Exhibit 1.1
Alaska Communications Systems Group, Inc.
Common Stock
_________________________________________
UNDERWRITING AGREEMENT
_________________________________________
November [ ], 1999
Xxxxxxx, Xxxxx & Co.
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
CIBC World Markets Corp.
Deutsche Bank Securities Inc. and
Xxxxxxxxx & Xxxxx LLC
As 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:
Alaska Communications Systems Group, Inc., a Delaware corporation
formerly known as ALEC Holdings, Inc. (the "Company"), proposes, subject to the
terms and conditions stated herein, to issue and sell to the Underwriters named
in Schedule I hereto (the "Underwriters") an aggregate of [10,000,000] shares
(the "Firm Shares") and, at the election of the Underwriters, up to [1,500,000]
additional shares (the "Optional Shares") of common stock, par value $0.01 per
share ("Stock"), of the Company (the Firm Shares and the Optional Shares that
the Underwriters elect to purchase pursuant to Section 2 hereof being
collectively called the "Shares").
1. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement on Form S-1 (File No. 333-88753)
(as amended by any pre-effective amendment, 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, and, excluding exhibits thereto heretofore
delivered to you 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
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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 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 5(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");
(b) 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, Xxxxx & Co. expressly for use
therein;
(c) 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, Sachs & Co. expressly for use therein;
(d) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements of
Alaska Communications Systems Holdings, Inc., a Delaware corporation
and a wholly owned subsidiary of the Company ("ACS"), 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, which could reasonably be expected to have a material
adverse effect on the current or future consolidated financial
position, stockholders' equity or results of operations of the Company
and its subsidiaries, taken as a whole (a "Material Adverse Effect),
otherwise than as set forth or contemplated in the Prospectus; and,
since the date as of which information is given in the Prospectus,
except as otherwise set forth or contemplated in the Prospectus, (i)
there has been
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no adverse change, or any development involving a prospective adverse
change, in the condition, financial or otherwise, or in the earnings,
business affairs or management of the Company and its subsidiaries,
taken as a whole, which could reasonably be expected to have a Material
Adverse Effect, (ii) the Company and its subsidiaries, taken as a
whole, have not incurred any material liability or obligation, direct
or contingent, other than in the ordinary course of business and (iii)
there has not been any change in the capital stock (as such term is
defined under U.S. generally accepted accounting principles ("GAAP)) or
long-term debt (as such term is defined under GAAP) of the Company or
any of its subsidiaries, other than an increase in the capital stock of
the Company of $240,000 at November 15, 1999 as compared to September
30, 1999, or any dividend or distribution of any kind declared, paid or
made by the Company on any class of its capital stock;
(e) The Company and its subsidiaries have good and marketable
title in fee simple to, or have valid rights to lease or otherwise use,
all items of real property and good and marketable title to, or have
valid rights to lease or otherwise use, all items of personal property
which are material to the business of the Company and its subsidiaries,
in each case free and clear of all liens, encumbrances and defects and
imperfections of title except such as (i) do not materially affect the
value of such property and do not interfere with the use made and
proposed to be made of such property by the Company and its
subsidiaries, (ii) could not reasonably be expected to have a Material
Adverse Effect, (iii) arise under the Credit Agreement dated as of May
14, 1999, among the Company, ACS, the lenders named therein, The Chase
Manhattan Bank, as Administrative Agent and Collateral Agent, Credit
Suisse First Boston Corporation, as Documentation Agent, and Canadian
Imperial Bank of Commerce, as Syndication Agent (as amended in
accordance with the terms thereof, the "Credit Agreement") or (iv) are
otherwise described in the Prospectus;
(f) The Company and each of its subsidiaries have been duly
incorporated and are validly existing as corporations in good standing
under the laws of their respective jurisdictions of incorporation, with
power and authority (corporate and other) to own or hold their
respective properties and conduct their respective businesses as
described in the Prospectus, and each has been duly qualified as a
foreign corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it owns or
leases properties or conducts any business so as to require such
qualification, except where the failure to have such power or authority
or to so qualify could not, singularly or in the aggregate, be
reasonably expected to have a Material Adverse Effect;
(g) 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 are owned
directly or indirectly by the Company (with the exception of Alaskan
Choice Television, LLC ("ACTV"), in respect of which the Company owns
66 2/3% of the issued shares of capital stock), free and clear of all
liens, charges, encumbrances, security interests, restrictions upon
voting or transfer (except for regulatory restrictions created under
the Communications Act of 1934, as amended by the Telecommunications
Act of 1996, as amended (the "Communications Act"), and the rules and
regulations of the Federal Communications Commission (the "FCC") and
the Regulatory Commission of Alaska) or any other claims of any third
party, except as created
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pursuant to the Credit Agreement; the Company has no subsidiaries other
than those entities listed on Exhibit 21.1 to the Registration
Statement;
(h) The unissued Shares to be issued and sold by the Company
to the Underwriters hereunder have been duly and validly authorized
and, when issued and delivered against payment therefor as provided
herein, will be duly and validly issued and fully paid and
non-assessable and will conform to the description of the Stock
contained in the Prospectus;
(i) The Company has full right, power and authority (corporate
and other) to execute and deliver this Agreement and to perform its
obligations hereunder; and all corporate action required to be taken
for the due and proper authorization, execution and delivery of this
Agreement and the consummation of the transactions contemplated herein
have been duly and validly taken;
(j) This Agreement has been duly authorized, executed and
delivered by the Company and constitutes a valid and legally binding
agreement of the Company;
(k) The issue and sale of the Shares by the Company hereunder
and the compliance by the Company with all of the provisions of this
Agreement and the consummation of the transactions herein contemplated
will not (i) conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, or result in
the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its subsidiaries pursuant
to, 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, (ii) result in any violation of the provisions
of the charter or by-laws of the Company or any of its subsidiaries or
(iii) result in any violation of any of the provisions of any statute,
judgment, order, decree, rule or regulation of any court or arbitrator
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 clauses (i) and (iii) above, any conflict, breach,
violation, default or creation or imposition that could not reasonably
be expected to have a Material Adverse Effect; and no consent,
approval, authorization, order, registration, filing or qualification
of or with any such court or arbitrator or governmental agency or body
under any such statute, judgment, order, decree, rule or regulation is
required for the execution, delivery and performance by the Company of
this Agreement and the compliance by the Company with the terms hereof,
the issue and sale of the Shares or the consummation by the Company of
the transactions contemplated in this Agreement except (i) the
registration under the Act of the Shares and the registration under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), of
the Stock and (ii) such consents, approvals, authorizations,
registrations, filings or qualifications (A) as may be required under
state securities or Blue Sky laws in connection with the purchase and
distribution of the Shares by the Underwriters, (B) which shall have
been made prior to the Time of Delivery (as defined in Section 4
hereof) with respect to the Shares to be issued and sold by the Company
to the Underwriters hereunder or (C) the failure of which to obtain
would not materially restrain, prevent or impose material burdensome
conditions on the issuance of the Shares to be issued and sold by the
Company to the Underwriters hereunder;
(l) Neither the Company nor any of its subsidiaries is (i) in
