Exhibit 1.1
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Global Signal Inc.
5,750,000 Shares
Common Stock
UNDERWRITING AGREEMENT
dated May 3, 2005
Xxxxxx Xxxxxxx & Co. Incorporated
Banc of America Securities LLC
Citigroup Global Markets Inc.
Xxxxxxx Xxxxx & Associates, Inc.
Xxxxxxxx & Company, Inc.
Underwriting Agreement
May 3, 2005
XXXXXX XXXXXXX & CO. INCORPORATED
BANC OF AMERICA SECURITIES LLC
CITIGROUP GLOBAL MARKETS INC.
XXXXXXX XXXXX & ASSOCIATES, INC.
XXXXXXXX & COMPANY, INC.
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
and
Banc of America Securities LLC
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
as Representatives of the several Underwriters
Ladies and Gentlemen:
Introductory. Global Signal Inc., a Delaware corporation (the
"Company"), proposes to issue and sell to the several underwriters named in
Schedule A (the "Underwriters") an aggregate of 5,750,000 shares (the "Firm
Common Shares") of its Common Stock, par value $0.01 per share (the "Common
Stock"). In addition, the Company has granted to the Underwriters an option to
purchase up to an additional 575,000 shares (the "Optional Common Shares") of
Common Stock, as provided in Section 2. The Firm Common Shares and, if and to
the extent such option is exercised, the Optional Common Shares are
collectively called the "Common Shares". Xxxxxx Xxxxxxx & Co. Incorporated,
and Banc of America Securities LLC have agreed to act as representatives of
the several Underwriters (in such capacity, the "Representatives") in
connection with the offering and sale of the Common Shares.
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-11 (File No.
333-121576), which contains a form of prospectus to be used in connection with
the public offering and sale of the Common Shares. Such registration
statement, as amended, including the financial statements, exhibits and
schedules thereto, in the form in which it was declared effective by the
Commission under the Securities Act of 1933 and the rules and regulations
promulgated thereunder (collectively, the "Securities Act"), including any
information deemed to be a part thereof at the time of effectiveness pursuant
to Rule 430A or Rule 434 under the Securities Act, is called the "Registration
Statement". Any registration statement filed by the Company pursuant to Rule
462(b) under the Securities Act is called the "Rule 462(b) Registration
Statement", and from and after the date and time of filing of the Rule 462(b)
Registration Statement the term "Registration Statement" shall include the
Rule 462(b) Registration Statement. Such prospectus, in the form first
furnished to the Underwriters for use by the Underwriters to confirm sales of
the Common Shares, is called the "Prospectus"; provided, however, if the
Company has, with the consent of the Representatives, elected to rely upon
Rule 434 under the Securities Act, the term "Prospectus" shall mean the
Company's prospectus subject to completion (each, a "preliminary prospectus")
dated May 2, 2005 (such preliminary prospectus is called the "Rule 434
preliminary prospectus"), together with the applicable term sheet (the "Term
Sheet") prepared and filed by the Company with the Commission under Rules 434
and 424(b) under the Securities Act and all references in this Agreement to
the date of the Prospectus shall mean the date of the Term Sheet. All
references in this Agreement to the Registration Statement, the Rule 462(b)
Registration Statement, a preliminary prospectus, the Prospectus or the Term
Sheet, or any amendments or supplements to any of the foregoing, shall include
any copy thereof filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval System ("XXXXX").
The Company hereby confirms its agreements with the Underwriters as
follows:
SECTION 1. Representations and Warranties.
The Company hereby represents, warrants and covenants to each
Underwriter as follows:
(a) Compliance with Registration Requirements. The Registration
Statement and any Rule 462(b) Registration Statement have been declared
effective by the Commission under the Securities Act. No stop order suspending
the effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement is in effect and no proceedings for such purpose have
been instituted or are pending or, to the best knowledge of the Company, are
contemplated or threatened by the Commission.
Each preliminary prospectus and the Prospectus when filed complied in
all material respects with the Securities Act and, if filed by electronic
transmission pursuant to XXXXX (except as may be permitted by Regulation S-T
under the Securities Act), was identical to the copy thereof delivered to the
Underwriters for use in connection with the offer and sale of the Common
Shares. Each of the Registration Statement, any Rule 462(b) Registration
Statement and any post-effective amendment thereto, at the time it became
effective, at the First Closing Date (as defined below) and any Option Closing
Date (as defined below), complied and will comply in all material respects
with the Securities Act and did not and will not contain any untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading. The
Prospectus, as amended or supplemented, as of its date, or the date of any
such amendment or supplement, and at the First Closing Date (as defined below)
and any Option Closing Date (as defined below), did not and will not contain
any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The representations
and warranties set forth in the two immediately preceding sentences do not
apply to statements in or omissions from the Registration Statement, any Rule
462(b) Registration Statement, or any post-effective amendment thereto, or the
Prospectus, or any amendments or supplements thereto, made in reliance upon
and in conformity with information relating to any Underwriter furnished to
the Company in writing by the Representatives expressly for use therein. There
are no contracts or other documents required to be described in the Prospectus
or to be filed as exhibits to the Registration Statement which have not been
described or filed as required.
(b) Distribution of Offering Material By the Company. The Company has
not distributed and will not distribute, prior to the earlier of the purchase
of all Optional Common Shares or the expiration of the period referred to in
Section 2(c) and the completion of the Underwriters' distribution of the
Common Shares, any offering material in connection with the offering and sale
of the Common Shares other than a preliminary prospectus, the Prospectus or
the Registration Statement.
(c) The Underwriting Agreement. This Agreement has been duly
authorized, executed and delivered by, and is a valid and binding agreement
of, the Company, enforceable in accordance with its terms, except as rights to
indemnification hereunder may be limited by applicable law and except as the
enforcement hereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting the rights and
remedies of creditors or by general equitable principles.
(d) Authorization of the Common Shares. The Common Shares to be
purchased by the Underwriters from the Company have been duly authorized for
issuance and sale pursuant to this Agreement and, when issued and delivered by
the Company pursuant to this Agreement, will be validly issued, fully paid and
nonassessable.
(e) No Applicable Registration or Other Similar Rights. Except as
otherwise disclosed in the Registration Statement or Prospectus, there are no
persons with registration or other similar rights to have any equity or debt
securities registered for sale under the Registration Statement or included in
the offering contemplated by this Agreement, except for such rights as have
been duly waived.
(f) No Material Adverse Change. Except as otherwise disclosed in the
Prospectus, subsequent to the respective dates as of which information is
given in the Prospectus: (i) there has been no material adverse change, or any
development involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business, operations or prospects,
whether or not arising from transactions in the ordinary course of business,
of the Company and its subsidiaries, considered as one entity (any such change
is called a "Material Adverse Change"); (ii) the Company and its subsidiaries,
considered as one entity, have not incurred any material liability or
obligation, indirect, direct or contingent, not in the ordinary course of
business nor entered into any material transaction or agreement not in the
ordinary course of business; and (iii) there has been no dividend or
distribution of any kind declared, paid or made by the Company or, except for
dividends paid to the Company or other subsidiaries, any of its subsidiaries
on any class of capital stock or repurchase or redemption by the Company or
any of its subsidiaries of any class of capital stock.
(g) Independent Accountants.
(i) Ernst & Young LLP, who have expressed their opinion as
set forth in the Registration Statement with respect to the financial
statements (which term as used in this Agreement includes the related
notes thereto) of (i) the Company and (ii) Tower Ventures, Lattice
Acquisition, Didier Communications Acquisition and Towers of Texas
Acquisition (the entities referred to in clause (ii) referred to
collectively as, the "E&Y Acquisition Entities"), filed with the
Commission as a part of the Registration Statement and included in
the Prospectus, are independent registered public or independent
registered certified public accountants as required by the Securities
Act. In this Agreement and in the applicable statements of revenue
and certain expenses of the E&Y Acquisition Entities included in the
Registration Statement: (a) "Tower Ventures" refers to a portfolio of
97 communications sites representing 97 of the 100 communications
sites previously owned by Tower Ventures III LLC; (b) "Lattice
Acquisition" refers to a portfolio of 236 communications sites under
management or lease previously owned by Lattice Communications, LLC;
(c) "Didier Communication Acquisition" refers to a portfolio of 95
communications sites previously owned by Didier, Inc., Ozark Towers,
Inc., Ridgeline Communications, Inc., Law Towers I, LLC and
Centerville Towers, LLC; and (d) "Towers of Texas Acquisition" refers
to a portfolio of 48 communications sites previously owned by Towers
of Texas, Inc.
(ii) KPMG LLP, who have expressed their opinion as set forth
in the Registration Statement with respect to the statements of
revenue and certain expenses of Sprint Sites USA, filed with the
Commission as part of the Registration Statement and included in the
Prospectus, are independent registered public or independent
registered certified public accountants as required by the Securities
Act. In this Agreement and in the statements of revenue and certain
expenses of Sprint Sites, USA, included in the Registration
Statement, "Sprint Sites USA" refers to a portfolio of approximately
6,600 communications sites previously leased by various affiliates of
Sprint Corporation.
(iii) PricewaterhouseCoopers LLP, who have expressed their
opinion as set forth in the Registration Statement with respect to
the statement of revenue and direct operating expenses of SunCom
Acquisition, filed with the Commission as part of the Registration
Statement and included in the Prospectus, are an independent
registered public accounting firm as required by the Securities Act.
In this Agreement and in the statements of revenue and direct
operating expenses of SunCom Acquisition included in the Registration
Statement, "SunCom Acquisition" refers to a portfolio of 169
communications sites owned by various affiliates of Triton PCS
Holdings, Inc.
(iv) Xxxxx Xxxxxx PLLC, who have expressed their opinion as
set forth in the Registration Statement with respect to the
statements of revenue and certain expenses of ForeSite 2005
Acquisition, filed with the Commission as part of the Registration
Statement and included in the Prospectus, are independent registered
public or independent registered certified public accountants as
required by the Securities Act. In this Agreement and in the
statements of revenue and certain expenses of ForeSite 2005
Acquisition included in the Registration Statement, "ForeSite 2005
Acquisition" refers to a portfolio of 172 communications sites
previously owned by various affiliates of ForeSite LLC. The E&Y
Acquisition Entities, Sprint Sites USA, SunCom Acquisition and
ForeSite 2005 Acquisition are herein collectively referred to as the
"Acquisition Entities".
