1
EXHIBIT 4.1
EXECUTION COPY
IXC COMMUNICATIONS, INC.
12 1/2% JUNIOR EXCHANGEABLE PREFERRED STOCK DUE 2009
(LIQUIDATION PREFERENCE $1,000 PER SHARE)
PURCHASE AGREEMENT
August 14, 1997
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX INCORPORATED
XXXXXX XXXXXXX & CO. INCORPORATED
C/O CREDIT SUISSE FIRST BOSTON CORPORATION
Eleven Madison Avenue
New York, N.Y. 10010
Dear Sirs:
1. Introductory. IXC Communications, Inc., a Delaware corporation (the
"Company"), proposes, subject to the terms and conditions stated herein, to
issue and sell to the several initial purchasers named in Schedule A hereto (the
"Purchasers") 300,000 shares of its 12 1/2% Junior Exchangeable Preferred Stock
Due 2009 (liquidation preference $1,000 per share) (the "Exchangeable Preferred
Stock"). The Company may, at its option (on any scheduled dividend payment
date), exchange all but not less than all of the Exchangeable Preferred Stock
then outstanding for Exchange Debentures (the "Exchange Debentures") in a
principal amount equal to the liquidation preference of the Exchangeable
Preferred Stock held by such holder at the time of such exchange. The
Exchangeable Preferred Stock and the Exchange Debentures issuable upon exchange
of the Exchangeable Preferred Stock are collectively herein referred to as the
"Offered Securities". Holders of shares of Exchangeable Preferred Stock or
Exchange Debentures will have the registration rights set forth in the
Registration Rights Agreement dated as of August 14, 1997 between the Company
and the Purchasers. The United States Securities Act of 1933 is herein referred
to as the "Securities Act."
The Company hereby agrees with the several Purchasers as follows:
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the several Purchasers that:
(a) A preliminary offering circular and an offering circular relating
to the Offered Securities to be offered by the Purchasers have been prepared by
the Company. Such
2
2
preliminary offering circular and an offering circular relating to the Offered
Securities, as both are supplemented as of the date of this Agreement, together
with any other document approved by the Company for use in connection with the
contemplated resale of the Offered Securities are hereinafter collectively
referred to as the "Offering Document". On the date of this Agreement, the
Offering Document does not include any 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, not
misleading. The preceding sentence does not apply to statements in or omissions
from the Offering Document based upon written information furnished to the
Company by any Purchaser through Credit Suisse First Boston Corporation
("CSFBC") specifically for use therein, it being understood and agreed that the
only such information is that described as such in Section 7(b). Except as
disclosed in the Offering Document, on the date of this Agreement, the Company's
Form 10-K for the year ending on December 31, 1996, filed with the Securities
and Exchange Commission (the "Commission") and all subsequent reports
(collectively, the "Exchange Act Reports") which have been filed by the Company
with the Commission or sent to stockholders pursuant to the Securities Exchange
Act of 1934 (the "Exchange Act") do not include any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except for forward looking statements contained in the
liquidity and capital resources discussions in such Exchange Act Reports that
have been superseded by the Offering Document. Such documents, when they were
filed with the Commission, conformed in all material respects to the
requirements of the Exchange Act and the rules and regulations of the Commission
thereunder.
(b) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware, with power
and authority (corporate and governmental) to own its properties and conduct its
business as described in the Offering Document; and the Company is duly
qualified to do business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the conduct of its
business requires such qualification except to the extent the failure to be so
qualified or to be in good standing would not have a material adverse effect on
the condition (financial or other), business, properties or results of
operations of the Company and its subsidiaries taken as a whole (a "Material
Adverse Effect").
(c) Each subsidiary of the Company has been duly incorporated and is an
existing corporation in good standing under the laws of the jurisdiction of its
incorporation, with power and authority (corporate and governmental) to own its
properties and conduct its business as described in the Offering Document; and
each subsidiary of the Company is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in which its ownership
or lease of property or the conduct of its business requires such qualification
except to the extent the failure to be so qualified would not have Material
Adverse Effect; all of the issued and outstanding capital stock of each
subsidiary of the Company has been duly authorized and validly issued and is
fully paid and nonassessable; and the capital stock of each subsidiary owned by
the Company, directly or through subsidiaries, is owned free from liens,
encumbrances and defects, except for the subsidiaries and liens listed on
Schedule 2(c).
(d) The Exchangeable Preferred Stock has been duly and validly
authorized; and when the Exchangeable Preferred Stock has been delivered and
paid for pursuant to this Agreement
3
3
on the Closing Date (as defined below), such Exchangeable Preferred Stock will
be validly issued, fully paid and nonassessable and will conform, in all
material respects, to the description thereof contained in the Offering
Document; shares of Exchangeable Preferred Stock have been duly and validly
authorized and reserved for issuance upon payment of dividends on the
Exchangeable Preferred Stock in additional shares of Exchangeable Preferred
Stock and when so issued will be fully paid and nonassessable; the issuance of
the Offered Securities is not subject to preemptive or other similar rights.
(e) Except as contemplated by this Agreement or as disclosed in the
Offering Document, there are no contracts, agreements or understandings between
the Company and any person that would give rise to a valid claim against the
Company or any Purchaser for a brokerage commission, finder's fee or other like
payment in connection with the transactions contemplated by this Agreement.
(f) No consent, approval, authorization, or order of, or filing with,
any governmental agency or body or any court is required for the consummation of
the transactions contemplated by this Agreement in connection with the issuance
and sale of the Offered Securities by the Company, other than as may be required
under the Securities Act and the Rules and Regulations of the Commission
thereunder with respect to the Registration Rights Agreement (as defined) and
the transactions contemplated thereunder, and such as may be required by
securities or blue sky laws of any state of the United States or of any foreign
jurisdiction in connection with the offer and sale of the Offered Securities.
