1, 2000;
(xviii) This Agreement has been duly authorized, executed and
delivered by the Company and, assuming due authorization, execution and
delivery by the Underwriters, constitutes the valid and binding agreement
of the Company, enforceable against the Company in accordance with its
terms (subject to applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer and other similar laws affecting creditors'
rights generally from time to time in effect and to general principles of
equity, including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing, regardless of whether in a
proceeding in equity or at law);
(xix) Except as described in the Prospectus, there are no contracts,
agreements or understandings between the Company or any of its subsidiaries
and any person (other than Xxxxxx X. Crown) granting such person the right
to require the Company or any of its subsidiaries to file a registration
statement under the Act with respect to any securities of the Company and
its subsidiaries owned or to be owned by such person or to require the
Company or any of its subsidiaries to include such securities in the
securities registered pursuant to the Registration Statement or in any
securities being registered pursuant to any other registration statement
filed by the Company or any of its subsidiaries under the Act;
(xx) Except as described in the Prospectus, the Company has not sold or
issued any shares of Common Stock during the six-month period preceding the
date of the Prospectus, including any sales pursuant to Rule 144A under, or
Regulation D or Regulation S of, the Act other than shares issued pursuant
to employee benefit plans or
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other employee compensation plans or pursuant to outstanding options,
rights or warrants;
(xxi) The consolidated historical and pro forma financial statements,
together with the related notes thereto filed as part of the Registration
Statement or included in the Prospectus comply as to form in all material
respects with the requirements of Regulation S-X under the Act applicable
to registration statements on Form S-1 under the Act. Such historical
financial statements fairly present the financial position of the Company
at the respective dates indicated and the results of operations and cash
flows for the respective periods indicated, in each case in accordance with
generally accepted accounting principles ("GAAP") consistently applied
throughout such periods. Such pro forma financial statements have been
prepared on a basis consistent with such historical statements, except for
the pro forma adjustments specified therein, and give effect to assumptions
made on a reasonable basis and in good faith and present fairly the pro
forma position, results of operations and the other information purported
to be shown therein at the respective dates or the respective periods
therein specified. The other financial and statistical information and
data filed as part of the Registration Statement or included in the
Prospectus, historical and pro forma, are, in all material respects, fairly
presented and prepared on a basis consistent with such financial statements
and the books and records of the Company;
(xxii) The Company and each of the Significant Subsidiaries has such
permits, licenses, franchises, certificates of need and other approvals or
authorizations of any governmental or regulatory authority ("Permits"),
including, without limitation, any permits required by the Federal
Communications Commission ("FCC"), the Federal Aviation Administration
("FAA") or the Office of Telecommunications ("OFTEL"), as are necessary
under applicable law to own their respective properties and to conduct
their respective businesses in the manner described in the Prospectus,
except to the extent that the failure to have such Permits would not have a
Material Adverse Effect. The Company and the Significant Subsidiaries have
fulfilled and performed, in all material respects, all their respective
obligations with respect to the Permits, and no event has occurred which
allows, or after notice or lapse of time would allow, revocation or
termination thereof or results in any other material impairment of the
rights of the holder of any such Permit, subject in each case to such
qualification as may be set forth in the Prospectus and except to the
extent that any such revocation or termination would not have a Material
Adverse Effect. Except as described in the Prospectus, none of the Permits
contains any restriction that has not previously been satisfied and that is
materially burdensome to the Company or any of the Significant
Subsidiaries;
(xxiii) For each existing tower of the Company not yet registered with
the FCC where registration will be required, the FCC's grant of an
application for registration of such tower will not have a significant
environmental effect as defined under Section 1.1307(a) of the FCC's rules;
(xxiv) The consummation of the transactions contemplated by this
Agreement shall not cause any third party to have any rights of first
refusal with respect to the acquisition of towers under any agreement filed
as an exhibit to, or incorporated by reference in, the Registration
Statement (the "Material Agreements") that has not already been described
in the Prospectus as to which the Company and any of the Significant
Subsidiaries or any of their property or assets may be subject;
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(xxv) The Company and each of the Significant Subsidiaries owns or
possesses all patents, trademarks, trademark registration, service marks,
service xxxx registrations, trade names, copyrights, licenses, inventions,
trade secrets and rights described in the Prospectus as being owned by any
of them or necessary for the conduct of their respective businesses, and
neither the Company nor any of the Significant Subsidiaries is aware of any
claim to the contrary or any challenge by any other person to the rights of
the Company or any of the Significant Subsidiaries with respect to such
rights that, if determined adversely to the Company or any such Significant
Subsidiary, would in the aggregate have a Material Adverse Effect;
(xxvi) The descriptions in the Prospectus of all agreements,
contracts, indentures, leases or other instruments are accurate in all
material respects and fairly present the information purported to be
described therein;
(xxvii) Neither the Company nor any of its subsidiaries is involved in
any strike, job action or labor dispute with any group of employees, and,
to the knowledge of the Company and the Subsidiaries, no such action or
dispute is threatened;
(xxviii) The Company and each of its subsidiaries are in compliance in
all material respects with all presently applicable provisions of the
Employee Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder ("ERISA"); no
"reportable event" (as defined in ERISA) has occurred with respect to any
"pension plan" (as defined in ERISA) for which the Company would have any
liability; the Company has not incurred and does not expect to incur
liability under (i) Title IV of ERISA with respect to termination of, or
withdrawal from, any "pension plan" or (ii) Sections 412 or 4971 of the
Internal Revenue Code of 1986, as amended, including the regulations and
published interpretations thereunder (the "Code"); and each "pension plan"
for which the Company would have any liability that is intended to be
qualified under Section 401(a) of the Code is so qualified in all material
respects and nothing has occurred, whether by action or by failure to act,
which would cause the loss of such qualification;
(xxix) The Company and each of its subsidiaries have filed all
federal, state and local income and franchise tax returns required to be
filed through the date hereof and have paid all taxes due thereon, and no
tax deficiency has been determined adversely to the Company or any of its
subsidiaries nor does the Company or any of its subsidiaries have any
knowledge of any tax deficiency which, if determined adversely to the
Company or any of its subsidiaries, would have a Material Adverse Effect;
(xxx) Since the date as of which information is given in the
Prospectus through the date hereof, and except as may otherwise be
disclosed in the Registration Statement, the Company has not (i) issued or
granted any securities, (ii) incurred any liability or obligation, direct
or contingent, or entered into any transaction, in each case not in the
ordinary course of business which is material to the Company and its
subsidiaries taken as a whole or (iii) declared or paid any dividend on its
capital stock (excluding payment in lieu of fractional shares upon
conversion of certain senior preferred convertible stock of the Company);
(xxxi) The Company (i) makes and keeps accurate books and records and
(ii) maintains a system of internal accounting controls sufficient to
provide reasonable assurance that (A) transactions are executed in
accordance with management's authorization, (B) transactions are recorded
as necessary to permit preparation of its
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financial statements in conformity with GAAP and to maintain accountability
for assets, (C) access to its assets is permitted only in accordance with
management's general or specific authorization and (D) the reported
accountability for its assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences;
(xxxii) Neither the Company nor any of its subsidiaries, nor any
director, officer, agent, employee or other person associated with or
acting on behalf of the Company or any of its subsidiaries, has used any
corporate funds for any unlawful contribution, gift, entertainment or other
unlawful expense relating to political activity; made any direct or
indirect unlawful payment to any foreign or domestic government official or
employee from corporate funds; violated or is in violation of any provision
of the Foreign Corrupt Practices Act of 1977; or made any bribe, rebate,
payoff, influence payment, kickback or other unlawful payment;
(xxxiii) There has been no storage, disposal, generation, manufacture,
refinement, transportation, handling or treatment of toxic wastes, medical
wastes, hazardous wastes or hazardous substances by the Company or any of
its subsidiaries (or, to the knowledge of the Company, any of their
predecessors in interest) at, upon or from any of the property now or
previously owned or leased by the Company or any of its subsidiaries in
violation of any applicable law, ordinance, rule, regulation, order,
judgment, decree or permit or which would require remedial action under any
applicable law, ordinance, rule, regulation, order, judgment, decree or
permit, except for any violation or remedial action which would not have,
or could not be reasonably likely to have, singularly or in the aggregate,
a Material Adverse Effect; there has been no material spill, discharge,
leak, emission, injection, escape, dumping or release of any kind onto such
property or into the environment surrounding such property of any toxic
wastes, medical wastes, solid wastes, hazardous wastes or hazardous
substances due to or caused by the Company or any of its subsidiaries or
with respect to which the Company or any of its subsidiaries has knowledge,
except for any such spill, discharge, leak, emission, injection, escape,
dumping or release which would not have or would not be reasonably likely
to have, singularly or in the aggregate, a Material Adverse Effect; and the
terms "hazardous wastes," "toxic wastes," "hazardous substances" and
"medical wastes" shall have the meanings specified in any applicable local,
state, federal and foreign laws or regulations with respect to
environmental protection; and
(xxxiv) The Company and each of the Significant Subsidiaries carry, or
are covered by, insurance in such amounts and covering such risks as is
adequate for the conduct of its businesses and the value of its properties
and as is customary for companies engaged in similar businesses in similar
industries.