(h) Preparation of the Financial Statements. The consolidated
financial statements and schedules of the Company filed with the Commission as
a part of the Registration Statement and included in the Prospectus present
fairly the consolidated financial position of the Company and its subsidiaries
as of and at the dates indicated and the consolidated results of their
operations and cash flows for the periods specified. The statements of revenue
and certain expenses of each of the Acquisition Entities filed with the
Commission as a part of the Registration Statement and included in the
Prospectus present fairly the revenue and certain expenses of each of the
Acquisition Entities for the periods specified. Such financial statements and
schedules of the Company and statements of revenue and certain expenses of
each of the Acquisition Entities have been prepared in conformity with U.S.
generally accepted accounting principles applied on a consistent basis
throughout the periods involved, except as may be expressly stated in the
related notes thereto. Such statements of revenue and certain expenses of each
of the Acquisition Entities were prepared for the purpose of complying with
the rules and regulations of the Commission, primarily Rule 3-14 of Regulation
S-X, and do not represent a complete presentation of the results of operations
as required by U.S. generally accepted accounting principles. No other
financial statements or schedules are required to be included in the
Registration Statement. The financial data set forth in the Prospectus under
the captions "Prospectus Summary--Summary Consolidated Financial Information",
"Capitalization" and "Selected Historical Consolidated Financial Information"
fairly present the information set forth therein on a basis consistent with
that of the audited and unaudited financial statements contained in the
Registration Statement.
The pro forma condensed consolidated financial statements of the
Company and its subsidiaries and the related notes thereto included in the
Registration Statement present fairly the information contained therein, have
been prepared in accordance with the Commission's rules and guidelines with
respect to pro forma financial statements and have been properly presented on
the bases described therein, and the assumptions used in the preparation
thereof are reasonable and the adjustments used therein are appropriate to
give effect to the transactions and circumstances referred to therein.
(i) Incorporation and Good Standing of the Company and its
Subsidiaries. Each of the Company and its subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing under
the laws of the jurisdiction of its incorporation and has corporate power and
authority to own, lease and operate its properties and to conduct its business
as described in the Prospectus and, in the case of the Company, to enter into
and perform its obligations under this Agreement. Each of the Company and each
subsidiary is duly qualified as a foreign corporation to transact its business
as described in the Prospectus and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except for such jurisdictions
where the failure to so qualify or to be in good standing would not,
individually or in the aggregate, result in a Material Adverse Change. All of
the issued and outstanding capital stock of each subsidiary has been duly
authorized and validly issued, is fully paid and nonassessable and is owned by
the Company, directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance or claim, except as described in
the Prospectus. The Company does not own or control, directly or indirectly,
any corporation, association or other entity other than the subsidiaries
listed in Exhibit 21.1 to the Registration Statement.
(j) Capitalization and Other Capital Stock Matters. The authorized,
issued and outstanding capital stock of the Company is as set forth in the
Prospectus under the caption "Capitalization" (other than for subsequent
issuances, if any, pursuant to employee benefit plans described in the
Prospectus or upon exercise of outstanding options or warrants described in
the Prospectus). The Common Stock (including the Common Shares) conforms in
all material respects to the description thereof contained in the Prospectus,
and such description conforms to the rights set forth in the instruments
defining the same. All of the issued and outstanding shares of Common Stock
have been duly authorized and validly issued, are fully paid and nonassessable
and have been issued in compliance with federal and state securities laws.
None of the outstanding shares of Common Stock were issued in violation of any
preemptive rights, rights of first refusal or other similar rights to
subscribe for or purchase securities of the Company. There are no authorized
or outstanding options, warrants, preemptive rights, rights of first refusal
or other rights to purchase, or equity or debt securities convertible into or
exchangeable or exercisable for, any capital stock of the Company or any of
its subsidiaries other than those described in the Prospectus. The description
of the Company's stock option, stock bonus and other stock plans or
arrangements, and the options or other rights granted thereunder, set forth in
the Prospectus accurately and fairly presents the information required to be
shown with respect to such plans, arrangements, options and rights.
(k) Listing. The Common Shares have been approved for listing on the
New York Stock Exchange, subject only to official notice of issuance.
(l) Non-Contravention of Existing Instruments; No Further
Authorizations or Approvals Required. Neither the Company nor any of its
"significant subsidiaries" as such term is defined in Rule 1-02 of Regulation
S-X of the rules and regulations of the Commission under the Securities Act is
in violation of its charter or by-laws or is in default (or, with the giving
of notice or lapse of time, would be in default) ("Default") under any
indenture, mortgage, loan or credit agreement, note, contract, franchise,
lease or other instrument to which the Company or any of its subsidiaries is a
party or by which it or any of them may be bound (including, without
limitation, the Amended and Restated Loan and Security Agreement dated
February 5, 2004 between Pinnacle Towers Inc. and any other borrower or
borrowers that may become a party thereto, as Borrowers, and Towers Xxxxx LLC,
as Lender, the Amended and Restated Loan and Security Agreement, dated as of
December 7, 2004, by and among Pinnacle Towers Acquisition Holdings LLC, other
Borrowers and Tower Xxxxx II LLC, the Second Amended and Restated Credit
Agreement, dated as of April 15, 2005, among Global Signal Operating
Partnership, L.P., Bank of America, N.A. and the other lenders party thereto,
the Acquisition Credit Agreement, dated as of April 25, 2005, by and among
Global Signal Acquisitions LLC, as Borrower, the Lenders from time to time
party thereto, and Xxxxxx Xxxxxxx Asset Funding Inc., as Administrative Agent
and Collateral Agent, the Investment Agreement, dated February 14, 2005, by
and among Global Signal OP, Fortress Investment Fund II LLC, various
affiliates of Xxxxxx Capital LLC and Xxxxxxxxx Capital Partners , L.P. and the
Agreement to Contribute, Lease and Sublease, by and among Sprint Corporation,
certain subsidiaries of Sprint Corporation and Global Signal Inc.) or to which
any of the property or assets of the Company or any of its subsidiaries is
subject (each, an "Existing Instrument"), except for such Defaults as would
not, individually or in the aggregate, result in a Material Adverse Change.
The Company's execution, delivery and performance of this Agreement and
consummation of the transactions contemplated hereby and by the Prospectus (i)
have been duly authorized by all necessary corporate action and will not
result in any violation of the provisions of the charter or by-laws of the
Company or any subsidiary, (ii) will not conflict with or constitute a breach
of, or Default or a Debt Repayment Triggering Event (as defined below), except
such as will be satisfied through repayment made by the Company with proceeds
from the offering and sale of the Common Shares, under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of its subsidiaries pursuant to, or require the
consent of any other party to, any Existing Instrument, except for such
conflicts, breaches, Defaults, Debt Repayment Triggering Events, liens,
charges, encumbrances or consents as would not, individually or in the
aggregate, result in a Material Adverse Change and (iii) will not result in
any violation of any law, administrative regulation or administrative or court
decree applicable to the Company or any subsidiary. No consent, approval,
authorization or other order of, or registration or filing with, any court or
other governmental or regulatory authority or agency, is required for the
Company's execution, delivery and performance of this Agreement and
consummation of the transactions contemplated hereby and by the Prospectus,
except the registration under the Securities Act and such as have been
obtained or made by the Company under applicable state securities or blue sky
laws and from the National Association of Securities Dealers, Inc. (the
"NASD"). As used herein, a "Debt Repayment Triggering Event" means any event
or condition which gives, or with the giving of notice or lapse of time would
give, the holder of any note, debenture or other evidence of indebtedness (or
any person acting on such holder's behalf) the right to require the
repurchase, redemption or repayment of all or a portion of such indebtedness
by the Company or any of its subsidiaries.
(m) No Material Actions or Proceedings. There are no legal or
governmental actions, suits or proceedings pending or, to the best of the
Company's knowledge, threatened (i) against or affecting the Company or any of
its subsidiaries, (ii) which has as the subject thereof any officer or
director of, or property owned or leased by, the Company or any of its
subsidiaries or (iii) relating to environmental or discrimination matters,
where in any such case (A) there is a reasonable possibility that such action,
suit or proceeding might be determined adversely to the Company or such
subsidiary and (B) any such action, suit or proceeding, if so determined
adversely, would be expected to result in a Material Adverse Change or
adversely affect the consummation of the transactions contemplated by this
Agreement. No material labor dispute with the employees of the Company or any
of its subsidiaries exists or, to the best of the Company's knowledge, is
threatened or imminent.
(n) All Necessary Permits, etc. The Company and each subsidiary
possess such valid and current certificates, authorizations or permits issued
by the appropriate state, federal or foreign regulatory agencies or bodies,
including without limitation the Federal Communications Commission (the "FCC")
and the Federal Aviation Authority (the "FAA"), necessary to conduct their
respective businesses, except where a failure to possess such certificates,
authorizations or permits would not, singly or in the aggregate, result in a
Material Adverse Change, and neither the Company nor any subsidiary has
received any notice of proceedings relating to the revocation or modification
of, or non-compliance with, any such certificate, authorization or permit
which, singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, could result in a Material Adverse Change.
(o) Title to Properties. Except as disclosed in the Prospectus, the
Company and each of its subsidiaries has good and marketable title to all the
properties and assets reflected as owned in the financial statements referred
to in Section 1(i) above, in each case free and clear of any security
interests, mortgages, liens, encumbrances, equities, claims and other defects,
except (i) Permitted Encumbrances and (ii) as would not result in a Material
Adverse Change. The real property, improvements, equipment and personal
property held under lease by the Company or any subsidiary are held under
valid and enforceable leases, except as would not result in a Material Adverse
Change. "Permitted Encumbrances" shall mean (a) liens that are expressly
described in or contemplated by the Prospectus and (b) customary easements and
encumbrances and other exceptions to title which do not materially impair the
operation, development or use of the properties or assets for the purposes
intended therefor as contemplated in the Prospectus.
(p) Tax Law Compliance. The Company and its subsidiaries have filed
all necessary federal, state and foreign income and franchise tax returns and
have paid all taxes required to be paid by any of them and, if due and
payable, any related or similar assessment, fine or penalty levied against any
of them, except, in all cases, for any such amounts that the Company is
contesting in good faith and except in any case in which the failure to so
file or pay would not in the aggregate cause a Material Adverse Change. The
Company has made, to the extent required by GAAP, adequate charges, accruals
and reserves in the applicable financial statements referred to in Section
1(i) above in respect of all federal, state and foreign income and franchise
taxes for all periods as to which the tax liability of the Company or any of
its subsidiaries has not been finally determined.
