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EXHIBIT 1.1
WORLDCOM, INC.
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
________ __, 1997
From time to time, WorldCom, Inc., a Georgia corporation (the
"Company"), may enter into one or more agreements that provide for the sale of
designated securities to the several Underwriters named therein. The standard
provisions set forth herein may be incorporated by reference in any such
agreement (a "Terms Agreement"). The Terms Agreement, including the provisions
incorporated therein by reference, is herein referred to as the "Underwriting
Agreement". Unless otherwise defined herein, terms defined in the Terms
Agreement are used herein as therein defined. A form of Terms Agreement is
attached hereto as Exhibit A.
The Company proposes to issue from time to time debt
securities to be issued pursuant to the provisions of (i) an indenture relating
to Senior Debt Securities, dated as of _______________, between the Company
and _______________________, as Trustee (as supplemented or amended from time
to time, the "Senior Indenture"), or (ii) an indenture relating to Subordinated
Debt Securities, dated as of _______________, between the Company and
_________________, as Trustee (as supplemented or amended from time to time,
the "Subordinated Indenture"). The Terms Agreement will specify whether the
debt securities being offered are Senior Debt Securities or Subordinated Debt
Securities and the indenture pursuant to which such securities are being issued
(referred to herein as the ''Indenture").
The debt securities will have varying designations,
maturities, rates and times of payment of interest, selling prices, redemption
terms and other terms. Any such debt securities are herein sometimes referred
to individually as the "Offered Securities" and collectively as the
"Securities".
The term "you" or "your" as used herein, unless the context
otherwise requires, shall mean such of the parties to whom this Underwriting
Agreement is addressed as are named in the applicable Terms Agreement. Each
offering of Securities will be made through one or more of you or through an
underwriting syndicate managed by one or more of you.
The Company has filed with the Securities and Exchange
Commission (the "Commission"), in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations thereunder
(herein referred to collectively as the "Act"), a registration statement (File
No. 333-______) on Form S-3, including a prospectus relating to the
Securities, and has filed or proposes to file with the Commission a prospectus
supplement or supplements specifically relating to the Offered Securities
pursuant to Rule 424 under the Act in the form furnished by the Company to the
Manager or Managers named in the Terms Agreement (the "Manager") or, to the
extent not completed at the time of execution of the Terms Agreement, in such
form as the Company and the Manager shall have agreed to at such time. The
term Registration Statement means the registration statement as amended to the
date of the Terms Agreement. The term Basic Prospectus means the prospectus
included in the Registration
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Statement. The term Prospectus means the Basic Prospectus together with the
prospectus supplement (other than a preliminary prospectus supplement)
specifically relating to the Offered Securities in the form first used to
confirm sales of the Offered Securities. The term preliminary prospectus means
a preliminary prospectus supplement specifically relating to the Offered
Securities, together with the Basic Prospectus. As used herein, the terms
"Registration Statement", "Basic Prospectus", "Prospectus" and "preliminary
prospectus" shall include, in each case, the material, if any, incorporated by
reference therein.
The Company and the Underwriters agree as follows:
SECTION 1. Representations and Warranties. The Company
represents and warrants to each of the Underwriters that:
(a) The Registration Statement has become effective; no
stop order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or threatened by
the Commission.
(b) (i) Each document, if any, filed or to be filed
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and incorporated by reference in the Prospectus complied or will comply
when so filed in all material respects with the Exchange Act and the applicable
rules and regulations of the Commission thereunder, (ii) each part of the
Registration Statement, when such part became effective, did not contain, and
each such part, as amended or supplemented, if applicable, 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, (iii) the Registration Statement and the Prospectus comply, and, as
amended or supplemented, if applicable, will comply in all material respects
with the Act and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act") and the applicable rules and regulations of the Commission
thereunder and (iv) the Prospectus does not contain and, as amended or
supplemented, if applicable, will not, as of the applicable filing date as to
the Prospectus and any amendment or supplement thereto, contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the Company makes no
representations or warranties as to (A) the information contained in or omitted
from the Registration Statement, or the Prospectus (or any supplement thereto)
in reliance upon and in conformity with information furnished in writing to the
Company by or on behalf of any Underwriter through the Manager specifically for
use in connection with the preparation of the Registration Statement or the
Prospectus (or any supplement thereto) or (B) to that part of the Registration
Statement that constitutes the Statement of Eligibility and Qualification (Form
T- 1) under the Trust Indenture Act.
(c) No action has been taken and no statute, rule,
regulation or order has been enacted, adopted or issued by any governmental
agency or body that prevents the issuance of the Offered Securities, suspends
the effectiveness of the Registration Statement, prevents or suspends the use
of any preliminary prospectus, or suspends the sale of the Offered Securities
in any jurisdiction referred to in Section 4(h) below; provided, however, that
to the extent this
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representation relates to state securities or "blue sky" laws and laws of
jurisdictions other than the United States and its political subdivisions, it
shall be limited to the knowledge of the Company. No injunction, restraining
order or order of any nature by a Federal or state court of competent
jurisdiction has been issued and served on the Company or any of the
Subsidiaries (as defined in Section 1(e) below) with respect to the Company or
any of the Subsidiaries that would prevent or suspend the issuance or sale of
the Offered Securities, the effectiveness of the Registration Statement, or the
use of any preliminary prospectus in any jurisdiction referred to in Section
4(h) below.