(b) Each of the Crown Selling Stockholders represents and warrants to,
and agrees with, each of the Underwriters, the Independent Underwriter and the
Company that:
(i) Such Crown Selling Stockholder has, and immediately prior to the
First Time of Delivery (as defined in Section 5 hereof) such Crown Selling
Stockholder will have, good and valid title to the Shares to be sold by
such Crown Selling Stockholder hereunder on such date, free and clear of
all liens, encumbrances, equities or claims; and upon delivery of such
Shares and payment therefor pursuant hereto, good and valid title to such
Shares, free and clear of all liens, encumbrances, equities or claims, will
pass to the several Underwriters;
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(ii) Such Crown Selling Stockholder has placed in custody under a
custody agreement (the "Custody Agreement") with the Company, as custodian
(the "Custodian"), for delivery under this Agreement, certificates in
negotiable form (with signature guaranteed by a commercial bank or trust
company having an office or correspondent in the United States or a member
firm of the New York or American Stock Exchanges) representing the Shares
to be sold by such Crown Selling Stockholder hereunder;
(iii) Such Crown Selling Stockholder has duly and irrevocably executed
and delivered a power of attorney (the "Power of Attorney") appointing the
Custodian and one or more other persons, as attorneys-in-fact, with full
power of substitution, and with full authority (exercisable by any one or
more of them) to execute and deliver this Agreement and to take such other
action as may be necessary or desirable to carry out the provisions hereof
on behalf of such Crown Selling Stockholder;
(iv) Such Crown Selling Stockholder has full right, power and authority
to enter into this Agreement, the Power of Attorney and the Custody
Agreement; the execution, delivery and performance of this Agreement, the
Power of Attorney and the Custody Agreement by such Crown Selling
Stockholder and the consummation by such Crown Selling Stockholder of the
transactions contemplated hereby and thereby will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which such Crown Selling
Stockholder is a party or by which such Crown Selling Stockholder is bound
or to which any of the property or assets of such Crown Selling Stockholder
is subject, nor will such actions result in any violation of any statute or
any order, rule or regulation of any court or governmental agency or body
having jurisdiction over such Crown Selling Stockholder or the property or
assets of such Crown Selling Stockholder; and, except for the registration
of the Shares under the Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under the Exchange Act
and applicable state or foreign securities laws in connection with the
purchase and distribution of the Shares by the Underwriters, no consent,
approval, authorization or order of, or filing or registration with, any
such court or governmental agency or body is required for the execution,
delivery and performance of this Agreement, the Power of Attorney or the
Custody Agreement by such Crown Selling Stockholder and the consummation by
such Crown Selling Stockholder of the transactions contemplated hereby and
thereby;
(v) Such Crown Selling Stockholder has no actual knowledge (as defined
in Section 10(g) hereof) of (i) any untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus or in any amendment or supplement
thereto, in each case as of its date or as of the First Time of Delivery or
(ii) the omission or alleged omission to state in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or in any
amendment or supplement thereto, in each case as of its date or as of the
First Time of Delivery, any material fact required to be stated therein or
necessary to make the statements therein not misleading;
(vi) Such Crown Selling Stockholder has not taken and will not take,
directly or indirectly, any action which is designed to or which has
constituted or which might 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;
10
(vii) During the period beginning from the date hereof and continuing
to and including the date 90 days after the date of the Prospectus, not to
offer, sell, contract to sell or otherwise dispose of, except as provided
hereunder or under the International Underwriting Agreement, any securities
of the Company that are substantially similar to the Shares, including but
not limited to any securities that are convertible into or exchangeable
for, or that represent the right to receive, Stock or any such
substantially similar securities (other than pursuant to employee stock
option plans existing on, or upon the conversion or exchange of convertible
or exchangeable securities outstanding as of, the date of this Agreement),
without your prior written consent; provided, however, that the foregoing
provision shall not apply to transfers (A) as a bona fide gift or gifts,
provided that the donee or donees thereof agree to be bound by the
restrictions set forth in this subparagraph 1(b)(vii), (B) to any trust for
the direct or indirect benefit of the undersigned or the immediate family
of the undersigned, provided that the trustee of the trust agrees to be
bound by the restrictions set forth in this subparagraph 1(b)(vii), and
provided further that any such transfer shall not involve a disposition for
value, or (C) with the prior written consent of Xxxxxxx, Xxxxx & Co. on
behalf of the Underwriters; for purposes of this subparagraph (1)(b)(vii),
"immediate family" shall mean any relationship by blood, marriage or
adoption, not more remote than first cousin; in addition, notwithstanding
the foregoing, if the undersigned is a corporation, the corporation may
transfer the capital stock of the Company to any wholly-owned subsidiary of
such corporation; provided, however, that in any such case, it shall be a
condition to the transfer that the transferee execute an agreement stating
that the transferee is receiving and holding such capital stock subject to
the provisions of this subparagraph 1(b)(vii) and there shall be no further
transfer of such capital stock except in accordance with this subparagraph
1(b)(vii), and provided further that any such transfer shall not involve a
disposition for value; each Crown Selling Stockholder now has, and, except
as contemplated by clause (A), (B), or (C) above, for the duration of the
90-day lock-up period will have, good and marketable title to such Crown
Selling Stockholder's Shares, free and clear of all liens, encumbrances,
and claims whatsoever; each Crown Selling Stockholder also agrees and
consents to the entry of stop transfer instructions with the Company's
transfer agent and registrar against the transfer of such Crown Selling
Stockholder's Shares except in compliance with the foregoing restrictions;
(viii) The Shares to be sold by such Crown Selling Stockholder
hereunder which are represented by the certificates held in custody for
such Crown Selling Stockholder are subject to the interest of the
Underwriters, the arrangements made by such Crown Selling Stockholder for
such custody are to that extent irrevocable, and the obligations of such
Crown Selling Stockholder hereunder shall not be terminated by any act of
such Crown Selling Stockholder, by operation of law, by the death or
incapacity of any individual Crown Selling Stockholder or, in the case of a
trust, by the death or incapacity of any executor or trustee or the
termination of such trust, or the occurrence of any other event; and
(ix) In order to document the Underwriters' compliance with the
reporting and withholding provisions of the Tax Equity and Fiscal
Responsibility Act of 1982 with respect to the transactions herein
contemplated, such Crown Selling Stockholder will deliver to you prior to
or at the applicable Time of Delivery (as hereinafter defined) a properly
completed and executed United States Treasury Department Form W-9 (or other
applicable form or statement specified by Treasury Department regulations
in lieu thereof).
11
(c) Each Executive Selling Stockholder, severally and not jointly,
represents and warrants to, and agrees with, each of the Underwriters, the
Independent Underwriter and the Company as to such Executive Selling Stockholder
that:
(i) Such Executive Selling Stockholder will have, immediately prior to
each Time of Delivery (as defined in Section 5 hereof), good and valid
title to the shares of Shares to be sold by such Executive Selling
Stockholder hereunder on such date, free and clear of all liens,
encumbrances, equities or claims; and upon delivery of such Shares and
payment therefor pursuant hereto, good and valid title to such Shares, free
and clear of all liens, encumbrances, equities or claims, will pass to the
several Underwriters;
(ii) Such Executive Selling Stockholder has placed in custody under a
custody agreement (the "Custody Agreement") with the Company, as custodian
(the "Custodian"), for delivery under this Agreement, certificates in
negotiable form (with signature guaranteed by a commercial bank or trust
company having an office or correspondent in the United States or a member
firm of the New York or American Stock Exchanges) or an irrevocable
exercise notice of options representing the Shares to be sold by such
Executive Selling Stockholder hereunder;
(iii) Such Executive Selling Stockholder has duly and irrevocably
executed and delivered a power of attorney (the "Power of Attorney")
appointing one or more persons as attorneys-in-fact, with full power of
substitution, and with full authority (exercisable by any one or more of
them) to execute and deliver this Agreement and to take such other action
as may be necessary or desirable to carry out the provisions hereof on
behalf of such Executive Selling Stockholder;
(iv) Such Executive Selling Stockholder has full right, power and
authority to enter into this Agreement, the Power of Attorney and the
Custody Agreement; the execution, delivery and performance of this
Agreement, the Power of Attorney and the Custody Agreement by such
Executive Selling Stockholder and the consummation by such Executive
Selling Stockholder of the transactions contemplated hereby and thereby
will not result in a material breach or violation of any of the terms or
provisions of, or constitute a default under, any material indenture,
mortgage, deed of trust, loan agreement or other similar agreement or
instrument to which such Executive Selling Stockholder is a party or by
which such Executive Selling Stockholder is bound or to which any of the
property or assets of such Executive Selling Stockholder is subject, nor
will such actions result in any material violation of any statute or any
order, rule or regulation of any court or governmental agency or body
having jurisdiction over such Executive Selling Stockholder or the property
or assets of such Executive Selling Stockholder; and, except for (A) the
registration of the Shares under the Act and (B) such consents, approvals,
authorizations, registrations or qualifications (1) as may be required
under the Exchange Act and applicable state or foreign securities laws in
connection with the purchase and distribution of the Shares by the
Underwriters, (2) as may have already been obtained or made and (3) the
failure to obtain or make would not, individually or in the aggregate, have
a material adverse effect on such Selling Stockholder's ability to transfer
and sell its Shares to the Underwriters, no consent, approval,
authorization or order of, or filing or registration with, any such court
or governmental agency or body is required for the execution, delivery and
performance of this Agreement, the Power of Attorney or the Custody
Agreement by such Executive Selling Stockholder and the consummation by
such Executive Selling Stockholder of the transactions contemplated hereby
and thereby;
12
(v) Such Executive Selling Stockholder has no reason to believe that
the representations and warranties of the Company contained in Section 1(a)
hereof are not materially true and correct, is familiar with the
Registration Statement and the Prospectus (as amended or supplemented) and
has no knowledge of any material fact, condition or information not
disclosed in the Registration Statement, as of the effective date, or the
Prospectus (or any amendment or supplement thereto), as of the applicable
filing date, which has adversely affected or reasonably could be expected
to adversely affect the business of the Company and is not prompted to sell
shares of Stock by any information concerning the Company which is not set
forth in the Registration Statement and the Prospectus;
(vi) Such Executive Selling Stockholder has not taken and will not
take, directly or indirectly, any action which is designed to or which has
constituted or which might reasonably be expected to cause or result in the
stabilization or manipulation of the price of any Shares or any security
convertible into or exchangeable or exercisable for Shares to facilitate
the sale or resale of the Shares;
(vii) During the period beginning from the date hereof and continuing
to and including the date 90 days after the date of the Prospectus, not to
offer, sell, contract to sell or otherwise dispose of, except as provided
hereunder or under the International Underwriting Agreement, any securities
of the Company that are substantially similar to the Shares, including but
not limited to any securities that are convertible into or exchangeable
for, or that represent the right to receive, Stock or any such
substantially similar securities (other than pursuant to employee stock
option plans existing on, or upon the conversion or exchange of convertible
or exchangeable securities outstanding as of, the date of this Agreement),
without your prior written consent; provided, however, that the foregoing
provision shall not apply to transfers (A) as a bona fide gift or gifts,
provided that the donee or donees thereof agree to be bound by the
restrictions set forth in this subparagraph 1(c)(vii), (B) to any trust for
the direct or indirect benefit of the undersigned or the immediate family
of the undersigned, provided that the trustee of the trust agrees to be
bound by the restrictions set forth in this subparagraph 1(c)(vii), and
provided further that any such transfer shall not involve a disposition for
value, or (C) with the prior written consent of Xxxxxxx, Sachs & Co. on
behalf of the Underwriters; for purposes of this subparagraph (1)(c)(vii),
"immediate family" shall mean any relationship by blood, marriage or
adoption, not more remote than first cousin; in addition, notwithstanding
the foregoing, if the undersigned is a corporation, the corporation may
transfer the capital stock of the Company to any wholly-owned subsidiary of
such corporation; provided, however, that in any such case, it shall be a
condition to the transfer that the transferee execute an agreement stating
that the transferee is receiving and holding such capital stock subject to
the provisions of this subparagraph 1(c)(vii) and there shall be no further
transfer of such capital stock except in accordance with this subparagraph
1(c)(vii), and provided further that any such transfer shall not involve a
disposition for value; each Executive Selling Stockholder now has, and,
except as contemplated by clause (A), (B), or (C) above, for the duration
of the 90-day lock-up period will have, good and marketable title to such
Executive Selling Stockholder's Shares, free and clear of all liens,
encumbrances, and claims whatsoever; each Executive Selling Stockholder
also agrees and consents to the entry of stop transfer instructions with
the Company's transfer agent and registrar against the transfer of such
Executive Selling Stockholder's Shares except in compliance with the
foregoing restrictions;
13
(viii) The Shares to be sold by such Executive Selling Stockholder
hereunder which are represented by the certificates or option exercise
notices held in custody for such Executive Selling Stockholder are subject
to the interest of the Underwriters, the arrangements made by such
Executive Selling Stockholder for such custody are to that extent
irrevocable, and the obligations of such Executive Selling Stockholder
hereunder shall not be terminated by any act of such Executive Selling
Stockholder, by operation of law, by the death or incapacity of such
Executive Selling Stockholder or, in the case of a trust, by the death or
incapacity of any executor or trustee or the termination of such trust, or
the occurrence of any other event; and
(ix) In order to document the Underwriters' compliance with the
reporting and withholding provisions of the Tax Equity and Fiscal
Responsibility Act of 1982 with respect to the transactions herein
contemplated, such Selling Stockholders will deliver to you prior to or at
the applicable Time of Delivery (as hereinafter defined) a properly
completed and executed United States Treasury Department Form W-9 (or other
applicable form or statement specified by Treasury Department regulations
in lieu thereof).
