EXHIBIT 1.1
[FORM OF UNDERWRITING AGREEMENT]
PINNACLE HOLDINGS INC.
COMMON STOCK
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UNDERWRITING AGREEMENT
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, 2000
Deutsche Bank Securities Inc.
Xxxxxxx, Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxxx Xxxxx & Associates, Inc.
Xxxxxxx Xxxxx Barney Inc.
Banc of America Securities LLC
As representatives of the several
Underwriters named in Schedule II
hereto
c/o Deutsche Bank Securities Inc. 0
Xxxxx Xxxxxx Xxxxxxxxx, XX 00000
Ladies and Gentlemen:
Pinnacle Holdings Inc., a Delaware corporation (the "Company"), proposes,
subject to the terms and conditions stated herein, to issue and sell to the
underwriters named in Schedule II hereto (the "Underwriters") an aggregate of
5,300,000 shares (the "Firm Shares") and, at the election of the Underwriters,
up to 800,000 additional shares (the "Optional Shares") of common stock, par
value $.001 per share, of the Company (the "Stock"), and the selling
stockholders named in Schedule I hereto (the "Selling Stockholders"),
severally, propose, subject to the terms and conditions stated herein, to sell
to the Underwriters an aggregate of 2,700,000 Firm Shares and up to 400,000
Optional Shares in the respective amounts set forth in Schedule I (the Firm
Shares and the Optional Shares that the Underwriters elect to purchase pursuant
to Section 3 hereof being called the "Shares").
1. Representations and Warranties of the Company. The Company represents
and warrants to, and agrees with, each of the Underwriters that:
(a) A registration statement on Form S-3 (File No. 333- ) (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, 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 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
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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 be-comes 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;" the Company meets all of the
requirements for filing on Form S-3; and all references in this Agreement
to amendments or supplements to the Registration Statement, the Preliminary
Prospectus or the Prospectus shall be deemed to mean and include the filing
of any document under the Securities Ex-change Act of 1934, as amended (the
"1934 Act"), that is or is deemed to be incorporated by reference therein.
(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
Deutsche Bank Securities Inc. ("Deutsche Bank") 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 Deutsche Bank expressly for use therein;
(d) Neither the Company nor any of its subsidiaries has sustained since
the date of the latest audited financial statements included in the
Prospectus any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus; and, since
the respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been any change in the capital
stock or long-term debt of the Company or any of its subsidiaries or any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs, management,
consolidated financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole, otherwise
than as set forth or contemplated in the Prospectus;
(e) The Company and its subsidiaries have good and indefeasible title
to, or a valid leasehold interest in, all of their material assets, except
as is described in the Prospectus or where the failure thereof would not
reasonably be expected to have a material adverse effect on the financial
condition, results of operations, business or property of the Company and
its subsidiaries on a consolidated basis (a "Material Adverse Effect");
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(f) Each of Pinnacle Towers III, Inc. ("PT III"), the Company and its
subsidiaries is a corporation duly organized, validly existing and in good
standing under the laws of its respective jurisdiction of incorporation;
each of PT III, the Company and its subsidiaries has the corporate power
and authority to own its properties and to carry on its business as now
being and hereafter proposed to be conducted as described in the
Prospectus. Each of PT III, the Company and its subsidiaries is duty
qualified, in good standing and authorized to do business in each
jurisdiction in which the character of its properties or the nature of its
business requires such qualification or authorization, except where the
failure to so qualify would not reasonably be 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 and are fully paid and
nonassessable 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 nonassessable and (except for directors' qualifying
shares and as described in the Prospectus) are owned directly or indirectly
by the Company, free and clear of all liens, encumbrances, equities or
claims;
(h) The unissued shares to be issued and sold by the Company to the
Underwriters hereunder and under the International Underwriting Agreement
have been duly and validly authorized and, when issued and delivered
against payment therefor as provided herein and in the International
Underwriting Agreement, will be duly and validly issued and fully paid and
nonassessable and will conform to the description of the Stock contained in
the Prospectus;
(i) 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 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 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, except for any such