(d) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus, except
as set forth in the Prospectus, neither the Company nor any of the Subsidiaries
has incurred any liabilities or obligations, direct or contingent, which are
material to the Company and the Subsidiaries taken as a whole, nor entered into
any material transaction not in the ordinary course of business, and there has
not been, singularly or in the aggregate, any material adverse change, in the
properties, business, results of operations, financial condition, affairs or
business prospects of the Company and its Subsidiaries taken as a whole (a
"Material Adverse Change"). Without limiting the foregoing, neither the
Company nor any of its Subsidiaries has sustained since the date of the latest
audited financial statements included, or incorporated by reference, in the
Prospectus any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus; and, since the
respective dates as of which information is given in the Registration Statement
and the Prospectus, except as set forth in the Prospectus, there has not been
any material change in the capital stock or long-term debt of the Company or
any of the Subsidiaries.
(e) The Subsidiaries of the Company listed on Exhibit C
hereto (individually a "Subsidiary" and collectively, the "Subsidiaries") are
the Significant Subsidiaries of the Company (within the meaning of Rule 405
under the Act). Each of the Company and the Subsidiaries (x) has been duly
organized and is validly existing as a corporation in good standing under the
laws of its jurisdiction of organization, (y) has the requisite corporate power
and authority to carry on its business as it is currently being conducted and
as described in the Prospectus, and to own, lease and operate its properties
and (z) is duly qualified and is authorized to do business and is in good
standing in each jurisdiction where the operation, ownership or leasing of
property or the conduct of its business requires such qualification, except
where any failure to be so qualified would not, singularly or when aggregated
with failures to be qualified elsewhere, have a material adverse effect on the
properties, business, results of operations, financial condition, affairs or
prospects of the Company and its Subsidiaries taken as a whole (a "Material
Adverse Effect"). The Company has the requisite power and authority to
authorize the offering of the Offered Securities to be sold by it, to execute,
deliver and perform this Underwriting Agreement and to issue, sell and deliver
the Offered Securities to be sold by it.
(f) The Company has an authorized capitalization as set
forth in the Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and are fully paid and non-
assessable. All of the issued and outstanding
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shares of capital stock of each Subsidiary have been duly and validly
authorized and issued, are fully paid and non- assessable and (except as set
forth or contemplated in the Prospectus) are owned, directly or through
Subsidiaries, by the Company, free and clear of any liens, claims or
encumbrances ("Liens"). There are no outstanding subscriptions, rights,
warrants, options, calls, convertible securities, commitments of sale or Liens
related to or entitling any person to purchase or otherwise to acquire any
shares of the capital stock of any Subsidiary, except as set forth or
contemplated in the Prospectus.
(g) The Company has all requisite corporate power and
authority to execute, issue and deliver the Offered Securities and to execute
and deliver the Indenture and to incur and perform its obligations provided for
therein.
(h) This Underwriting Agreement has been duly authorized
and validly executed and delivered by the Company and constitutes a valid and
legally binding agreement of the Company, enforceable against the Company in
accordance with its terms (assuming the due execution and delivery of the Terms
Agreement by the Manager on behalf of the several Underwriters), except to the
extent enforceability of any indemnification provisions may be limited by
public policy.
(i) The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by the
Company, and constitutes the valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, subject to
applicable bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general principles of equity and except to the extent
enforceability of any indemnification provisions may be limited by public
policy.
(j) The Offered Securities have been duly authorized,
and, when executed by the Company and authenticated by the Trustee in
accordance with the terms of the Indenture, and delivered to and duly paid for
by the Underwriters in accordance with the terms of this Underwriting Agreement
and the Terms Agreement, will be entitled to the benefits of the Indenture and
will conform in all material respects to the description thereof in the
Prospectus and will constitute valid and binding obligations of the Company
enforceable against the Company in accordance with the terms hereof, subject to
applicable bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general principles of equity and except to the extent
enforceability of any indemnification provisions may be limited by public
policy.
(k) The execution and delivery of this Underwriting
Agreement, the issuance and sale of the Offered Securities, the performance by
the Company of this Underwriting Agreement and the Indenture, and the
consummation of the other transactions herein contemplated will not (x)
conflict with or result in a breach or violation of any of the respective
charters or by-laws of the Company or any of the Subsidiaries or (y) after
giving effect to the waivers and consents obtained on or prior to the date
hereof, if any, conflict with or result in a breach or violation of any term or
provision of, constitute a default or cause an acceleration of
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any obligation under, or result in the imposition or creation of (or the
obligation to create or impose) a Lien with respect to, any bond, note,
debenture or other evidence of indebtedness or any indenture, mortgage, deed of
trust or other agreement or instrument to which the Company or any of the
Subsidiaries is a party or by which it or any of them is bound, or to which any
properties of the Company or any of the Subsidiaries is subject, or (z)
contravene any order of any court or governmental agency or body having
jurisdiction over the Company or any of the Subsidiaries or any of their
properties, or violate or conflict with any statute, rule or regulation or
administrative or court decree applicable to the Company or any of the
Subsidiaries, or any of their respective properties. No authorization,
approval or consent or order of, or filing, registration or qualification with,
any court or governmental body or agency is required in connection with the
transactions contemplated by this Underwriting Agreement, except as may be
required by and made with or obtained from the National Association of
Securities Dealers, Inc. (the "NASD") or state securities or "blue sky" laws
or regulations or have been obtained and made under the Act.