(g) The execution, delivery and performance of the Registration Rights
Agreement among the Company and the Purchasers dated the date hereof (the
"Registration Rights Agreement") and this Agreement, and the issuance and sale
of the Offered Securities and compliance with the terms and provisions thereof
will not result in a breach or violation of any of the terms and provisions of,
or constitute a default under, any statute, rule, regulation or order of any
governmental agency or body or any court, domestic or foreign, having
jurisdiction over either of the Company or any of its subsidiaries or any of
their properties, or any agreement or instrument to which the Company or any
such subsidiary is a party or by which the Company or any such subsidiary is
bound or to which any of the properties of either of the Company or any such
subsidiary is subject, or the charter or by-laws of the Company or any such
subsidiary; and the Company has full corporate power and authority to authorize,
issue and sell the Offered Securities to be sold by the Company as contemplated
by this Agreement.
(h) The Registration Rights Agreement has been duly authorized by the
Company and, when executed and delivered, will conform in all material respects
to the description thereof contained in the Offering Circular. The Registration
Rights Agreement when validly executed and delivered by the Company will
constitute a valid and binding obligation of the Company and will be enforceable
against it in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
other laws of general applicability relating to or affecting creditors' rights
and to general equity principals and except as the right to indemnity and
contribution may be limited by state or federal securities laws or the public
policy underlying such laws.
4
4
(i) This Agreement has been duly authorized, executed and delivered by
the Company.
(j) Except as disclosed in the Offering Document and on Schedule 2(j)
the Company and its subsidiaries have good and marketable title to all real
properties and all other properties and assets owned by them, in each case free
from liens, encumbrances and defects that would materially affect the value
thereof or materially interfere with the use made or to be made thereof by them;
and except as disclosed in the Offering Document, the Company and its
subsidiaries hold any leased real or personal property under valid and
enforceable leases with no exceptions that would materially interfere with the
use made or to be made thereof by them.
(k) The Company and its subsidiaries possess adequate certificates,
authorities or permits which have been issued by appropriate governmental
agencies or bodies, necessary to conduct the business now operated by them,
except for such certificates, authorities or permits where the lack thereof
would not have a Material Adverse Effect, and have not received any notice of
proceedings relating to the revocation or modification of any such certificate,
authority or permit that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a Material Adverse
Effect.
(l) No labor dispute with the employees of the Company or any of its
subsidiaries exists or, to the knowledge of the Company, is imminent that might
have a Material Adverse Effect.
(m) The Company and its subsidiaries own, possess or can acquire on
reasonable terms, adequate trademarks, trade names and other rights to
inventions, know-how, patents, copyrights, confidential information and other
intellectual property (collectively, "intellectual property rights") necessary
to conduct the business now operated by them, or presently employed by them, and
have not received any notice of infringement of or conflict with asserted rights
of others with respect to any intellectual property rights that, if determined
adversely to the Company or any of its subsidiaries, would individually or in
the aggregate have a Material Adverse Effect.
(n) Except as disclosed in the Offering Document, neither the Company
nor any of its subsidiaries is in violation of any statute, rule, regulation,
decision or order of any governmental agency or body or any court, domestic or
foreign, relating to the use, disposal or release of hazardous or toxic
substances or relating to the protection or restoration of the environment or
human exposure to hazardous or toxic substances (collectively, "environmental
laws"), owns or operates any real property contaminated with any substance that
is subject to any environmental laws, is liable for any off-site disposal or
contamination pursuant to any environmental laws, or is subject to any claim
relating to any environmental laws, which violation, contamination, liability or
claim would individually or in the aggregate have a Material Adverse Effect; and
the Company is not aware of any pending investigation which might lead to such a
claim.
(o) Except as disclosed in the Offering Document, there are no pending
actions, suits or proceedings against or affecting the Company, any of its
subsidiaries or any of their respective properties that if determined adversely
to the Company or any of its subsidiaries, would, individually or in the
aggregate, have a Material Adverse Effect, or would materially
5
5
and adversely affect the ability of the Company to perform its obligations under
the Registration Rights Agreement or this Agreement, or which are otherwise
material in the context of the sale of the Offered Securities; and to the
Company's knowledge, no such actions, suits or proceedings are threatened or
contemplated.
(p) The financial statements included in the Offering Document present
fairly the financial position of the Company and its consolidated subsidiaries
as of the dates shown and their results of operations and cash flows for the
periods shown, and such financial statements have been prepared in conformity
with generally accepted accounting principles in the United States applied on a
consistent basis.
(q) Except as disclosed in the Offering Document, since the date of the
latest audited financial statements included in the Offering Document, there has
been no material adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as a whole, and, except as disclosed in or contemplated by
the Offering Document, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital stock other
than the dividend paid on June 30, 1997 with respect to the Company's 7 1/4
Junior Convertible Preferred Stock.
(r) The Company is not an open-end investment company, unit investment
trust or face-amount certificate company that is or is required to be
registered under Section 8 of the United States Investment Company Act of 1940
(the "Investment Company Act"), and the Company is not a closed-end investment
company required to be registered, but not registered, thereunder; and the
Company is not and, after giving effect to the offering and sale of the Offered
Securities and the application of the proceeds thereof as described in the
Offering Document, will not be an "investment company" as defined in the
Investment Company Act.
(s) No securities of the same class (within the meaning of Rule
144A(d)(3) under the Securities Act) as the Offered Securities are listed on any
national securities exchange registered under Section 6 of the Exchange Act or
quoted in a U.S. automated inter-dealer quotation system.
(t) Assuming the accuracy of the representations of the Purchasers
contained in Section 4, the offer and sale of the Offered Securities in the
manner contemplated by this Agreement will be exempt from the registration
requirements of the Securities Act by reason of Section 4(2) thereof, Regulation
D thereunder and Regulation S thereunder.