(q) REIT Qualification. The Company has, since its inception, been
organized and operated, and as of the First Closing Date and any Option
Closing Date (as defined below), as the case may be, will continue to be
organized and to operate, in a manner so as to qualify as a "real estate
investment trust" ("REIT") under Sections 856 through 860 of the Internal
Revenue Code of 1986, as amended.
(r) Company Not an "Investment Company". The Company has been advised
of the rules and requirements under the Investment Company Act of 1940, as
amended (the "Investment Company Act"). The Company is not, and after receipt
of payment for the Common Shares will not be, an "investment company" within
the meaning of Investment Company Act.
(s) Insurance. Other than as set forth on Schedule B, each of the
Company and its subsidiaries are insured by institutions that are rated
investment grade with policies in such amounts and with such deductibles and
covering such risks as are generally deemed adequate and customary for their
businesses including, but not limited to, policies covering real and personal
property owned or leased by the Company and its subsidiaries against theft,
damage, destruction, acts of vandalism and earthquakes. Except for changes to
director's and officer's insurance, the Company has no reason to believe that
it or any subsidiary will not be able (i) to renew its existing insurance
coverage as and when such policies expire or (ii) to obtain comparable
coverage from similar institutions as may be necessary or appropriate to
conduct its business as now conducted and at a cost that would not result in a
Material Adverse Change. Since November 1, 2002, neither of the Company nor
any subsidiary has been denied any insurance coverage which it has sought or
for which it has applied.
(t) No Price Stabilization or Manipulation. The Company has not taken
and will not take, directly or indirectly, any action designed to or that
might be reasonably expected to cause or result in stabilization or
manipulation of the price of the Common Stock or any security of the Company
to facilitate the sale or resale of the Common Shares.
(u) Related Party Transactions. There are no business relationships
or related-party transactions involving the Company or any subsidiary or any
other person required to be described in the Prospectus which have not been
described as required.
(v) Company's Accounting System. Except as disclosed in the
Prospectus, the Company maintains a system of accounting controls sufficient
to provide reasonable assurances that (i) transactions are executed in
accordance with management's general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets is permitted only
in accordance with management's general or specific authorization; and (iv)
the recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(w) Compliance with Environmental Laws. Except as would not,
individually or in the aggregate, result in a Material Adverse Change: (i)
neither the Company nor any of its subsidiaries is in violation of any
federal, state, local or foreign law or regulation relating to pollution or
protection of human health or the environment (including, without limitation,
ambient air, surface water, groundwater, land surface or subsurface strata) or
wildlife, including without limitation, laws and regulations relating to
emissions, discharges, releases or threatened releases of chemicals,
pollutants, contaminants, wastes, toxic substances, hazardous substances,
petroleum and petroleum products (collectively, "Materials of Environmental
Concern"), or otherwise relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of Materials of
Environment Concern (collectively, "Environmental Laws"), which violation
includes, but is not limited to, noncompliance with any permits or other
governmental authorizations required for the operation of the business of the
Company or its subsidiaries under applicable Environmental Laws, or
noncompliance with the terms and conditions thereof, nor has the Company or
any of its subsidiaries received any written communication, whether from a
governmental authority, citizens group, employee or otherwise, that alleges
that the Company or any of its subsidiaries is in violation of any
Environmental Law; (ii) there is no claim, action or cause of action filed
with a court or governmental authority, no investigation with respect to which
the Company has received written notice, and no written notice by any person
or entity alleging potential liability for investigatory costs, cleanup costs,
governmental responses costs, natural resources damages, property damages,
personal injuries, attorneys' fees or penalties arising out of, based on or
resulting from the presence, or release into the environment, of any Material
of Environmental Concern at any location owned, leased or operated by the
Company or any of its subsidiaries, now or in the past (collectively,
"Environmental Claims"), pending or, to the best of the Company's knowledge,
threatened against the Company or any of its subsidiaries or any person or
entity whose liability for any Environmental Claim the Company or any of its
subsidiaries has retained or assumed either contractually or by operation of
law; and (iii) to the best of the Company's knowledge, there are no past or
present actions, activities, circumstances, conditions, events or incidents,
including, without limitation, the release, emission, discharge, presence or
disposal of any Material of Environmental Concern, that reasonably could
result in a violation of any Environmental Law or form the basis of a
potential Environmental Claim against the Company or any of its subsidiaries
or against any person or entity whose liability for any Environmental Claim
the Company or any of its subsidiaries has retained or assumed either
contractually or by operation of law.
(x) Periodic Review of Costs of Environmental Compliance. In the
ordinary course of its business, the Company conducts a periodic review of the
effect of Environmental Laws on the business, operations and properties of the
Company and its subsidiaries, in the course of which it identifies and
evaluates associated costs and liabilities (including, without limitation, any
capital or operating expenditures required for clean-up, closure of properties
or compliance with Environmental Laws or any permit, license or approval, any
related constraints on operating activities and any potential liabilities to
third parties). On the basis of such review and the amount of its established
reserves, the Company has reasonably concluded that such associated costs and
liabilities would not, individually or in the aggregate, result in a Material
Adverse Change.
(y) ERISA Compliance. The Company and its subsidiaries and any
"employee benefit plan" (as defined under the Employee Retirement Income
Security Act of 1974, as amended, and the regulations and published
interpretations thereunder (collectively, "ERISA")) established or maintained
by the Company, its subsidiaries or their "ERISA Affiliates" (as defined
below) are in compliance in all material respects with ERISA. "ERISA
Affiliate" means, with respect to the Company or a subsidiary, any member of
any group of organizations described in Sections 414(b), (c), (m) or (o) of
the Internal Revenue Code of 1986, as amended, and the regulations and
published interpretations thereunder (the "Code") of which the Company or such
subsidiary is a member. No "reportable event" (as defined under ERISA) has
occurred or is reasonably expected to occur with respect to any "employee
benefit plan" established or maintained by the Company, its subsidiaries or
any of their ERISA Affiliates. No "employee benefit plan" established or
maintained by the Company, its subsidiaries or any of their ERISA Affiliates,
if such "employee benefit plan" were terminated, would have any "amount of
unfunded benefit liabilities" (as defined under ERISA). Neither the Company,
its subsidiaries nor any of their ERISA Affiliates has incurred or reasonably
expects to incur any liability under (i) Title IV of ERISA with respect to
termination of, or withdrawal from, any "employee benefit plan" or (ii)
Sections 412, 4971, 4975 or 4980B of the Code. Each "employee benefit plan"
established or maintained by the Company, its subsidiaries or any of their
ERISA Affiliates that is intended to be qualified under Section 401(a) of the
Code is so qualified and nothing has occurred, whether by action or failure to
act, which would cause the loss of such qualification.
(z) Brokers. There is no broker, finder or other party that is
entitled to receive from the Company any brokerage or finder's fee or other
fee or commission as a result of any transactions contemplated by this
Agreement.
(aa) No Outstanding Loans or Other Indebtedness. There are no
outstanding loans, advances (except normal advances for business expenses in
the ordinary course of business) or guarantees or indebtedness by the Company
to or for the benefit of any of the officers or directors of the Company or
any of the members of any of them, except as disclosed in the Prospectus.
(bb) Compliance with Laws. Except as otherwise provided in or
contemplated by this Section l, the Company has not been advised, and has no
reason to believe, that it and each of its subsidiaries are not conducting
business in compliance with all applicable laws, rules and regulations of the
jurisdictions in which it is conducting business, except where failure to be
so in compliance would not result in a Material Adverse Change.
(cc) Applicable Orders. No violation of, conflict with, or
contravention of, any of the judgments, orders and decrees affecting the
Company or any of its subsidiaries, other than a violation of, conflict with,
or contravention of, any of the judgments, orders and decrees listed on
Schedule IV to Exhibit B hereto, would be reasonably likely to result in a
Material Adverse Change.
The Company acknowledges that the Underwriters and, for purposes of
the opinions to be delivered pursuant to Section 5 hereof, counsel to the
Company and counsel to the Underwriters, will rely upon the accuracy and
truthfulness of the foregoing representations and hereby consents to such
reliance.
SECTION 2. Purchase, Sale and Delivery of the Common Shares.
(a) The Firm Common Shares. The Company agrees to issue and sell to
the several Underwriters the Firm Common Shares upon the terms herein set
forth. On the basis of the representations, warranties and agreements herein
contained, and upon the terms but subject to the conditions herein set forth,
the Underwriters agree, severally and not jointly, to purchase from the
Company the respective number of Firm Common Shares set forth opposite their
names on Schedule A. The purchase price per Firm Common Share to be paid by
the several Underwriters to the Company shall be $29.3185 per share.
(b) The First Closing Date. Delivery of certificates for the Firm
Common Shares to be purchased by the Underwriters and payment therefor shall
be made at the offices of Sidley Xxxxxx Xxxxx & Xxxx LLP, 000 Xxxxxxx Xxxxxx,
Xxx Xxxx, XX 00000 (or such other place as may be agreed to by the Company and
the Representatives) at 9:00 a.m. New York time, on May 9, 2005 or such other
time and date not later than 1:30 p.m. New York time, on May 16, 2005 as the
Representatives shall designate by notice to the Company (the time and date of
such closing are called the "First Closing Date"). The Company hereby
acknowledges that circumstances under which the Representatives may provide
notice to postpone the First Closing Date as originally scheduled include, but
are in no way limited to, any determination by the Company or the
Representatives to recirculate to the public copies of an amended or
supplemented Prospectus or a delay as contemplated by the provisions of
Section 10.
(c) The Optional Common Shares; the Option Closing Date. In addition,
on the basis of the representations, warranties and agreements herein
contained, and upon the terms but subject to the conditions herein set forth,
the Company hereby grants an option to the several Underwriters to purchase,
severally and not jointly, up to an aggregate of 575,000 Optional Common
Shares from the Company at the purchase price per share to be paid by the
Underwriters for the Firm Common Shares. The option granted hereunder is for
use by the Underwriters solely in covering any over-allotments in connection
with the sale and distribution of the Firm Common Shares. The option granted
hereunder may be exercised in whole or from time to time in part upon notice
by the Representatives to the Company, which notice or notices may be given at
any time within 30 days from the date of this Agreement. Such notice shall set
forth (i) the aggregate number of Optional Common Shares as to which the
Underwriters are exercising the option, (ii) the names and denominations in
which the certificates for the Optional Common Shares are to be registered and
(iii) the time, date and place at which such certificates will be delivered
(which time and date may be simultaneous with, but not earlier than, the First
Closing Date; and in such case the term "First Closing Date" shall refer to
the time and date of delivery of certificates for the Firm Common Shares and
the Optional Common Shares). Any such time and date of delivery, if subsequent
to the First Closing Date, is called an "Option Closing Date" and shall be
determined by the Representatives and shall not be earlier than three nor
later than five full business days after delivery of such notice of exercise.