(d) Each Sponsor Selling Stockholder, severally and not jointly, represents
and warrants to, and agrees with, each of the Underwriters, the Independent
Underwriter and the Company as to such Sponsor Selling Stockholder that:
(i) Such Sponsor Selling Stockholder has, and immediately prior to each
Time of Delivery (as defined in Section 5 hereof) such Sponsor Selling
Stockholder will have, good and valid title to the Shares to be sold by
such Sponsor Selling Stockholder hereunder on such date, free and clear of
all liens, encumbrances, equities or claims; and upon delivery of such
Shares and payment therefor pursuant hereto, good and valid title to such
Shares, free and clear of all liens, encumbrances, equities or claims, will
pass to the several Underwriters;
(ii) Such Sponsor Selling Stockholder has placed in custody under a
custody agreement (the "Custody Agreement") with the Company, as custodian
(the "Custodian"), for delivery under this Agreement, certificates in
negotiable form (with signature guaranteed by a commercial bank or trust
company having an office or correspondent in the United States or a member
firm of the New York or American Stock Exchanges) or an irrevocable
exercise notice of options representing the Shares to be sold by such
Sponsor Selling Stockholder hereunder;
(iii) Such Sponsor Selling Stockholder has duly and irrevocably
executed and delivered a power of attorney (the "Power of Attorney")
appointing one or more persons as attorneys-in-fact, with full power of
substitution, and with full authority (exercisable by any one or more of
them) to execute and deliver this Agreement and to take such other action
as may be necessary or desirable to carry out the provisions hereof on
behalf of such Sponsor Selling Stockholder;
(iv) Such Sponsor Selling Stockholder has full right, power and
authority to enter into this Agreement, the Power of Attorney and the
Custody Agreement; the execution, delivery and performance of this
Agreement, the Power of Attorney and the Custody Agreement by such Sponsor
Selling Stockholder and the consummation by such Sponsor Selling
Stockholder of the transactions contemplated hereby and thereby will not
result in a material breach or violation of any of the terms or provisions
of, or constitute a default under, any material indenture, mortgage, deed
of trust, loan
14
agreement or other similar agreement or instrument to which such Sponsor
Selling Stockholder is a party or by which such Sponsor Selling Stockholder
is bound or to which any of the property or assets of such Sponsor Selling
Stockholder is subject, nor will such actions result in any material
violation of any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over such Sponsor Selling
Stockholder or the property or assets of such Sponsor Selling Stockholder;
and, except for (A) the registration of the Shares under the Act and (B)
such consents, approvals, authorizations, registrations or qualifications
(1) as may be required under the Exchange Act and applicable state or
foreign securities laws in connection with the purchase and distribution of
the Shares by the Underwriters, (2) as may have already been obtained or
made and (3) the failure to obtain or make would not, individually or in
the aggregate, have a material adverse effect on such Sponsor Selling
Stockholder's ability to transfer and sell its Shares to the Underwriters,
no consent, approval, authorization or order of, or filing or registration
with, any such court or governmental agency or body is required for the
execution, delivery and performance of this Agreement, the Power of
Attorney or the Custody Agreement by such Sponsor Selling Stockholder and
the consummation by such Sponsor Selling Stockholder of the transactions
contemplated hereby and thereby;
(v) Such Sponsor Selling Stockholder has not taken and will not take,
directly or indirectly, any action which is designed to or which has
constituted or which might reasonably be expected to cause or result in the
stabilization or manipulation of the price of any Shares or any security
convertible into or exchangeable or exercisable for shares of Stock to
facilitate the sale or resale of the Shares;
(vi) During the period beginning from the date hereof and continuing to
and including the date 90 days after the date of the Prospectus, not to
offer, sell, contract to sell or otherwise dispose of, except as provided
hereunder or under the International Underwriting Agreement, any securities
of the Company that are substantially similar to the Shares, including but
not limited to any securities that are convertible into or exchangeable
for, or that represent the right to receive, Stock or any such
substantially similar securities (other than pursuant to employee stock
option plans existing on, or upon the conversion or exchange of convertible
or exchangeable securities outstanding as of, the date of this Agreement),
without your prior written consent; provided, however, that the foregoing
provision shall not apply to transfers (A) as a bona fide gift or gifts,
provided that the donee or donees thereof agree to be bound by the
restrictions set forth in this subparagraph 1(d)(vi), (B) to any trust for
the direct or indirect benefit of the undersigned or the immediate family
of the undersigned, provided that the trustee of the trust agrees to be
bound by the restrictions set forth in this subparagraph 1(d)(vi), and
provided further that any such transfer shall not involve a disposition for
value, or (C) with the prior written consent of Xxxxxxx, Xxxxx & Co. on
behalf of the Underwriters; for purposes of this subparagraph (1)(d)(vi),
"immediate family" shall mean any relationship by blood, marriage or
adoption, not more remote than first cousin; in addition, notwithstanding
the foregoing, if the undersigned is a corporation, the corporation may
transfer the capital stock of the Company to any wholly-owned subsidiary of
such corporation; provided, however, that in any such case, it shall be a
condition to the transfer that the transferee execute an agreement stating
that the transferee is receiving and holding such capital stock subject to
the provisions of this subparagraph 1(d)(vi) and there shall be no further
transfer of such capital stock except in accordance with this subparagraph
1(d)(vi), and provided further that any such
15
transfer shall not involve a disposition for value; each Sponsor Selling
Stockholder now has, and, except as contemplated by clause (A), (B), or (C)
above, for the duration of the 90-day lock-up period will have, good and
marketable title to such Sponsor Selling Stockholder's Shares, free and
clear of all liens, encumbrances, and claims whatsoever; each Sponsor
Selling Stockholder also agrees and consents to the entry of stop transfer
instructions with the Company's transfer agent and registrar against the
transfer of such Sponsor Selling Stockholder's Shares except in compliance
with the foregoing restrictions;
(vii) The Shares to be sold by such Sponsor Selling Stockholder
hereunder which are represented by the certificates held in custody for
such Sponsor Selling Stockholder are subject to the interest of the
Underwriters, that the arrangements made by such Sponsor Selling
Stockholder for such custody are to that extent irrevocable, and that the
obligations of such Sponsor Selling Stockholder hereunder shall not be
terminated by any act of such Sponsor Selling Stockholder, by operation of
law, by the death or incapacity of such Sponsor Selling Stockholder or, in
the case of a trust, by the death or incapacity of any executor or trustee
or the termination of such trust, or the occurrence of any other event; and
(viii) In order to document the Underwriters' compliance with the
reporting and withholding provisions of the Tax Equity and Fiscal
Responsibility Act of 1982 with respect to the transactions herein
contemplated, such Sponsor Selling Stockholders will deliver to you prior
to or at the applicable Time of Delivery (as hereinafter defined) a
properly completed and executed United States Treasury Department Form W-9
(or other applicable form or statement specified by Treasury Department
regulations in lieu thereof).
2. Subject to the terms and conditions herein set forth, (a) the Company
and each of the Selling Stockholders agree, severally and not jointly, to sell
to each of the Underwriters, and each of the Underwriters agrees, severally and
not jointly, to purchase from the Company and each of the Selling Stockholders,
at a purchase price per share of $_________, the number of Firm Shares (to be
adjusted by you so as to eliminate fractional shares) determined by multiplying
the aggregate number of Firm Shares to be sold by the Company and each of the
Selling Stockholders as set forth opposite their respective names in Schedule II
hereto by a fraction, the numerator of which is the aggregate number of Firm
Shares to be purchased by such Underwriter as set forth opposite the name of
such Underwriter in Schedule I hereto and the denominator of which is the
aggregate number of Firm Shares to be purchased by all of the Underwriters from
the Company and all of the Selling Stockholders hereunder and (b) in the event
and to the extent that the Underwriters shall exercise the election to purchase
Optional Shares as provided below, each of the Executive Selling Stockholders
and each of the Sponsor Selling Stockholders agrees, severally and not jointly,
to sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from each of the Executive Selling
Stockholders and each of the Sponsor Selling Stockholders, at the purchase price
per share set forth in clause (a) of this Section 2, that portion of the number
of Optional Shares as to which such election shall have been exercised (to be
adjusted by you so as to eliminate fractional shares) determined by multiplying
such number of Optional Shares by a fraction the numerator of which is the
maximum number of Optional Shares which such Underwriter is entitled to purchase
as set forth opposite the name of such Underwriter in Schedule I hereto and the
denominator of which is the maximum number of Optional Shares that all of the
Underwriters are entitled to purchase hereunder.
16
The Executive Selling Stockholders and the Sponsor Selling Stockholders, as
and to the extent indicated in Schedule II hereto, hereby grant, severally and
not jointly, to the Underwriters the right to purchase at their election up to
3,298,043 Optional Shares, at the purchase price per share set forth in the
paragraph above, for the sole purpose of covering overallotments in the sale of
the Firm Shares. Any such election to purchase Optional Shares shall be made in
proportion to the maximum number of Optional Shares to be sold by each Executive
Selling Stockholder and each Selling Stockholder as set forth in Schedule II
hereto. Any such election to purchase Optional Shares may be exercised only by
written notice from you to the Company and the attorneys-in-fact under the Power
of Attorney executed by such Selling Stockholders, given within a period of 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 First Time of Delivery (as defined in Section 5 hereof) or, unless you and
the attorneys-in-fact otherwise agree in writing, earlier than two or later than
five business days after the date of such notice.
The Company and the Selling Stockholders shall not be obligated to deliver
any of the Shares to be delivered at the Time of Delivery except upon payment
for all the Shares to be purchased at such Time of Delivery as provided herein.
3. Upon the authorization by you 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.
4. (a) The Company hereby confirms its engagement of the services of the
Independent Underwriter as, and the Independent Underwriter hereby confirms its
agreement with the Company to render services as, a "qualified independent
underwriter" within the meaning of Section (b)(15) of Rule 2720 with respect to
the offering and sale of the Shares.
(b) The Independent Underwriter hereby represents and warrants to, and
agrees with, the Company and the Underwriters that with respect to the offering
and sale of the Shares as described in the Prospectus:
(i) The Independent Underwriter constitutes a "qualified independent
underwriter" within the meaning of Section (b)(15) of Rule 2720;
(ii) The Independent Underwriter has participated in the preparation of
the Registration Statement and the Prospectus and has exercised the usual
standards of "due diligence" in respect thereto;
(iii) The Independent Underwriter has undertaken the legal
responsibilities and liabilities of an underwriter under the Act
specifically including those inherent in Section 11 thereof;
(iv) Based upon (A) a review of the Company, including an examination
of the Registration Statement, information regarding the earnings, assets,
capital structure and growth rate of the Company and other pertinent
financial and statistical data, (B) inquiries of and conferences with the
management of the Company and its counsel and independent public
accountants regarding the business and operations of the Company, (C)
consideration of the prospects for the industry in which the Company
competes, estimates of the business potential of the Company, assessments
of its management, the general condition of the securities markets, market
prices of the capital stock and debt securities of, and financial and
operating data concerning, companies believed by
17
the Independent Underwriter to be comparable to the Company and the demand
for securities of comparable companies similar to the Securities, and (D)
such other studies, analyses and investigations as the Independent
Underwriter has deemed appropriate, and assuming that the offering and sale
of the Securities is made as contemplated herein and in the Prospectus, the
Independent Underwriter recommends, as of the date of the execution and
delivery of this Agreement, that the initial public offering price for each
share be not more than $...,... ;
(v) Subject to the provisions of Section 8 hereof, the Independent
Underwriter will furnish to the Underwriters at the Time of Delivery a
letter, dated the Time of Delivery, in form and substance satisfactory to
the Underwriters, to the effect of clauses (i) through (iv) above.
(c) The Independent Underwriter hereby agrees with the Company and the
Underwriters that, as part of its services hereunder, in the event of any
amendment or supplement to the Prospectus, the Independent Underwriter will
render services as a "qualified independent underwriter" within the meaning of
Section (b)(15) of Rule 2720 with respect to the offering and sale of the Shares
as described in the Prospectus as so amended or supplemented that are
substantially the same as those services being rendered with respect to the
offering and sale of the Shares as described in the Prospectus (including those
described in subsection (b) above).
(d) The Company, the Underwriters and the Independent Underwriter agree to
comply in all material respects with all of the requirements of Rule 2720
applicable to them in connection with the offering and sale of the Shares. The
Company agrees to cooperate with the Underwriters and the Independent
Underwriter to enable the Underwriters to comply with Rule 2720 and the
Independent Underwriter to perform the services contemplated by this Agreement.
(e) As compensation for the services of the Independent Underwriter
hereunder, the Company agrees to pay the Independent Underwriter $ .... at the
Time of Delivery. In addition, the Company agrees promptly to reimburse the
Independent Underwriter for all out of pocket expenses, including fees and
disbursements of counsel, reasonably incurred in connection with this Agreement
and the services to be rendered hereunder.
5. (a) The Shares to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in such
names as Xxxxxxx, Xxxxx & Co. may request upon at least forty-eight hours' prior
notice to the Company and the Selling Stockholders shall be delivered by or on
behalf of the Company and the Selling Stockholders to Xxxxxxx, Sachs & Co., for
the account of such Underwriter, against payment by or on behalf of such
Underwriter of the purchase price therefor by wire transfer of Federal (same-
day) funds to the account specified by the Company and the Custodian, as their
interests may appear, to Xxxxxxx, Xxxxx & Co. at least forty-eight hours in
advance. The Company will cause the certificates representing the Shares to be
made available for checking and packaging at least twenty-four hours prior to
the Time of Delivery (as defined below) with respect thereto at the office of
Xxxxxxx, Sachs & Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Designated
Office"). The time and date of such delivery and payment shall be, with respect
to the Firm Shares, 9:30 a.m., New York City time, on ............., 1999, or
such other time and date as Xxxxxxx, Xxxxx & Co. and the Company and may agree
upon in writing, and, with respect to the Optional Shares, 9:30 a.m., New York
City time, on the date specified by Xxxxxxx, Sachs & Co. in the written notice
given by Xxxxxxx, Xxxxx & Co. of the Underwriters' election to
18
purchase such Optional Shares, or such other time and date as Xxxxxxx, Sachs &
Co. and the Attorneys-in-Fact may agree upon in writing. Such time and date for
delivery of the Firm Shares is herein called the "First Time of Delivery", such
time and date for delivery of the Firm Optional Shares, if not the First Time of
Delivery, is herein called the "Second Time of Delivery", and each such time and
date for delivery is herein called a "Time of Delivery".