violation of its charter
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or by-laws, (ii) in default in any 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 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 property or assets is subject,
other than any such default as would not, singularly or in the
aggregate, be reasonably expected to have a Material Adverse Effect or
(iii) in violation in any respect of any law, ordinance, governmental
rule, regulation or court decree to which it or its property or assets
are subject, other than any such violation as would not, singularly or
in the aggregate, be reasonably expected to have a Material Adverse
Effect;
(m) There are no judgements, orders or decrees under the laws
of the State of New York, the General Corporation Law of the State of
Delaware or the laws of the United States of America of any court or
arbitrator or governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their properties or
assets; PROVIDED that this representation is not made with respect to
the laws of the State of Alaska or matters within the jurisdiction of
the FCC or the Regulatory Commission of Alaska (formerly Alaska Public
Utilities Commission) (or any other laws applicable to corporations
conducting telecommunications or utility businesses, in their capacity
as such, similar to those conducted by the Company or any other matters
within the jurisdiction of any governmental authority charged with
regulating such corporations);
(n) 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, and under the caption
"Underwriting", insofar as they purport to describe the provisions of
the laws and documents referred to therein, are, in all material
respects, accurate, complete and fair;
(o) 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 or assets of
the Company or any of its subsidiaries is the subject which (i)
singularly or in the aggregate, could reasonably be expected to have a
Material Adverse Effect or (ii) would be reasonably likely to affect
the validity of this Agreement or any action taken or to be taken
pursuant hereto; and, to the best knowledge of the Company, no such
proceedings are threatened or contemplated by governmental authorities
or threatened by others;
(p) Neither the Company nor any of its subsidiaries is, and
after giving effect to the offering and sale of the Shares, the Company
will not be (i) an "investment company" or a company "controlled by" an
investment company within the meaning of the Investment Company Act of
1940, as amended (the "Investment Company Act"), and the rules and
regulations of the Commission thereunder or (ii) a "holding company" or
a "subsidiary company" of a holding company or an "affiliate" thereof
within the meaning of the Public Utility Holding Company Act of 1935,
as amended;
(q) 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;
(r) Deloitte & Touche LLP, who have certified certain
financial statements of (i) the Company, (ii) ACS, (iii) the CenturyTel
Alaska Properties and (iv) Telephone Fund of
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Fairbanks Municipal Utilities Services, and KPMG LLP, who have
certified certain financial statements of (i) the CenturyTel Alaska
Properties and (ii) the Municipality of Anchorage Telephone Utility
Fund, are each independent public accountants as required by the Act
and the rules and regulations of the Commission thereunder; the
historical financial statements (including the related notes) contained
in the Prospectus comply in all material respects with the requirements
applicable to a registration statement on Form S-1 under the Act; such
financial statements fairly present, in all material respects, the
financial position of the entities purported to be covered thereby at
the respective dates indicated and the results of their operations and
their cash flows for the respective periods indicated in accordance
with GAAP consistently applied throughout such periods; and the
financial information contained in the Prospectus under the headings
"Summary--Summary Unaudited Pro Forma Combined Financial and Operating
Data", "Summary--Summary Historical Combined Financial Data--Century's
Alaska Properties", "Summary--Summary Historical Financial Data--ATU",
"Selected Historical Consolidated Financial Data--ALEC Holdings",
"Selected Historical Combined Financial Data--Century's Alaska
Properties", "Selected Historical Financial Data--ATU", "Unaudited Pro
Forma Combined Financial Statements" and "Management's Discussion and
Analysis of Financial Condition and Results of Operations" are derived
from the accounting records of (i) the Company and its subsidiaries,
(ii) Telephone Utilities of Alaska, Inc., Telephone Utilities of the
Northland, Inc., PTI Communications of Alaska, Inc., Pacific Telecom of
Alaska PCS, Inc. and Pacific Telecom Cellular of Alaska, Inc.
(collectively, "Century's Alaska Properties") and (iii) ATU
Communications, Inc., MACtel, Inc., MACtel Fairbanks, Inc., ATU Long
Distance, Inc., Peninsula Cellular Services, Inc. and Prudhoe
Communications, Inc. (collectively, "ATU"), as the case may be, and
fairly present, in all material respects, the information purported to
be shown thereby; the PRO FORMA financial statements contained in the
Prospectus have been prepared on a basis consistent with the historical
financial statements contained in the Prospectus (except for the PRO
FORMA adjustments specified therein), include all material adjustments
to the historical financial information required by Rule 11-02 of
Regulation S-X under the Act and the Exchange Act to reflect the
historical and proposed transactions described in the Prospectus under
the heading "Unaudited Pro Forma Combined Financial Statements", give
effect to assumptions made on a reasonable basis and fairly present, in
all material respects, the historical and proposed transactions
described in the Prospectus under the heading "Unaudited Pro Forma
Combined Financial Statements"; PROVIDED that no representation is made
with respect to the compliance of the calculation of "Adjusted EBITDA"
with the requirements of Rule 11-02 of Regulation S-X under the
Exchange Act as such rule does not require such calculation; the other
historical financial information and data included in the Prospectus
are, in all material respects, fairly presented in accordance with
GAAP; and the other statistical information and data included in the
Prospectus are, in all material respects, fairly presented;
(s) To the best knowledge of the Company, no action has been
taken and no statute, rule, regulation or order has been enacted,
adopted or issued by any governmental agency or body which prevents the
issuance of the Shares or suspends the sale of the Shares in any
jurisdiction; no injunction, restraining order or order of any nature
by any Federal or state court of competent jurisdiction has been issued
with respect to the Company or any of its subsidiaries which would
prevent or suspend the issuance or sale of the Shares or the use of the
Prospectus in any
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jurisdiction; no action, suit or proceeding is pending against or, to
the best knowledge of the Company, threatened against or affecting the
Company or any of its subsidiaries before any court or arbitrator or
any governmental agency, body or official, domestic or foreign, which
could reasonably be expected to prevent or adversely affect the
issuance of the Shares or the validity or enforceability of this
Agreement or any action taken or to be taken pursuant hereto; and
neither the Company nor any of its subsidiaries has received any
requests by any securities authority in any jurisdiction for additional
information to be included in the Prospectus;
(t) The Company and each of its subsidiaries possess all
licenses, certificates, authorizations and permits issued by, and have
made all declarations and filings with, the appropriate Federal, state
or foreign regulatory agencies or bodies which are necessary or, in the
reasonable judgment of the Company, desirable for the ownership of
their respective properties or the conduct of their respective
businesses as described in the Prospectus, except where the failure to
possess or make the same could not, singularly or in the aggregate, be
reasonably expected to have a Material Adverse Effect, and, except as
disclosed in the Prospectus, neither the Company nor any of its
subsidiaries has received notification of any revocation or
modification of any license, certificate, authorization or permit that
is material to the operation of the business of the Company and its
subsidiaries, taken as a whole, or has any reason to believe that any
such license, certificate, authorization or permit will not be renewed
in the ordinary course;
(u) The Company and each of its subsidiaries have filed all
Federal, state, local and foreign income and franchise tax returns
required to be filed through the date hereof and have paid all taxes
due thereon (other than those taxes (i) being contested in good faith
or those taxes currently payable without penalty or interest, in each
case, for which adequate reserves have been provided in accordance with
GAAP or (ii) with respect to which the failure to do so could not
reasonably be expected to result in a Material Adverse Effect), and no