(u) None of the Company, any of its affiliates or any person acting on
its or their behalf (i) has, within the six-month period prior to the date
hereof, offered or sold in the United States or to any U.S. person (as such
terms are defined in Regulation S under the Securities Act) the Offered
Securities or any security of the same class or series as the Offered Securities
or (ii) has offered or will offer or sell the Offered Securities (A) in the
United States by means of any form of general solicitation or general
advertising within the meaning of Rule 502(c) under the Securities Act or (B)
with respect to any such securities sold in reliance on Rule 903 of Regulation S
("Regulation S") under the Securities Act, by means of any directed selling
efforts within the meaning of Rule 902(b) of Regulation S. The Company, its
6
6
affiliates and any person acting on their behalf have complied and will comply
with the offering restrictions requirement of Regulation S. The Company has not
entered and will not enter into any contractual arrangement with respect to the
distribution of the Offered Securities except for this Agreement.
(v) The Company is subject to Section 13 or 15(d) of the Exchange Act.
(w) The Company and its subsidiaries are, and will remain, in
compliance in all material respects with the Communications Act of 1934, as
amended by the Telecommunications Act of 1996 (the "Communications Act"), and
with all applicable rules, regulations and policies of the Federal
Communications Commission (the "FCC").
(x) The Company has provided to the Purchasers a complete and accurate
list of all licenses granted to the Company and its subsidiaries by the FCC (the
"Licenses"). All of the Licenses are currently valid and in full force and
effect except for Licenses that individually or in the aggregate would not have
a Material Adverse Effect. Neither of the Company nor any of its subsidiaries
have any knowledge of any investigation, notice of apparent liability,
violation, forfeiture or other order or complaint issued by or before any court
or regulatory body, including the FCC, or of any other proceedings which could
in any manner materially threaten or adversely affect the validity or continued
effectiveness of any of the Licenses.
(y) No event has occurred which (i) results in, or after notice or
lapse of time or both would result in, revocation, suspension, adverse
modification, non-renewal, impairment, restriction or termination of, or order
of forfeiture with respect to, any License or (ii) materially and adversely
affects or could reasonably be expected in the future to materially adversely
affect any of the rights of the Company or any of its subsidiaries thereunder.
(z) The Company and its subsidiaries have duly filed in a timely manner
all material filings, reports, applications, documents, instruments and
information required to be filed by them under the Communications Act, and all
such filings are true, correct and complete in all material respects.
(aa) Neither of the Company nor any of its subsidiaries have any reason
to believe that any of the Licenses will not be renewed in the ordinary course.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Company agrees to sell to the
Purchasers, and the Purchasers agree, severally and not jointly, to purchase
from the Company, at a purchase price of $965 per share plus accumulated
dividends (if any) from August 20, 1997 to the Closing Date (as hereinafter
defined) the Exchangeable Preferred Stock set forth opposite the names of the
several Purchasers in Schedule A hereto.
The Company will deliver against payment of the purchase price therefor
the Offered Securities to be purchased by each Purchaser hereunder in the form
of one or more permanent global securities in definitive form (the "Restricted
Global Securities"), deposited with The Bank of New York, as custodian for the
Depository Trust Company ("DTC"), and registered
7
7
in the name of Cede & Co., as nominee for DTC. Each Restricted Global Security
shall include the legend regarding restrictions on transfer set forth under
"Transfer Restrictions" in the Offering Document. Interests in the Restricted
Global Securities will be held only in book-entry form through DTC except in the
limited circumstances described in the Offering Document.
Payment for the Offered Securities shall be made by the Purchasers in
Federal (same day) funds by wire transfer to an account previously designated to
CSFBC by the Company at a bank acceptable to CSFBC, at the office of Cravath,
Swaine & Xxxxx, Worldwide Plaza, 000 Xxxxxx Xxxxxx, Xxx Xxxx, X.X. 00000-0000 at
10:00 A.M. (New York time), on August 20, 1997, or at such other time not later
than seven full business days thereafter as CSFBC and the Company determine,
such time being herein referred to as the "Closing Date", against delivery to
The Bank of New York, as custodian for DTC of the Restricted Global Securities,
representing in the aggregate all of the Offered Securities. The Offered
Securities will be made available for checking at the offices of Cravath, Swaine
& Xxxxx at least 24 hours prior to the Closing Date.
4. Representations and Agreements by Purchasers; Resale by Purchasers.
(a) Each Purchaser represents and warrants to the Company that it is an
"accredited investor" within the meaning of Regulation D under the Securities
Act.
(b) Each Purchaser acknowledges that the Offered Securities have not
been registered under the Securities Act and may not be offered or sold within
the United States or to, or for the account or benefit of, U.S. persons except
in accordance with Regulation S. In addition, each Purchaser acknowledges that
the Offered Securities have not been registered under the Securities Act and may
not be offered or sold, otherwise than as provided in the proceeding sentence,
except pursuant to an exemption from the registration requirements of the
Securities Act. Each Purchaser represents and agrees that it has offered and
sold the Offered Securities, and will offer and sell the Offered Securities as
part of their distribution at any time and in accordance with Regulation S or
Rule 144A under the Securities Act ("Rule 144A"). Accordingly, each Purchaser
represents and agrees that neither such Purchaser nor its affiliates, nor any
persons acting on its or their behalf, have engaged or will engage in any
directed selling efforts with respect to the Offered Securities, and such
Purchaser, its affiliates and all persons acting on its or their behalf have
complied and will comply with the offering restrictions requirement of
Regulation S. Each Purchaser agrees that, at or prior to confirmation of sale of
the Offered Securities, other than a sale pursuant to Rule 144A, such Purchaser
will have sent to each distributor, dealer or person receiving a selling
concession, fee or other remuneration that purchases the Offered Securities from
it during the restricted period a confirmation or notice to substantially the
following effect:
"The Securities covered hereby have not been registered under the U.S.