(l) There is no action, suit or proceeding before or by
any court, arbitrator or governmental official, agency or body, domestic or
foreign, pending against or affecting the Company or any of the Subsidiaries,
or any of their respective properties, that is required to be disclosed in the
Prospectus and is not so disclosed, or that, if determined adversely, is
reasonably expected to affect adversely the issuance of the Offered Securities
or in any manner draw into question the validity of this Underwriting Agreement
or the Offered Securities or to result, singularly or when aggregated with
other pending actions and actions known to be threatened, in a Material Adverse
Effect, or that is reasonably expected to materially and adversely affect the
consummation of this Underwriting Agreement or the transactions contemplated
hereby, and to the best of the Company's knowledge, no such proceedings are
contemplated or threatened. No contract or document of a character required to
be described in the Registration Statement or the Prospectus or to be filed as
an exhibit to the Registration Statement is not so described or filed.
(m) The firm of accountants that has certified or shall
certify the applicable consolidated financial statements and supporting
schedules of the Company filed or to be filed as part of the Registration
Statement or the Prospectus are independent public accountants with respect to
the Company and its subsidiaries, as required by the Act. The consolidated
historical statements and any pro forma information, together with related
schedules and notes, if any, included in the Registration Statement or the
Prospectus comply as to form in all material respects with the requirements of
the Act. Such historical financial statements fairly present the consolidated
financial position of the Company and its Subsidiaries at the respective dates
indicated and the results of their operations and their cash flows for the
respective periods indicated, in accordance with generally accepted accounting
principles ("GAAP"), except as otherwise expressly stated therein, as
consistently applied throughout such periods. Such pro forma information has
been prepared on a basis consistent with such historical financial statements,
except for the pro forma adjustments specified therein, and gives effect to
assumptions made on a reasonable basis and fairly presents and gives effect to
the transactions described therein pertaining to such pro forma information.
The other financial and statistical information and data included in the
Prospectus and in the Registration Statement, historical and
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pro forma, are, in all material respects, accurately presented and prepared on
a basis consistent with such financial statements and the books and records of
the Company.
(n) Each of the Company and the Subsidiaries has all
certificates, consents, exemptions, orders, permits, licenses, authorizations,
or other approvals (each, an "Authorization") of and from, and has made all
declarations and filings with, all Federal, state, local and other governmental
authorities, all self-regulatory organizations and all courts and other
tribunals, necessary or required to own, lease, license and use its properties
and assets and to conduct its business in the manner described in the
Prospectus, except to the extent that the failure to obtain or file any such
Authorizations would not, singularly or in the aggregate, reasonably be
expected to have a Material Adverse Effect. All such Authorizations are in
full force and effect with respect to the Company and the Subsidiaries, and the
Company and the Subsidiaries are in compliance in all material respects with
the terms and conditions of all such Authorizations and with the rules and
regulations of the regulatory authorities and governing bodies having
jurisdiction with respect thereto.
(o) Except as disclosed in the Prospectus, no holder of
any security of the Company has or will have any right to require the
registration of such security by virtue of the filing of the Registration
Statement or any transactions contemplated by this Underwriting Agreement other
than any such right that has been expressly waived in writing. No holder of
any of the outstanding shares of capital stock of the Company or other person
is entitled to preemptive or other rights to subscribe for the Offered
Securities.
(p) The Company has not (i) taken, directly or
indirectly, any action designed to cause or to result in, or that has
constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Offered Securities or (ii) sold, bid for,
purchased, or paid anyone any compensation for soliciting purchases of, the
Offered Securities, or (iii) paid or agreed to pay to any person any
compensation for soliciting another to purchase any other securities of the
Company.
(q) If the Offered Securities are convertible into shares
of the Company's Common Stock, the shares of Common Stock to be issued upon
conversion of the Offered Securities pursuant to the Indenture have been duly
authorized and reserved for issuance, and are sufficient in number for such
conversion, and, when so issued upon such conversion will be duly authorized,
validly issued, fully paid and nonassessable.
SECTION 2. Delivery and Payment. The several
commitments of the Underwriters to purchase, and the obligation of the Company
to sell, Securities pursuant to any Terms Agreement shall be deemed to have
been made on the basis of the representations and warranties herein contained
and shall be subject to the terms and conditions herein set forth.
Payment for the Offered Securities shall be made by the
several Underwriters of the Offered Securities through the Manager by either
(i) certified or official bank check or checks drawn on or by a New York
Clearing House bank and payable in next day funds, (ii) a wire transfer in
Federal Funds or other same day funds provided that the Company shall reimburse
the
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Manager for the expense (including overnight interest expense) of such funding,
or (iii) by such other means as may be specified in the Terms Agreement, at the
time and place set forth in the Terms Agreement, upon delivery to the Manager
for the respective accounts of the several Underwriters of the Offered
Securities registered in such names and in such denominations as the Manager
shall request not less than two full business days prior to the date of
delivery. The time and date of such payment and delivery with respect to the
Offered Securities are herein referred to as the Closing Date.