If any Optional Common Shares are to be purchased, each Underwriter agrees,
severally and not jointly, to purchase the number of Optional Common Shares
(subject to such adjustments to eliminate fractional shares as the
Representatives may determine) that bears the same proportion to the total
number of Optional Common Shares to be purchased as the number of Firm Common
Shares set forth on Schedule A opposite the name of such Underwriter bears to
the total number of Firm Common Shares. The Representatives may cancel the
option at any time prior to its expiration by giving written notice of such
cancellation to the Company.
(d) Public Offering of the Common Shares. The Representatives hereby
advise the Company that the Underwriters intend to offer for sale to the
public, as described in the Prospectus, their respective portions of the
Common Shares as soon after this Agreement has been executed and the
Registration Statement has been declared effective as the Representatives, in
their sole judgment, have determined is advisable and practicable.
(e) Payment for the Common Shares. Payment for the Common Shares
shall be made at the First Closing Date (and, if applicable, at any Option
Closing Date) by wire transfer of immediately available funds to the order of
the Company.
It is understood that the Representatives have been authorized, for
their own account and the accounts of the several Underwriters, to accept
delivery of and receipt for, and make payment of the purchase price for, the
Firm Common Shares and any Optional Common Shares the Underwriters have agreed
to purchase. Each of the Representatives, individually and not as a
Representative of the Underwriters, may (but shall not be obligated to) make
payment for any Common Shares to be purchased by any Underwriter whose funds
shall not have been received by the Representative by the First Closing Date
or any Option Closing Date, as the case may be, for the account of such
Underwriter, but any such payment shall not relieve such Underwriter from any
of its obligations under this Agreement.
(f) Delivery of the Common Shares. The Company shall deliver, or
cause to be delivered, to the Representatives for the accounts of the several
Underwriters the Firm Common Shares at the First Closing Date, against the
irrevocable release of a wire transfer of immediately available funds for the
amount of the purchase price therefor. The Company shall also deliver, or
cause to be delivered, to the Representatives for the accounts of the several
Underwriters, the Optional Common Shares the Underwriters have agreed to
purchase at the First Closing Date or any Option Closing Date, as the case may
be, against the irrevocable release of a wire transfer of immediately
available funds for the amount of the purchase price therefor. Delivery of the
Firm Common Shares and the Optional Common Shares shall be made through the
facilities of The Depository Trust Company unless the Representatives shall
otherwise instruct, and shall be registered in such names and denominations as
the Representatives shall have requested at least one full business day prior
to the First Closing Date (or any Option Closing Date, as the case may be).
Time shall be of the essence, and delivery at the time and place specified in
this Agreement is a further condition to the obligations of the Underwriters.
(g) Delivery of Prospectus to the Underwriters. Not later than 12:00
p.m. on the second business day following the date the Common Shares are first
released by the Underwriters for sale to the public, the Company shall deliver
or cause to be delivered, copies of the Prospectus in such quantities and at
such places as the Representative shall request.
SECTION 3. Additional Covenants of the Company.
The Company further covenants and agrees with each Underwriter as
follows:
(a) Representatives' Review of Proposed Amendments and Supplements.
During such period beginning on the date hereof and ending on the later of the
First Closing Date or such date, as in the opinion of counsel for the
Underwriters, the Prospectus is no longer required by law to be delivered in
connection with sales by an Underwriter or dealer (the "Prospectus Delivery
Period"), prior to amending or supplementing the Registration Statement
(including any registration statement filed under Rule 462(b) under the
Securities Act) or the Prospectus, the Company shall furnish to the
Representatives for review a copy of each such proposed amendment or
supplement, and the Company shall not file any such proposed amendment or
supplement to which the Representatives reasonably object in writing.
(b) Securities Act Compliance. After the date of this Agreement, the
Company shall promptly advise the Representatives (i) of the receipt of any
comments of, or requests for additional or supplemental information from, the
Commission with respect to the Registration Statement, (ii) of the time and
date of any filing of any post-effective amendment to the Registration
Statement or any amendment or supplement to any preliminary prospectus or the
Prospectus, (iii) of the time and date that any post-effective amendment to
the Registration Statement becomes effective and (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or any post-effective amendment thereto or of any order preventing
or suspending the use of any preliminary prospectus or the Prospectus, or of
any proceedings for 45 days after the date of this Agreement that adversely
affect the listing or quotation of the Common Stock from any securities
exchange upon which it is listed for trading or included or designated for
quotation, or of the threatening or initiation of any proceedings for any of
such purposes. If the Commission shall enter any such stop order at any time,
the Company will use its best efforts to obtain the lifting of such order at
the earliest possible moment. Additionally, the Company agrees that it shall
comply with the provisions of Rules 424(b), 430A and 434, as applicable, under
the Securities Act.
(c) Amendments and Supplements to the Prospectus and Other Securities
Act Matters. If during the Prospectus Delivery Period, any event shall occur
or condition exist as a result of which it is necessary to amend or supplement
the Prospectus in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not misleading,
or if in the opinion of counsel for the Underwriters it is otherwise necessary
to amend or supplement the Prospectus to comply with applicable law, the
Company agrees to promptly prepare (subject to Section 3(a) hereof), file with
the Commission and furnish at its own expense to the Underwriters and to
dealers, amendments or supplements to the Prospectus so that the statements in
the Prospectus as so amended or supplemented will not, in the light of the
circumstances when the Prospectus is delivered to a purchaser, be misleading
or so that the Prospectus, as amended or supplemented, will comply with law.
(d) Copies of any Amendments and Supplements to the Prospectus. The
Company agrees to furnish the Representatives, without charge, during the
Prospectus Delivery Period, as many copies of the Prospectus and any
amendments and supplements thereto as the Representatives may request.
(e) Blue Sky Compliance. The Company shall cooperate with the
Representatives and counsel for the Underwriters to qualify or register the
Common Shares for sale under (or obtain exemptions from the application of)
the state securities or blue sky laws of those jurisdictions designated by the
Representatives, shall comply with such laws and shall continue such
qualifications, registrations and exemptions in effect so long as required for
the distribution of the Common Shares. The Company shall not be required to
qualify as a foreign corporation or to take any action that would subject it
to general service of process in any such jurisdiction where it is not
presently qualified or where it would be subject to taxation as a foreign
corporation. The Company will advise the Representatives promptly of the
suspension of the qualification or registration of (or any such exemption
relating to) the Common Shares, of which it is aware, for offering, sale or
trading in any jurisdiction or any initiation or threat of any proceeding for
any such purpose, and in the event of the issuance of any order suspending
such qualification, registration or exemption, the Company shall use its best
efforts to obtain the withdrawal thereof at the earliest possible moment.
(f) Use of Proceeds. The Company shall apply the net proceeds from
the sale of the Common Shares sold by it in the manner described under the
caption "Use of Proceeds" in the Prospectus.
(g) Transfer Agent. The Company shall maintain, at its expense, a
registrar and transfer agent for the Common Stock.
(h) Earnings Statement. As soon as practicable, the Company will make
generally available to its security holders an earnings statement (which need
not be audited) that satisfies the provisions of Section 11(a) of the
Securities Act, including Rule 158 thereunder.
(i) Periodic Reporting Obligations. During the Prospectus Delivery
Period the Company shall file, on a timely basis, with the Commission and the
New York Stock Exchange all reports and documents required to be filed by it
under the Exchange Act.
(j) Company to Provide Interim Financial Statements. Prior to the
First Closing Date and any Option Closing Date, the Company will furnish the
Underwriters, as soon as they have been prepared by or are available to the
Company, a copy of any unaudited interim financial statements of the Company
for any period subsequent to the period covered by the most recent financial
statements appearing in the Registration Statement and the Prospectus.
(k) Listing. The Company will use its best efforts to list, subject
to notice of issuance, the Common Shares on the New York Stock Exchange.
(l) Agreement Not to Offer or Sell Additional Securities. During the
period commencing on the date hereof and ending on the 30th day following the
date of the Prospectus, the Company will not directly or indirectly offer,
pledge, sell, contract to sell, sell any option or contract to purchase or
otherwise dispose of any shares of Common Stock or any securities convertible
into or exercisable or exchangeable for shares of Common Stock, or in any
manner transfer all or a portion of the economic consequences associated with
the ownership of shares of Common Stock, or cause a registration statement
covering any shares of Common Stock to be filed, without the prior written
consent of the Representatives; provided, however, that the Company may issue
shares of its Common Stock or options to purchase its Common Stock, or Common
Stock upon exercise of options, pursuant to any stock option, stock bonus or
other stock plan or arrangement described in the Prospectus; and provided
further that the Company may issue Common Stock upon exercise of outstanding
options or warrants; and provided further that the Company may issue shares of
Common Stock or options to purchase its Common Stock in mergers or
acquisitions provided that the recipient of such shares or options agrees in
writing with the Representatives, in an agreement in the form of Exhibit A
hereto, not to sell, offer, dispose of or otherwise transfer any such shares
or options during such 30-day period without the prior written consent of the
Representatives (which consent may be withheld at the sole discretion of the
Representatives); and provided further that the Company may issue shares of
Common Stock or options to purchase its Common Stock as required by the (i)
Investment Agreement, dated as of February 14, 2005, by and among the Company,
Fortress Investment Fund II LLC, Xxxxxx Capital Partners II, L.P., Xxxxxx
Capital Partners I, L.P. Whitecrest Partners, L.P., Xxxxxx Capital
International, LTD, Riva Capital Partners, L.P., Xxxxxxxxx Capital Partners,
L.P., Xxxxxxxxx Capital Partners (Cayman), L.P., Xxxxxxxxx Capital Partners
(Executives), L.P., Greenhill Capital, L.P., and Xxxxxxxxx Capital Partners
(Employees) II, L.P. and (ii) the Option Agreement, by and among the Company,
Fortress Investment Fund II LLC, Xxxxxx Capital Partners II, L.P., Xxxxxx
Capital Partners I, L.P., Whitecrest Partners, L.P., Xxxxxx Capital
International, LTD, Riva Capital Partners, L.P., Xxxxxxxxx Capital Partners,
L.P., Xxxxxxxxx Capital Partners (Cayman), L.P., Xxxxxxxxx Capital Partners
(Executives), L.P., Greenhill Capital, L.P., and Xxxxxxxxx Capital Partners
(Employees) II, L.P. (the form of which is filed as Exhibit 10.3 to the
Company's Current Report on Form 8-K filed on February 17, 2005). The 30-day
restricted period described above is subject to extension such that, in the
event that either (1) during the last 17 days of the 30-day restricted period,
the Company issues an earnings release or material news or a material event
relating to the Company occurs or (2) prior to the expiration of the 30-day
restricted period, the Company announces that it will release earnings results
during the 16-day period beginning on the last day of the 30-day period, the
"lock-up" restrictions described above will continue to apply until the
expiration of the 18-day period beginning on the earnings release or the
occurrence of the material news or material event.