conflicts, breaches or violations that, individually or in the aggregate,
would not have a Material Adverse Effect, nor will such action result in
any violation of the provisions of the Certificate of Incorporation or By-
laws of the Company or any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the Company
or any of its subsidiaries or any of their properties; and no consent,
approval, authorization, order, registration or qualification of or with
any such court or governmental agency or body is required for the issue and
sale of the Shares or the consummation by the Company of the transactions
contemplated by this Agreement, except the registration under the Act of
the Shares and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky laws
in connection with the purchase and distribution of the Shares by the
Underwriters;
(j) The Company and its subsidiaries are in compliance in all material
respects with all of the provisions of their respective certificates of
incorporation and by-laws, and no event has occurred or failed to occur,
which has not been remedied or waived, the occurrence or non-occurrence of
which constitutes, or which with the passage of time or giving of notice or
both would constitute, a default by the Company or any of its subsidiaries
under any indenture, agreement or other instrument, or any judgment, decree
or order to which the Company or any of its subsidiaries is a party or by
which they or any of their properties is bound which, individually or in
the aggregate, would reasonably be expected to have a Material Adverse
Effect;
(k) The statements set forth in the Prospectus under the caption
"Description of Capital Stock," insofar as they purport to constitute a
summary of the terms of the Stock, under the caption
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"Certain Federal Income Tax Considerations," and under the caption
"Underwriting," insofar as they purport to describe the provisions of the
laws and documents referred to therein, are accurate, complete and fair;
(l) Other than as set forth in the Prospectus, there is no action, suit,
proceeding or any other litigation pending or, to the best of the Company's
knowledge, threatened against the Company or any of its subsidiaries, or in
any other manner relating directly and materially adverse to the Company,
any of its subsidiaries, or any of their material properties, in any court
or before any arbitrator of any kind or before or by any governmental body
which would reasonably be expected to have a Material Adverse Effect;
(m) All licenses, permits, consents, certificates of need,
authorizations, certifications, accreditations, franchises, approvals,
grants of rights by, or filings or registrations with, any federal, state,
local or foreign court or governmental or public body, authority, or other
instrumentality or third person (including, without limitation, the Federal
Communications Commission (the "FCC") and the Federal Aviation Authority
(the "FAA")) (any of the foregoing a "License") necessary for the Company
and its subsidiaries to own, build, maintain or operate their businesses or
properties have been duly authorized and obtained, are in full force and
effect except where the failure to be so obtained or in effect would not,
individually or in the aggregate, have a Material Adverse Effect; and the
Company and its subsidiaries are and will continue to be in compliance in
all material respects with all provisions thereof; no event has occurred
which permits (or with the passage of time would permit) the revocation or
termination of any License, or which could result in the imposition of any
restriction thereon, which is of such a nature or the effect of which would
reasonably be expected to have a Material Adverse Effect; no material
License is the subject of any pending or, to the best of the Company's
knowledge, threatened challenge or revocation which, if such License were
revoked, would reasonably be expected to have a Material Adverse Effect;
the Company and its subsidiaries are not required to obtain any material
License that has not already been obtained from, or effect any material
filing or registration that has not already been effected with, the FCC,
the FAA or any other federal, state or local regulatory authority in
connection with the execution and delivery of this Agreement, the Shares,
or the performance thereof, in accordance with their respective terms;
(n) The Company and its subsidiaries are in compliance in all material
respects with all applicable laws; the Company and its subsidiaries have
duly and timely filed all reports, statements and filings that are required
to be filed by any of them under the Communications Act of 1934, as
amended, and the rules and regulations promulgated thereunder, and are in
all material respects in compliance therewith, including without limitation
the rules and regulations of the FCC and FAA; the Company is not aware of
any event or circumstance constituting noncompliance (or any person
alleging noncompliance) with any rule or regulation of the FAA, which such
event or circumstance would reasonably be expected to have a Material
Adverse Effect;
(o) The Company is not required to register under the provisions of the
Investment Company Act of 1940, as amended (the "Investment Company Act").