tax deficiency has been determined adversely to the Company or any of
its subsidiaries which has had (nor does the Company have any knowledge
of any tax deficiency which could reasonably be expected to have) a
Material Adverse Effect;
(v) The Company and each of its subsidiaries have insurance
covering their respective properties, operations, personnel and
businesses, which insurance is in amounts and insures against such
losses and risks as are, in the reasonable judgment of the Company,
adequate to protect the Company, its subsidiaries and their respective
businesses; none of the Company or any of its subsidiaries has received
notice from any insurer or agent of such insurer that material capital
improvements or other material expenditures are required or necessary
to be made in order to continue such insurance;
(w) The Company and each of its subsidiaries own or possess
adequate rights to use all patents, patent applications, trademarks,
service marks, trade names, trademark registrations, service xxxx
registrations, copyrights and know-how (including trade secrets and
other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures) necessary for the conduct of their
respective businesses, except as could not reasonably be expected to
have a Material Adverse Effect; and the conduct of their respective
businesses will not conflict in any respect with, and the Company and
its subsidiaries have not received any notice of any claim of conflict
with, any such rights of others which conflict, singularly or in the
aggregate, could reasonably be expected to result in a Material Adverse
Effect;
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(x) No labor disturbance by or material dispute with the
employees of the Company or any of its subsidiaries exists or, to the
best knowledge of the Company, is contemplated or threatened;
(y) No "prohibited transaction" (as defined in Section 406 of
the Employee Retirement Income Security Act of 1974, as amended,
including the regulations and published interpretations thereunder
("ERISA"), or Section 4975 of the Internal Revenue Code of 1986, as
amended from time to time (the "Code")) or "accumulated funding
deficiency" (as defined in Section 302 of ERISA) or any of the events
set forth in Section 4043(b) of ERISA (other than events with respect
to which the 30-day notice requirement under Section 4043 of ERISA has
been waived) has occurred with respect to any employee benefit plan of
the Company or any of its subsidiaries which could reasonably be
expected to have a Material Adverse Effect; each such employee benefit
plan is in compliance in all material respects with applicable law,
including ERISA and the Code; the Company and each of its subsidiaries
have not incurred and do not expect to incur liability under Title IV
of ERISA with respect to the termination of, or withdrawal from, any
pension plan for which the Company or any of its subsidiaries would
have any liability, which liability could reasonably be expected to
have a Material Adverse Effect; and, to the best knowledge of the
Company, each such pension plan 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
could reasonably be expected to cause the loss of such qualification;
(z) There has been no storage, generation, transportation,
handling, treatment, disposal, discharge, emission or other release of
any kind of toxic or other wastes or other hazardous substances by, due
to or caused by the Company or any of its subsidiaries (or, to the best
knowledge of the Company, any other entity (including any predecessor)
for whose acts or omissions the Company or any of its subsidiaries is
or could reasonably be expected to be liable) upon any of the property
now or previously owned or leased by the Company or any of its
subsidiaries, or upon any other property, in violation of any statute
or any ordinance, rule, regulation, order, judgment, decree or permit
or which would, under any statute or any ordinance, rule (including
rule of common law), regulation, order, judgment, decree or permit,
give rise to any liability, except for any violation or liability that
could not reasonably be expected to have, singularly or in the
aggregate with all such violations and liabilities, a Material Adverse
Effect; and there has been no disposal, discharge, emission or other
release of any kind onto such property or into the environment
surrounding such property of any toxic or other wastes or other
hazardous substances with respect to which the Company has knowledge,
except for any such disposal, discharge, emission or other release of
any kind which could not reasonably be expected to have, singularly or
in the aggregate with all such discharges and other releases, a
Material Adverse Effect;
(aa) Neither the Company nor, to the best knowledge of the
Company, any director, officer, agent, employee or other person
associated with or acting on behalf of the Company or any of its
subsidiaries has (i) used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expense relating to
political activity; (ii) made any unlawful payment to any foreign or
domestic government official or employee from corporate funds; (iii)
violated or is in violation of any provision of the Foreign Corrupt
Practices Act of 1977; or (iv) made any unlawful bribe, rebate, payoff,
influence payment, kickback or other unlawful payment;
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(bb) Except as described in the Prospectus, there are no
outstanding subscriptions, rights, warrants, calls or options to
acquire, or instruments convertible into or exchangeable for, or
agreements or understandings with respect to the sale or issuance of,
any shares of capital stock of or other equity or other ownership
interest in the Company or any of its subsidiaries other than those
provided in the agreement dated as of April 8, 1999, by and among
Chamer Corporation, Fox Xxxxx & Company, LLC and the Company, as
amended;
(cc) None of the Company or any of its subsidiaries is a party
to any contract, agreement or understanding with any person that would
give rise to a valid claim against the Company, its subsidiaries or the
Underwriters for a brokerage commission, finder's fee or like payment
in connection with the offering and sale of the Shares;
(dd) There are no securities of the Company or any of its
subsidiaries registered under the Exchange Act, or listed on a national
securities exchange or quoted in a U.S. automated inter-dealer
quotation system, although exchange notes for the 9 3/8%, Senior
Subordinated Notes issued by ACS and exchange debentures for the 13%
Senior Discount Debentures issued by the Company are registered under
the Act;
(ee) Neither the Company nor any of its subsidiaries has taken
or will take, directly or indirectly, any action prohibited by
Regulation M under the Exchange Act in connection with the offering of
the Shares;
(ff) No forward-looking statement (within the meaning of
Section 27A of the Act and Section 21E of the Exchange Act) contained
in the Prospectus has been made or reaffirmed without a reasonable
basis or has been disclosed other than in good faith;
(gg) The Company has conducted a comprehensive systems
assessment of the risk that the computer hardware and software used by
the Company and its subsidiaries may be unable to recognize and
properly execute date-sensitive functions involving certain dates prior
to and any dates after December 31, 1999 (the "Year 2000 Problem"),
and, except as set forth in the Prospectus, has remedied such risk
without material expense; and the Company believes, after due inquiry,
that each third party that has a material relationship with the Company
and its subsidiaries has remedied or will remedy on a timely basis the
Year 2000 Problem, although the failure of any third party that has
such a relationship with the Company to remedy the Year 2000 Problem on
a timely basis could have a Material Adverse Effect; and
(hh) Except with respect to any matter that, singularly or in
the aggregate, could not reasonably be expected to result in a Material
Adverse Effect, none of the Company or any of its subsidiaries (i) has
failed to comply with any law, rule, regulation, code, ordinance,
order, decree, judgment, injunction, notice or binding agreement
issued, promulgated or entered into by any governmental authority
(including but not limited to the FCC and the Regulatory Commission of
Alaska) relating in any way to the offering or provision of
communications (collectively, "Communications Laws") or to obtain,
maintain or comply with any permit, license or other approval required
under any Communications Law, (ii) has become subject to any liability,
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contingent or otherwise (including any liability for damages, costs,
fines, penalties or indemnities) directly or indirectly resulting from
or based upon (w) the violation of any Communications Law, (x) the
generation or use of communications, (y) exposure to communications or
radio frequency emissions or (z) any contract, agreement or other
consensual agreement pursuant to which liability is assumed or imposed
with respect to any of the foregoing (collectively, "Communication
Liabilities"), (iii) has received notice of any claim with respect to
any Communication Liability or (iv) knows of any basis for any
Communication Liability.