If authorized by the applicable Terms Agreement, the
Underwriters named therein may solicit offers to purchase Offered Securities
from the Company pursuant to delayed delivery contracts ("Delayed Delivery
Contracts") substantially in the form of Exhibit B hereto with such changes
therein as the Company may approve. As compensation for arranging Delayed
Delivery Contracts, the Company will pay to you at Closing Time, for the
accounts of the Underwriters, a fee equal to that percentage of the principal
amount of Offered Securities for which Delayed Delivery Contracts are made at
Closing Time as is specified in the applicable Terms Agreement. Payment for
such compensation shall be made by certified or official bank check in New York
Clearing House funds or by such other means as may be specified in the Terms
Agreement. Any Delayed Delivery Contracts are to be with institutional
investors of the types set forth in the Prospectus. At Closing Time the
Company will enter into Delayed Delivery Contracts (for not less than the
minimum principal amount of Securities per Delayed Delivery Contract specified
in the applicable Terms Agreement) with all purchasers proposed by the
Underwriters and previously approved by the Company as provided below, but not
for an aggregate principal amount of Offered Securities in excess of that
specified in the applicable Terms Agreement. The Underwriters will not have
any responsibility for the validity or performance of Delayed Delivery
Contracts.
You are to submit to the Company, within a reasonable time
prior to Closing Time, the names of any institutional investors with which it
is proposed that the Company will enter into Delayed Delivery Contracts and the
principal amount of Offered Securities to be purchased by each of them, and the
Company will advise you, within a reasonable time after receipt of such names
and prior to Closing Time, of the names of the institutions with which the
making of Delayed Delivery Contracts is reasonably objected to by the Company
and the principal amount of Offered Securities to be covered by each such
Delayed Delivery Contract.
The principal amount of Offered Securities agreed to be
purchased by the respective Underwriters pursuant to the applicable Terms
Agreement shall be reduced by the principal amount of Offered Securities
covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a
written notice delivered by you to the Company; provided, however, that the
total principal amount of Offered Securities to be purchased by all
Underwriters shall be the total amount of Offered Securities covered by the
applicable Terms Agreement, less the principal amount of Offered Securities
covered by Delayed Delivery Contracts.
SECTION 3. Offering by Underwriters. The Company is
advised by the Manager that the Underwriters propose to make a public offering
of their respective portions of the Offered Securities as soon after this
Underwriting Agreement and a Terms Agreement are
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entered into as in the Manager's judgment is advisable. The terms of the
public offering of the Offered Securities are set forth in the Prospectus.
SECTION 4. Agreements. The Company agrees with the
several Underwriters, and in the case of paragraph (g) of this Section 4, the
Underwriters agree with the Company:
(a) The Company will use its best efforts to cause the
Registration Statement, and any amendment thereof, to be declared effective by
the Commission. Prior to the termination of the offering of the Offered
Securities, the Company will not file any amendment of the Registration
Statement or supplement to the Prospectus without the prior consent of the
Manager, which consent shall not be unreasonably withheld. Subject to the
foregoing sentence, if filing of the Prospectus is required under Rule 424(b),
the Company will cause the Prospectus, properly completed, and any supplement
thereto to be filed with the Commission pursuant to the applicable paragraph of
Rule 424(b) within the time period prescribed and will provide evidence
satisfactory to the Manager of such timely filing. The Company will promptly
advise the Manager (i) when the Registration Statement, and any amendment
thereto, shall have become effective, (ii) when the Prospectus, and any
supplement thereto, shall have been filed (if required) with the Commission
pursuant to Rule 424(b), (iii) when, prior to termination of the offering of
the Offered Securities, any amendment to the Registration Statement shall have
been filed or become effective, (iv) of any request by the Commission for any
amendment of the Registration Statement or supplement to the Prospectus or for
any additional information, (v) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the Company
becoming aware of the institution or threatening of any proceeding for that
purpose and (vi) of the receipt by the Company of any notification with respect
to the suspension of the qualification of the Offered Securities for sale in
any jurisdiction or the initiation or threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent the issuance of any
such stop order and, if issued, to obtain as soon as possible the withdrawal
thereof.
(b) As soon as practicable, the Company will make
generally available to its security holders and to the Manager, an earnings
statement or statements of the Company and its Subsidiaries which will satisfy
the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(c) To furnish the Manager, without charge, two manually
or facsimile signed copies of the Registration Statement (including exhibits
thereto and documents incorporated therein by reference) and, during the period
mentioned in paragraph (c) below, as many copies of the Prospectus, any
documents incorporated therein by reference, and any supplements and amendments
thereto as the Manager may reasonably request. The Company agrees to timely
file the Prospectus pursuant to Rule 424 and to provide the Manager with
evidence of such filing. The terms "supplement" and "amendment" or "amend" as
used in this Underwriting Agreement shall include all documents subsequently
filed by the Company with the Commission pursuant to the Exchange Act that are
deemed to be incorporated by reference in the Prospectus.
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(d) Before amending or supplementing the Registration
Statement or the Prospectus, to furnish the Manager a copy of each such
proposed amendment or supplement and to file no such proposed amendment or
supplement to which the Manager reasonably objects in writing; provided that
the foregoing shall not apply to amendments or supplements that relate to
securities registered under the Registration Statement that are not Offered
Securities.