Neither the entering into or performance by the Company of this Agreement
nor the offering and sale of the Shares violates any provision of such act
or requires any consent, approval, or authorization of, or registration
with, the Commission or any other governmental or public body of authority
pursuant to any provisions of such act;
(p) Each of PricewaterhouseCoopers LLP, who have certified certain
financial statements of the Company and its subsidiaries, KPMG LLP, who
have certified certain financial statements of the North American Antenna
Sites Business of Motorola, Inc., Ernst & Young LLP, who have certified
certain financial statements of the Tower Operations of MobileMedia
Communications, Inc. and its subsidiaries, and Xxxxxx Xxxxxxxx LLP, who
have certified certain financial statements of the Tower
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Operations of Southern Communications Services, Inc., are independent
public accountants as required by the Act and the rules and regulations of
the Commission thereunder;
(q) The Company is organized in conformity with the requirements for
qualification as a real estate investment trust under Sections 856 through
860 of the Internal Revenue Code of 1986, as amended (the "Code"), and its
proposed method of operation as described in the Prospectus will enable it
to continue to maintain the requirements for taxation as a real estate
investment trust under the Code;
(r) The Company has reviewed its operations and that of its subsidiaries
and any third parties with which the Company or any of its subsidiaries has
a material relationship to evaluate the extent to which the business or
operations of the Company or any of its subsidiaries will be affected by
the Year 2000 Problem. As a result of such review, the Company has no
reason to believe, and does not believe, that the Year 2000 Problem will
have a Material Adverse Effect or result in any material loss or
interference with the Company's business or operations; as of the date
hereof, the Company has no knowledge of the occurrence of any such material
event related to the Year 2000 Problem. The "Year 2000 Problem" as used
herein means any significant risk that computer hardware or software used
in the receipt, transmission, processing, manipulation, storage, retrieval,
retransmission or other utilization of data or in the operation of
mechanical or electrical systems of any kind will not, in the case of dates
or time periods occurring after December 31, 1999, function at least as
effectively as in the case of dates or time periods occurring prior to
January 1, 2000; and
(s) Each of the representations and warranties of the Company and, to
the best of the knowledge of the Company after due inquiry, each of the
representations and warranties of Motorola, Inc. set forth in the Purchase
and Sale Agreement by and between the Company and Motorola, Inc. dated June
29, 1999 (the "Acquisition Agreement") are true and correct in all material
respects on the date hereof; the Company has no reasonable basis to believe
that the transactions contemplated by the Acquisition Agreement will not be
consummated in accordance with its terms.
2. Representations and Warranties of the Selling Stockholders. Each Selling
Stockholder listed on Schedule I severally represents and warrants to each
Underwriter and the Company that:
(a) Such Selling Stockholder has full right, power and authority to
enter into this Agreement and to sell, assign, transfer and deliver the
Firm Shares to be sold by such Selling Stockholder hereunder. This
Agreement and the Power of Attorney attached hereto as Exhibit A have been
duly executed and delivered by such Selling Stockholder.
(b) Such Selling Stockholder will convey good and valid title to the
Stock to be delivered by such Selling Stockholder hereunder, free and clear
of all liens, encumbrances, equities and claims whatsoever. Certificates in
negotiable form for the aggregate number of Shares to be sold by such
Selling Stockholder have been placed in custody, under a custody agreement
with the Company as custodian in the form attached hereto as Exhibit B.
(c) The information with respect to such Selling Stockholder included in
the Registration Statement and the Prospectus under the captions "Selling
Stockholders" and "Underwriting" does not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading.
(d) No consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation by such
Selling Stockholder of the transaction contemplated herein, except such as
may have been obtained under the Act or otherwise and such as may be
required under state securities or the "Blue Sky" laws.
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(e) The performance of this Agreement and the consummation of the
transactions contemplated hereby will not conflict with or result in a
breach or violation of any of the terms and provisions of or constitute a
default under or result in the creation or imposition of any lien, charge,
or encumbrance upon the assets or properties of such Selling Stockholder,
pursuant to any indenture, mortgage, deed or trust, loan agreement or other
agreement or instrument to which such Selling Stockholder is a party or
under and statute or under any order, rule or regulation applicable to such
Selling Stockholder or of any court or other governmental body.
(f) To the extent that any statement or omission in the Registration
Statement, the Prospectus or any post-effective amendment or supplement
thereto is made in reliance upon and in conformity with written information
furnished to the Company by such Selling Stockholder expressly for use
therein, the Registration Statement, the Prospectus and all post-effective
amendments and supplements thereto will (when they become effective or are
filed with the Commission, as the case may be) conform in all material
respects to the requirements of the Act and the rules and regulations
promulgated thereunder and not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading.