Securities Act of 1933 (the "Securities Act") and may not be offered or
sold within the United States or to, or for the account or benefit of,
U.S. persons as part of their distribution at any time, except in
accordance with Regulation S (or Rule 144A if available) under the
Securities Act."
8
8
Unless otherwise defined herein, terms used in this subsection (b) have the
meanings given to them by Regulation S.
(c) Each Purchaser agrees that it and each of its affiliates has not
entered and will not enter into any contractual arrangement with respect to the
distribution of the Offered Securities except with the prior written consent of
the Company.
(d) Each Purchaser agrees that it and each of its affiliates will not
offer or sell the Offered Securities in the United States by means of any form
of general solicitation or general advertising within the meaning of Rule 502(c)
under the Securities Act, including, but not limited to (i) any advertisement,
article, notice or other communication published in any newspaper, magazine or
similar media or broadcast over television or radio, or (ii) any seminar or
meeting whose attendees have been invited by any general solicitation or general
advertising. Each Purchaser agrees, with respect to resales made in reliance on
Rule 144A of any of the Offered Securities, to deliver either with the
confirmation of such resale or otherwise prior to settlement of such resale a
notice to the effect that the resale of such Offered Securities has been made in
reliance upon the exemption from the registration requirements of the Securities
Act provided by Rule 144A.
(e) Each Purchaser represents and agrees that (i) it has not offered or
sold and, prior to the date six months after the date of issue of the Offered
Securities, will not offer or sell any Offered Securities to persons in the
United Kingdom except to persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments (as principal or agent)
for the purposes of their businesses or otherwise in circumstances which have
not resulted and will not result in an offer to the public in the United Kingdom
within the meaning of the Public Offers of Securities Regulations 1995; (ii) it
has complied and will comply with all applicable provisions of the Financial
Services Xxx 0000 with respect to anything done by it in relation to the Offered
Securities in, from or otherwise involving the United Kingdom; and (iii) it has
only issued or passed on and will only issue or pass on in the United Kingdom
any document received by it in connection with the issue of the Offered
Securities to a person who is of a kind described in Article 11(3) of the
Financial Services Xxx 0000 (Investment Advertisements) (Exemptions) Order 1996
or is a person to whom such document may otherwise lawfully be issued or passed
on.
5. Certain Agreements of the Company. The Company agrees with the
several Purchasers that:
(a) The Company will advise CSFBC promptly of any proposal to amend or
supplement the Offering Document and will not effect such amendment or
supplementation without CSFBC's consent, which shall not be unreasonably
withheld or delayed. If, at any time prior to the completion of the resale of
the Offered Securities by the Purchasers, any event occurs as a result of which
the Offering Document 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, not misleading, or if it is necessary at any such time to
amend or supplement the Offering Document to comply with any applicable law, the
Company promptly will notify CSFBC of such event and promptly will prepare, at
its own expense, an amendment or
9
9
supplement which will correct such statement or omission or effect such
compliance. Neither CSFBC's consent to, nor the Purchaser's delivery to offerees
or investors of, any such amendment or supplement shall constitute a waiver of
any of the conditions set forth in Section 6.
(b) The Company will furnish to CSFBC copies of any preliminary
offering circular, the Offering Document and all amendments and supplements to
such documents, in each case as soon as available and in such quantities as
CSFBC requests, and the Company will furnish to CSFBC on the Closing Date three
copies of the Offering Document signed on the cover page by a duly authorized
officer of the Company, one of which will include the independent accountants'
reports therein manually signed by such independent accountants. At any time
when the Company is not subject to Section 13 or 15(d) of the Exchange Act, the
Company will promptly furnish or cause to be furnished to CSFBC (and upon
request, to each other Purchaser) and, upon request of holders and prospective
purchasers of the Offered Securities, to such holders and purchasers, copies of
the information required to be delivered to holders and prospective purchasers
of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act
(or any successor provision thereto) in order to permit compliance with Rule
144A in connection with resales by such holders of the Offered Securities. The
Company will pay the expenses of printing and distributing to the Purchasers all
such documents.
(c) The Company will use its commercially reasonable efforts to arrange
for the qualification of the Offered Securities for sale and the determination
of their eligibility for investment under the laws of such jurisdictions in the
United States and Canada as CSFBC designates and will continue such
qualifications in effect so long as required for the resale of the Offered
Securities by the Purchasers; provided, however, that the Company will not be
required to qualify as a foreign corporation or to file a general consent to
service of process in any such state or jurisdiction if it is not otherwise
required to be so qualified or to so file.
(d) During the period of five years after the Closing Date, the Company
will furnish to CSFBC and, upon request, to each other Purchaser, as soon as
practicable after the end of each fiscal year, a copy of the Company's annual
report to stockholders for such year; and the Company will furnish to CSFBC and,
upon request, to each other Purchaser (i) as soon as available, a copy of each
report and any definitive proxy statement of the Company filed with the
Commission under the Exchange Act or mailed to stockholders and (ii) from time
to time, such other publicly available information concerning the Company as
CSFBC may reasonably request.
(e) During the period of two years after the Closing Date, the Company
will, upon request, furnish to CSFBC, each other Purchaser and any holder of
Offered Securities a copy of the restrictions on transfer applicable to the
Offered Securities.
(f) During the period of two years after the Closing Date, the Company
will not, and will not permit any of its affiliates (as defined in Rule 144
under the Securities Act, other than affiliates who purchase Offered Securities
from the Purchasers at the Closing Date) to, resell any of the Offered
Securities that have been reacquired by any of them.