(e) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs as a
result of which the Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, or if it shall be necessary to amend the
Registration Statement or supplement the Prospectus to comply with the Act or
the rules thereunder, the Company will promptly prepare and file with the
Commission, subject to the second sentence of paragraph (a) of this Section 4,
an amendment or supplement which will correct such statement or omission or
effect such compliance.
(f) The Company will cooperate with the Manager and
counsel for the Manager in connection with endeavoring to obtain qualification
of the Offered Securities for sale under the laws of such jurisdictions as the
Manager may designate, will maintain such qualifications in effect so long as
required for the distribution of the Offered Securities, and will pay the fee
of the NASD, if any, in connection with its review of the offering; provided,
however, that the Company shall not be required to file any general consent to
service of process or to qualify as a foreign corporation or as a dealer in
securities in any jurisdiction in which it is not so qualified or to subject
itself to taxation in respect of doing business in any jurisdiction in which it
is not otherwise so subject.
(g) Each Underwriter agrees with the Company that it has
not offered or sold, and agrees not to offer or sell, any of the Securities,
directly or indirectly, in Canada in contravention of the securities laws of
Canada or any province or territory thereof and, without limiting the
generality of the foregoing, represents that any offer of the Securities in
Canada will be made only pursuant to an exemption from the requirement to file
a prospectus in the province or territory of Canada in which such offer is
made. Each Underwriter further agrees to send to any dealer who purchases from
it any of the Securities a notice stating in substance that, by purchasing such
Securities, such dealer represents and agrees that it has not offered or sold,
and will not offer or sell, directly or indirectly, any of such Securities in
Canada or to, or for the benefit of, any resident of Canada in contravention of
the securities laws of Canada or any province or territory thereof and that any
offer of Securities in Canada will be made only pursuant to an exemption from
the requirement to file a prospectus in the province or territory of Canada in
which such offer is made, and that such dealer will deliver to any other dealer
to whom it sells any of the Securities a notice containing substantially the
same statement as is contained in this sentence.
(h) During the period beginning on the date of this
Underwriting Agreement and continuing to and including the Closing Date or such
other date as may be specified in the Terms Agreement, not to offer, sell,
contract to sell or otherwise dispose of any securities of the
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Company that are similar to the Offered Securities (other than the Offered
Securities) without the prior written consent of the Manager. The foregoing
shall not restrict the Company from borrowings under revolving credit
agreements and lines of credit and issuances of commercial paper or interest
rate swaps.
SECTION 5. Conditions of Underwriters' Obligations. The
several obligations of the Underwriters to purchase and pay for the Offered
Securities hereunder are subject to the following conditions:
(a) That, at the Closing Date, the Company shall have
furnished to the Manager an opinion of counsel for the Company, addressed to
the Manager and dated the Closing Date, to the effect of Exhibit D.
(b) That, at the Closing Date, the Manager shall have
received an opinion of counsel for the Underwriters, addressed to the Manager
and dated the Closing Date, to the effect of Exhibit E.
(c) That the representations and warranties of the
Company in this Underwriting Agreement are true and correct in all material
respects on the Closing Date with the same effect as if made on the Closing
Date and the Company shall have complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied at or prior to the
Closing Date.
(d) That no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that purpose
have been instituted or, to the Company's knowledge, threatened.
(e) That subsequent to the execution and delivery of this
Underwriting Agreement and prior to the Closing Date, there shall not have
occurred any downgrading, nor shall any notice have been given to the Company
of (A) any intended or potential downgrading or (B) any review or possible
change that does not indicate the direction of a possible change, in the rating
accorded any of the Company's securities by either of Standard & Poor's Ratings
Group or Xxxxx'x Investors Service, Inc.
(f) Since the date of the most recent financial
statements included in the Prospectus (exclusive of any supplement thereto),
there has been no Material Adverse Change, whether or not arising from
transactions in the ordinary course of business, except as set forth in or
contemplated in the Prospectus (exclusive of any supplement thereto).
(g) That, at the Closing Date, there shall not have been
(i) any change or decrease specified in the letter or letters referred to in
paragraph (i) of this Section 5 or (ii) any change, or any development
involving a prospective change, in or affecting the business or properties of
the Company and the Subsidiaries the effect of which, in any case referred to
in clause (i) or (ii) above, is, in the judgment of the Manager, so material
and adverse as to make it impractical or inadvisable to proceed with the public
offering or the delivery of the Securities as
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contemplated by the Registration Statement and the Prospectus (exclusive of any
supplement thereto).
(h) That, at the Closing Date, the Company shall have
furnished to the Manager a certificate of the Company, signed by the Chairman
of the Board or the President and the principal financial or accounting officer
of the Company, each in his official capacity as an officer of the Company and
not as an individual, dated the Closing Date, stating that the signers of such
certificate have carefully examined the Registration Statement, the Prospectus,
any supplement to the Prospectus and this Underwriting Agreement and to the
effect of subparagraphs (c) through (g) of this Section 5.
(i) That, at the date on which the Terms Agreement is
executed and delivered and at the Closing Date, the Company's independent
public accountants shall have furnished to the Manager a letter or letters,
dated respectively as of the date of the applicable Terms Agreement (unless
otherwise specified therein) and the Closing Date, in form and substance
satisfactory to the Manager, to the effect of Exhibit F.
(j) That the Company shall have delivered to the Manager
and its counsel such documents as they may reasonably request relating to the
issuance and sale of the Offered Securities or otherwise related to the matters
contemplated hereby.