3. Subject to the terms and conditions herein set forth, (a) the Company
agrees to issue and sell, and each of the Selling Stockholders agrees,
severally and not jointly, to sell, to each of the Underwriters, and each of
the Underwriters agrees, severally and not jointly, to purchase from the
Company and each of the Selling Stockholders, at a purchase price per share of
$ , the number of Firm Shares set forth opposite the name of such Underwriter
in Schedule II 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, and each of the Selling
Stockholders agrees, severally and not jointly, to sell, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company
and each of the Selling Stockholders, at the purchase price per share set forth
in clause (a) of this Section 2, that portion of the number of Optional Shares
as to which such election shall have been exercised (to be adjusted by you so
as to eliminate fractional shares) determined by multiplying such number of
Optional Shares by a fraction, the numerator of which is the maximum number of
Optional Shares which such Underwriter is entitled to purchase as set forth
opposite the name of such Underwriter in Schedule I hereto and the denominator
of which is the maximum number of Optional Shares that all of the Underwriters
are entitled to purchase hereunder.
The Company and each Selling Stockholder hereby grant to the Underwriters
the right to purchase at their election up to 1,200,000 Optional Shares, at the
purchase price per share set forth in the paragraph above, for the sole purpose
of covering overallotments in the sale of the Firm Shares. Any such election to
purchase Optional Shares 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 5 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.
4. 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.
5. (a) The Shares to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in such
names as Deutsche Bank may request upon at least forty-eight hours' prior
notice to the Company and the Selling Stockholders, shall be delivered by or on
behalf of the Company and the Selling Stockholders to Deutsche Bank, for the
account of such Underwriter, against payment by or on behalf of such
Underwriter of the purchase price therefor by
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wire transfer of Federal (same-day) funds to the account specified by the
Company or such Selling Stockholder, as the case may be, to Deutsche Bank at
least forty-eight hours in advance. The Company will cause the certificates
representing the Shares to be made available for checking and packaging at
least twenty-four hours prior to the Time of Delivery (as defined below) with
respect thereto at the office of Deutsche Bank Securities Inc., 0 Xxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx 00000 (the "Designated Office"). The time and date of such
delivery and payment shall be, with respect to the Firm Shares, 9:30 a.m., New
York City time, on , 2000 or such other time and date as Deutsche Bank 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 Deutsche Bank in the
written notice given by Deutsche Bank of the Underwriters' election to purchase
such Optional Shares, or such other time and date as Deutsche Bank 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 9 hereof, including the cross receipt
for the Shares and any additional documents requested by the Underwriters
pursuant to Section 9(l) hereof, will be delivered at the offices of Xxxxxx
Xxxxxx & Xxxxxxx, 00 Xxxx Xxxxxx, Xxx Xxxx, XX 00000 (the "Closing Location"),
and the Shares will be delivered at the Designated Office, all at such Time of
Delivery, such Time of Delivery being herein referred to as the "Closing Date."
A meeting will be held at the Closing Location at 2:00 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 Section 5, "New York Business Day" shall mean each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in New York are generally authorized or obligated by law or
executive order to close.
6. The Company agrees with each of the Underwriters:
(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 prior to the last Time of Delivery 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 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;
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(c) Prior to 10:00 a.m. New York City time, on the New York Business Day
next succeeding the date of this Agreement and from time to time, to
furnish the Underwriters 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 stockholders 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 earning 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 90 days after the date of the Prospectus (the "Lock-
up Period"), not to offer, sell, contract to sell or otherwise dispose of,
except as provided under this Agreement, any securities of the Company that
are substantially similar to the Shares, including but not limited to any
securities that are convertible into or exchangeable for, or that represent
the right to receive, Stock or any such substantially similar securities
(other than pursuant to employee stock option plans existing on, or upon
the conversion or exchange of convertible or exchangeable securities
outstanding as of, the date of this Agreement), without your prior written
consent;
(f) To furnish to its stockholders as soon as practicable 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, as soon as practicable 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;
(g) During a period of three years from the effective date of the
Registration Statement, to furnish to you copies of all reports or other
communications (financial or other) furnished to stockholders, and to
deliver to you (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; 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);
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(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 National Market"); and
(j) If the Company elects to rely upon Rule 462(b), the Company shall
file a Rule 462(b) Registration Statement with the Commission in compliance
with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this
Agreement, and the Company shall at the time of filing either pay to the
Commission the filing fee for the Rule 462(b) Registration Statement or
give irrevocable instructions for the payment of such fee pursuant to Rule
111(b) under the Act.