(b) The documents to be delivered at each Time of Delivery 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
pursuant to Section 8 hereof, will be delivered at the offices of Xxxxxx &
Xxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Closing Location"),
and the Shares will be delivered at the Designated Office, all at each Time of
Delivery. A meeting will be held at the Closing Location at 4:00 p.m., New York
City time, on the New York Business Day next preceding each Time of Delivery, at
which meeting the final drafts of the documents to be delivered pursuant to the
preceding sentence will be available for review by the parties hereto. For the
purposes of this Section 5, "New York Business Day" shall mean each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in New York are generally authorized or obligated by law or
executive order to close.
6. The Company agrees with each of the Underwriters and the Independent
Underwriter:
(a) To prepare the Prospectus in a form approved by you and to file
such Prospectus pursuant to Rule 424(b) under the Act not later than the
Commission's close of business on the second business day following the
execution and delivery of this Agreement, or, if applicable, such earlier
time as may be required by Rule 430A(a)(3) under the Act; to make no
further amendment or any supplement to the Registration Statement or
Prospectus which shall be disapproved by you promptly after reasonable
notice thereof; to advise you and the Independent Underwriter, promptly
after it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed and
to furnish you and the Independent Underwriter copies thereof; to advise
you and the Independent Underwriter, promptly after it receives notice
thereof, of the issuance by the Commission of any stop order or of any
order preventing or suspending the use of any Preliminary Prospectus or
prospectus, of the suspension of the qualification of the Shares for
offering or sale in any jurisdiction, of the initiation or threatening of
any proceeding for any such purpose, or of any request by the Commission
for the amending or supplementing of the Registration Statement or
Prospectus or for additional information; and, in the event of the issuance
of any stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or prospectus or suspending any such qualification,
promptly to use its best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale under the
securities laws of such jurisdictions as you may request and to comply with
such laws so as to permit the continuance of sales and dealings therein in
such jurisdictions for as long as may be necessary to complete the
distribution of the Shares, provided that in connection therewith the
Company shall not be required to qualify as a foreign corporation or to
file a general consent to service of process in any jurisdiction;
19
(c) Prior to 10:00 A.M., New York City time, on the New York Business
Day next succeeding the date of this Agreement and from time to time, to
furnish the Underwriters and the Independent Underwriter with copies of the
Prospectus in New York City in such quantities as you and the Independent
Underwriter may reasonably request, and, if the delivery of a prospectus is
required at any time prior to the expiration of nine months after the time
of issue of the Prospectus in connection with the offering or sale of the
Shares and if at such time any events shall have occurred as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is delivered,
not misleading, or, if for any other reason it shall be necessary during
such period to amend or supplement the Prospectus in order to comply with
the Act, to notify you and the Independent Underwriter and upon your
request to prepare and furnish without charge to each Underwriter and to
any dealer in securities as many copies as you may from time to time
reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect such
compliance, and in case any Underwriter is required to deliver a prospectus
in connection with sales of any of the Shares at any time nine months or
more after the time of issue of the Prospectus, upon your request but at
the expense of such Underwriter, to prepare and deliver to such Underwriter
as many copies as you may request of an amended or supplemented Prospectus
complying with Section 10(a)(3) of the Act;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and the
rules and regulations of the Commission thereunder (including, at the
option of the Company, Rule 158);
(e) During the period beginning from the date hereof and continuing to
and including the date 90 days after the date of the Prospectus, not to
offer, sell, contract to sell or otherwise dispose of, except as provided
hereunder and under the International Underwriting Agreement, any
securities of the Company that are substantially similar to the Shares,
including but not limited to any securities that are convertible into or
exchangeable for, or that represent the right to receive, Stock or any such
substantially similar securities (other than pursuant to employee stock
option plans existing on, or upon the conversion or exchange of convertible
or exchangeable securities outstanding as of, the date of this Agreement),
without your prior written consent;
(f) To cause each of the persons listed on Schedule III hereto, to the
extent such person is not a Selling Stockholder hereunder and under the
International Underwriting Agreement, to enter into a lock-up agreement
with you, in form and substance satisfactory to you, providing that, during
the period beginning from the date hereof and continuing to and including
the date 90 days after the date of the Prospectus, such person will not
offer, sell, contract to sell or otherwise dispose of, except as provided
hereunder or under the International Underwriting Agreement, any securities
of the Company that are substantially similar to the Shares, including but
not limited to any securities that are convertible into or exchangeable
for, or that represent the right to receive, Stock or any such
substantially similar securities (other than pursuant to
20
employee stock option plans existing on, or upon the conversion or exchange
of convertible or exchangeable securities outstanding as of, the date of
this Agreement), without your prior written consent;
(g) During a period of three years from the effective date of the
Registration Statement, to furnish to you copies of all reports or other
communications (financial or other) furnished to stockholders, and to
deliver to you as soon as they are available, copies of any reports and
financial statements furnished to or filed with the Commission or any
national securities exchange on which any class of securities of the
Company is listed;
(h) To use the net proceeds received by it from the sale of the Shares
pursuant to this Agreement and the International Underwriting Agreement in
the manner specified in the Prospectus under the caption "Use of Proceeds";
(i) To use its best efforts to list for quotation the Shares on the
National Association of Securities Dealers Automated Quotations National
Market System ("NASDAQ"); and
(j) If the Company elects to rely upon Rule 462(b), the Company shall
file a Rule 462(b) Registration Statement with the Commission in compliance
with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of this
Agreement, and the Company shall at the time of filing either pay to the
Commission the filing fee for the Rule 462(b) Registration Statement or
give irrevocable instructions for the payment of such fee pursuant to Rule
111(b) under the Act.
7. The Company covenants and agrees with the several Underwriters and the
Independent Underwriter that the Company will pay or cause to be paid the
following: (i) the fees, disbursements and expenses of the Company's counsel and
accountants in connection with the registration of the Shares under the Act and
all other expenses in connection with the preparation, printing and filing of
the Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters, the Independent Underwriter and dealers; (ii) the
cost of printing or producing any Agreement among Underwriters, this Agreement,
the International Underwriting Agreement, the Agreement between Syndicates, the
Selling Agreements, the Blue Sky Memorandum, closing documents (including any
compilations thereof) and any other documents in connection with the offering,
purchase, sale and delivery of the Shares; (iii) all expenses in connection with
the qualification of the Shares for offering and sale under state securities
laws as provided in Section 6(b) hereof, including the fees and disbursements of
counsel for the Underwriters (not in excess, in the aggregate, of $7,500) in
connection with such qualification and in connection with the Blue Sky surveys;
(iv) all fees and expenses in connection with listing the Shares on the NASDAQ;
(v) the filing fees incident to securing any required review by the National
Association of Securities Dealers, Inc. of the terms of the sale of the Shares;
(vi) the cost of preparing stock certificates; (vii) the cost and charges of any
transfer agent or registrar; (viii) all fees and expenses of Xxxxxxxx, Xxxxxxx &
Xxxxxxx, counsel to the Sponsor Selling Stockholders, incurred in connection
with the public offering of the Shares; and (ix) all other costs and expenses
incident to the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section. It is understood, however, except as
provided in this Section, and Sections 10 and 13 hereof, the Underwriters will
pay all of their own costs and expenses, including the fees of their counsel,
stock transfer
21
taxes on resale of any of the Shares by them, and any advertising expenses
connected with any offers they may make.
8. The respective obligations of the Underwriters and the Independent
Underwriter hereunder, as to the Shares to be delivered at each Time of
Delivery, shall be subject, in their discretion, to the condition that all
representations and warranties of the Company and of the Selling Stockholders
herein are, at and as of such Time of Delivery, true and correct, the condition
that the Company and the Selling Stockholders shall have performed all of its
and their obligations hereunder theretofore to be performed, the condition (in
the case of the Underwriters) that the Independent Underwriter shall have
furnished to the Underwriters the letter referred to in clause (v) of Section
4(b) hereof and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant
to Rule 424(b) within the applicable time period prescribed for such filing
by the rules and regulations under the Act and in accordance with Section
6(a) hereof; if the Company has elected to rely upon Rule 462(b), the Rule
462(b) Registration Statement shall have become effective by 10:00 P.M.,
Washington, D.C. time, on the date of this Agreement; no stop order
suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to the reasonable satisfaction of the Representatives or the
Independent Underwriter, as the case may be;
(b) Xxxxxx & Xxxxxxx, counsel for the Underwriters, shall have
furnished to you or the Independent Underwriter, as the case may be, such
written opinion or opinions (a draft of which is attached as Annex II(a)
hereto), dated such Time of Delivery, with respect to the matters covered
in paragraphs (i), (ii), (vi), (vii) and (viii) and the paragraph
immediately following clause (xi) of subsection (c) below as well as such
other related matters as you or the Independent Underwriter, as the case
may be, may reasonably request, and such counsel shall have received such
papers and information as they may reasonably request to enable them to
pass upon such matters;
(c) Cravath, Swaine & Xxxxx, counsel for the Company, shall have
furnished to you or the Independent Underwriter, as the case may be, their
written opinion (a draft of which is attached as Annex II(b) hereto), dated
such Time of Delivery, in form and substance satisfactory to you or the
Independent Underwriter, as the case may be, to the effect that:
(i) Each of the Company, CCI, CC Investment, CC Investment II,
CCAIC, Crown Atlantic Holdings, Crown Atlantic Sub and Crown Atlantic
is a corporation validly existing and in good standing under the laws
of the state of its incorporation or formation (which opinion may be
based solely on a certificate of the Secretary of State of such state),
and has all requisite corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus. Each of the Company, CCI, CC Investment, CC Investment II,
CCAIC, Crown Atlantic Holdings, Crown Atlantic Sub and Crown Atlantic
is duly registered and qualified to conduct its business and is in good
standing (which opinion may be based solely on a certificate of the
Secretary of State of such state), in each jurisdiction or place where,
based on a certificate of an officer of the Company, the nature of its
properties or the conduct of its business requires such
22
registration or qualification, except where the failure so to register
or qualify or to be in good standing would not have a Material Adverse
Effect;
(ii) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the
Company (including the Shares being delivered at such Time of
Delivery); and the Shares conform to the description of the Stock
contained in the Prospectus;
(iii) Except as described in the Prospectus, there are no
preemptive or other rights to subscribe for or to purchase, nor any
restriction upon the voting or transfer of, any shares of the Stock
pursuant to the Company's charter or by-laws or any agreement or other
instrument known to such counsel;
(iv) To the knowledge of such counsel, there are no agreements,
contracts, indentures, leases or other instruments to which the Company
or any of the Significant Subsidiaries is a party or to which any of
their respective properties or assets is subject that are required to
be described in, or filed as exhibits to, the Registration Statement
and the Prospectus that have not been so described or filed;
(v) The Registration Statement was declared effective under the Act
as of the date and time specified in such opinion, the Prospectus was
filed with the Commission pursuant to the subparagraph of Rule 424(b)
of the Rules and Regulations specified in such opinion on the date
specified therein and no stop order suspending the effectiveness of the
Registration Statement has been issued and, to the knowledge of such
counsel, no proceeding for that purpose is pending or threatened by the
Commission;
(vi) The Registration Statement and the Prospectus and any further
amendments and supplements thereto made by the Company prior to such
Time of Delivery (other than the financial statements and related
schedules therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the requirements of the
Act and the rules and regulations thereunder;
(vii) The statements contained (A) in the Prospectus under the
captions "Description of Capital Stock", "Shares Eligible for Future
Sale", "Underwriting" and "Certain United States Federal Tax
Consequences to Non-United States Holders" and (B) in the Registration
Statement in Items 14 and 15, in each case insofar as they are
descriptions of contracts, agreements or other legal documents, or
refer to statements of law or legal conclusions, are accurate in all
material respects and present fairly the information purported to be
described therein;
(viii) This Agreement and the International Underwriting Agreement
have each been duly and validly authorized, executed and delivered by
the Company;
(ix) None of the issuance, offer or sale of the Shares, the
execution, delivery or performance by the Company of this Agreement and
the International Underwriting Agreement or compliance by the Company
with the provisions hereof (i) requires any consent, approval,
authorization or other order of, or registration or filing with, any
court, regulatory body, administrative agency or other governmental
body, agency or official, or conflicts or will conflict with or
constitutes or will constitute a breach of, or a default under, the
certificate of incorporation or by-laws
23
or other organizational documents of the Company or (ii) conflicts or
will conflict with or constitutes or will constitute a breach of, or a
default under, any Material Agreement or violates or will violate any
law, rule or regulation of the United States, or the State of New York
or the General Corporation Law of the State of Delaware, or, to such
counsel's knowledge, any order or decree of any court or government
agency or instrumentality or will result in the creation or imposition
of any Lien upon any property or assets of the Company, CCI, CC
Investment, CC Investment II, CCAIC, Crown Atlantic Holdings, Crown
Atlantic Sub or Crown Atlantic pursuant to the terms of any agreement
or instrument to which any of them is a party or by which any of them
may be bound or under any to which any of their respective property or
assets is subject, except in each case such breaches, conflicts or
defaults that, individually or in the aggregate, would not have a
Material Adverse Effect. For purposes of the foregoing opinion, such
counsel may assume that any agreements referred to in clause (ii) above
that are governed by laws other than the laws of the State of New York,
are governed by and would be interpreted in accordance with the laws of
the State of New York;
(x) The Company is not and, upon sale of the Shares to be issued and
sold thereby in accordance herewith and the application of the net
proceeds to the Company of such sale as described in the Prospectus
under the caption "Use of Proceeds," will not be an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended; and
(xi) Neither the Company nor any of its subsidiaries is in violation
of its Certificate of Incorporation or By-laws or in default in the
performance or observance of any material 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.