If any of the conditions specified in this Section 5 shall not
have been fulfilled in all material respects when and as provided in this
Underwriting Agreement, or if any of the opinions and certificates mentioned
above or elsewhere in this Underwriting Agreement shall not be in all material
respects reasonably satisfactory in form and substance to the Manager and its
counsel, this Underwriting Agreement and all obligations of the Underwriters
hereunder may be cancelled at, or at any time prior to, each Closing Date by
the Manager. Notice of such cancellation shall be given to the Company in
writing or by telephone or telegraph confirmed in writing.
SECTION 6. Reimbursement of Underwriters' Expenses. If
the sale of the Offered Securities provided for herein is not consummated for
any reason (other than a breach by the Underwriters of their obligations
hereunder), the Company will reimburse the Underwriters severally, upon demand,
for all reasonable out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them in connection
with the proposed purchase and sale of the Offered Securities. If the sale of
the Offered Securities provided for herein is not consummated because of a
breach of an Underwriter or Underwriters of their obligations hereunder, the
Company will be responsible to reimburse the non-breaching Underwriters
severally, upon demand, for all out-of-pocket expenses (including reasonable
fees and disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Offered Securities. If
the sale of the Offered Securities provided for herein is consummated, the
Underwriters will be responsible for all out-of-pocket expenses (other than for
those relating to blue sky filings and filings in Canada or any Provinces
thereof and with the NASD and related fees and disbursements of their counsel)
that shall have been incurred by them in connection with the purchase and sale
of the Offered Securities.
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SECTION 7. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless
each Underwriter and each person who controls any Underwriter within the
meaning of the Act against any and all losses, claims, expenses, damages or
liabilities, joint or several, to which they or any of them may become subject
under the Act, the Exchange Act or other Federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims,
expenses. damages or liabilities (or actions in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or Prospectus (as amended
or supplemented if the Company shall have furnished any amendments or
supplements thereto) or any Basic Prospectus or any preliminary prospectus, or
arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances in which they were made,
not misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage
liability or action; provided, however, (i) the Company will not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
any Underwriter through the Manager specifically for use in connection with the
preparation thereof, and (ii) such indemnity with respect to any Basic
Prospectus or preliminary prospectus shall not inure to the benefit of any
Underwriter (or any person controlling such Underwriter) from whom the person
asserting any such loss, claim, damage or liability purchased the Offered
Securities which are the subject thereof if such person did not receive a copy
of the Prospectus (as then amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) at or prior to the
confirmation of the sale of such Offered Securities to such person in any case
where such delivery is required by the Act and the untrue statement or omission
of a material fact contained in such Basic Prospectus or preliminary prospectus
was corrected in the Prospectus (as so amended or supplemented). This
indemnity agreement is in addition to any liability which the Company may
otherwise have.
(b) Each of the Underwriters severally agrees to
indemnify and hold harmless the Company, each of its directors, each of its
officers who signs the Registration Statement, and each person who controls the
Company within the meaning of the Act, to the same extent as the foregoing
indemnity from the Company to each Underwriter, but only with reference to
written information furnished to the Company by or on behalf of such
Underwriter through the Manager specifically for use in the preparation of the
documents referred to in the foregoing indemnity. This indemnity agreement
will be in addition to any liability which any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under
this Section 7 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 7, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
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indemnifying party will not relieve it from any liability which it may have to
any indemnified party otherwise than under this Section 7. In case any such
action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to appoint counsel satisfactory to such indemnified party to represent
the indemnified party in such action; provided, however, that if the defendants
in any such action include both the indemnified party and the indemnifying
party and the indemnified party shall have reasonably concluded 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
defend such action on behalf of such indemnified party or parties. Upon
receipt of notice from the indemnifying party to such indemnified party of its
election so to appoint counsel to defend such action and approval by the
indemnified party of such counsel, the indemnifying party will not be liable to
such indemnified party under this Section 7 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 (plus any local counsel), approved
by the Manager in the case of paragraph (a) of this Section 7, representing the
indemnified parties under such paragraph (a) who are parties to such action),
(ii) the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; and except that, if clause (i)
or (iii) is applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii).
(d) In order to provide for just and equitable
contribution in circumstances in which the indemnification provided for in
paragraph (a) of this Section 7 is due in accordance with its terms but is for
any reason held by a court to be unavailable from the Company on grounds of
policy or otherwise, the Company and the Underwriters shall contribute to the
aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or defending
same) (collectively, the "Losses") to which the Company and one or more of the
Underwriters may be subject in such proportion so that the Underwriters are
responsible for that portion represented by the percentage that the
underwriting discount appearing on the cover page of the Prospectus bears to
the public offering price appearing thereon and the Company is responsible for
the balance; provided, however, that (y) in no case shall any Underwriter
(except as may be provided in the agreement among underwriters relating to the
offering of the Offered Securities) be responsible for any amount in excess of
the underwriting discount applicable to the Offered Securities purchased by
such Underwriter hereunder and (z) no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. If the allocation provided by the immediately proceeding
sentence is unavailable for any reason, the Company and the Underwriters shall
contribute in such proportion as is appropriate to reflect not only the
relative benefits referred to in the prior sentence, but also the relative
fault of the Company and of the Underwriters in
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connection with the statements or omissions which resulted in such Losses as
well as any other relevant equitable considerations. For purposes of this
Section 7, each person who controls an Underwriter within the meaning of the
Act shall have the same rights to contribution as such Underwriter, and each
person who controls the Company within the meaning of the Act, each officer of
the Company who shall have signed the Registration Statement and each director
of the Company shall have the same rights to contribution as the Company,
subject in each case to clauses (y) and (z) of this paragraph (d). Any party
entitled to contribution will, promptly after receipt of notice of commencement
of any action, suit or proceeding against such party in respect of which a
claim for contribution may be made against another party or parties under this
paragraph (d), notify such party or parties from whom contribution may be
sought, but the omission to so notify such party or parties shall not relieve
the party or parties from whom contribution may be sought from any other
obligation it or they may have hereunder or otherwise than under this paragraph
(d).