2. Subject to the terms and conditions herein set forth, (a) the
Company agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company, at
a purchase price per share of $[ ], the number of Firm Shares set forth opposite
the name of such Underwriter in Schedule I hereto and (b) in the event and to
the extent that the Underwriters shall exercise the election to purchase
Optional Shares as provided below, the Company agrees to issue and sell to each
of the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Company, at the purchase price per share set forth
in clause (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.
The Company hereby grants to the Underwriters the right to purchase at
their election up to [1,500,000] Optional Shares, at the purchase price per
share set forth in the paragraph above, for the purpose of covering sales of
shares in excess of the number of Firm Shares. Any such election to purchase
Optional Shares may be exercised only by written notice from you to the Company,
given within a period of 30 calendar days after the date of this Agreement,
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 4
hereof) or, unless you and the Company otherwise agree in writing, earlier than
two or later than ten business days after the date of such notice.
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 Shares to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in such
names as Xxxxxxx, Sachs & Co. may request upon at least forty-eight hours' prior
notice to the Company, shall be delivered by or on behalf of the Company to
Xxxxxxx, Xxxxx & Co., through the facilities of the Depository Trust Company
("DTC"), 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 to Xxxxxxx, Sachs & 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 with respect thereto at the
office of DTC or its designated custodian (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 November [ ], 1999 or such other time and date
as Xxxxxxx, Xxxxx & Co. and the Company may agree upon in writing, and, with
respect to the Optional Shares, 9:30 a.m., New York time, on the date specified
by Xxxxxxx, Sachs & Co. in the written notice given by Xxxxxxx, Xxxxx
11
& Co. of the Underwriters' election to purchase such Optional Shares, or such
other time and date as Xxxxxxx, Sachs & Co. and the Company 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 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 7 hereof, including the
cross receipt for the Shares and any additional documents requested by the
Underwriters pursuant to Sections 7(p) hereof, will be delivered at the offices
of Cravath, Swaine & Xxxxx, 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the
"Closing Location"), and the Shares will be delivered at the Designated Office,
all at such Time of Delivery. A meeting will be held at the Closing Location at
1:00 p.m., New York City time, on the New York Business Day next preceding such
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 Agreement, "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.
5. The Company agrees with each of the Underwriters:
(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, 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, upon request, with copies thereof; to advise you,
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 or to take any action that could subject the Company to
any material tax to which it would not otherwise be subject in any
jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the New York
Business Day next
12
succeeding the date of this Agreement and from time to time, to furnish
the Underwriters with copies of the Prospectus in New York City in such
quantities as you 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 event 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 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 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 180 days after the date of the
Prospectus, not to offer, sell, contract to sell or otherwise dispose
of, except as provided hereunder, 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 (i) 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
or (ii) any shareholders' rights plan), without the prior written
consent of Xxxxxxx, Sachs & Co.;
(f) To furnish to its stockholders (i) as soon as available
(and in any event no later than the time within which the Company is
required to file a Report on Form 10-K with the Commission in respect
of such fiscal year) after the end of each fiscal year an annual report
(including a balance sheet and statements of income, stockholders'
equity and cash flows of the Company and its consolidated subsidiaries
certified by independent public accountants) and (ii) as soon as
available (and in any event no later than the time within which the
Company is required to file a Report on Form 10-Q with the Commission
in respect of such quarter) after the end of each of the first three
quarters of each fiscal year (beginning with the fiscal quarter ending
after the effective date of the Registration Statement), to make
available to its stockholders consolidated summary financial
information of the Company and its subsidiaries for such quarter in
reasonable detail, in each case, so long as the Company is required to
furnish such annual report and summary financial information under the
Federal securities laws;
(g) During a period of five years from the effective date of
the Registration
13
Statement, to furnish to you copies of all reports or other
communications (financial or other) furnished to stockholders that are
not publicly available without charge on the Commission's XXXXX system
and to deliver to you (i) 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 that are not publicly available
without charge on the Commission's XXXXX system and (ii) such
additional information concerning the business and financial condition
of the Company as you may from time to time reasonably request (such
financial statements to be on a consolidated basis to the extent the
accounts of the Company and its subsidiaries are consolidated in
reports furnished to its stockholders generally or to the Commission);
(h) To use the net proceeds received by it from the sale of
the Shares pursuant to this 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.
6. The Company covenants and agrees with the several Underwriters 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 and dealers, except as otherwise specified in
Section 5(c) hereof; (ii) the cost of printing or producing any Agreement among
Underwriters, this Agreement, closing documents (including 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 5(b) hereof, including the fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with any
Blue Sky survey; (iv) all fees and expenses in connection with listing the
Shares on the NASDAQ; (v) the filing fees incident to, and the fees and
disbursements of counsel for the Underwriters in connection with, 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; and (viii) all
other costs and expenses incident to the performance of its obligations
hereunder which are not otherwise specifically provided for in this Section 6.
It is understood, however, that, except as provided in this Section 6, and
Sections 8 and 11 hereof, the Underwriters will pay all of their own costs and
expenses, including the fees of their counsel, stock transfer taxes on resale of
any of the Shares by them, and any advertising expenses connected with any
offers they may make.