(m) Future Reports to the Representatives. During the period of three
years hereafter the Company will furnish to the Representatives c/o Morgan
Xxxxxxx & Co. Incorporated, 0000 Xxxxxxxx, Xxx Xxxx, XX 00000, Attention:
Equity Capital Markets Syndicate Desk, and Banc of America Securities LLC, 0
Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxxx X. Xxxxxxxx (i) as
soon as practicable after the end of each fiscal year, copies of the Annual
Report of the Company containing the balance sheet of the Company as of the
close of such fiscal year and statements of income, stockholders' equity and
cash flows for the year then ended and the opinion thereon of the Company's
independent public or certified public accountants; (ii) to the extent not
otherwise available on XXXXX, as soon as practicable after the filing thereof,
copies of each proxy statement, Annual Report on Form 10-K, Quarterly Report
on Form 10-Q, Current Report on Form 8-K or other report filed by the Company
with the Commission, the NASD or any securities exchange; and (iii) as soon as
available, copies of any report or communication of the Company mailed
generally to holders of its capital stock.
(n) Investment Limitation. The Company shall not invest, or otherwise
use the proceeds received by the Company from its sale of the Common Shares in
such a manner as would require the Company or any of its subsidiaries to
register as an investment company under the Investment Company Act.
(o) No Manipulation of Price. The Company will not take, directly or
indirectly, any action designed to cause or result in, or that has constituted
or might reasonably be expected to constitute, the stabilization or
manipulation of the price of any securities of the Company.
(p) Offering Materials Furnished to Underwriters. The Company will
deliver to the Representatives one complete manually or facsimile signed copy
of the Registration Statement and of each consent and certificate of experts
filed as a part thereof, and conformed copies of the Registration Statement
(without exhibits) and preliminary prospectuses and the Prospectus, as amended
or supplemented, in such quantities and at such places as the Representatives
have reasonably requested for each of the Underwriters.
SECTION 4. Payment of Expenses. The Company agrees to pay all costs,
fees and expenses incurred in connection with the performance of its
obligations hereunder and in connection with the transactions contemplated
hereby, including without limitation (i) all expenses incident to the issuance
and delivery of the Common Shares (including all printing and engraving
costs), (ii) all fees and expenses of the registrar and transfer agent of the
Common Stock, (iii) all necessary issue, transfer and other stamp taxes in
connection with the issuance and sale of the Common Shares to the
Underwriters, (iv) all fees and expenses of the Company's counsel, independent
public or certified public accountants and other advisors, (v) all costs and
expenses incurred in connection with the preparation, printing, filing,
shipping and distribution of the Registration Statement (including financial
statements, exhibits, schedules, consents and certificates of experts), each
preliminary prospectus and the Prospectus, and all amendments and supplements
thereto, and this Agreement, (vi) all filing fees, attorneys' fees and
expenses incurred by the Company or the Underwriters in connection with
qualifying or registering (or obtaining exemptions from the qualification or
registration of) all or any part of the Common Shares for offer and sale under
the state securities or blue sky laws or the provincial securities laws of
Canada, and, if requested by the Representatives, preparing and printing a
"Blue Sky Survey" or memorandum, and any supplements thereto, advising the
Underwriters of such qualifications, registrations and exemptions, (vii) the
filing fees incident to, and the reasonable fees and expenses of counsel for
the Underwriters in connection with, the NASD's review and approval of the
Underwriters' participation in the offering and distribution of the Common
Shares, (viii) the fees and expenses associated with listing the Common Shares
on the New York Stock Exchange, and (ix) all other fees, costs and expenses
referred to in Item 31 of Part II of the Registration Statement. Except as
provided in this Section 4, Section 6, Section 8 and Section 9 hereof, the
Underwriters shall pay their own expenses, including, without limitation, the
fees and disbursements of their counsel, any advertising expenses connected
with any offers they may make and stock transfer taxes on resale of any of the
Common Shares by them.
SECTION 5. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the Common
Shares as provided herein on the First Closing Date and, with respect to the
Optional Common Shares, the relevant Option Closing Date, shall be subject to
the accuracy of the representations and warranties on the part of the Company
set forth in Section 1 hereof as of the date hereof and as of the First
Closing Date as though then made and, with respect to the Optional Common
Shares, as of the relevant Option Closing Date as though then made, to the
timely performance by the Company of its covenants and other obligations
hereunder, and to each of the following additional conditions:
(a) Accountants' Comfort Letters.
(i) On the date hereof, the Representatives shall have
received from Ernst & Young LLP, independent registered public or
independent certified public accountants for the Company and each of
the E&Y Acquisition Entities, letters dated the date hereof addressed
to the Underwriters, in form and substance satisfactory to the
Representatives, containing statements and information of the type
ordinarily included in accountant's "comfort letters" to
underwriters, delivered according to Statement of Auditing Standards
No. 72, as amended by SAS 76 and SAS 86 (or any successor standard),
with respect to the audited and unaudited financial statements and
certain financial information contained in the Registration Statement
and the Prospectus relating to (a) the Company and its consolidated
subsidiaries and (b) the E&Y Acquisition Entities (and the
Representatives shall have received an additional five (5) conformed
copies of such accountants' letters for each of the several
Underwriters).
(ii) On the date hereof, the Representatives shall have
received from KPMG LLP, independent registered public or independent
certified public accountants for Sprint Sites USA, a letter dated the
date hereof addressed to the Underwriters, in form and substance
satisfactory to the Representatives, containing statements and
information of the type ordinarily included in accountant's "comfort
letters" to underwriters, delivered according to Statement of
Auditing Standards No. 72, as amended by SAS 76 and SAS 86 (or any
successor standard), with respect to the audited and unaudited
financial statements and certain financial information contained in
the Registration Statement and the Prospectus relating to Sprint
Sites USA (and the Representatives shall have received an additional
five (5) conformed copies of such accountants' letters for each of
the several Underwriters).
(iii) On the date hereof, the Representatives shall have
received from PricewaterhouseCoopers LLP, an independent registered
public accounting firm who have expressed their opinion with respect
to the statement of revenue and direct operating expenses of SunCom
Acquisition, a letter dated the date hereof addressed to the
Underwriters, in form and substance satisfactory to the
Representatives, to the effect that: (i) they are an independent
registered public accounting firm with respect to Triton PCS
Holdings, Inc and its subsidiaries within the meaning of the Act and
the applicable rules and regulations thereunder adopted by the
Commission and (ii) in their opinion, the statement of revenue and
direct operating expenses of SunCom Acquisition audited by them and
included in the Registration Statement and the Prospectus comply as
to form in all material respects with the applicable accounting
requirements of the Act and the related rules and regulations adopted
by the Commission (and the Representatives shall have received an
additional five (5) conformed copies of such accountants' letters for
each of the several Underwriters).
(iv) On the date hereof, the Representatives shall have
received from Xxxxx Xxxxxx PLLC, independent registered public or
independent certified public accountants for ForeSite 2005
Acquisition, a letter dated the date hereof addressed to the
Underwriters, in form and substance satisfactory to the
Representatives, containing statements and information of the type
ordinarily included in accountant's "comfort letters" to
underwriters, delivered according to Statement of Auditing Standards
No. 72, as amended by SAS 76 and SAS 86 (or any successor standard),
with respect to the audited and unaudited financial statements and
certain financial information contained in the Registration Statement
and the Prospectus relating to ForeSite 2005 Acquisition (and the
Representatives shall have received an additional five (5) conformed
copies of such accountants' letters for each of the several
Underwriters).
(b) Compliance with Registration Requirements; No Stop Order; No
Objection from NASD. For the period from and after effectiveness of this
Agreement and prior to the First Closing Date and, with respect to the
Optional Common Shares, the relevant Option Closing Date:
(i) the Company shall have filed the Prospectus with the
Commission (including the information required by Rule 430A under the
Securities Act) in the manner and within the time period required by
Rule 424(b) under the Securities Act; or the Company shall have filed
a post-effective amendment to the Registration Statement containing
the information required by such Rule 430A, and such post-effective
amendment shall have become effective; or, if the Company elected to
rely upon Rule 434 under the Securities Act and obtained the
Representatives' consent thereto, the Company shall have filed a Term
Sheet with the Commission in the manner and within the time period
required by such Rule 424(b);
(ii) no stop order suspending the effectiveness of the
Registration Statement, any Rule 462(b) Registration Statement, or
any post-effective amendment to the Registration Statement, shall be
in effect and no proceedings for such purpose shall have been
instituted or threatened by the Commission; and
(iii) the NASD shall have raised no objection to the
fairness and reasonableness of the underwriting terms and
arrangements.
(c) No Material Adverse Change or Ratings Agency Change. For the
period from and after the date of this Agreement and prior to the First
Closing Date and, with respect to the Optional Common Shares, the relevant
Option Closing Date:
(i) in the judgment of the Representatives there shall not
have occurred any Material Adverse Change; and
(ii) there shall not have occurred any downgrading, nor
shall any notice have been given of any intended or potential
downgrading or of any review for a possible change that does not
indicate the direction of the possible change, in the rating accorded
any securities of the Company, any of its subsidiaries, Global Signal
Trust I or Global Signal Trust II by any "nationally recognized
statistical rating organization" as such term is defined for purposes
of Rule 436(g)(2) under the Securities Act.