In addition, such counsel shall also state that such counsel has
participated in conferences with officers of the Company and with the
independent public accountants for the Company, concerning the preparation of
the Registration Statement and the Prospectus, and, although such counsel has
made certain inquiries and investigations in connection with the preparation of
the Registration Statement and the Prospectus, it is not passing upon and does
not assume any responsibility for the accuracy or completeness of the statements
contained in the Registration Statement and the Prospectus, and has not made any
independent check or verification thereof, except insofar as such statements
relate to such counsel and to clause (vii) above, and on the basis of the
foregoing such counsel's work in connection with this matter did not disclose
any information that gave such counsel reason to believe that the Registration
Statement and the Prospectus, as of its date or as of the Closing Date, included
or includes an untrue statement of a material fact or omitted or omits to state
a material fact 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 express no belief or opinion with respect to the
financial statements and other financial data included therein);
The opinion of such counsel may be limited to the laws of the State of New
York, the General Corporation Law of the State of Delaware and the Federal laws
of the United States;
(d) E. Xxxxx Xxxx, general counsel to the Company, shall have furnished to
you or the Independent Underwriter, as the case may be, his written opinion, (a
draft of which is attached
24
as Annex II(c) hereto), dated such Time of Delivery, in form and substance
reasonably satisfactory to you or the Independent Underwriter, as the case may
be, to the effect that:
(i) All of the issued shares of capital stock of the Company and
each Subsidiary of the Company other than CTSH and CTI have been duly
and validly authorized and issued and are fully paid, non-assessable
and (except for directors' qualifying shares) are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims, except as set forth in the Registration Statement
(including the exhibits thereto) with respect to shares subject to
liens under the Company's revolving credit facility with KeyBank
National Association and PNC Bank, National Association;
(ii) To knowledge of such counsel, there are no legal or
governmental proceedings pending or threatened against the Company or
any of its Subsidiaries (other than CTSH and CTI), or to which any of
their respective properties is subject, that are not disclosed in the
Prospectus and which are reasonably likely to have a Material Adverse
Effect or to materially affect the issuance of the shares of capital
stock or the consummation of the transactions contemplated by this
Agreement; and
(iii) To the knowledge of such counsel, except as described in the
Prospectus there are no contracts, agreements or understandings between
the Company or any of its Subsidiaries (other than CTSH and CTI) and
any person granting such person the right to require the Company or any
of such Subsidiaries to file a registration statement under the Act
with respect to any securities of the Company owned or to be owned by
such person or to require the Company or any of such Subsidiaries to
include such securities in the securities registered pursuant to the
Registration Statement or in any securities being registered pursuant
to any other registration statement filed by the Company or any of such
Subsidiaries under the Act;
The opinion of such counsel may be limited to the laws of the State of
Texas, the General Corporation Law of the State of Delaware and the Federal laws
of the United States;
(e) Xxxxxx Xxxx, English counsel for CTSH and CTI, shall have furnished to
you or the Independent Underwriter, as the case may be, their written opinion (a
draft of which is attached as Annex II(d) hereto), dated such Time of Delivery,
in form and substance reasonably to you or the Independent Underwriter, as the
case may be, to the effect that:
(i) CTI was duly incorporated on 9 May 1996 under the Companies Xxx
0000 as a private limited company; CTSH was duly incorporated on 27
August 1996 as a private limited company; a certificate of good
standing in respect of each of the Companies issued by the Companies
Registration Office on a date within three business days of the date of
this opinion is attached;
(ii) by a Certificate of Incorporation on Change of Name issued on
21 March 1997 CTI changed its name to "Castle Transmission
International Ltd."; by a Certificate of Incorporation on Change of
Name issued on 25 February 1997, CTSH changed its name to "Castle
Transmission Services (Holdings) Ltd."; and
(iii) CTI is empowered by its Memorandum of Association to conduct
its business as described in the Registration Statement and the
Prospectus;
25
(f) The counsel for each of the Crown Selling Stockholders, as indicated in
Schedule II hereto, shall have furnished to you or the Independent Underwriter,
as the case may be, its written opinion with respect to each of the Crown
Selling Stockholders for whom they are acting as counsel (a draft of which is
attached as Annex II(e) hereto), dated such Time of Delivery, in form and
substance satisfactory to you or the Independent Underwriter, as the case may
be, to the effect that:
(i) Such Selling Stockholder has full right, power and authority to
enter into this Agreement, the Power of Attorney and the Custody
Agreement; the execution, delivery and performance of this Agreement,
the Power of Attorney and the Custody Agreement by such Selling
Stockholder and the consummation by such Selling Stockholder of the
transactions contemplated hereby and thereby will not conflict with or
result in a breach or violation of any of the terms or provisions of,
or constitute a default under, any statute, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument known to
such counsel to which such Selling Stockholder is a party or by which
such Selling Stockholder is bound or to which any of the property or
assets of such Selling Stockholder is subject, nor will such actions
result in any violation of any statute or any order, rule or regulation
known to such counsel of any court or governmental agency or body
having jurisdiction over such Selling Stockholder or the property or
assets of such Selling Stockholder; and, except for the registration of
the Shares under the Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under the Exchange
Act and applicable state or foreign securities laws in connection with
the purchase and distribution of the Shares by the Underwriters and the
International Underwriters, no consent, approval, authorization or
order of, or filing or registration with, any such court or
governmental agency or body is required for the execution, delivery and
performance of this Agreement, the Power of Attorney or the Custody
Agreement by such Selling Stockholder and the consummation by such
Selling Stockholder of the transactions contemplated hereby and
thereby;
(ii) This Agreement and the International Underwriting Agreement has
each been duly executed and delivered by or on behalf of such Selling
Stockholder;
(iii) A Power-of-Attorney and a Custody Agreement have been duly
executed and delivered by such Selling Stockholder and constitute valid
and binding agreements of such Selling Stockholder, enforceable in
accordance with their respective terms, subject to the effects of
bankruptcy, insolvency, fraudulent transfer, reorganization,
receivership, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and an implied
covenant of good faith and fair dealing;
(iv) Such Selling Stockholder has full right, power and authority to
sell, assign, transfer and deliver the Shares to be sold by such
Selling Stockholder hereunder; and
(v) Upon physical delivery of the certificates representing the
Shares to be sold by such Selling Stockholder under this Agreement to
the Underwriters in the State of New York with undated stock powers
duly endorsed in blank, and upon
26
payment therefor in accordance with the terms of this Agreement, the
Underwriters will become the "protected purchasers" (as defined in
Section 8-303(a) of the New York UCC) of such shares, free of any
"adverse claim" (as defined in Section 8-102(a)(1) of the New York
UCC), assuming that the Underwriters do not have notice of any adverse
claim to such shares.
In rendering such opinion, such counsel may (i) state that its opinion is
limited to matters governed by the Federal laws of the United States of America,
the laws of the State of New York and the General Corporation Law of the State
of Delaware and that such counsel is not admitted in the State of New York and
(ii) in rendering the opinions in Section (i) and (iv) above, rely upon a
certificate of such Selling Stockholder in respect of matters of fact as to
ownership of and liens, encumbrances, equities or claims on the shares of Stock
sold by such Selling Stockholder, provided that such counsel shall furnish
copies thereof to the Representatives and state that they believe that both the
U.S. Underwriters and they are justified in relying upon such certificate.
(g) The counsel for each of the Executive Selling Stockholders, as
indicated in Schedule II hereto, shall have furnished to you or the Independent
Underwriter, as the case may be, its written opinion with respect to each of the
Executive Selling Stockholders for whom they are acting as counsel (a draft of
which is attached as Annex II(f) hereto), dated such Time of Delivery, in form
and substance satisfactory to you or the Independent Underwriter, as the case
may be, to the effect that:
(i) Such Selling Stockholder has full right, power and authority to
enter into this Agreement, the Power of Attorney and the Custody
Agreement; the execution, delivery and performance of this Agreement,
the Power of Attorney and the Custody Agreement by such Selling
Stockholder and the consummation by such Selling Stockholder of the
transactions contemplated hereby and thereby will not conflict with or
result in a breach or violation of any of the terms or provisions of,
or constitute a default under, any statute, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument known to
such counsel to which such Selling Stockholder is a party or by which
such Selling Stockholder is bound or to which any of the property or
assets of such Selling Stockholder is subject, nor will such actions
result in any violation of any statute or any order, rule or regulation
known to such counsel of any court or governmental agency or body
having jurisdiction over such Selling Stockholder or the property or
assets of such Selling Stockholder; and, except for the registration of
the Shares under the Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under the Exchange
Act and applicable state or foreign securities laws in connection with
the purchase and distribution of the Shares by the Underwriters, no
consent, approval, authorization or order of, or filing or registration
with, any such court or governmental agency or body is required for the
execution, delivery and performance of this Agreement, the Power of
Attorney or the Custody Agreement by such Selling Stockholder and the
consummation by such Selling Stockholder of the transactions
contemplated hereby and thereby;
(ii) This Agreement has been duly executed and delivered by or on
behalf of such Selling Stockholder;
(iii) A Power-of-Attorney and a Custody Agreement have been duly
executed and delivered by such Selling Stockholder and constitute valid
and
27
binding agreements of such Selling Stockholder, enforceable in
accordance with their respective terms;
(iv) The delivery by each Executive Selling Stockholder to the
several Underwriters of certificates for the Shares being sold under
this Agreement, with due endorsement for transfer by such Executive
Selling Stockholder, against payment therefor in accordance with this
Agreement, has transferred good and valid title to such Shares, free
and clear of all adverse claims, to each of the several Underwriters,
assuming that the Underwriters are without actual notice of any adverse
claim.
In rendering such opinion, such counsel may (i) state that its opinion is
limited to matters governed by the Federal laws of the United States of America,
the laws of the State of Texas and the General Corporation Law of the State of
Delaware and that such counsel is not admitted in the State of New York and (ii)
in rendering the opinion in Section 8(g)(iv) above, rely upon a certificate of
such Selling Stockholder in respect of matters of fact as to ownership of and
liens, encumbrances, equities or claims on the shares of Stock sold by such
Selling Stockholder, provided that such counsel shall furnish copies thereof to
the Representatives and state that they believe that both the Underwriters and
they are justified in relying upon such certificate.