7. The obligations of the Underwriters 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 and other statements of
the Company herein are, at and as of Time of Delivery, true and correct,
14
the condition that the Company shall have performed all of its obligations
hereunder theretofore to be performed, 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 5(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 your reasonable
satisfaction;
(b) Cravath, Swaine & Xxxxx, counsel for the Underwriters,
shall have furnished to you such written opinion or opinions (a draft
of each such opinion is attached as Annex I(a) hereto), dated such Time
of Delivery, with respect to the matters covered in paragraphs (i),
(ii), (vii), (x) and (xii) of subsection (c) below as well as such
other related matters as you 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) Wachtell, Lipton, Xxxxx & Xxxx, counsel for the Company,
shall have furnished to you their written opinion (a draft of such
opinion is attached as Annex I(b) hereto), dated such Time of Delivery,
in form and substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware, with corporate power and
authority necessary to own its properties and conduct its
business as described in the Prospectus;
(ii) The Company has an authorized equity
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) have been
duly and validly authorized and issued and are fully paid and
nonassessable; and the Shares conform, in all material
respects, to the description of the Stock contained in the
Prospectus;
(iii) The Company has been duly qualified as a
foreign corporation for the transaction of business and is in
good standing under the laws of each other jurisdiction in
which it owns or leases properties or conducts any business so
as to require such qualification, except where the failure to
so qualify would not, singularly or in the aggregate, have a
Material Adverse Effect (such counsel being entitled to rely
in respect of the opinion in this clause upon certificates of
government officials in the relevant jurisdictions regarding
the Company's qualification as a foreign corporation and good
standing and, in respect of matters of fact, upon certificates
of officers of the Company, provided that such counsel shall
state that they believe that both you and they are justified
in relying upon such certificates);
15
(iv) Each subsidiary of the Company that is
incorporated in the State of Delaware and listed in Exhibit A
attached hereto (collectively, the "Delaware Subsidiaries")
has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of
Delaware; and all of the outstanding shares of capital stock
of each such subsidiary have been duly and validly authorized
and issued, are fully paid and non-assessable and are owned
directly or indirectly by the Company, free and clear of all
liens, charges, encumbrances, security interests, restrictions
upon voting or transfer (except for regulatory restrictions
created under the Communications Act and the rules and
regulations of the FCC and the Regulatory Commission of
Alaska) or any other claims of any third party, except as
created pursuant to the Credit Agreement (such counsel being
entitled to rely in respect of the opinion in this clause upon
opinions of special counsel, certificates of government
officials in the State of Delaware regarding each Delaware
Subsidiary's good standing and, in respect to matters of fact,
upon certificates of officers of the Company or its
subsidiaries, provided that such counsel shall state that they
believe that both you and they are justified in relying upon
such opinions and certificates);
(v) Each of the Delaware Subsidiaries has been duly
qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts
any business so as to require such qualification, except where
the failure to so qualify would not, singularly or in the
aggregate, have a Material Adverse Effect (such counsel being
entitled to rely in respect of the opinion in this clause upon
certificates of government officials in the relevant
jurisdictions regarding each Delaware Subsidiary's
qualification as a foreign corporation and good standing and,
in respect of matters of fact, upon certificates of officers
of the Company, provided that such counsel shall state that
they believe that both you and they are justified in relying
upon such certificates);
(vi) The Company has all requisite corporate power
and authority to execute and deliver this Agreement and to
perform its obligations hereunder; and all corporate action
required to be taken for the due and proper authorization,
execution and delivery of this Agreement and the consummation
of the transactions contemplated herein have been duly and
validly taken by the Company;
(vii) This Agreement has been duly authorized,
executed and delivered by the Company and constitutes a valid
and legally binding agreement of the Company;
(viii) The issue and sale of the Shares being
delivered at such Time of Delivery by the Company and the
compliance by the Company with all of the provisions of this
Agreement and the consummation of the transactions herein
contemplated will not (A) conflict with or result in a breach
or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to
which the Company or any of the Delaware Subsidiaries is a
party or by which the Company or any of the Delaware
Subsidiaries is bound or to which any of the property or
assets of the Company or any of the Delaware Subsidiaries is
subject, and which, in each instance, is included as an
exhibit to the Registration Statement pursuant to Item 601 of
Regulation S-K under the Securities Act, (B) result in any
violation of the provisions of the Certificate of
Incorporation or By-laws
16
of the Company or any of the Delaware Subsidiaries or (C)
result in any violation of the provisions of any statute, rule
or regulation under the laws of the State of New York, the
General Corporation Law of the State of Delaware or the laws
of the United States of America (other than Blue Sky or state
securities laws as to which such counsel need express no
opinion, and other than the anti-fraud provisions of the
United States federal securities laws, as to which such
counsel need express no opinion except as otherwise expressly
set forth in such opinion) in effect on the date of such
opinion of any governmental agency or body having jurisdiction
over the Company or any of the Delaware Subsidiaries or any of
their properties or assets, other than, in the case of this
clause (C), any violation that could not reasonably be
expected to have a Material Adverse Effect;
(ix) No consent, approval, authorization, order,
registration, filing or qualification of or with any such
governmental agency or body referred to in clause (viii) above
under any statute, rule or regulation referred to in clause
(viii) above is required for the issue and sale of the Shares
or the consummation by the Company of the transactions
contemplated in this Agreement, except (A) the registration
under the Act of the Shares and the registration under the
Exchange Act of the Stock and (B) such consents, approvals,
authorizations, registrations, filings or qualifications (1)
as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Shares by
the Underwriters, (2) which shall have been obtained or made
prior to such Time of Delivery and (3) the failure to obtain
which would not materially restrain, prevent or impose
material burdensome conditions on the issuance of the Shares;
(x) 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, and
under the caption "U.S. Tax Consequences to Non-U.S. Holders"
and under the caption "Underwriting", insofar as they purport
to summarize the provisions of the laws and documents referred
to therein, have been reviewed by such counsel and fairly
summarize the matters described therein in all material
respects; and such counsel does not have actual knowledge of
any current or pending legal or governmental actions, suits or
proceedings which, to the knowledge of such counsel, are
required to be described in the Prospectus which are not
described as required;
(xi) Neither the Company nor any of its subsidiaries
is, and after giving effect to the offering and sale of the
Shares, the Company will not be, an "investment company" or a
company "controlled by" an investment company within the
meaning of the Investment Company Act and the rules and
regulations of the Commission thereunder; and neither the
Company nor any of its subsidiaries is, and after giving
effect to the offering and sale of the Shares, the Company
will not be, an "investment company" under the Investment
Company Act and the rules and regulations of the Commission
thereunder (without taking account of any exemption under the
Investment Company Act and the rules and regulations of the
Commission thereunder arising out of the number of holders of
the securities of the Company or any of its subsidiaries); and
(xii) The Registration Statement and the Prospectus
and any further amendments and supplements thereto made by the
Company prior to such Time of
17
Delivery (other than the financial statements, related notes
and schedules and other financial data 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; such counsel shall also
state that they have participated in conferences with
directors, officers and other representatives of the Company,
representatives of the independent accountants of the Company,
representatives of the Underwriters and representatives of
counsel for the Underwriters, at which conferences the
contents of the Registration Statement and the Prospectus and
related matters were discussed and, although they do not
assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration
Statement or the Prospectus, except for those referred to in
the opinion in subsection (x) of this Section 7(c); they have
no reason to believe that, as of its effective date, the
Registration Statement or any further amendment thereto made
by the Company prior to such Time of Delivery (other than the
financial statements, related notes and schedules and other
financial data therein, as to which such counsel need express
no opinion) contained an untrue statement of a material fact
or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading or that, as of its date, the Prospectus or any
further amendment or supplement thereto made by the Company
prior to such Time of Delivery (other than the financial
statements, related notes and schedules and other financial
data therein, as to which such counsel need express no
opinion) contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading or that, as of such Time
of Delivery, either the Registration Statement or the
Prospectus or any further amendment or supplement thereto made
by the Company prior to such Time of Delivery (other than the
financial statements, related notes and schedules, and other
financial data therein, as to which such counsel need express
no opinion) contains an untrue statement of a material fact 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; and they do not know of
any amendment to the Registration Statement required to be
filed or of any contracts or other documents of a character
required to be filed as an exhibit to the Registration
Statement or required to be described in the Registration
Statement or the Prospectus which are not filed or described
as required;
In rendering such opinion, such counsel may state that they have not
considered, and express no opinion as to, the laws of any jurisdiction other
than the laws of the State of New York, the General Corporation Law of the State
of Delaware and the laws of the United States of America, in each case as in
effect on the date of such opinion, and, specifically, that they have not
considered, and express no opinion as to, the laws of the State of Alaska or
matters within the jurisdiction of the FCC or the Regulatory Commission of
Alaska (formerly Alaska Public Utilities Commission) (or any other laws
applicable to corporations conducting telecommunications or utility businesses,
in their capacity as such, similar to those conducted by the Company or any
other matters within the jurisdiction of any governmental authority charged with
regulating such corporations).