(d) Opinions of Counsel for the Company. On each of the First Closing
Date and any Option Closing Date the Representatives shall have received from
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP (i) an opinion as counsel for the
Company, dated as of the First Closing Date or the Option Closing Date, as
applicable, substantially in the form attached as Exhibit B, (ii) the tax
letter as special tax counsel for the Company, dated as of the First Closing
Date or the Option Closing Date, as applicable, substantially in the form
attached as Exhibit C, and (iii) the negative assurance letter as counsel for
the Company, dated as of the First Closing Date or the Option Closing Date, as
applicable, substantially in the form attached as Exhibit D.
(e) Opinion of General Counsel for the Company. On each of the First
Closing Date and any Option Closing Date the Representatives shall have
received the opinion of Xxxxxxxx X. XxXxxxxx, Executive Vice President and
General Counsel for the Company, dated as of the First Closing Date or the
Option Closing Date, as applicable, substantially in the form attached as
Exhibit E.
(f) Opinion of Counsel for the Underwriters. On each of the First
Closing Date and any Option Closing Date the Representatives shall have
received the opinion of Sidley Xxxxxx Xxxxx & Xxxx LLP, counsel for the
Underwriters, dated as of the First Closing Date or the Option Closing Date,
as applicable, with respect to the matters set forth in paragraphs (1), (5)
and (9) of Exhibit B, the fifth full paragraph of Exhibit D, and with respect
to matters relating to the lack of preemptive rights of the stockholders of
the Company under the charter or by-laws of the Company or Delaware General
Corporation Law, the effectiveness of the Registration Statement and the
accuracy of the statements contained in the Prospectus under the captions
"Description of Capital Stock" and "Underwriting".
(g) Officers' Certificate. On each of the First Closing Date and any
Option Closing Date the Representatives shall have received a written
certificate executed by the Chairman of the Board, Chief Executive Officer or
President of the Company and the Chief Financial Officer or Chief Accounting
Officer of the Company, dated as of the First Closing Date or the Option
Closing Date, as applicable, to the effect set forth in subsections (b)(ii)
and (c)(ii) of this Section 5, and further to the effect that:
(i) for the period from and after the date of this Agreement
and prior to the date of the Officer's Certificate, there has not
occurred any Material Adverse Change;
(ii) the representations, warranties and covenants of the
Company set forth in Section 1 of this Agreement are true and correct
with the same force and effect as though expressly made on and as of
the date of such Officer's Certificate; and
(iii) the Company has complied with all the agreements
hereunder and satisfied all the conditions on its part to be
performed or satisfied hereunder at or prior to the date of such
Officer's Certificate.
(h) Bring-down Comfort Letters.
(i) On each of the First Closing Date and any Option Closing
Date the Representatives shall have received from Ernst & Young LLP,
independent registered public or independent registered certified
public accountants for the Company, letters dated such date, in form
and substance satisfactory to the Representatives, to the effect that
they reaffirm the statements made in the letters furnished by them
pursuant to subsection (a)(i) of this Section 5 relating to (i) the
Company and its consolidated subsidiaries and (ii) each of the E&Y
Acquisition Entities, respectively, except that the specified date
referred to therein for the carrying out of procedures shall be no
more than three business days prior to the First Closing Date or any
Option Closing Date, as the case may be (and the Representatives
shall have received an additional five (5) conformed copies of such
accountants' letters for each of the several Underwriters).
(ii) On each of the First Closing Date and any Option
Closing Date the Representatives shall have received from KPMG LLP,
independent registered public or independent registered certified
public accountants for Sprint Sites USA, a letter dated such date, in
form and substance satisfactory to the Representatives, to the effect
that they reaffirm the statements made in the letter furnished by
them pursuant to subsection (a)(ii) of this Section 5 relating to
Sprint Sites USA, except that the specified date referred to therein
for the carrying out of procedures shall be no more than three
business days prior to the First Closing Date or any Option Closing
Date, as the case may be (and the Representatives shall have received
an additional five (5) conformed copies of such accountants' letters
for each of the several Underwriters).
(iii) On each of the First Closing Date and any Option
Closing Date the Representatives shall have received from
PricewaterhouseCoopers LLP, an independent registered public
accounting firm who have expressed their opinion with respect to the
statement of revenue and direct operating expenses of SunCom
Acquisition, a letter dated such date, in form and substance
satisfactory to the Representatives and PricewaterhouseCoopers LLP,
to the effect that they reaffirm the statements made in the letter
furnished by them pursuant to subsection (a)(iii) of this Section 5
relating to SunCom Acquisition, except that the specified date
referred to therein for the carrying out of procedures shall be no
more than three business days prior to the First Closing Date or any
Option Closing Date, as the case may be (and the Representatives
shall have received an additional five (5) conformed copies of such
accountants' letters for each of the several Underwriters).
(iv) On each of the First Closing Date and any Option
Closing Date the Representatives shall have received from Xxxxx
Xxxxxx PLLC, independent registered public or independent registered
certified public accountants for ForeSite 2005 Acquisition, a letter
dated such date, in form and substance satisfactory to the
Representatives, to the effect that they reaffirm the statements made
in the letter furnished by them pursuant to subsection (a)(iv) of
this Section 5 relating to ForeSite 2005 Acquisition, except that the
specified date referred to therein for the carrying out of procedures
shall be no more than three business days prior to the First Closing
Date or any Option Closing Date, as the case may be (and the
Representatives shall have received an additional five (5) conformed
copies of such accountants' letters for each of the several
Underwriters).
(i) Lock-Up Agreement from Certain Securityholders of the Company. On
or prior to the date hereof, the Representatives shall have been furnished
with an agreement in the form of Exhibit A hereto from each director and
officer of the Company, FRIT PINN LLC, Fortress Registered Investment Trust,
Fortress Pinnacle Investment Fund LLC, GCP SPVI, LLC, Xxxxxxxxx Capital
Partners LLC, Greenhill Capital Partners, L.P., Greenhill Capital Partners
(Cayman), L.P., Greenhill Capital Partners (Executives), L.P., Greenhill
Capital, L.P., Xxxxxx Capital , LLC, Xxxxxx Capital Partners I, L.P., Xxxxxx
Capital Partners II, L.P., Whitecrest Partners, L.P., 222 Partners LLC, and
Great Hollow International, L.P., and such agreements and all lock-up
agreements delivered prior to the date hereof to the Representatives shall be
in full force and effect on each of the First Closing Date and any Option
Closing Date.
(j) Additional Documents. On or before each of the First Closing Date
and any Option Closing Date, the Representatives and counsel for the
Underwriters shall have received such information, documents and opinions as
they may reasonably require for the purposes of enabling them to pass upon the
issuance and sale of the Common Shares as contemplated herein, or in order to
evidence the accuracy of any of the representations and warranties, or the
satisfaction of any of the conditions or agreements, herein contained.
If any condition specified in this Section 5 is not satisfied when
and as required to be satisfied, this Agreement may be terminated by the
Representatives by notice to the Company at any time on or prior to the First
Closing Date and, with respect to the Optional Common Shares, at any time
prior to the relevant Option Closing Date, which termination shall be without
liability on the part of any party to any other party, except that Section 4,
Section 6, Section 8 and Section 9 shall at all times be effective and shall
survive such termination.
SECTION 6. Reimbursement of Underwriters' Expenses. If this Agreement
is terminated by the Representatives pursuant to Section 5, Section 11, or if
the sale to the Underwriters of the Common Shares on the First Closing Date is
not consummated because of any refusal, inability or failure on the part of
the Company to perform any agreement herein or to comply with any provision
hereof, the Company agrees to reimburse the Representatives and the other
Underwriters (or such Underwriters as have terminated this Agreement with
respect to themselves), severally, upon demand for all out-of-pocket expenses
that shall have been reasonably incurred by the Representatives and the
Underwriters in connection with the proposed purchase and the offering and
sale of the Common Shares, including but not limited to reasonable fees and
disbursements of counsel, printing expenses, travel expenses, postage,
facsimile and telephone charges.
SECTION 7. Effectiveness of this Agreement. This Agreement shall not
become effective until the later of (i) the execution of this Agreement by the
parties hereto and (ii) notification by the Commission to the Company and the
Representatives of the effectiveness of the Registration Statement under the
Securities Act.
Prior to such effectiveness, this Agreement may be terminated by any
party by notice to each of the other parties hereto, and any such termination
shall be without liability on the part of (a) the Company to any Underwriter,
except that the Company shall be obligated to reimburse the expenses of the
Representatives and the Underwriters pursuant to Sections 4 hereof, (b) any
Underwriter to the Company, or (c) any party hereto to any other party except
that the provisions of Section 8 and Section 9 shall at all times be effective
and shall survive such termination.
SECTION 8. Indemnification.
(a) Indemnification of the Underwriters. The Company agrees to
indemnify and hold harmless each Underwriter, its officers and employees, each
person, if any, who controls any Underwriter within the meaning of the
Securities Act and the Exchange Act and each affiliate of any Underwriter
within the meaning of Rule 405 under the Securities Act against any loss,
claim, damage, liability or expense, as incurred, to which such Underwriter or
such controlling person may become subject, under the Securities Act, the
Exchange Act or other federal or state statutory law or regulation, or at
common law or otherwise (including in settlement of any litigation, if such
settlement is effected with the written consent of the Company), insofar as
such loss, claim, damage, liability or expense (or actions in respect thereof
as contemplated below) arises out of or is based (i) upon any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement, or any amendment thereto, including any information deemed to be a
part thereof pursuant to Rule 430A or Rule 434 under the Securities Act, or
the omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not misleading; or
(ii) upon any untrue statement or alleged untrue statement of a material fact
contained in any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto), or the omission or alleged omission therefrom of 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 to
reimburse each Underwriter and each such controlling person for any and all
expenses (including the fees and disbursements of counsel chosen by the
Representatives) as such expenses are reasonably incurred by such Underwriter
or such controlling person in connection with investigating, defending,
settling, compromising or paying any such loss, claim, damage, liability,
expense or action; provided, however, that the foregoing indemnity agreement
shall not apply to any loss, claim, damage, liability or expense to the
extent, but only to the extent, arising out of or based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in
reliance upon and in conformity with written information furnished to the
Company by the Representatives expressly for use in the Registration
Statement, any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto); and provided, further, that with respect to any
preliminary prospectus, the foregoing indemnity agreement shall not inure to
the benefit of any Underwriter from whom the person asserting any loss, claim,
damage, liability or expense purchased Common Shares, or any person
controlling such Underwriter, if copies of the Prospectus were timely
delivered to the Underwriter pursuant to Section 2 and a copy of the
Prospectus (as then amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) was not sent or given by or
on behalf of such Underwriter to such person, if required by law so to have
been delivered, at or prior to the written confirmation of the sale of the
Common Shares to such person, and if the Prospectus (as so amended or
supplemented) would have cured the defect giving rise to such loss, claim,
damage, liability or expense. The indemnity agreement set forth in this
Section 8(a) shall be in addition to any liabilities that the Company may
otherwise have.