7. Covenants of Selling Stockholders. Each Selling Stockholder agrees with
the several Underwriters as follows:
(a) Such Selling Stockholder will cooperate to the extent necessary to
cause the Registration Statement or any post-effective amendment thereto to
become effective at the earliest possible time.
(b) Such Selling Stockholder will use such Selling Stockholder's
reasonable best efforts to do or perform all things required to be done or
performed by it prior to the Closing Date to satisfy all conditions
precedent to the delivery of the Shares.
(c) Except for the sale of Shares, such Selling Stockholder will not
offer, sell, contract to sell or otherwise dispose of, directly or
indirectly, any shares of Common Stock or any interests therein, or any
securities convertible into, or exchangeable for, shares of Stock or rights
to acquire the same, prior to the expiration of the Lock-up Period without
the prior written consent of the Underwriters.
(d) Such Selling Stockholder will not take, directly or indirectly, any
action designed to or that might reasonably be expected to cause or result
in stabilization or manipulation of the price of the Common Stock to
facilitate the sale or resale of the Shares in violation of the 1934 Act or
any applicable rules of the Nasdaq National Market.
(e) Each Selling Stockholder agrees to notify the Underwriters promptly
of any information that comes to such Selling Stockholder's attention that
would cause such Selling Stockholder to have reason to believe that his or
its representations, warranties and statements in this Agreement are not
accurate in all material respects.
(f) Except as herein contemplated with respect to the Shares to be
included in the Registration Statement, each Selling Stockholder agrees to
waive any registration rights to which such Selling Stockholder may be
entitled in connection with the public offering herein contemplated.
8. 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; (ii) the cost of printing or producing any Agreement among
Underwriters, this Agreement, the Blue Sky Memorandum, 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 6(b) hereof, including the fees
and disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky survey; (iv) all fees and
expenses in connection with listing the Shares on the Nasdaq
9
National Market; (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 that are not otherwise specifically provided for in this Section 8.
It is understood, however, that, except as provided in this Section 8, and
Sections 10 and 12 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. Each Selling Stockholder shall pay the costs and expenses
incident to the performance by it of its obligations hereunder and in
connection with the offer, sale and delivery of the Shares to be sold by it,
including any stock transfer taxes payable upon the sale of the Shares to the
Underwriters, the fees and expenses of any counsel retained by it and the
underwriting discounts and communications payable to the Underwriters.
9. 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 such Time of Delivery, true and correct,
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 6(a)
hereof; if the Company has elected to rely upon Rule 462(b), the Rule
462(b) Registration Statement shall have become effective by 10:00 p.m.,
Washington, D.C. time, on the date of this Agreement; no stop order
suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to your reasonable satisfaction;
(b) Xxxxxx Xxxxxx & Xxxxxxx, counsel for the Underwriters, shall have
furnished to you such written opinion or opinions dated such Time of
Delivery, with respect to the Shares, this Agreement, the Registration
Statement and the Prospectus 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) Holland & Knight LLP, counsel for the Company, shall have furnished
to you their written opinion (a draft of such opinion is attached as Annex
I hereto), dated such Time of Delivery, in form and substance satisfactory
to you, to the effect that:
(i) The Company is a corporation incorporated and validly existing
as a corporation in good standing under the laws of the State of
Delaware. The Company has the requisite corporate power and authority
to own the properties and conduct its business as now conducted as
described in the Prospectus;
(ii) 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 as now conducted as described in the Prospectus
so as to require such qualifications, except where the failure to so
qualify would not individually or in the aggregate have a Material
Adverse Effect;
10
(iii) Each of the subsidiaries of the Company and PT III is a
corporation incorporated and validly existing as a corporation in good
standing under the laws of its respective jurisdiction of incorporation;
(iv) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
(including the Shares being delivered at such Time of Delivery) have
been duly and validly authorized and issued and are fully paid and
nonassessable; and the Shares conform to the description of the Stock
contained in the Prospectus.