(d) Birch, Horton, Xxxxxxx and Xxxxxx, special Alaskan counsel
for the Company, shall have furnished to you their written opinion (a
draft of such opinion is attached as Annex I(c) hereto), dated such
Time of Delivery, in form and substance satisfactory to you, to the
effect that:
18
(i) Each subsidiary of the Company that is
incorporated in the State of Alaska (the "Alaska
Subsidiaries") has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
the State of Alaska and all of the outstanding shares of
capital stock of each such subsidiary have been duly and
validly authorized and issued, are fully paid and
non-assessable and are owned directly or indirectly by the
Company (with the exception of ACTV, in respect of which the
Company owns 66 2/3% of the outstanding shares of capital
stock), free and clear of all liens, charges, encumbrances,
security interests, restrictions upon voting or transfer
(except for regulatory restrictions created under the
Communications Act and the rules and regulations of the FCC
and the Regulatory Commission of Alaska) or any other claims
of any third party, except as created pursuant to the Credit
Agreement (such counsel being entitled to rely in respect of
the opinion in this clause upon certificates of government
officials in the State of Alaska regarding each Alaska
Subsidiary's good standing and, in respect of matters of fact,
upon certificates of officers of the Company or its
subsidiaries, provided that such counsel shall state that they
believe that both you and they are justified in relying upon
such certificates);
(ii) Each of the Alaska Subsidiaries has been duly
qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts
any business so as to require such qualification, except where
the failure to so qualify would not, singularly or in the
aggregate, have a Material Adverse Effect (such counsel being
entitled to rely in respect of the opinion in this clause upon
certificates of government officials in the relevant
jurisdictions regarding each Alaska Subsidiary's qualification
as a foreign corporation and good standing);
(iii) [The Company and its subsidiaries have good and
marketable title in fee simple to, or have valid rights to
lease or otherwise use, all items of real property and good
and marketable title to, or have valid rights to lease or
otherwise use, all items of personal property which are
material to the business of the Company and its subsidiaries,
in each case free of all liens, encumbrances, claims and
defects and imperfections of title except such as (A) do not
materially affect the value of such property and do not
interfere with the use made and proposed to be made of such
property by the Company and its subsidiaries, (B) could not
reasonably be expected to have a Material Adverse Effect, (C)
arise under the Credit Agreement or (D) are otherwise
described in the Prospectus];
(iv) The issue and sale of the Shares being delivered
at such Time of Delivery by the Company and the compliance by
the Company with all of the provisions of this Agreement and
the consummation of the transactions herein contemplated will
not (A) conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of any of
the Alaska Subsidiaries pursuant to, any material indenture,
mortgage, deed of trust, loan agreement or other material
agreement or instrument to which any of the Alaska
Subsidiaries is a party or by which any of the Alaska
Subsidiaries is bound or to which any of the property or
assets of the Alaska Subsidiaries is subject, (B) result in
any violation of the provisions of the charter or by-laws of
any of the Alaska Subsidiaries or (C) result in any violation
of the provisions of any statute or any judgment, order,
decree, rule or regulation of any court
19
or arbitrator or governmental agency or body having
jurisdiction over the Company or any of the Alaska
Subsidiaries;
(v) No consent, approval, authorization, order,
registration, filing or qualification of or with any such
court or arbitrator or governmental agency or body under any
such statute, judgment, order, decree, rule or regulation is
required for the issue and sale of the Shares or the
consummation of the transactions contemplated in this
Agreement, except (A) the registration under the Act of the
Shares and the registration under the Exchange Act of the
Stock and (B) such consents, approvals, authorizations,
registrations, filings or qualifications (1) as may be
required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Shares by the
Underwriters and (2) which shall have been made or obtained
prior to such Time of Delivery;
(vi) To the best knowledge of such counsel, neither
the Company nor any of its subsidiaries is (A) in violation of
its charter or by-laws, (B) in default in any 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 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 property or assets is
subject, other than any such default as would not, singularly
or in the aggregate, be reasonably expected to have a Material
Adverse Effect or (C) in violation in any respect of any law,
ordinance, governmental rule, regulation or court decree to
which it or its property or assets are subject, other than any
such violation as would not, singularly or in the aggregate,
be reasonably expected to have a Material Adverse Effect;
(vii) The execution, delivery, filing, or recording,
as applicable, and performance by the Company of the
Underwriting Agreement does not require any further
authorization, consent or approval of, or any further filing
with, the Regulatory Commission of Alaska;
(viii) Each of the Regulatory Commission of Alaska
Certificates of Public Convenience and Necessity identified on
a schedule to such opinion (the "State Certificates") is held
by the entity as identified on such schedule as the holder
thereof and is in full force and effect; none of the State
Certificates is subject to any conditions (A) that would
suspend the Alaska Subsidiaries' currently effective authority
to provide local exchange, intrastate interexchange, or
cellular telecommunications service, or that would reduce the
geographic areas in which the Alaska Subsidiaries are
currently authorized to provide local exchange, intrastate
interexchange, and cellular telecommunications services, or
that would restrict the types of telecommunications services
that the Company or the Alaska Subsidiaries may provide or (B)
that are not restrictions which are generally applicable to
local exchange, intrastate interexchange and cellular
telecommunications companies; each of the State Certificates
is in effect indefinitely or for the term as set forth on such
schedule and, except as may be set forth in such
20
schedule, is renewable in the ordinary course; the conditions
imposed by the Alaska Public Utilities Commission on the State
Certificates in the orders approving the acquisition of the
Alaska Subsidiaries by the Company are set forth on a schedule
to such opinion; except as to the conditions described in such
schedule, there are no conditions on the State Certificates
that would restrict the Company or the Alaska Subsidiaries in
any material respect in the conduct of their present
operations; no appeal or petition for rehearing,
reconsideration, stay or other administrative action
contesting any of the State Certificates has been filed and
remains pending; there is no license, permit, or authorization
of the Regulatory Commission of Alaska required for the
conduct by the Company or the Alaska Subsidiaries of their
respective businesses that is not identified on such schedule;
(ix) There are no judgments, decrees, or orders
issued by the Regulatory Commission of Alaska relating to the
operations of the Company or the Alaska Subsidiaries that (A)
could reasonably be expected to result in a suspension,
revocation, material impairment, termination prior to its
expiration date, non-renewal or materially adverse
modification of any of the State Certificates or (B) could
reasonably be expected to have a material adverse effect upon,
or cause material disruption to, operations pursuant to the
State Certificates; there is no complaint, investigation,
action or proceeding pending before the Regulatory Commission
of Alaska, including any notice of violation, notice of
apparent liability, notice of failure to pay regulatory fees
or to file material reports, order to show cause or any
similar order or notice, except for proceedings for the
formulation of regulatory policy that may affect the
telecommunications industry generally [and except for
proceedings related to the termination of the rural exemptions
held by Telephone Utilities of Alaska, Inc., Telephone
Utilities of the Northland, Inc. or PTI Communications of
Alaska, Inc.], (1) that could reasonably be expected to result
in a suspension, revocation, material impairment, non-renewal,
or adverse modification of any of the State Certificates or
(2) that could reasonably be expected to have a material
adverse effect upon, or cause disruption to, the operations of
the Company or the Alaska Subsidiaries; and
(x) Such counsel has no reason to believe that, as of
its effective date, the Registration Statement or any further
amendment 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) contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or
that, as of its date, the Prospectus or any further amendment
or supplement 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) contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading or that, as of such Time
of Delivery, either the Registration Statement or the
Prospectus or any further amendment or supplement 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) contains an untrue
statement of a material fact 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; and
such counsel does not
21
know of any amendment to the Registration Statement required
to be filed which is not filed as required.