(h) The counsel for each of the Sponsor Selling Stockholders, as indicated
in Schedule II hereto, shall have furnished to you or the Independent
Underwriter, as the case may be, its written opinion with respect to each of the
Sponsor Selling Stockholders for whom they are acting as counsel (a draft of
which is attached as Annex II(a) hereto), dated such Time of Delivery, in form
and substance satisfactory to you or the Independent Underwriter, as the case
may be, to the effect that:
(i) This Agreement has each been duly executed and delivered by or
on behalf of such Sponsor Selling Stockholder;
(ii) A Power-of-Attorney and a Custody Agreement have been duly
executed and delivered by such Sponsor Selling Stockholder and
constitute valid and binding agreements of such Sponsor Selling
Stockholder, enforceable in accordance with their respective terms; and
(iii) The delivery by each Sponsor Selling Stockholder to the
several Underwriters of certificates for the Shares being sold under
this Agreement, with due endorsement for transfer by such Sponsor
Selling Stockholder, against payment therefor in accordance with this
Agreement, has transferred valid title to such Shares, free and clear
of all adverse claims, to each of the several Underwriters, assuming
that the Underwriters are without actual notice of any adverse claim.
In rendering such opinion, such counsel may (i) state that its opinion is
limited to matters governed by the Federal laws of the United States of America,
the laws of the Commonwealth of Massachusetts and the General Corporation Law of
the State of Delaware and that such counsel is not admitted in the State of New
York and (ii) in rendering the opinion in Section 8(h)(iii) above, rely upon a
certificate of such Selling Stockholder in respect of matters of fact as to
ownership of and liens, encumbrances, equities or claims on the shares of Stock
sold by such Selling Stockholder, provided that such counsel shall furnish
copies thereof to the
28
Representatives and state that they believe that both the Underwriters and they
are justified in relying upon such certificate.
(i) On the date of the Prospectus at a time prior to the execution of this
Agreement, at 9:30 a.m., New York City time, on the effective date of any post-
effective amendment to the Registration Statement filed subsequent to the date
of this Agreement and also at each Time of Delivery, KPMG Peat Marwick LLP shall
have furnished to you a letter or letters, dated the respective dates of
delivery thereof, in form and substance satisfactory to you, to the effect set
forth in Annex I hereto (the executed copy of the letter delivered prior to the
execution of this Agreement is attached as Annex I(a) hereto and a draft of the
form of letter to be delivered on the effective date of any post-effective
amendment to the Registration Statement and as of each Time of Delivery is
attached as Annex I(b) hereto);
(j)(i) Neither the Company nor any of its subsidiaries shall have sustained
since the date of the latest audited financial statements included in the
Prospectus any loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Prospectus, and (ii) since the respective dates as
of which information is given in the Prospectus there shall not have been any
change in the capital stock or long-term debt of the Company or any of its
subsidiaries or any change, or any development involving a prospective change,
in or affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the Prospectus, the
effect of which, in any such case described in clause (i) or (ii), is in the
judgment of the Representatives so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Shares being delivered at such Time of Delivery on the terms and in the
manner contemplated in the Prospectus;
(k) On or after the date hereof (i) no downgrading shall have occurred in
the rating accorded the Company's debt securities or preferred stock by any
"nationally recognized statistical rating organization", as that term is defined
by the Commission for purposes of Rule 436(g)(2) under the 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
debt securities or preferred stock;
(l) On or after the date hereof there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange or on NASDAQ; (ii) a suspension or
material limitation in trading in the Company's securities on NASDAQ; (iii) a
general moratorium on commercial banking activities declared by either Federal
or New York State authorities; or (iv) the outbreak or escalation of hostilities
involving the United States or the declaration by the United States of a
national emergency or war, if the effect of any such event specified in this
clause (iv) in the judgment of the Representatives makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the Shares
being delivered at such Time of Delivery on the terms and in the manner
contemplated in the Prospectus;
(m) At such Time of Delivery NASDAQ shall have approved the Shares to be
sold by the Company and the Selling Stockholders for inclusion, subject only to
official notice of issuance and evidence of satisfactory distribution;
29
(n) The Company has obtained and delivered to the Underwriters executed
copies of an agreement from the persons identified on Schedule III hereto to the
effect set forth in Subsection 5(f) hereof in form and substance satisfactory to
you;
(o) The Company shall have complied with the provisions of Section 6(c)
hereof with respect to the furnishing of prospectuses on the New York Business
Day next succeeding the date of this Agreement;
(p) The Company and the Selling Stockholders shall have furnished or caused
to be furnished to the Representatives and the Independent Underwriter at such
Time of Delivery certificates of officers of the Company and of the Selling
Stockholders, respectively, satisfactory to the Representatives and the
Independent Underwriter as to (i) the accuracy of the representations and
warranties of the Company and the Selling Stockholders, respectively, herein at
and as of such Time of Delivery, (ii) the performance by the Company and the
Selling Stockholders of all of their respective obligations hereunder to be
performed at or prior to such Time of Delivery, (iii) in the case of the Company
and the Crown Selling Stockholders, the absence of untrue statements of material
facts or omissions of material facts required to be stated or necessary to make
statements not misleading in the Registration Statement and Prospectus, (iv) in
the case of the Company and the Crown Selling Stockholders, absence of events
since the Effective Date which should be set forth in a supplement or amendment
to the Registration Statement or the Prospectus, and (v) such other matters as
you may reasonably request; and the Company shall have furnished or caused to be
furnished certificates as to the matters set forth in subsections (a) and (j) of
this Section, and as to such other matters as the Representatives and the
Independent Underwriter may reasonably request;
(q) The Company shall have furnished to the Representatives a certificate,
in form and substance reasonably acceptable to counsel to the Representatives,
dated the First Time of Delivery, of its Chief Financial Officer with respect to
certain tower data of the Company set forth in the Prospectus;
(r) The Representatives shall have received a copy of the executed Custody
Agreement and Power of Attorney from each Selling Stockholder;
(s) The closing under the International Underwriting Agreement shall have
occurred concurrently with the closing hereunder on the First Time of Delivery;
and
(t) The closing of the public offering and sale of the Company's debt
securities pursuant to that certain underwriting agreement between the Company
and Xxxxxxx, Xxxxx & Co., Xxxxxxx Xxxxx Barney Inc., Xxxxxx Brothers Inc.,
Credit Suisse First Boston Corporation, BancBoston Xxxxxxxxx Xxxxxxxx Inc. and
McDonald Investments Inc., A KeyCorp Company shall have occurred concurrently
with the closing hereunder on the First Time of Delivery.
9. The Independent Underwriter hereby consents to the references to it as
set forth under the caption "Underwriting" in the Prospectus and in any
amendment or supplement thereto made in accordance with Section 6(a) hereof.
10. (a) The Company, the Crown Selling Stockholders and the Executive
Selling Stockholders, jointly and severally, shall indemnify and hold harmless
each Underwriter and the Independent Underwriter, their respective officers and
employees and each person, if any, who controls any Underwriter within the
meaning of the Act, from and against any loss, claim, damage or liability, joint
or several, or any action in respect thereof (including, but not limited to, any
loss, claim, damage, liability or action relating to purchases and sales of
Shares), to which that Underwriter or Independent Underwriter, officer, employee
or controlling person may
30
become subject, under the Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any breach of the
representations and warranties of such Crown Selling Stockholder or Executive
Selling Stockholder, as the case may be, contained herein; provided that the
indemnity by the Company, the Crown Selling Stockholders and the Executive
Selling Stockholders solely with respect to this clause (i) shall be several and
not joint, (ii) any untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, the Registration Statement or the
Prospectus or in any amendment or supplement thereto, (iii) the omission or
alleged omission to state in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or in any amendment or supplement thereto, any
material fact required to be stated therein or necessary to make the statements
therein not misleading, or (iv) any act or failure to act or any alleged act or
failure to act by any Underwriter in connection with, or relating in any manner
to, the Shares or the offering contemplated hereby, and which is included as
part of or referred to in any loss, claim, damage, liability or action arising
out of or based upon matters covered by clause (ii) or (iii) above, and shall
reimburse each Underwriter or the Independent Underwriter, as the case may be,
and each such officer, employee or controlling person promptly upon demand for
any legal or other expenses reasonably incurred by that Underwriter or
Independent Underwriter, officer, employee or controlling person in connection
with investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
however, that the Company, the Crown Selling Stockholders and the Executive
Selling Stockholders 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,
any untrue statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or in any such amendment or supplement, in reliance upon and in
conformity with written information concerning such Underwriter or the
Independent Underwriter furnished to the Company through the Representatives by
or on behalf of any Underwriter or the Independent Underwriter specifically for
inclusion therein or constitutes a reference to the Independent Underwriter
consented to by it pursuant to Section 9 hereof. Notwithstanding the foregoing
provisions, the indemnity and contribution obligations of the Crown Selling
Stockholders and the Executive Selling Stockholders shall be subject to the
following additional limitations: (i) the Underwriters and the Independent
Underwriter shall pursue and satisfy any and all claims arising under this
Agreement or otherwise (collectively, "Claims") by seeking recovery from the
Company prior to pursuing any Claim against the Crown Selling Stockholders or
the Executive Selling Stockholders and the Underwriters and the Independent
Underwriter shall thereafter be entitled to pursue any remaining unsatisfied
Claims by seeking recovery from the Crown Selling Stockholders and the Executive
Selling Stockholders only following the Company's failure to satisfy in full the
Claims as a result of the Company's insolvency, bankruptcy or liquidation; (ii)
the aggregate amount of any Selling Stockholder's indemnity and contribution
obligations under this paragraph 10(a) shall not exceed the net cash proceeds
received by such Selling Stockholder from its sale of Shares in the offering
after reduction for (A) taxes, (B) underwriting commissions and discounts, (C)
other fees and expenses incurred by such Selling Stockholder relating to the
offering, including legal and financial advisory fees, and (D) the aggregate
amount of any and all direct and indirect costs or expenses incurred by such
Selling Stockholder in defense or settlement of any other claim against it
relating or attributable to the offering or the sale of Shares by such Selling
Stockholder thereunder, including without limitation claims under the Act; and
(iii) the Crown Selling Stockholders and the Executive Selling Stockholders
shall be liable under this paragraph 10(a) solely with respect to any untrue
statement of material fact contained in the Registration Statement and the
Prospectus which was actually known by such Selling
31
Stockholder as of the date of the Registration Statement or Prospectus (or such
amendment or supplement thereto) to be untrue, or any omission to state a
material fact which was actually known by such Selling Stockholder as of the
date of the Registration Statement or Prospectus (or such amendment or
supplement thereto) to be necessary to make the statements contained in the
Registration Statement or Prospectus (or such amendment or supplement thereto)
in the light of the circumstances under which they were made, not misleading as
of the date of the Registration Statement or Prospectus (or such amendment or
supplement thereto). The provisions of this Section 10 shall constitute the sole
and exclusive remedy available to the Underwriters and the Independent
Underwriter with respect to any claims against the Crown Selling Stockholders
and the Executive Selling Stockholders relating to the offering or sale of
Shares by such Selling Stockholders hereunder.
(b) Each Sponsor Selling Stockholder, severally and not jointly, shall
indemnify and hold harmless each Underwriter and the Independent Underwriter,
their respective officers and employees, and each person, if any, who controls
any Underwriter within the meaning of the Act, from and against any loss, claim,
damage or liability, or any action in respect thereof (including, but not
limited to, any loss, claim, damage, liability or action relating to purchases
and sales of Shares), to which that Underwriter or Independent Underwriter,
officer, employee or controlling person may become subject, under the Act or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, (i) any breach of the representations and warranties of
such Sponsor Selling Stockholder contained herein, (ii) any untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus or in any amendment or
supplement thereto or (iii) the omission or alleged omission to state in any
Preliminary Prospectus, Registration Statement or the Prospectus, or in any
amendment or supplement thereto, any 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 relates to information provided to
the Company or the Representatives in writing by such Selling Stockholder
specifically for use in the Registration Statement, the Preliminary Prospectus
or the Prospectus or to any breach of the representations and warranties made by
such Sponsor Selling Stockholder in Section 1(d) of this Agreement; and shall
reimburse each Underwriter or the Independent Underwriter, as the case may be,
its officers and employees and each such controlling person for any legal or
other expenses reasonably incurred by that Underwriter or Independent
Underwriter, its officers and employees or controlling person in connection with
investigating or defending or preparing to defend against any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that such Sponsor Selling Stockholder 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, any untrue statement or alleged untrue statement or omission
or alleged omission made in any Preliminary Prospectus, the Registration
Statement or the Prospectus or in any such amendment or supplement in reliance
upon and in conformity with written information concerning such Underwriter or
the Independent Underwriter furnished to the Company through the Representatives
by or on behalf of any Underwriter or the Independent Underwriter specifically
for inclusion therein or constitutes a reference to the Independent Underwriter
consented to by it pursuant to Section 9 hereof. The foregoing indemnity
agreement constitutes the sole and exclusive remedy available to the
Underwriters and the Independent Underwriter with respect to any claims against
the Sponsor Selling Stockholders relating to the offering or sale of Shares by
such Sponsor Selling Stockholders hereunder. No Sponsor Selling Stockholder
will be required to indemnify the Underwriters or the Independent
32
Underwriter, their officers and employees, and each person, if any, who controls
any Underwriter or the Independent Underwriter within the meaning of the Act
pursuant to this Section 10(b) in an amount in excess of the proceeds received
by such person in respect of all Shares offered and sold by it pursuant to the
Registration Statement.