10
10
(g) During the period of two years after the Closing Date, the Company
will not be or become an open-end investment company, unit investment trust or
face-amount certificate company that is or is required to be registered under
Section 8 of the Investment Company Act, and the Company is not, or will not be
or become, a closed-end investment company required to be registered under the
Investment Company Act.
(h) The Company will pay all expenses incidental to the performance of
the Company's obligations under this Agreement, including (i) all expenses in
connection with the execution, issue, packaging and initial delivery of the
Offered Securities, the preparation and printing of the Offered Securities, the
Offering Document and amendments and supplements thereto, and any other document
relating to the issuance, offer, sale and delivery of the Offered Securities;
(ii) the cost of qualifying the Offered Securities for trading in the Private
Offerings, Resale and Trading through Automated Linkages (PORTAL) market and any
expenses incidental thereto; (iii) the cost of any advertising approved by the
Company in connection with the issue of the Offered Securities; (iv) any
expenses (including fees and disbursements of counsel) incurred in connection
with qualification of the Offered Securities for sale under the laws of such
jurisdictions in the United States and Canada as CSFBC designates and the
printing of memoranda relating thereto; and (v) all expenses incurred in
distributing preliminary offering circulars and the Offering Document (including
any amendments and supplements thereto) to the Purchasers. The Company will also
pay or reimburse the Purchasers (to the extent incurred by it) for all travel
expenses of the Company's officers and employees and any other expenses of the
Company in connection with attending or hosting meetings with prospective
purchasers of the Offered Securities from the Purchasers.
(i) In connection with the offering, until CSFBC shall have notified
the Company and the other Purchasers of the completion of the resale of the
Offered Securities, neither the Company nor any of its affiliates has or will,
either alone or with one or more other persons, bid for or purchased for any
account in which it or any of its affiliates has a beneficial interest any
Offered Securities or attempted to induce any person to purchase any Offered
Securities; and neither it nor any of its affiliates will make bids or purchases
for the purpose of creating actual, or apparent, active trading in, or of
raising the price of, the Offered Securities.
(j) For a period of 90 days after the date hereof, the Company will not
offer, sell, contract to sell, pledge or otherwise dispose of, directly or
indirectly, or file with the Commission a registration statement under the
Securities Act covering the sale by the Company of, (a) any preferred stock or
any other securities of the Company which are substantially similar to the
Exchangeable Preferred Stock, (b) any debentures of the Company or any other
securities of the Company which are substantially similar to the Exchange
Debentures, or (c) any other securities which are convertible into, or
exercisable or exchangeable for, preferred stock or such substantially similar
securities of the Company, or debentures or such substantially similar
securities of the Company, without the prior written consent of CSFBC, except
the offer, sale, contract to sell, or other disposition of (i) the Exchangeable
Preferred Stock, (ii) the Exchange Debentures issued or delivered upon exchange
of the Exchangeable Preferred Stock, (iii) securities issued or delivered upon
conversion, exchange or exercise of any other securities of the Company
outstanding on the date of the Offering Document, (iv) capital stock and options
of the Company issued pursuant to benefit or incentive plans maintained for its
officers, directors, employees or persons providing services to the Company,
11
11
or pursuant to a Company's dividend reinvestment plan, or (v) securities issued
in connection with mergers, acquisitions or similar transactions. The Company
will not at any time offer, sell, contract to sell, pledge or otherwise dispose
of, directly or indirectly, any securities under circumstances where such offer,
sale, pledge, contract or disposition would cause the exemption afforded by
Section 4(2) of the Securities Act or the safe harbor of Regulation S thereunder
to cease to be applicable to the offer and sale of the Offered Securities.
(k) The Company will cause each Offered Security to bear the legend set
forth in the Offering Document until such legend shall no longer be necessary or
advisable because the Offered Securities are no longer subject to the
restrictions on transfer described therein.
6. Conditions of the Obligations of the Purchasers. The obligations of
the several Purchasers to purchase and pay for the Offered Securities will be
subject to the accuracy of the representations and warranties on the part of the
Company herein, to the accuracy of the written statements of officers of the
Company made pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions
precedent:
(a) The Purchasers shall have received a letter, dated the date of this
Agreement, of Ernst & Young LLP, in agreed form, confirming that they are
independent public accountants within the meaning of the Securities Act and the
applicable published rules and regulations thereunder ("Rules and Regulations")
and stating to the effect that:
(i) in their opinion the financial statements examined by them
and included in the Offering Document comply as to form in all material
respects with the applicable accounting requirements of the Securities
Act and the related published Rules and Regulations;
(ii) on the basis of a reading of the latest available interim
financial statements of the Company, inquiries of certain officials of
the Company who have responsibility for financial and accounting
matters and other specified procedures, nothing came to their attention
that caused them to believe that:
(A) at August 12, 1997, there was any change in the capital
stock or additional paid-in capital, increase in short-term
indebtedness or long-term debt and capital lease obligations of
the Company and its consolidated subsidiaries or any decreases
in consolidated net current assets or stockholders' equity of
the consolidated companies as compared with amounts shown on the
June 30, 1997 unaudited condensed consolidated balance sheet
included in the Offering Document; or
(B) for the period from July 1, 1997 to August 12, 1997
there were any decreases, as compared with the corresponding
period in the preceding year, in consolidated operating
revenues, increase in operating loss, increase in the total
amount of net loss, or increase in the amount that earnings were
inadequate to cover combined fixed charges and preferred stock
dividends.
12
12
except in all cases set forth in clauses (A) and (B) above for changes,
increases or decreases which the Offering Document discloses have occurred or
may occur or which are described in such letter; and
(iii) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other financial
information contained in the Offering Document (in each case to the
extent that such dollar amounts, percentages and other financial
information are derived from the general accounting records of the
Company and its subsidiaries subject to the internal controls of the
Company's accounting system or are derived directly from such records
by analysis or computation) with the results obtained from inquiries, a
reading of such general accounting records and other procedures
specified in such letter and have found such dollar amounts,
percentages and other financial information to be in agreement with
such results, except as otherwise specified in such letter.