SECTION 8. Default by an Underwriter. If any one or
more Underwriters shall fail to purchase and pay for any of the Offered
Securities agreed to be purchased by such Underwriter or Underwriters
hereunder, and such failure to purchase shall constitute a default in the
performance of its or their obligations under this Underwriting Agreement, the
remaining Underwriters shall be obligated severally to take up and pay for (in
the respective proportions which the amount of Offered Securities each
remaining Underwriter has agreed to purchase bears to the aggregate amount of
Offered Securities all the remaining Underwriters have agreed to purchase) the
Offered Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase; provided, however, that in the event that the aggregate
amount of Offered Securities which the defaulting Underwriter or Underwriters
agreed but failed to purchase shall exceed 10% of the aggregate amount of
Offered Securities the Underwriters agreed to purchase, the remaining
Underwriters shall have the right to purchase all, but shall not be under any
obligation to purchase any, of the Offered Securities, and if such
non-defaulting Underwriters do not purchase all the Offered Securities, this
Underwriting Agreement will terminate without liability to any non-defaulting
Underwriter or the Company. In the event of a default by any Underwriter as
set forth in this Section 8, the Closing Date shall be postponed for such
period, not exceeding seven days, as the Manager shall determine. Nothing
contained in this Underwriting Agreement shall relieve any defaulting
Underwriter of its liability, if any, to the Company and any non-defaulting
Underwriter for damages occasioned by its default hereunder.
SECTION 9. Termination. This Underwriting Agreement
shall be subject to termination in the absolute discretion of the Manager, by
notice given to the Company prior to a Closing Date if prior to such time (i)
trading in the Offered Securities or in the Common Stock of the Company, par
value $.01 (the "Common Stock"), shall have been suspended by the Commission or
the National Association of Securities Dealers Automated Quotation National
Market System or trading in securities generally on the New York Stock Exchange
shall have been suspended or limited or minimum prices shall have been
established on such Exchange, (ii) a banking moratorium shall have been
declared either by Federal or New York State authorities, (iii) there shall
have occurred any outbreak or material escalation of hostilities or other
calamity or crisis the effect of which on the financial markets of the United
States is such as to make it, in the judgment of the Manager, impracticable to
market the Offered Securities, or (iv) there shall
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15
have been any decrease in the rating of any of the Company's debt securities or
preferred stock by any "Nationally Recognized Statistical Rating Organization"
(as defined for purposes of Rule 436(g) under the Act) or any written or public
notice given of any intended or potential decrease in any such rating or of a
possible change in any such rating that does not indicate the direction of the
possible change.
SECTION 10. Representations and Indemnities to Survive.
The respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers and of the Underwriters set forth in
or made pursuant to this Underwriting Agreement well remain in full force and
effect, regardless of any investigation made by or on behalf of any Underwriter
or the Company or any of the officers, directors or controlling persons
referred to in Section 7 hereof, and will survive delivery of and payment for
the Offered Securities. The provisions of Sections 6 and 7 hereof shall
survive the termination or cancellation of this Underwriting Agreement.
SECTION 11. Notices. All communications hereunder will
be in writing and effective only on receipt, and. if sent to the Manager, will
be mailed, delivered or telegraphed and confirmed to them, at the address
indicated in the Terms Agreement; or, if sent to the Company, will be mailed,
delivered or telegraphed and confirmed to it at 000 Xxxx Xxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxxxx 00000, to the attention of the Chief Financial Officer.
SECTION 12. Successors. This Underwriting Agreement will
inure to the benefit of and be binding upon the parties hereto and their
respective successors and the officers and directors and controlling persons
referred to in Section 7 hereof, and no other person will have any right or
obligation hereunder.
SECTION 13. Applicable Law. This Underwriting Agreement
will be governed by and construed in accordance with the substantive laws of
the State of New York.
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EXHIBIT A
TERMS AGREEMENT
WorldCom, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
__________, 199_
Dear Sirs:
We (the "Manager") understand that WorldCom, Inc., a Georgia
corporation (the "Company"), proposes to issue and sell to the several
underwriters named below (the "Underwriters") $__________ aggregate principal
amount of its __ % __________ due __________ __, ____ (the "Offered
Securities").