(v) 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 in this
Agreement, 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;
(vi) To the knowledge of such counsel, 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 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 filed as an Exhibit to the Registration
Statement that is material to the Company and its subsidiaries 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,
except for any such conflicts, breaches or violations that, individually
or in the aggregate, would not have a Material Adverse Effect, nor will
such action result in any violation of the provisions of the Certificate
of Incorporation or By-laws of the Company or any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of their
respective properties;
(vii) To such counsel's knowledge and other than as set forth in the
Prospectus, there are no legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a party or of which any
property of the Company or any of its subsidiaries is subject which, if
determined adversely to the Company or any of its subsidiaries, would
have a Material Adverse Effect; and to such counsel's knowledge, no such
proceedings are threatened by governmental authorities or others;
(viii) To such counsel's knowledge, no consent, approval,
authorization, license, qualification, exemption or order of or with any
court or governmental agency or body is required for the issue and sale
of the Shares or the consummation by the Company of the transactions
contemplated by this Agreement and the International Underwriting
Agreement, except the registration under the Act of the Shares, and such
consents, approvals, authorizations, registrations or qualifications as
may be required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Shares by the Underwriters;
(ix) To such counsel's knowledge, all material Licenses necessary for
the Company and its subsidiaries to own, build, maintain or operate
their businesses or properties as now conducted as described in the
Prospectus have been duly authorized and obtained and are in full force
and effect;
(x) This Agreement has been duly authorized, executed and delivered
by the Company;
11
(xi) The statements set forth in the Prospectus under the caption
"Description of Capital Stock," insofar as they purport to constitute a
summary of the terms of the Stock, under the caption "Certain Federal
Income Tax Considerations," and under the caption "Underwriting,"
insofar as they purport to de-scribe the provisions of the laws and
documents referred to therein, are accurate, complete and fair in all
material respects;
(xii) The Company is not an "investment company," as such term is
defined in the Investment Company Act;
(xiii) Each document filed pursuant to the Securities Exchange Act
of 1934, as amended (the "1934 Act") (other than the financial
statements and supporting schedules included therein, as to which no
opinion need be rendered), and incorporated or deemed to be
incorporated by reference in the Prospectus complied when so filed as
to form in all material respects with the 1934 Act and the regulations
promulgated thereunder; and
(xiv) The Registration Statement and the Prospectus and any further
amendments and supplements thereto made by the Company prior to such
Time of Delivery (other than the financial statements and related
schedules therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the requirements of the
Act and the rules and regulations thereunder, 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
(xi) of this Section 9(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 and related 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
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 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 express no
opinion as to the laws of any jurisdiction outside the United States.
(d) The Selling Stockholders shall have furnished to you the opinion of
Holland & Knight LLP and Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP, counsel for the
Selling Stockholders, or of such other counsel to the Selling Stockholders
as shall be satisfactory to Xxxxxx Xxxxxx & Xxxxxxx, counsel for the
Underwriters, dated such Time of Delivery, to the effect that:
(i) This Agreement has been duly executed and delivered by the
Selling Stockholders
12
(ii) Each Selling Stockholder immediately prior to the Closing Date
will be the sole registered owner of the Shares to be sold by it and
will have the power and authority to sell, transfer and deliver in the
manner provided in this Agreement the Shares being sold by such Selling
Stockholders hereunder.
(iii) The delivery by the Selling Stockholders to the several
Underwriters of certificates for the Shares being sold hereunder by the
Selling Stockholders against payment therefor as provided herein,
assuming the Underwriters purchased the Shares in good faith without
knowledge of any adverse claim, will pass good and valid title to such
Shares to the several Underwriters, free and clear of all liens,
encumbrances, equities and claims whatsoever.