(b) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) a change in U.S. or international financial,
political or economic conditions or currency exchange rates or exchange controls
as would, in the judgment of CSFBC, be likely to prejudice materially the
success of the proposed issue, sale or distribution of the Offered Securities,
whether in the primary market or in respect of dealings in the secondary market,
or (ii) (A) any change, or any development or event involving a prospective
change, in the condition (financial or other), business, properties or results
of operations of the Company or its subsidiaries which, in the judgment of
CSFBC, is material and adverse and makes it impractical or inadvisable to
proceed with completion of the offering or the sale of and payment for the
Offered Securities; (B) any downgrading in the rating of any debt securities of
the Company by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Securities Act), or any public
announcement that any such organization has under surveillance or review its
rating of any debt securities of the Company (other than an announcement with
positive implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (C) any suspension or limitation of trading in
securities generally on the New York Stock Exchange, or any setting of minimum
prices for trading on such exchange, or any suspension of trading of any
securities of the Company on any exchange or in the over-the-counter market; (D)
any banking moratorium declared by U.S. Federal or New York authorities; or (E)
any outbreak or escalation of major hostilities in which the United States is
involved, any declaration of war by Congress or any other substantial national
or international calamity or emergency if, in the judgment of the Purchasers
including CSFBC, the effect of any such outbreak, escalation, declaration,
calamity or emergency makes it impractical or inadvisable to proceed with
completion of the offering or sale of and payment for the Offered Securities.
13
13
(c) The Purchasers shall have received an opinion, dated the Closing
Date, of Xxxxxxx & XxXxxxxx, a Professional Law Corporation, counsel for the
Company, substantially to the effect that (subject to customary assumptions and
disclaimers and except that no opinion shall be given as to laws other than the
laws of the State of California, the General Corporation Law of Delaware, and
the U.S. Federal law):
(i) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware,
with corporate power and authority to own its properties and conduct
its business as described in the Offering Document; and the Company is
duly qualified to do business as a foreign corporation in good standing
in all other jurisdictions in which its ownership or lease of property
or the conduct of its business requires such qualification, except to
the extent the failure to be so qualified or to be in good standing
would not have a Material Adverse Effect;
(ii) The Exchangeable Preferred Stock has been duly authorized
and validly issued, and upon payment therefor will be fully paid and
nonassessable and conform in all material respects to the description
thereof contained in the Offering Document; shares of Exchangeable
Preferred Stock have been duly and validly authorized and reserved for
issuance upon payment of dividends on the Exchangeable Preferred Stock
in additional shares of Exchangeable Preferred Stock and when so issued
will be fully paid and nonassessable; to their knowledge, the
stockholders of the Company have no preemptive or other similar rights
with respect to the Offered Securities; the Exchangeable Preferred
Stock are exchangeable, at the option of the Company on any scheduled
dividend payment date, for Exchange Debentures of the Company in
accordance with their terms;
(iii) The Company is not and, after giving effect to the
offering and sale of the Offered Securities and the application of the
proceeds thereof as described in the Offering Document, will not be an
"investment company" as defined in the Investment Company Act;
(iv) No consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court is required for the
consummation of the transactions contemplated by this Agreement in
connection with the issuance or sale of the Offered Securities by the
Company and the consummation of the transactions under the Registration
Rights Agreement, other than as may be required under the Securities
Act and the Rules and Regulations of the Commission thereunder with
respect to the Registration Rights Agreement and the transactions
contemplated thereunder and such as may be required by securities or
blue sky laws of the various states of the United States and of foreign
jurisdictions in connection with the offer and sale of the Offered
Securities;
(v) The execution, delivery and performance of the Registration
Rights Agreement and this Agreement, and the issuance and sale of the
Offered Securities and compliance with the terms and provisions hereof
and thereof will not result in a breach or violation of any of the
terms and provisions of, or constitute a default under, any statute,
rule or regulation or any order of any governmental agency or body or
any
14
14
court having jurisdiction over either of the Company or any subsidiary
of the Company or any of their properties, any agreement or instrument
listed as an exhibit to the Company's Annual Report on Form 10-K most
recently filed with the Commission or listed as an exhibit to or filed
with any subsequent reports filed by the Company under the Exchange Act
through June 30, 1997, to which the Company or any such subsidiary is a
party or by which either of the Company or any such subsidiary is bound
or to which any of the properties of the Company or any such subsidiary
is subject, or the charter or by-laws of the Company or any such
subsidiary, and the Company has full power and corporate authority to
authorize, issue and sell the Offered Securities to be sold by the
Company as contemplated by this Agreement;
(vi) Such counsel have no reason to believe that the Offering
Document or any amendment or supplement thereto, as of the date hereof
and as of the Closing Date, contained any untrue statement of a
material fact or omitted to state any material fact necessary to make
the statements therein, in light of the circumstances under which they
were made, not misleading; it being understood that such counsel need
express no opinion as to the financial statements or other financial
data contained in the Offering Document;
(vii) The descriptions in the Offering Document of statutes,
legal and governmental proceedings and contracts and other documents
are accurate in all material respects and fairly present the
information purported to be described therein;
(viii) the Registration Rights Agreement has been duly
authorized, executed and delivered by the Company and conforms in all
material respects to the description thereof contained in the Offering
Document; the Registration Rights Agreement constitutes a valid and
legally binding obligation of the Company enforceable in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; and except that rights to indemnity and contribution may be
limited by federal and state securities laws and public policy
considerations;
(ix) This Agreement has been duly authorized, executed and
delivered by the Company;
(x) Assuming the accuracy of the representations of the
Purchasers contained in Section 4, it is not necessary in connection
with (i) the offer, sale and delivery of the Offered Securities by the
Company to the Purchasers pursuant to this Agreement or (ii) the
resales of the Offered Securities by the Purchasers in the manner
contemplated by this Agreement, to register the Offered Securities
under the Securities Act.