In rendering such opinion, such counsel may state that such counsel
expresses no opinion as to the laws of any jurisdiction outside the United
States.
(e) Xxxx X. Xxxxxxx, Executive Vice President, General Counsel
and Corporate Secretary of the Company, shall have furnished to you his
written opinion (a draft of such opinion is attached as Annex I(d)
hereto), dated such Time of Delivery, in form and substance
satisfactory to you, to the effect that:
(i) 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 or assets of the Company or any
of its subsidiaries is the subject which, (A) other than as
set forth in the Prospectus, singularly or in the aggregate,
if determined adversely to the Company or any of its
subsidiaries, could reasonably be expected to have a Material
Adverse Effect or (B) question the validity of this Agreement
or any action taken or to be taken pursuant hereto; and to the
best of such counsel's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or
threatened by others;
(ii) There is no license, permit or other
authorization of the FCC required for the lawful conduct of
the businesses of the Company and its subsidiaries as
presently being conducted on the date of such opinion and not
included among the licenses, permits and authorizations
enumerated on an attachment to such opinion;
(iii) Such counsel has no reason to believe that, as
of its effective date, the Registration Statement or any
further amendment 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) contained an untrue statement of a
material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein
not misleading or that, as of its date, the Prospectus or any
further amendment or supplement 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) contained an untrue statement
of a material fact or omitted to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading or
that, as of such Time of Delivery, either the Registration
Statement or the Prospectus or any further amendment or
supplement 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) contains an untrue statement of a material fact 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; and such counsel does
not know of any amendment to the Registration Statement
required to be filed or of any contracts or other documents of
a character required to be filed as an exhibit to the
Registration Statement or required to be described in the
Registration Statement or the Prospectus which are not filed
or described as required.
In rendering such opinion, such counsel may state that such counsel
expresses no opinion as to the
22
laws of any jurisdiction outside the State of Alaska or United States.
(f) Xxxxxx & Xxxxxxx, special FCC counsel to the Company,
shall have furnished to you their written opinion (a draft of such
opinion is attached as Annex I(e) hereto), dated such Time of Delivery,
in form and substance satisfactory to you, to the effect that:
(i) Except as disclosed on an attachment to such
opinion, each of the FCC licenses, permits and authorizations
issued by the FCC listed on such attachment (the "FCC
Licenses") is in full force and effect, has not been
suspended, revoked, canceled or modified in any materially
adverse way, is held by one of its subsidiaries of the
Company, has the expiration date shown on such attachment, and
authorizes, without further license, permit or other
authorization of the FCC, the operation of each of the
services identified on such attachment at the locations and on
the channels or frequencies identified on such attachment;
(ii) Each subsidiary of the Company has timely filed
all applications for the renewal of any FCC Licenses set forth
opposite the name of such subsidiary on the attachment to such
opinion for which applications for renewal were required so to
be filed on or before the date of such opinion;
(iii) The execution and delivery by the Company of,
and the performance by the Company of its obligations under,
this Agreement do not violate the Communications Act or the
rules, regulations or published policies of the FCC;
(iv) To the knowledge of such counsel, except as
disclosed in an attachment to such opinion, (A) no petition to
deny, petition for revocation, complaint or informal objection
is pending before the FCC against any of the FCC Licenses or
the Company or any of its subsidiaries and (B) there is no
outstanding decree, notice or order that has been issued by
the FCC against the Company or any of its subsidiaries or with
respect to the FCC Licenses, which either now, or after notice
or lapse of time or both, and there is no pending or
threatened litigation, proceeding, notice of violation, notice
of apparent liability, order to show cause, complaint, inquiry
or investigation before the FCC against the Company or any of
its subsidiaries which could reasonably be expected to result
in the cancelation, termination, revocation, forfeiture or
material impairment of any of the FCC Licenses, or have any
material adverse effect upon, or cause material disruption to,
the Company, any of its subsidiaries or the ownership or
operation of their respective businesses (such counsel being
entitled to rely in respect of the opinion in this clause upon
certificates of officers of the Company in respect of matters
of fact, provided that such counsel shall state that they
believe that both you and they are justified in relying upon
such certificates);
(v) No authorizations, consents, approvals, licenses,
filings or registrations with the FCC are required under the
Communications Act in connection with the execution and
delivery by the Company of, and the performance by the Company
of its obligations under, this Agreement on the date of such
opinion;
(vi) To the knowledge of such counsel, there are no
actions, suits or proceedings by or before the FCC pending or
threatened against or involving this
23
Agreement or any of the transactions contemplated herein; and
(vii) The statements in the Prospectus under the
headings "Risk Factors--Revocation of the substantial
protections from competition granted to our rural local
exchange carriers under the Telecommunications Act of 1996
could result in increased competition", "Risk Factors--A
reduction in the rates we charge our local telephone customers
by the RCA would reduce our revenues and earnings", "Risk
Factors--Revenues from access charges may be reduced or lost",
"Risk Factors--A reduction in the universal service support
currently received by some of our subsidiaries would reduce
our revenues and earnings" and "Regulation," to the extent
such statements purport to summarize applicable provisions of
the Communications Act and the written rules, regulations and
published policies of the FCC promulgated thereunder, are
accurate summaries in all material respects of the provisions
purported to be summarized under such captions in the
Prospectus; and, to the best knowledge of such counsel, there
are no current or pending proceedings before the FCC which are
not described in the Prospectus and which, to the best
knowledge of such counsel are required to be described in the
Prospectus.