(b) Indemnification of the Company, its Directors and Officers. Each
Underwriter agrees, severally and not jointly, to indemnify and hold harmless
the Company, each of its directors, each of its officers who signed the
Registration Statement and each person, if any, who controls the Company
within the meaning of the Securities Act or the Exchange Act, against any
loss, claim, damage, liability or expense, as incurred, to which the Company,
or any such director, officer or controlling person may become subject, under
the Securities Act, the Exchange Act, or other federal or state statutory law
or regulation, or at common law or otherwise (including in settlement of any
litigation, if such settlement is effected with the written consent of such
Underwriter), insofar as such loss, claim, damage, liability or expense (or
actions in respect thereof as contemplated below) arises out of or is based
upon any untrue or alleged untrue statement of a material fact contained in
the Registration Statement, any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto), or arises out of or is based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in the
Registration Statement, any preliminary prospectus, the Prospectus (or any
amendment or supplement thereto), in reliance upon and in conformity with
written information furnished to the Company by the Representatives expressly
for use therein; and to reimburse the Company, or any such director, officer
or controlling person for any legal and other expense reasonably incurred by
the Company, or any such director, officer or controlling person in connection
with investigating, defending, settling, compromising or paying any such loss,
claim, damage, liability, expense or action. The Company hereby acknowledges
that the only information that the Underwriters have furnished to the Company
expressly for use in the Registration Statement, any preliminary prospectus or
the Prospectus (or any amendment or supplement thereto) are the statements set
forth in the table in the first paragraph, the first and third sentences in
the first paragraph within the subsection entitled "Commissions and
Discounts", and the statements set forth within the subsection entitled "Price
Stabilization, Short Positions and Penalty Bids", in each case under the
caption "Underwriting" in the Prospectus; and the Underwriters confirm that
such statements are correct. The indemnity agreement set forth in this Section
8(b) shall be in addition to any liabilities that each Underwriter may
otherwise have.
(c) Notifications and Other Indemnification Procedures. Promptly
after receipt by an indemnified party under this Section 8 of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against an indemnifying party under this Section 8,
notify the indemnifying party in writing 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 for contribution or
otherwise than under the indemnity agreement contained in this Section 8 or to
the extent it is not prejudiced as a proximate result of such failure. In case
any such action is brought against any indemnified party and such indemnified
party seeks or intends to seek indemnity from an indemnifying party, the
indemnifying party will be entitled to participate in, and, to the extent that
it shall elect, jointly with all other indemnifying parties similarly
notified, by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof with counsel reasonably satisfactory to such indemnified
party; provided, however, if the defendants in any such action include both
the indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that a conflict may arise between the
positions of the indemnifying party and the indemnified party in conducting
the defense of any such action or that there may be legal defenses available
to it and/or other indemnified parties which are different from or additional
to those available to the indemnifying party, the indemnified party or parties
shall have the right to select separate counsel to assume such legal defenses
and to otherwise participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from the indemnifying
party to such indemnified party of such indemnifying party's election so to
assume the defense of such action and approval by the indemnified party of
counsel, the indemnifying party will not be liable to such indemnified party
under this Section 8 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel (together with local counsel), approved by the indemnifying
party (the Representatives in the case of Section 8(b) and Section 9),
representing the indemnified parties who are parties to such action) or (ii)
the indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of the action, in each of which cases the fees
and expenses of counsel shall be at the expense of the indemnifying party.
(d) Settlements. The indemnifying party under this Section 8 shall
not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party against any loss, claim, damage, liability or expense by
reason of such settlement or judgment. Notwithstanding the foregoing sentence,
if at any time an indemnified party shall have requested an indemnifying party
to reimburse the indemnified party for fees and expenses of counsel as
contemplated by Section 8(c) hereof, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days after
receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement, compromise or consent to the entry of judgment
in any pending or threatened action, suit or proceeding in respect of which
any indemnified party is or could have been a party and indemnity was or could
have been sought hereunder by such indemnified party, unless such settlement,
compromise or consent includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such action,
suit or proceeding.
SECTION 9. Contribution. If the indemnification provided for in
Section 8 is for any reason held to be unavailable to or otherwise
insufficient to hold harmless an indemnified party in respect of any losses,
claims, damages, liabilities or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount paid or payable by
such indemnified party, as incurred, as a result of any losses, claims,
damages, liabilities or expenses referred to therein (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company, on
the one hand, and the Underwriters, on the other hand, from the offering of
the Common Shares pursuant to this Agreement or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company, on
the one hand, and the Underwriters, on the other hand, in connection with the
statements or omissions or inaccuracies in the representations and warranties
herein which resulted in such losses, claims, damages, liabilities or
expenses, 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 hand, in connection with the offering of the Common Shares pursuant
to this Agreement shall be deemed to be in the same respective proportions as
the total net proceeds from the offering of the Common Shares pursuant to this
Agreement (before deducting expenses) received by the Company, and the total
underwriting discount received by the Underwriters, in each case as set forth
on the front cover page of the Prospectus (or, if Rule 434 under the
Securities Act is used, the corresponding location on the Term Sheet) bear to
the aggregate initial public offering price of the Common Shares as set forth
on such cover. The relative fault of the Company, on the one hand, and the
Underwriters, on the other hand, shall be determined by reference to, among
other things, whether any such untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact or any
such inaccurate or alleged inaccurate representation or warranty relates to
information supplied by the Company, on the one hand, or the Underwriters, on
the other hand, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses,
claims, damages, liabilities and expenses referred to above shall be deemed to
include, subject to the limitations set forth in Section 8(c), any legal or
other fees or expenses reasonably incurred by such party in connection with
investigating or defending any action or claim. The provisions set forth in
Section 8(c) with respect to notice of commencement of any action shall apply
if a claim for contribution is to be made under this Section 9; provided,
however, that no additional notice shall be required with respect to any
action for which notice has been given under Section 8(c) for purposes of
indemnification.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 9 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 in this Section 9.
Notwithstanding the provisions of this Section 9, no Underwriter
shall be required to contribute any amount in excess of the underwriting
commissions received by such Underwriter in connection with the Common Shares
underwritten by it and distributed to the public. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Section 9 are several, and not joint, in
proportion to their respective underwriting commitments as set forth opposite
their names in Schedule A. For purposes of this Section 9, each officer and
employee of an Underwriter and each person, if any, who controls an
Underwriter within the meaning of the Securities Act and the Exchange Act
shall have the same rights to contribution as such Underwriter, and each
director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company with
the meaning of the Securities Act and the Exchange Act shall have the same
rights to contribution as the Company.
SECTION 10. Default of One or More of the Several Underwriters. If,
on the First Closing Date or any Option Closing Date, as the case may be, any
one or more of the several Underwriters shall fail or refuse to purchase
Common Shares that it or they have agreed to purchase hereunder on such date,
and the aggregate number of Common Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase does not exceed 10% of
the aggregate number of the Common Shares to be purchased on such date, the
other Underwriters shall be obligated, severally, in the proportions that the
number of Firm Common Shares set forth opposite their respective names on
Schedule A bears to the aggregate number of Firm Common Shares set forth
opposite the names of all such non-defaulting Underwriters, or in such other
proportions as may be specified by the Representatives with the consent of the
non-defaulting Underwriters, to purchase the Common Shares which such
defaulting Underwriter or Underwriters agreed but failed or refused to
purchase on such date. If, on the First Closing Date or any Option Closing
Date, as the case may be, any one or more of the Underwriters shall fail or
refuse to purchase Common Shares and the aggregate number of Common Shares
with respect to which such default occurs exceeds 10% of the aggregate number
of Common Shares to be purchased on such date, and arrangements satisfactory
to the Representatives and the Company for the purchase of such Common Shares
are not made within 48 hours after such default, this Agreement shall
terminate without liability of any party to any other party except that the
provisions of Section 4, Section 6, Section 8 and Section 9 shall at all times
be effective and shall survive such termination. In any such case either the
Representatives or the Company shall have the right to postpone the First
Closing Date or the Option Closing Date, as the case may be, but in no event
for longer than seven days in order that the required changes, if any, to the
Registration Statement and the Prospectus or any other documents or
arrangements may be effected.
As used in this Agreement, the term "Underwriter" shall be deemed to
include any person substituted for a defaulting Underwriter under this Section
10. Any action taken under this Section 10 shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
SECTION 11. Termination of this Agreement. Prior to the First Closing
Date this Agreement may be terminated by the Representatives by notice given
to the Company if at any time (i) trading or quotation in any of the Company's
securities shall have been suspended or limited by the Commission or by the
New York Stock Exchange, or trading in securities generally on either the
Nasdaq Stock Market or the New York Stock Exchange shall have been suspended
or limited; or minimum or maximum prices shall have been generally established
on any of such stock exchanges by the Commission or the NASD; (ii) a general
banking moratorium shall have been declared by any of federal, New York or
Delaware authorities; (iii) there shall have occurred any outbreak or
escalation of national or international hostilities or any crisis or calamity,
or any change in the United States or international financial markets, or any
substantial change or development involving a prospective substantial change
in United States' or international political, financial or economic
conditions, as in the judgment of the Representatives is material and adverse
and makes it impracticable to market the Common Shares in the manner and on
the terms described in the Prospectus or to enforce contracts for the sale of
securities; (iv) in the judgment of the Representatives there shall have
occurred any Material Adverse Change; or (v) the Company shall have sustained
a loss by strike, fire, flood, earthquake, accident or other calamity of such
character as in the judgment of the Representatives may interfere materially
with the conduct of the business and operations of the Company regardless of
whether or not such loss shall have been insured. Any termination pursuant to
this Section 11 shall be without liability on the part of (a) the Company to
any Underwriter, except that the Company shall be obligated to reimburse the
expenses of the Representatives and the Underwriters pursuant to Section 6
hereof, (b) any Underwriter to the Company, or (c) of any party hereto to any
other party except that the provisions of Section 8 and Section 9 shall at all
times be effective and shall survive such termination.