(xi) To the best of such counsel's knowledge, the Company and
its subsidiaries are in compliance in all material respects with all
material terms and conditions of each License and with all applicable
and material rules, regulations and policies of the FCC pertaining to
the Licenses.
15
15
(xii) To the best of such counsel's knowledge, all of the
Licenses are currently valid and in full force and effect, and there is
no investigation, notice of apparent liability, violation, forfeiture
or other order or complaint issued by or before any court or regulatory
body, including the FCC, or of any other proceedings (other than
proceedings relating to the wireless communications industries
generally) which could in any manner materially threaten or adversely
affect the validity or continued effectiveness of any of the Licenses.
(xiii) To the best of such counsel's knowledge, no event has
occurred which (i) results in, or after notice or lapse of time or both
would result in, revocation, suspension, adverse modification,
non-renewal, impairment, restriction or termination of, or order of
forfeiture with respect to, any License or (ii) materially and
adversely affects or could reasonably be expected in the future to
materially adversely affect any of the rights of the Company or any of
its subsidiaries thereunder.
(xiv) To the best of such counsel's knowledge, the Company and
its subsidiaries have duly filed in a timely manner all material
filings, reports, applications, documents, instruments and information
required to be filed by them under the Communications Act pertaining to
the Licenses.
(xv) To the best of such counsel's knowledge, there is no reason
to believe that any of the Licenses will not be renewed in the ordinary
course.
The opinions set forth in clauses (iv) as applicable, (vii), as
applicable, (xi), (xii), (xiii), (xiv) and (xv) may be given by Reboul,
McMurray, Xxxxx, Xxxxxxx & Kristol and Xxxxxxxxx & Belendiuk, P.C., counsel to
the Company on FCC matters.
(d) The Purchasers shall have received from Cravath, Swaine & Xxxxx,
counsel for the Purchasers, such opinion or opinions, dated the Closing Date,
with respect to the incorporation of the Company, the validity of the Offered
Securities, the Offering Document, the exemption from registration for the offer
and sale of the Offered Securities by the Company to the Purchasers and the
resales by the several Purchasers as contemplated hereby and other related
matters as the Purchasers may require, and the Company shall have furnished to
such counsel such documents as they request for the purpose of enabling them to
pass upon such matters.
(e) The Purchasers shall have received a certificate, dated the Closing
Date, of the Chief Executive Officer or any Vice President and a principal
financial or accounting officer of the Company in which such officers, to the
best of their knowledge after reasonable investigation, shall state that the
representations and warranties of the Company in this Agreement are true and
correct, that the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or prior to the
Closing Date, and that, subsequent to the dates of the most recent financial
statements contained in the Offering Document there has been no material adverse
change, nor any development or event involving a prospective material adverse
change, in the condition (financial or other), business, properties or results
of operations of the Company and its
16
16
subsidiaries taken as a whole except as set forth in or contemplated by the
Offering Document or as described in such certificate.
(f) The Purchasers shall have received a letter, dated the Closing
Date, of Ernst & Young LLP which meets the requirements of subsection (a) of
this Section, except that the specified date referred to in such subsection will
be a date not more than five days prior to the Closing Date for the purposes of
this subsection.
(g) The Purchasers shall have received copies of the executed
undertakings from holders of shares of each of the Company's 10% Junior Series 3
Preferred Stock and the Company's Common Stock sufficient to approve an
amendment to the Restated Certificate of Incorporation of the Company to provide
that at any time, all accrued and unpaid dividends on the Exchangeable Preferred
Stock may be paid with additional shares of Exchangeable Preferred Stock.
(h) The Company shall have filed with the Secretary of State of the
State of Delaware the Certificate of Designation for the Exchangeable Preferred
Stock.
The Company will furnish the Purchasers with such conformed copies of
such opinions, certificates, letters and documents as the Purchasers reasonably
request. CSFBC may in its sole discretion waive on behalf of the Purchasers
compliance with any conditions to the obligations of the Purchasers hereunder,
whether in respect of the Closing Date or otherwise.
7. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each Purchaser against any losses, claims, damages or liabilities,
joint or several, to which such Purchaser may become subject, under the
Securities Act or the Exchange Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any breach of any of the representations and warranties of the Company
contained herein or any untrue statement or alleged untrue statement of any
material fact contained in the Offering Document, or any amendment or supplement
thereto, or any related preliminary offering circular, in the Company's Form 8-K
dated July 3, 1997 and the press release issued by the Company and attached as
an exhibit thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, and will reimburse each Purchaser for any legal or other
expenses reasonably incurred by such Purchaser in connection with investigating
or defending any such loss, claim, damage, liability or action as such expenses
are incurred; provided, however, that the Company will 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 in or omission
or alleged omission from any of such documents in reliance upon and in
conformity with written information furnished to the Company by any Purchaser
through CSFBC specifically for use therein, it being understood and agreed that
the only such information consists of the information described as such in
subsection (b) below; provided further, however, that with respect to any untrue
statement or alleged untrue statement in or omission or alleged omission from
any preliminary offering circular, the indemnity agreement contained in this
subsection (a) shall not inure to the benefit of any Purchaser that sold the
Offered Securities concerned to the person asserting any such losses, claims,
damages or liabilities, to the extent that such sale
17
17
was an initial resale by such Purchaser and any such loss, claim, damage or
liability of such Purchaser results from the fact that there was not sent or
given to such person, at or prior to the written confirmation of the sale of
such Offered Securities to such person, a copy of the Offering Document if the
Company had previously furnished copies thereof to such Purchaser and such
Offering Document corrected such untrue statement or omission or alleged untrue
statement or omission.