In rendering such opinion, such counsel may state that they express no
opinion as to the laws of any state or jurisdiction outside the United States.
(g) 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, Deloitte & Touche 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 II hereto (the executed copy of the letter delivered
prior to the execution of this Agreement is attached as Annex II(a)
hereto, and such letter shall also constitute 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);
(h) 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 LLP, Shreveport, Louisiana, 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 II hereto (the executed copy of the letter
delivered prior to the execution of this Agreement is attached as Annex
II(b) hereto, and such letter shall also constitute 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);
(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 LLP, Anchorage, Alaska, shall have
furnished to you a letter or letters, dated the
24
respective dates of delivery thereof, in form and substance
satisfactory to you, to the effect set forth in Annex II hereto (the
executed copy of the letter delivered prior to the execution of this
Agreement is attached as Annex II(c) hereto, and such letter shall also
constitute 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);
(j) (i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited financial
statements of ACS 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 date as of which
information is given in the Prospectus, there shall not have been any
change in the capital stock (as such term is defined under GAAP) or
long-term debt (as such term is defined under GAAP) of the Company or
any of its subsidiaries, other than an increase in the capital stock of
the Company of $240,000 at November 15, 1999 as compared to September
30, 1999, 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 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;
(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) The Shares to be sold at such Time of Delivery shall have
been duly listed for quotation on NASDAQ;
(n) The Company shall have obtained and delivered to the
Underwriters executed copies of an agreement from each Fox Xxxxx
Capital, LLC, Fox Xxxxx Capital Fund, L.P., FPC Investors, L.P., ALEC
Coinvestment Fund I, LLC, ALEC Coinvestment Fund II, LLC, ALEC
Coinvestment Fund III, LLC, ALEC Coinvestment Fund IV, LLC, ALEC
Coinvestment Fund V, LLC, ALEC Coinvestment Fund VI, LLC, Xxxx Inlet
Region, Inc., Xxxx X. Xxxxx, Xxxx X. Xxxxx,
25
Xxxxxx X. Xxxxxx, Xxxxxxx X. Xxxxxxxxx, Xxxxxxx X. Xxxxxxxx and Xxxx X.
Xxxxxxx, substantially to the effect set forth in Subsection 5(e)
hereof in form and substance satisfactory to you;
(o) The Company shall have complied with the provisions of
Section 5(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 shall have furnished or caused to be furnished
to you at such Time of Delivery certificates of officers of the Company
satisfactory to you as to the accuracy of the representations and
warranties of the Company herein at and as of such Time of Delivery, as
to the performance by the Company of all of its obligations hereunder
to be performed at or prior to such Time of Delivery, as to the matters
set forth in subsections (a) and (j) of this Section 7 and as to such
other matters as you may reasonably request, including, without
limitation, as to the absence of 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 which is
required to be filed as an exhibit to the Registration Statement that
is not filed as required; and
(q) Prior to the First Time of Delivery, the Company shall
have furnished or caused to be furnished to you an executed copy of any
amendment to the Credit Agreement and any such amendment shall have
become effective.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter 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, and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses are
incurred; PROVIDED, HOWEVER, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission 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 any Underwriter
through Xxxxxxx, Sachs & Co. expressly for use therein.
(b) Each Underwriter will indemnify and hold harmless the
Company against any losses, claims, damages or liabilities to which the Company
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
26
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 such Underwriter
through Xxxxxxx, Xxxxx & Co. expressly for use therein; and will reimburse the
Company for any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending any such action or claim as such
expenses are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act, by or
on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other from the offering of the Shares. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law or if the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other shall be deemed to be
in the same proportion as the total net proceeds from the offering of the Shares
purchased under this Agreement (before deducting expenses) received by the
Company bear to the total underwriting discounts and commissions received by the
Underwriters with respect to the Shares purchased under this Agreement, in each
case as set forth in the table on the cover page of the Prospectus. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
on the
27
one hand or the Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Underwriters agree that it would not
be just and equitable if contributions pursuant to this subsection (d) were
determined by PRO RATA allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no 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 were offered to the
public exceeds the amount of any damages which such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. 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 in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company under this Section 8 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 within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 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 within the meaning of the Act.
9. (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 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 that you have
so arranged for the purchase of such Shares, or the Company notifies you that it
has so arranged for the purchase of such Shares, you or the Company 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 9 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 as provided in subsection (a) above, the
28
aggregate number of such Shares which remains unpurchased does not exceed
one-eleventh of the aggregate number of all the Shares to be purchased at such
Time of Delivery, then the Company 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.
(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 as provided in subsection (a) above, the aggregate number of such
Shares which remains unpurchased exceeds one-eleventh of the aggregate number of
all the Shares to be purchased at such Time of Delivery, or if the Company 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 Company to
sell the Optional Shares) shall thereupon terminate, without liability on the
part of any non-defaulting Underwriter or the Company, except for the expenses
to be borne by the Company and the Underwriters as provided in Section 6 hereof
and the indemnity and contribution agreements in Section 8 hereof; but nothing
herein shall relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Underwriters, 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 or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Shares.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
the Company shall not then be under any liability to any Underwriter except as
provided in Sections 6 and 8 hereof; but, if for any other reason, Shares are
not delivered by or on behalf of the Company as provided herein, the Company
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 shall then be
under no further liability to any Underwriter in respect of the Shares not so
delivered except as provided in Sections 6 and 8 hereof.
12. 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, Sachs & Co. on behalf of you as the
representatives of the Underwriters.
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, Xxxxx &
Co., 00 Xxx Xxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Registration
Department; 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, with a copy to Wachtell, Lipton,
Xxxxx & Xxxx, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx
29
10019, Attention: Xxxxxxxx X. Xxxxxxx, Esq.; provided, however, that any notice
to an Underwriter pursuant to Section 8(c) 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 by you upon
request. Any such statements, requests, notices or agreements shall take effect
at the time of receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company and, to the extent provided in
Sections 8 and 10 hereof, the officers and directors of the Company and each
person who controls the Company or any 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.
14. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
16. 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.
30
If the foregoing is in accordance with your understanding, please sign
and return to us eight counterparts hereof, and upon the acceptance hereof by
you, on behalf of each of the Underwriters, this letter and such acceptance
hereof shall constitute a binding agreement between each of the Underwriters and
the Company. It is understood that your acceptance of this letter on behalf of
each of the Underwriters is pursuant to the authority set forth in a form of
Agreement among Underwriters, the form of which shall be submitted to the
Company for examination upon request, but without warranty on your part as to
the authority of the signers thereof.
Very truly yours,
Alaska Communications Systems Group, Inc.
By:
---------------------------------------
Name:
Title:
Accepted as of the date hereof:
Xxxxxxx, Xxxxx & Co.
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
CIBC World Markets Corp.
Deutsche Bank Securities Inc.
Xxxxxxxxx & Xxxxx LLC
By:
-----------------------------------
(Xxxxxxx, Sachs & Co.)
On behalf of each of the Underwriters