SECTION 12. Representations and Indemnities to Survive Delivery. The
respective indemnities, agreements, representations, warranties and other
statements of the Company, of its officers and of the several Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of any
Underwriter, the officers or employees of any Underwriter, any person
controlling any Underwriter, or the Company or any of its or their partners,
officers or directors or any controlling person, as the case may be, and will
survive delivery of and payment for the Common Shares sold hereunder and any
termination of this Agreement.
SECTION 13. Notices. All communications hereunder shall be in writing
and shall be mailed, hand delivered or telecopied and confirmed to the parties
hereto as follows:
If to the Representatives:
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Equity Capital Markets Syndicate Desk
Banc of America Securities LLC
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx
With a copy to:
Banc of America Securities LLC
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Legal Department
With a copy to:
Sidley Xxxxxx Xxxxx & Xxxx LLP
Bank One Plaza
00 X. Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxx
Sidley Xxxxxx Xxxxx & Xxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: J. Xxxxxx Xxxxxxx
If to the Company:
Global Signal Inc.
000 Xxxxx Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxxx X. XxXxxxxx, Esq. - Executive Vice President,
General Counsel and Secretary
With a copy to:
Fortress Investment Group LLC
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxx Xxxxxxx - General Counsel
And a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
0 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Coco, Esq.
Any party hereto may change the address for receipt of communications
by giving written notice to the others.
SECTION 14. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto, including any substitute Underwriters
pursuant to Section 10 hereof, and to the benefit of the employees, officers
and directors and controlling persons referred to in Section 8 and Section 9,
and in each case their respective successors, and no other person will have
any right or obligation hereunder. The term "successors" shall not include any
purchaser of the Common Shares as such from any of the Underwriters merely by
reason of such purchase.
SECTION 15. Partial Unenforceability. The invalidity or
unenforceability of any Section, paragraph or provision of this Agreement
shall not affect the validity or enforceability of any other Section,
paragraph or provision hereof. If any Section, paragraph or provision of this
Agreement is for any reason determined to be invalid or unenforceable, there
shall be deemed to be made such minor changes (and only such minor changes) as
are necessary to make it valid and enforceable.
SECTION 16. Governing Law Provisions. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SUCH STATE.
SECTION 17. General Provisions. This Agreement constitutes the entire
agreement of the parties to this Agreement and supersedes all prior written or
oral and all contemporaneous oral agreements, understandings and negotiations
with respect to the subject matter hereof. This Agreement may be executed in
two or more counterparts, each one of which shall be an original, with the
same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement may not be amended or modified unless in writing by
all of the parties hereto, and no condition herein (express or implied) may be
waived unless waived in writing by each party whom the condition is meant to
benefit. The Section headings herein are for the convenience of the parties
only and shall not affect the construction or interpretation of this
Agreement.
Each of the parties hereto acknowledges that it is a sophisticated
business person who was adequately represented by counsel during negotiations
regarding the provisions hereof, including, without limitation, the
indemnification provisions of Section 8 and the contribution provisions of
Section 9, and is fully informed regarding said provisions.
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Company, the
Underwriters, the Underwriters' officers and employees, any controlling
persons referred to herein, the Company's directors and the Company's officers
who signed the Registration Statement and their respective successors and
assigns, all as and to the extent provided in this Agreement, and no other
person shall acquire or have any right under or by virtue of this Agreement.
The term "successors and assigns" shall not include a purchaser of any of the
Common Shares from any of the several Underwriters merely because of such
purchase.
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to the Company the enclosed copies hereof,
whereupon this instrument, along with all counterparts hereof, shall become a
binding agreement in accordance with its terms.
Very truly yours,
GLOBAL SIGNAL INC.
By: /s/ Xxxxxx X. Xxxxx
------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chief Executive Officer and
Chairman of the Board of Directors
The foregoing Underwriting Agreement is hereby confirmed and accepted
by the Representatives in New York, New York as of the date first above
written.
XXXXXX XXXXXXX & CO. INCORPORATED
BANC OF AMERICA SECURITIES LLC
Acting as Representatives of the
several Underwriters named in the
attached Schedule A.
By: Xxxxxx Xxxxxxx & Co. Incorporated
By: /s/ Xxxxx Xxxxxxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxxxxxx
Title: Executive Director
By: Banc of America Securities LLC
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
SCHEDULE A
Number of Firm
Common Shares
Underwriters to be Purchased
---------------------------------------------------------- ---------------
Xxxxxx Xxxxxxx & Co. Incorporated ...................... 1,868,750
Banc of America Securities LLC ......................... 1,868,750
Citigroup Global Markets Inc. .......................... 862,500
Xxxxxxx Xxxxx & Associates, Inc. ....................... 862,500
Xxxxxxxx & Company, Inc................................. 287,500
--------------
Total ......................................... 5,575,000
SCHEDULE B
Non-Investment Grade Insurers
Excess D&O insurance policy held by the Company with a limit of liability of
$5.0 million in excess of $25.0 million has been issued by Arch Insurance,
which insurer carries a rating of BBB-.
EXHIBIT A
May , 2005
XXXXXX XXXXXXX & CO. INCORPORATED
BANC OF AMERICA SECURITIES LLC
CITIGROUP GLOBAL MARKETS INC.
XXXXXXX XXXXX & ASSOCIATES INC.
XXXXXXXX & COMPANY, INC.
c/o MORGAN XXXXXXX & CO. INCORPORATED
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
and
BANC OF AMERICA SECURITIES LLC
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
as Representatives of the several Underwriters
Re: Global Signal Inc. (the "Company") Public Offering of Common Stock
Ladies and Gentlemen:
The undersigned is an owner of record or beneficially of certain
shares of common stock of the Company, par value $0.01 per share ("Common
Stock"), or securities convertible into or exchangeable or exercisable for
Common Stock. The Company proposes to carry out a public offering of Common
Stock (the "Offering") for which you will act as the representatives of the
underwriters. The undersigned recognizes that the Offering will be of benefit
to the undersigned and will benefit the Company by, among other things,
raising additional capital for acquisitions and its operations. The
undersigned acknowledges that you and the other underwriters are relying on
the representations and agreements of the undersigned contained in this letter
in carrying out the Offering and in entering into underwriting arrangements
with the Company with respect to the Offering. Terms not defined herein shall
have the meaning assigned to them in the Underwriting Agreement, dated May
___, 2005, by and among the Company, Xxxxxx Xxxxxxx & Co. Incorporated and
Banc of America Securities LLC, as Representatives of the several
Underwriters.
In consideration of the foregoing, the undersigned agrees with the
underwriters that, prior to 30 days after the date of the Prospectus relating
to the Offering, the undersigned will not directly or indirectly offer,
pledge, sell, contract to sell, sell any option or contract to purchase or
otherwise dispose of any shares of Common Stock or any securities convertible
into or exercisable or exchangeable for shares of Common Stock, or in any
manner transfer all or a portion of the economic consequences associated with
the ownership of shares of Common Stock, or cause a registration statement
covering any shares of Common Stock to be filed, without the prior written
consent of the Representative [Add the following language to the letter for
FRIT PINN LLC, and its affiliates that have pledged securities under a credit
agreement: ; provided, however, that the foregoing shall not limit or
otherwise affect in any respect the rights of the Lenders (as defined below)
(i) under a certain Credit Agreement, dated as of December 21, 2004 and
amended as of March 1, 2005 (the "Fortress Credit Agreement"), by and among
the undersigned, Bank of America, N.A., as Administrative Agent, each lender
from time to time party thereto, and Banc of America Securities LLC and Xxxxxx
Xxxxxxx Asset Funding Inc., as Joint Lead Arrangers and Joint Book Managers
(collectively, the "Lenders"), and (ii) under the Security Agreements (as such
term is defined in the Fortress Credit Agreement), to dispose of, seize, or
take any other action with respect to the 19,162,248 shares of Common Stock
pledged to the Lenders, including, without limitation, the filing of a shelf
registration statement with respect to the shares of Common Stock pledged to
the Lenders.] [Add the following language to the letter for Xxxxxxxxx and its
affiliates: ; provided, however, that the foregoing shall not limit or
otherwise affect in any respect the rights of the Lenders (as defined below)
(i) under a certain Credit Agreement, dated as of February 16, 2005 (the
"Xxxxxxxxx Credit Agreement"), by and among the undersigned, Xxxxxx Xxxxxxx
Asset Funding Inc., and certain lenders (collectively, the "Lenders"), and
(ii) the security agreements entered into in connection with the Xxxxxxxxx
Credit Agreement, to dispose of, seize, or take any other action with respect
to the 8,383,234 shares of Common Stock pledged to the Lenders, including,
without limitation, the filing of a shelf registration statement with respect
to the shares of Common Stock pledged to the Lenders.] [Add the following
language to the letter for each officer: ; provided, however, that the
foregoing shall not limit or otherwise affect in any respect the ability of
the undersigned (i) to sell shares of Common Stock beneficially owned by the
undersigned pursuant to, and in accordance with, the undersigned's trading
plan established prior to the date hereof pursuant to Rule 10b5-1(c)(1) of the
Exchange Act or (ii) to enter into a new Rule 10b5-1(c)(1) trading plan with
respect to shares of Common Stock beneficially owned by the undersigned; so
long as no sales of shares of Common Stock are made pursuant to such new plan
prior to the expiration of the restricted period described herein.]
The 30-day restricted period described above is subject to extension
such that, in the event that either (1) during the last 17 days of the 30-day
restricted period, the Company issues an earnings release or material news or
a material event relating to us occurs or (2) prior to the expiration of the
30-day restricted period, the Company announces that it will release earnings
results during the 16-day period beginning on the last day of the 30-day
period, the "lock-up" restrictions described above will continue to apply
until the expiration of the 18-day period beginning on the earnings release or
the occurrence of the material news or material event.
With respect to the Offering only, the undersigned waives any
registration rights relating to registration under the Securities Act of any
Common Stock owned either of record or beneficially by the undersigned,
including any rights to receive notice of the Offering.
This agreement is irrevocable and will be binding on the undersigned
and the respective successors, heirs, personal representatives, and assigns of
the undersigned.
[Signature page follows]
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Printed Name of Holder
By:
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Signature
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Printed Name of Person Signing (and indicate
capacity of person signing if signing as
custodian, trustee, or on behalf of an entity)