(b) Each Purchaser, severally and not jointly, will indemnify and hold
harmless the Company against any losses, claims, damages or liabilities to which
the Company may become subject, under the Securities Act or the Exchange Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any breach of the
representations of such Purchaser contained herein or any untrue statement or
alleged untrue statement of any material fact contained in the Offering
Document, or any amendment or supplement thereto, or any related preliminary
offering circular, or arise out of or are based upon the omission or the alleged
omission to state therein a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to the Company by such Purchaser through CSFBC specifically for use
therein, and will reimburse any legal or other expenses reasonably incurred by
the Company in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred, it being understood
and agreed that the only such information furnished by any Purchaser consists of
the following information in the Offering Document: the last paragraph at the
bottom of the cover page concerning the terms of the offering by the Purchasers,
the legends and disclosure concerning over-allotments and stabilizing on the
inside front cover page and under the caption "Plan of Distribution" and the
statements under the caption "Risk Factors--Absence of a Public Market for the
Exchangeable Preferred Stock" regarding the intention of the Purchasers to make
a market in the Offered Securities.
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may 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 will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened action in respect of which any indemnified party is or
could have been a party
18
18
and indemnity could have been sought hereunder by such indemnified party unless
such settlement includes an unconditional release of such indemnified party from
all liability on any claims that are the subject matter of such action.
(d) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Purchasers on the other from the offering of the Offered
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and the Purchasers on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Purchasers on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering (before deducting expenses) received by
the Company bear to the total discounts and commissions received by the
Purchasers from the Company under this Agreement. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or the Purchasers
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The amount
paid by an indemnified party as a result of the losses, claims, damages or
liabilities referred to in the first sentence of this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any action or
claim which is the subject of this subsection (d). Notwithstanding the
provisions of this subsection (d), no Purchaser shall be required to contribute
any amount in excess of the amount by which the total price at which the Offered
Securities purchased by it were resold exceeds the amount of any damages which
such Purchaser has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. The Purchasers'
obligations in this subsection (d) to contribute are several in proportion to
their respective purchase obligations and not joint.
(e) The obligations of the Company under this Section 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
Purchaser within the meaning of the Securities Act or the Exchange Act; and the
obligations of the Purchasers under this Section shall be in addition to any
liability which the respective Purchasers may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls the
Company within the meaning of the Securities Act or the Exchange Act.
8. Default of Purchasers. If any Purchaser defaults in its obligation
to purchase Offered Securities hereunder and arrangements satisfactory to CSFBC
and the Company for the purchase of such Offered Securities by other persons are
not made within 36 hours after such default, this Agreement will terminate
without liability on the part of any non-defaulting Purchaser or the Company,
except as provided in Section 9. As used in this Agreement, the
19
19
term "Purchaser" includes any person substituted for a Purchaser under this
Section. Nothing herein will relieve a defaulting Purchaser from liability for
its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the Purchasers set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation, or statement as to the results thereof, made by or on behalf of
any Purchaser, the Company or any of their respective representatives, officers
or directors or any controlling person, and will survive delivery of and payment
for the Offered Securities. If for any reason the purchase of the Offered
Securities by the Purchasers is not consummated, the Company shall remain
responsible for the expenses to be paid or reimbursed by it pursuant to Section
5(h) and the respective obligations of the Company and the Purchasers pursuant
to Section 7 shall remain in effect. If the purchase of the Offered Securities
by the Purchasers is not consummated for any reason other than solely because of
occurrence of any event specified in clause (C), (D) or (E) of Section 6(b)(ii),
the Company will reimburse the Purchasers for all out-of-pocket expenses
(including fees and disbursements of counsel) reasonably incurred by them in
connection with the offering of the Offered Securities.
10. Notices. All communications hereunder will be in writing and, if
sent to the Purchasers will be mailed, delivered or faxed and confirmed to the
Purchasers c/o Credit Suisse First Boston Corporation, Eleven Xxxxxxx Xxxxxx,
Xxx Xxxx, XX 00000, Attention: Investment Banking Department-- Transactions
Advisory Group, or, if sent to the Company, will be mailed, delivered or
electronically transmitted and confirmed to it at 5000 Plaza on the Lake, Xxxxx
000, Xxxxxx, Xxxxx 00000, Attention: Chief Financial Officer, provided, however,
that any notice to a Purchaser pursuant to Section 7 will be mailed, delivered
or faxed and confirmed to such Purchaser.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
controlling persons referred to in Section 7, and no other person will have any
right or obligation hereunder, except that holders of Offered Securities shall
be entitled to enforce the agreements for their benefit contained in the second
and third sentences of Section 5(b) hereof against the Company as if such
holders were parties thereto.
12. Counterparts. This Agreement may be executed 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 Agreement.
20
20
13. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
If the foregoing is in accordance with the Purchasers' understanding of
our agreement, kindly sign and return to us one of the counterparts hereof,
whereupon it will become a binding agreement between the Company and the several
Purchasers in accordance with its terms.
Very truly yours,
IXC COMMUNICATIONS, INC.
By: /s/ XXXXX X. XXXXXXX
------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Chief Financial Officer and
Executive Vice President
The foregoing Purchase Agreement
is hereby confirmed and accepted
as of the date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX INCORPORATED
XXXXXX XXXXXXX & CO. INCORPORATED
By: CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ XXXXX XXXXXXX
-----------------------------
Name: Xxxxx Xxxxxxx
Title: Director
21
SCHEDULE A
Purchasers Number of Shares
---------- ----------------
Credit Suisse First Boston Corporation 150,000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated 75,000
Xxxxxx Xxxxxxx & Co. Incorporated 75,000
--------
300,000
========
A-1
22
SCHEDULE B
Registration Rights Agreement
B-1