(e) 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,
PricewaterhouseCoopers LLP shall have furnished to you a comfort letter or
letters, dated the respective dates of delivery thereof, in form and
substance satisfactory to you and each of KPMG LLP, Ernst & Young LLP and
Xxxxxx Xxxxxxxx LLP shall have furnished to you a comfort letter, dated the
date of the Prospectus, in form and substance satisfactory to you;
(f) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included in the Prospectus any Loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any Labor dispute or court or governmental action, order
or decree, otherwise than as set forth or contemplated in the Prospectus,
and (ii) since the respective dates as of which information is given in the
Prospectus there shall not have been any material adverse change in the
capital stock or long-term debt of the Company or any of its subsidiaries
or any change, or any development involving a prospective change, in or
affecting the general affairs, management, consolidated financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole, otherwise than as set forth or contemplated
in the Prospectus, the effect of which, in any such case de-scribed in
clause (i) or (ii), is in the judgment of the Underwriters 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;
(g) On or after the date hereof (i) no downgrading shall have occurred
in the rating accorded the Company's debt securities or preferred stock by
any "nationally recognized statistical rating organization," as that term
is defined by the Commission for purposes of Rule 436(g)(2) under the Act,
and (ii) no such organization shall have publicly announced that it has
under surveillance or review, with possible negative implications, its
rating of any of the Company's debt securities or preferred stock;
(h) 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 the Nasdaq National Market;
(ii) a suspension or material limitation in trading in the Company's
securities on the Nasdaq National Market; (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 Underwriters 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;
13
(i) The Shares to be sold at such Time of Delivery shall have been duly
listed for quotation on the Nasdaq National Market;
(j) The Company has obtained and delivered to the Underwriters executed
copies of a "lock-up" agreement from each of the directors and executive
officers and XXXX XX substantially to the effect set forth in Section 6(e)
hereof in form and substance satisfactory to you;
(k) The Company shall have complied with the provisions of Section 6(c)
hereof with respect to the furnishing of prospectuses on the New York
Business Day next succeeding the date of this Agreement;
(l) 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 (f) of this Section 9 and as to such other matters
as you may reasonably request;
(m) All the representations and warranties of the Selling Stockholders
contained in this Agreement shall be true and correct in all material
respects on and as of the date hereof and on and as of such Time of
Delivery as if made on and as of such date, and you shall have received
certificates, dated as of such Time of Delivery and signed by or on behalf
of the Selling Stockholders to the effect set forth in this Section 9(m);
and
(n) The Selling Stockholders shall not have failed at or prior to such
Time of Delivery to have performed or complied with any of their agreements
herein contained and required to be performed or complied with by them
hereunder at or prior to such Time of Delivery.
10. (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 be-come 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 in-formation furnished to the Company by any
Underwriter through Deutsche Bank expressly for use therein.
(b) Each Selling Stockholder will, severally but not jointly, indemnify and
hold harmless the Company, each Underwriter and each person, if any, who
controls the Company or any Underwriter within the meaning of Section 15 of the
Act of Section 20 of the 1934 Act against any losses, claims, damages or
liabilities to which the Company, underwriter or controlling person may become
subject under the Act, the 1934 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
14
the 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 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 any Selling Stockholder
through the Company (but only in its capacity as custodian of the Selling
Stockholders) specifically for use therein; and, subject to the limitation set
forth immediately preceding this clause, will reimburse, as incurred, any legal
or other expenses reasonably incurred by the Company or Underwriter or
controlling person in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, that each Selling
Stockholder shall not be liable under this Section 10 for any amounts in excess
of the product of the purchase price per share set forth in Section 3 hereof
and the number of shares being sold by such Selling Stockholder hereunder.
(c) 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 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 Deutsche Bank
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.
(d) 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 re-lease 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.
(e) If the indemnification provided for in this Section 10 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,
15
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received by each
party to this Agreement 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 (d) 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 each party to this Agreement 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 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 (e) 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 (e). 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 (e) 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 (e), 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 (e) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(f) The obligations of the Company under this Section 10 shall be in
addition to any liability that 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 10 shall be in addition to any liability that
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Act.
11. (a) If any Underwriter shall default in its obligation to purchase the
Shares that 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 ar-range 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
16
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
11 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 aggregate number of such Shares that
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 Under-writer 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 that
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 and the Selling
Stockholders 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 8 hereof and the indemnity and contribution agreements in Section 10
hereof; but nothing herein shall relieve a de-faulting Underwriter from
liability for its default.