(c) Each Underwriter, severally and not jointly, shall indemnify and hold
harmless the Company, its officers who sign the Registration Statement, each of
its directors (including any person who, with his or her consent, is named in
the Registration Statement as about to become a director of the Company), and
each person, if any, who controls the Company within the meaning of the Act,
from and against any loss, claim, damage or liability, joint or several, or any
action in respect thereof, to which the Company or any such director, officer or
controlling person may become subject, under the Act or otherwise, insofar as
such loss, claim, damage, liability or action arises out of, or is based upon,
(i) any untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement or the
Prospectus or in any amendment or supplement thereto or (ii) the omission or
alleged omission to state in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or in any amendment or supplement thereto, any
material fact required to be stated therein or necessary to make the statements
therein not misleading, but in each case only to the extent that the untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information concerning such
Underwriter furnished to the Company through the Representatives by or on behalf
of that Underwriter specifically for inclusion therein, and shall reimburse the
Company and any such director, officer or controlling person for any legal or
other expenses reasonably incurred by the Company or any such director, officer
or controlling person in connection with investigating or defending or preparing
to defend against any such loss, claim, damage, liability or action as such
expenses are incurred. The foregoing indemnity agreement is in addition to any
liability which any Underwriter may otherwise have to the Company or any such
director, officer, employee or controlling person.
(d) The Independent Underwriter will indemnify and hold harmless the
Company and each Underwriter against any losses, claims, damages or liabilities
to which the Company or such Underwriter, as the case may be, may become
subject, under the Act or otherwise, 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 any
Preliminary Prospectus, the Registration Statement or the Prospectus, or any
amendment or supplement thereto, 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 any Preliminary
Prospectus, the Registration Statement or the Prospectus or any such amendment
or supplement in reliance upon and in conformity with written information
furnished to the Company by the Independent Underwriter expressly for use
therein or constitutes a reference to the Independent Underwriter consented to
by it pursuant to Section 9 hereof; and will reimburse the Company or each
Underwriter, as the case may be, for any legal or other expenses reasonably
incurred by the Company or each Underwriter, as the case may be, in connection
with investigating or defending any such action or claim as such expenses are
incurred.
(e) Promptly after receipt by an indemnified party under this Section 10 of
notice of any claim or the commencement of any action, the indemnified party
shall, if a claim in respect
33
thereof is to be made against the indemnifying party under this Section 10,
notify the indemnifying party in writing of the claim or the commencement of
that action; provided, however, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have under this
Section 10 except to the extent it has been materially prejudiced by such
failure and, provided further, that the failure to notify the indemnifying party
shall not relieve it from any liability which it may have to an indemnified
party otherwise than under this Section 10. If any such claim or action shall be
brought against an indemnified party, and it shall notify the indemnifying party
thereof, the indemnifying party shall be entitled to participate therein and, to
the extent that it wishes, jointly with any other similarly notified
indemnifying party, to assume the defense thereof with counsel reasonably
satisfactory to the indemnified party. After notice from the indemnifying party
to the indemnified party of its election to assume the defense of such claim or
action, the indemnifying party shall not be liable to the indemnified party
under this Section 10 for any legal or other expenses subsequently incurred by
the indemnified party in connection with the defense thereof; provided, however,
that if the defendants in any such action include both the indemnified party and
the indemnifying party and the indemnified party shall have in good faith
reasonably concluded that there may be defenses available to it which are
different from or additional to those available to the indemnifying party or if
the interests of the indemnified party may be deemed to conflict with the
interests of the indemnifying party, the indemnified party shall have the right
to select a separate counsel in the defense of such action, with the expenses
and fees of such separate counsel and other expenses related to such
participation to be reimbursed by the indemnifying party as incurred, provided
further that in no event shall the foregoing proviso require the indemnifying
party to bear the fees and expenses of more than one separate counsel, in
addition to local counsel, for each of the following classes of parties hereto:
(i) the Representatives and those other Underwriters and their respective
officers, employees and controlling persons who may be subject to liability
arising out of any claim in respect of which indemnity may be sought under this
Section 10, (ii) the Company and its Subsidiaries, (iii) the Crown Selling
Stockholders, (iv) the Executive Selling Stockholders and (v) the Sponsor
Selling Stockholders. No indemnifying party shall (i) without the prior written
consent of the indemnified parties (which consent shall not be unreasonably
withheld), settle or compromise or consent to the entry of any judgment with
respect to any pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising out
of such claim, action, suit or proceeding, or (ii) be liable for any settlement
of any such action effected without its written consent (which consent shall not
be unreasonably withheld), but if settled with the consent of the indemnifying
party or if there be a final judgment of the plaintiff in any such action, the
indemnifying party agrees to indemnify and hold harmless any indemnified party
from and against any loss or liability by reason of such settlement or judgment
to the extent provided in this Section 10.
(f) If the indemnification provided for in this Section 10 shall for any
reason be unavailable to or insufficient (other than by reason of the exceptions
provided therein) to hold harmless an indemnified party under Section 10(a),
10(b), 10(c) or 10(d) in respect of any loss, claim, damage or liability, or any
action in respect thereof, referred to therein, then each indemnifying party
shall, in lieu of indemnifying such indemnified party, contribute to the amount
paid or payable by such indemnified party as a result of such loss, claim,
damage or liability, or action in respect thereof, (i) in such proportion as
shall be appropriate to reflect the relative benefits received by each party to
this agreement from the offering of the Shares or (ii) if the
34
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 party to
this agreement with respect to the statements or omissions which resulted in
such loss, claim, damage or liability, or action in respect thereof, as well as
any other relevant equitable considerations. The relative benefits received by
the Company, the Crown Selling Stockholders, the Executive Selling Stockholder,
the Sponsor Selling Stockholders, the Underwriters or the Independent
Underwriter with respect to such offering shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Shares purchased
under this Agreement (before deducting expenses) received by the Company, the
Crown Selling Stockholders, the Executive Selling Stockholders or the Sponsor
Selling Stockholders, as the case may be, the total underwriting discounts and
commissions received by the Underwriters with respect to the Shares purchased
under this Agreement as set forth in the table on the cover page of the
Prospectus and the fee payable to the Independent Underwriter pursuant to the
first sentence of Section 4(e) hereof, respectively, bear to the sum of the
total proceeds from the sale of the Securities (before deducting expenses) in
the offering and the fee payable to the Independent Underwriter pursuant to the
first sentence of Section 4(e) hereof. The relative fault shall be determined by
reference to whether the untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company, the Crown Selling Stockholders, the Executive Selling
Stockholders, the Sponsor Selling Stockholders, the Underwriters or the
Independent Underwriter, the intent of the parties and their relative knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company, the Crown Selling Stockholders, the Executive Selling
Stockholders, the Sponsor Selling Stockholders, the Underwriters and the
Independent Underwriter agree that it would not be just and equitable if
contributions pursuant to this Section 10 were to be determined by pro rata
allocation (even if the Underwriters and the Independent Underwriter were
treated as one entity for such purpose) or by any other method of allocation
which does not take into account the equitable considerations referred to
herein. The amount paid or payable by an indemnified party as a result of the
loss, claim, damage or liability, or action in respect thereof, referred to
above in this Section 10 shall be deemed to include, for purposes of this
Section 10(e), 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 Section 10(e), no Underwriter
nor the Independent Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Shares underwritten
by it and distributed to the public was offered to the public, and the
Independent Underwriter shall not be required to contribute any amount in excess
of the amount by which the total price at which the Securities underwritten by
the Underwriters and distributed to the public were offered to the public,
exceeds the amount of any damages which such Underwriter or the Independent
Underwriter, as the case may be, has otherwise paid or become liable to pay by
reason of any untrue or alleged untrue statement or omission or alleged
omission. No Selling Stockholder will be required to contribute any amount in
excess of the proceeds received by such person in respect of all Shares offered
and sold by it pursuant to the Registration Statement and no person guilty of
fraudulent misrepresentation (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. The Underwriters' obligations to contribute as
provided in this Section 10(e) are several in proportion to their respective
underwriting obligations and not joint.
(g) As used herein, the phrase "actual knowledge" means, with respect to
any natural person, the actual knowledge of such person and, with respect to any
other person, the actual
35
knowledge of any natural person exercising control (whether by ownership or
management) over such person, and shall not imply any duty to investigate or be
deemed to include any knowledge that might have become actually known following
investigation. The phrase "actually known" shall have a correlative meaning.
(h) The obligations of the Company under this Section 10 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter or the Independent Underwriter within the meaning of the Act; the
obligations of the Underwriters under this Section 10 shall be in addition to
any liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director of the
Company (including any person who, with his or her consent, is named in the
Registration Statement as about to become a director of the Company) and to each
person, if any, who controls the Company or the Independent Underwriter within
the meaning of the Act; and the obligations of the Independent Underwriter under
this Section 10 shall be in addition to any liability which the Independent
Underwriter may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company (including any person
who, with his or her consent, is named in the Registration Statement as about to
become a director of the Company) and to each person, if any, who controls the
Company or any Underwriter within the meaning of the Act.
11. (a) If any Underwriter shall default in its obligation to purchase
the Shares which it has agreed to purchase hereunder at a Time of Delivery, you
may in your discretion arrange for you or another party or other parties to
purchase such Shares on the terms contained herein. If within thirty-six hours
after such default by any Underwriter you do not arrange for the purchase of
such Shares, then the Company and the Selling Stockholders shall be entitled to
a further period of thirty-six hours within which to procure another party or
other parties satisfactory to you to purchase such Shares on such terms. In the
event that, within the respective prescribed periods, you notify the Company and
the Selling Stockholders that you have so arranged for the purchase of such
Shares, or the Company and the Selling Stockholders notify you that they have so
arranged for the purchase of such Shares, you or the Company and the Selling
Stockholders shall have the right to postpone such Time of Delivery for a period
of not more than seven days, in order to effect whatever changes may thereby be
made necessary in the Registration Statement or the Prospectus, or in any other
documents or arrangements, and the Company agrees to file promptly any
amendments to the Registration Statement or the Prospectus which in your opinion
may thereby be made necessary. The term "Underwriter" as used in this Agreement
shall include any person substituted under this Section with like effect as if
such person had originally been a party to this Agreement with respect to such
Shares.