12. 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.
13. If this Agreement shall be terminated pursuant to Section 11 hereof, the
Company shall not then be under any liability to any Underwriter except as
provided in Sections 8 and 10 hereof; but, if for any other reason, any 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 8 and 10 hereof.
14. Information Supplied by the Underwriters and Selling Stockholders.
(a) The statements set forth in the last paragraph on the front cover
page of the Prospectus relating to the Shares and paragraphs nine and ten
under the heading "Underwriting" in the Prospectus relating to the
Securities (to the extent such statements relate to the Underwriters)
constitute the only information furnished by the Under-writers to the
Company and the Selling Stockholders for the purposes of Sections 2(b),
10(a) and 10(b) hereof. Each Underwriter confirms
17
that such statements, to the extent such statements related to each such
Underwriter, are correct in all material respects.
(b) The number of shares of Common Stock beneficially owned by the
Selling Stockholders prior to and after the offering of the Securities and
footnotes in the Table under the heading "Selling Stockholders" in the
Prospectus constitute the only information furnished by the Selling
Stockholders to the Company and the Underwriters for the purposes of
Section 10(a) and 10(b) hereof. Each Selling Stockholder confirms that such
information, to the extent such statements relate to such Selling
Stockholder, is correct in all material respects.
15. In all dealings hereunder, you shall act on be-half 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.
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 Deutsche
Bank Securities Inc., 0 Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 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; provided, however, that
any notice to an Underwriter pursuant to Section 10(d) hereof shall be de-
livered 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.
16. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company and, to the extent provided in Sections 10
and 12 hereof, the officers and directors of the Company and each person who
controls the Company or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other per-son 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.
17. 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.
18. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
19. 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.
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If the foregoing is in accordance with your understanding, please sign and
return to us 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 Master
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,
Pinnacle Holdings Inc.
By: _________________________________
Name:
Title:
Selling Stockholders, named in
Schedule I to this Agreement,
acting severally and not jointly
By___________________________________
Name: Title: Attorney-in-Fact
As Attorney-in-Fact acting on behalf
of each of the Selling Stockholders
named in Schedule I to this
Agreement.
Accepted as of the date hereof:
DEUTSCHE BANK SECURITIES INC.
XXXXXXX, XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
XXXXXXX XXXXX & ASSOCIATES, INC.
XXXXXXX XXXXX BARNEY INC.
BANC OF AMERICA SECURITIES LLC
As representatives of the several Underwriters
By: Deutsche Bank Securities Inc.
By___________________________________
Name:
Title:
19
SCHEDULE I
Selling Stockholders
Number of Optional
Total Number of Shares to be
Firm Shares Purchased if Maximum
Name of Beneficial Owner to be Purchased Option Exercised
------------------------ --------------- --------------------
ABRY II (a)................................ 1,926,683
Motorola, Inc. ............................ 418,520
Xxxxxx X. Xxxxxx........................... 122,142
Xxxxx X. Dell'Apa.......................... 75,588
Xxxxxx X. Day.............................. 64,262
Xxxxx Xxxx................................. 10,271
Xxx Xxxxxxx................................ 10,271
Xxxxxx Xxxxxxx............................. 10,271
Xxxxxxx Xxxxxx............................. 10,271
Xxxxx Xxxxxx............................... 10,271
Xxxxx Xxxxxxx.............................. 41,450
--------- -------
Total.................................... 2,700,000 400,000
========= =======
--------
(a) Xxxxx Xxxxxxx is deemed the beneficial owner of the Shares offered by ABRY
II.
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SCHEDULE II
Number of
Optional Shares
Total Number to be Purchased
of Firm Shares if Maximum Option
Underwriter to be Purchased Exercised
----------- --------------- -----------------
Deutsche Bank Securities Inc................
Xxxxxxx, Xxxxx & Co. .......................
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated...............................
Xxxxxxx Xxxxx & Associates, Inc.............
Xxxxxxx Xxxxx Barney Inc....................
Banc of America Securities LLC..............
--------- ---------
Total..................................... 8,000,000 1,200,000
========= =========
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