(b) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Company and
the Selling Stockholders as provided in subsection (a) above, the aggregate
number of such Shares which remains unpurchased does not exceed one-eleventh of
the aggregate number of all of the Shares to be purchased at such Time of
Delivery, then the Company and the Selling Stockholders shall have the right to
require each non-defaulting Underwriter to purchase the number of Shares which
such Underwriter agreed to purchase hereunder at such Time of Delivery and, in
addition, to require each non-defaulting Underwriter to purchase its pro rata
share (based on the number of Shares which such Underwriter agreed to purchase
hereunder) of the Shares of such defaulting Underwriter or Underwriters for
which such arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
36
(c) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Company and
the Selling Stockholders as provided in subsection (a) above, the aggregate
number of such Shares which remains unpurchased exceeds one-eleventh of the
aggregate number of all of the Shares to be purchased at such Time of Delivery,
or if the Company and the Selling Stockholders shall not exercise the right
described in subsection (b) above to require non-defaulting Underwriters to
purchase Shares of a defaulting Underwriter or Underwriters, then this Agreement
(or, with respect to the Second Time of Delivery, the obligations of the
Underwriters to purchase and of the Selling Stockholders to sell the Optional
Shares) shall thereupon terminate, without liability on the part of any non-
defaulting Underwriter, the Independent Underwriter, the Company or the Selling
Stockholders, except for the expenses to be borne by the Company and the Selling
Stockholders and the Underwriters as provided in Section 7 hereof and the
indemnity and contribution agreements in Section 10 hereof; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
12. The respective indemnities, agreements, representations, warranties
and other statements of the Company, the Selling Stockholders, the several
Underwriters and the Independent Underwriter, as set forth in this Agreement or
made by or on behalf of them, respectively, pursuant to this Agreement, shall
remain in full force and effect, regardless of any investigation (or any
statement as to the results thereof) made by or on behalf of any Underwriter,
the Independent Underwriter or any controlling person of any Underwriter, the
Independent Underwriter, the Company, or any of the Selling Stockholders, or any
officer or director or controlling person of the Company, or any controlling
person of any Selling Stockholder, and shall survive delivery of and payment for
the Shares.
13. If this Agreement shall be terminated pursuant to Section 11 hereof,
neither the Company nor the Selling Stockholders shall then be under any
liability to any Underwriter or the Independent Underwriter except as provided
in the second sentence of Section 4(e) hereof and in Sections 7 and 10 hereof;
but, if for any other reason any Shares are not delivered by or on behalf of the
Company and the Selling Stockholders as provided herein, the Company and each of
the Selling Stockholders pro rata (based on the number of Shares to be sold by
the Company and such Selling Stockholder hereunder) will reimburse the
Underwriters through you for all out-of-pocket expenses approved in writing by
you, including fees and disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery of the
Shares not so delivered, but the Company and the Selling Stockholders shall then
be under no further liability to any Underwriter or the Independent Underwriter
in respect of the Shares not so delivered except as provided in the second
sentence of Section 4(e) hereof and in Sections 7 and 10 hereof.
14. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by Xxxxxxx, Xxxxx & Co. on behalf of you as the
representatives; and in all dealings with any Selling Stockholder hereunder, you
and the Company shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of such Selling Stockholder made or given by any
or all of the Attorneys-in-Fact for such Selling Stockholder.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the representatives in care of Xxxxxxx, Sachs &
Co., 00 Xxx Xxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Registration
Department; if to the Independent Underwriter shall be delivered
37
or sent by mail, letter or facsimile transmission to the name and address of
Independent Underwriter; if to any Selling Stockholder shall be delivered or
sent by mail, telex or facsimile transmission to counsel for such Selling
Stockholder at its address set forth in Schedule II hereto; and if to the
Company shall be delivered or sent by mail, telex or facsimile transmission to
the address of the Company set forth in the Registration Statement, Attention:
Secretary; provided, however, that any notice to an Underwriter pursuant to
Section 10(e) hereof shall be delivered or sent by mail, telex or facsimile
transmission to such Underwriter at its address set forth in its Underwriters'
Questionnaire or telex constituting such Questionnaire, which address will be
supplied to the Company or the Selling Stockholders by you upon request. Any
such statements, requests, notices or agreements shall take effect upon receipt
thereof. The Company and the Selling Stockholders shall be entitled to act and
rely upon any request, consent, notice or agreement given or made on behalf of
the Underwriters by any of the Representatives and the Company and the
Underwriters shall be entitled to act and rely upon any request, consent, notice
or agreement given or made on behalf of the Selling Stockholders by their
respective Custodians.
15. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Independent Underwriter, the Company and the Selling
Stockholders and, to the extent provided in Sections 10 and 12 hereof, the
officers and directors of the Company and each person who controls the Company,
any Selling Stockholder, any Underwriter or the Independent Underwriter, and
their respective heirs, executors, administrators, successors and assigns, and
no other person shall acquire or have any right under or by virtue of this
Agreement. No purchaser of any of the Shares from any Underwriter shall be
deemed a successor or assign by reason merely of such purchase.
16. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day on which the New York Stock Exchange,
Inc. is open for trading.
17. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York without giving effect to any provisions
relating to conflicts of law.
18. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
If the foregoing is in accordance with your understanding, please sign and
return to us 10 counterparts hereof, and upon the acceptance hereof by you, on
behalf of each of the Underwriters and the Independent Underwriter, this letter
and such acceptance hereof shall constitute a binding agreement among each of
the Underwriters, the Independent Underwriter, the Company and each of the
Selling Stockholders. 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 U.S. Agreement among Underwriters, the form of which shall be submitted
to the Company and the Selling Stockholders for examination upon request, but
without warranty on your part as to the authority of the signers thereof.
38
Any person executing and delivering this Agreement as attorney-in-fact for
a Selling Stockholder represents by so doing that he has been duly appointed as
attorney-in-fact by such Selling Stockholder pursuant to a validly existing and
binding Power of Attorney which authorizes such attorney-in-fact to take such
action.
Very truly yours,
Crown Castle International Corp.
By:
----------------------------------
Name:
Title:
RC Investors Corp.
BC Investors Corp.
Xxx X. Xxxxxx, Xx.
Xxxxx X. Xxx
Xxxxxxx X. Xxxxx, III
Xxxx X. Xxxx
Xxxx Xxxx
Xxxxxx X. Xxxxx
By:
----------------------------------
Name:
Title:
As Attorney-in-Fact acting on behalf of each of
the Crown Selling Stockholders and Executive
Selling Stockholders named in Schedule II to this
Agreement.
39
Xxxxxx X. XxXxxxxx
Berkshire Fund III, A Limited Partnership
Berkshire Fund IV, Limited Partnership
Berkshire Investors LLC
Candover Investments, plc
Candover (Trustees) Limited
Candover Partners Limited
Centennial Fund IV, L.P.
NAS Partners I, L.L.C.
American Home Assurance Company
Xxx, Richwhite Communications Limited
Harvard Private capital Holdings, Inc.
New York Life Insurance Company
PNC Venture Corp.
Prime VIII, L.P.
By:
----------------------------------
Name:
Title:
As Attorney-in-Fact acting on behalf of each of
the Sponsor Selling Stockholders named in Schedule
II to this Agreement.
Accepted as of the date hereof
Xxxxxxx, Xxxxx & Co.
By:
----------------------------------
Xxxxxxx Xxxxx Barney Inc.
By:
----------------------------------
Name:
Title:
On behalf of each of the Underwriters
Xxxxxx Brothers Inc.
By:
----------------------------------
Name:
Title:
40
SCHEDULE I
Number of
Optional
Shares to be
Total Number of Purchased if
Firm Shares Maximum Option
Underwriter to be Purchased Exercised
----------- ----------------- --------------
Xxxxxxx, Sachs & Co..........................................
Xxxxxxx Xxxxx Xxxxxx Inc.....................................
Xxxxxx Brothers Inc..........................................
Credit Suisse First Boston Corporation.......................
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated.........................
---------------- --------------
Total.............................................. 22,160,000 3,298,043
================ ==============
41
SCHEDULE II
Number of Optional
Shares to be
Total Number of Sold if
Firm Shares Maximum Option
to be Sold Exercised
--------------- ------------------
The Company................................................................. 18,686,131 0
The Crown Selling Stockholders(a):
BC Investors Corp...................................................... 843,000 0
RC Investors Corp...................................................... 743,000 0
The Executive Selling Stockholders(b):
Xxx X. Xxxxxx, Xx...................................................... 145,088 380,589
Xxxxx X. Xxx........................................................... 58,758 154,135
Xxxxxxx X. Xxxxx, III.................................................. 37,007 97,076
Xxxx X. Xxxx........................................................... 15,562 40,820
Xxxx Xxxx.............................................................. 26,422 69,308
Xxxxxx X. Xxxxx........................................................ 36,976 96,994
The Sponsor Selling Stockholders(c):
Xxxxxx X. XxXxxxxx..................................................... 5,304 13,912
Berkshire Fund III, A Limited Partnership.............................. 163,932 256,500
Berkshire Fund IV, Limited Partnership................................. 349,518 546,885
Berkshire Investors LLC................................................ 25,202 39,432
Candover Investments, plc.............................................. 62,569 97,901
Candover (Trustees) Limited............................................ 5,596 8,756
Candover Partners Limited.............................................. 236,184 369,552
Centennial Fund IV, L.P................................................ 264,240 413,451
Nassau Capital Partners II, L.P........................................ 135,617 212,195
NAS Partners I, L.L.C.................................................. 843 1,321
American Home Assurance Company........................................ 74,516 116,593
Xxx, Richwhite Communications Limited.................................. 75,042 117,416
Harvard Private Capital Holdings, Inc.................................. 65,105 101,871
New York Life Insurance Company........................................ 28,478 44,559
PNC Venture Corp....................................................... 53,782 84,154
Prime VIII, L.P........................................................ 22,128 34,623
--------------- ------------------
Total.................................................................. 22,160,000 3,298,043
=============== ==================
(a) The Crown Selling Stockholders are represented by Xxxxxxxxxxx &
Xxxxxxxx LLP, 0000 Xxxxxx Xxxxxxxx, Xxxxxxxxxx, XX 00000, and have appointed E.
Xxxxx Xxxx and Xxxxxx X. Xxxxxxxxxx and each of them, as the Attorneys-in-Fact
for each such Crown Selling Stockholder.
(b) The Executive Selling Stockholders are represented by Xxxxx, Xxxxxx &
Xxxxx, L.L.P., Two Xxxxx Center, 0000 Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, XX
00000 and have appointed E. Xxxxx Xxxx and Xxxxxx X. Xxxxxxxxxx and each of
them, as the Attorneys-in-Fact for each such Executive Selling Stockholder.
42
(c) The Sponsor Selling Stockholders are represented by Xxxxxxxx, Xxxxxxx &
Xxxxxxx, 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 and have appointed Xxxx
Xxxxxxxxx and Xxxxx X. Xxxxxxxx and each of them, as the Attorneys-in-Fact for
each such Sponsor Selling Stockholder.
43
SCHEDULE III
Xxxxxx Xxxxxxx
Xxxxx Xxxxxxxxx
Xxxx Xxxxxxxxx
Xxxxxxx X. Hack
Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
X. Xxxxx Xxxx
Xxxxxx X. Xxxxxxxxxx
Xxxxxx X. Xxxxxxxxx
Xxxx X. Xxxxx
Centennial Fund V, L.P.
Centennial Entrepreneurs Fund V, L.P.
The Northwestern Mutual Life Insurance Company
Crown Atlantic Holding Company LLC
Digital Future Investments B.V.
[each vice president of the Company]
[each other stockholder that is not a director or Selling Stockholder and that
beneficially owns 1,000,000 shares or more]
44
ANNEX I(a)
[Form of Comfort Letter delivered by KPMG LLP
pursuant to Section 8(i) of the Underwriting Agreement]
ANNEX I(b)
[Form of Comfort Letter to be delivered by KPMG LLP
as of each Time of Delivery pursuant to Section 8(i) of the Underwriting
Agreement]
ANNEX II(a)
[Form of Opinion of Xxxxxx & Xxxxxxx
pursuant to section 8(b) of the Underwriting Agreement]
ANNEX II(b)
[Form of Opinion of Cravath, Swaine & Xxxxx
pursuant to section 8(c) of the Underwriting Agreement]
ANNEX II(c)
[Form of Opinion of E. Xxxxx Xxxx, General Counsel
pursuant to section 8(d) of the Underwriting Agreement]
ANNEX II(d)
[Form of Opinion of Xxxxxx Xxxx
pursuant to section 8(e) of the Underwriting Agreement]
ANNEX II(e)
[Form of Opinion of Xxxxxxxxxxx & Xxxxxxxx LLP
pursuant to section 8(f) of the Underwriting Agreement]
ANNEX II(f)
[Form of Opinion of Xxxxx, Xxxxxx & Xxxxx
pursuant to section 8(g) of the Underwriting Agreement]
ANNEX II(g)
[Form of Opinion of Xxxxxxxx, Xxxxxxx & Xxxxxxx
pursuant to section 8(h) of the Underwriting Agreement]