Subject to the terms and conditions set forth or incorporated
by reference herein, the Company hereby agrees to sell all of the Offered
Securities, and each of the Underwriters named below agrees, severally and not
jointly, to purchase the respective principal amount of Offered Securities set
forth opposite its name below, in each case at a purchase price of ___ % of the
principal amount of such securities, plus accrued interest, if any, from
__________ __, ____ to the date of payment and delivery.
Principal
Amount of
Name Securities
$_______________
The Underwriters will pay for such Offered Securities upon
delivery thereof at the offices of_______________ at 10:00 a.m. (New York time)
on __________ __, ____, or at such other time, not later than 10:00 a.m. (New
York time), on such date as shall be jointly designated by the Underwriters and
the Company.
17
The Offered Securities shall have the terms set forth in the
Prospectus dated__________ __, ____ (the "Prospectus"), and the Prospectus
Supplement dated __________ __, ____ (the "Prospectus Supplement"), including
the following:
Maturity:
Interest Rate:
Redemption Provisions:
Interest Payment Dates:
Form and Denomination:
Senior or Subordinated:
[Other]
All communications with the Underwriters will be in writing
and effective only upon receipt, and will be mailed, delivered or telegraphed
and confirmed to them in care of [Manager's name and address].
All provisions of the document entitled WorldCom, Inc.
Underwriting Agreement Standard Provisions (Debt) dated _______________ (the
"Standard Provisions"), are herein incorporated by reference in their entirety
and shall be deemed to be a part of this agreement to the same extent as if
such provisions had been set forth in full herein.
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Please confirm your agreement by having an authorized officer
sign a copy of this agreement in the space set forth below and returning the
signed copy to us.
Very truly yours,
[Name of Manager]
By:
----------------------------------
Name:
Title:
Acting severally on behalf of itself as
Manager and Underwriter and on behalf
of the other several Underwriters
named above.
Accepted on the date set forth above:
WORLDCOM, INC.
By:
---------------------------------
Name:
Title:
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EXHIBIT B
WORLDCOM, INC.
DELAYED DELIVERY CONTRACT
__________ __, ____
WorldCom, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Attention: ____________________
Dear Sirs:
The undersigned hereby agrees to purchase from WorldCom, Inc.
(the "Company"), and the Company agrees to sell to the undersigned on
__________ __, ____ (the "Delivery Date"), $______________ principal amount of
the Company's [insert title of security] (the "Offered Securities"), offered by
the Company's Prospectus dated __________ __, ____ as supplemented by its
Prospectus Supplement dated __________ __, ____, receipt of which is hereby
acknowledged, at a purchase price of __ % of the principal amount thereof, plus
accrued interest from __________ __, ____, to the Delivery Date, and on the
further terms and conditions set forth in this contract.
Payment for the Offered Securities which the undersigned has
agreed to purchase on the Delivery Date shall be made to the Company or its
order by certified or official bank check in New York Clearing House funds, at
the office of ____________________________, on the Delivery Date, upon delivery
to the undersigned of the Offered Securities to be purchased by the undersigned
in definitive form and in such denominations and registered in such names as
the undersigned may designate by written or telegraphic communication addressed
to the Company not less than five full business days prior to the Delivery
Date.
The obligation of the undersigned to take delivery of and make
payment for Offered Securities on the Delivery Date shall be subject only to
the conditions that (1) the purchase of Offered Securities to be made by the
undersigned shall not on the Delivery Date be prohibited under the laws of the
jurisdiction to which the undersigned is subject and (2) the Company, on or
before __________ __, ____, shall have sold to the Underwriters of the Offered
Securities (the "Underwriters") such principal amount of the Offered Securities
as is to be sold to them pursuant to the Terms Agreement dated __________ __,
____, between the Company and the Underwriters. The obligation of the
undersigned to take delivery of and make payment for Offered Securities shall
not be affected by the failure of any purchaser to take delivery of and make
payment for Offered Securities pursuant to other contracts similar to this
contract. The undersigned represents and warrants to you that is investment in
the Offered Securities is not, as
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of the date hereof, prohibited under the laws of any jurisdiction to which the
undersigned is subject.
Promptly after completion of the sale of the Underwriters, the
Company will mail or deliver to the undersigned at its address set forth below
notice to such effect, accompanied by a copy of the opinion of counsel for the
Company relating to the validity and binding effect of the Offered Securities
delivered to the Underwriters in connection therewith.
By execution hereof, the undersigned represents and warrants
to the Company that all necessary corporate action for the due execution and
delivery of this contract and the payment for and purchase of the Offered
Securities has been taken by it and no further authorization or approval of any
governmental or other regulatory authority is required for such execution,
delivery, payment or purchase, and that, upon acceptance hereof by the Company
and mailing or delivery of a copy as provided below, this contract will
constitute a valid and binding agreement of the undersigned in accordance with
its terms.
This contract will inure to the benefit of and be binding upon
the parties hereto and their respective successors, but will not be assignable
by either party hereto without the written consent of the other.
It is understood that the Company will not accept Delayed
Delivery Contracts for an aggregate principal amount of Offered Securities in
excess of $__________ and that the acceptance of any Delayed Delivery Contract
is in the Company's sole discretion and, without limiting the foregoing, need
not be on a first-come, first-served basis. If this contract is acceptable to
the Company, it is requested that the Company sign the form of acceptance on a
copy hereof and mail or deliver a signed copy hereof to the undersigned at its
address set forth below. This will become a binding contract between the
Company and the undersigned when such copy is so mailed or delivered.
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This Agreement shall be governed by the laws of the State of New York.
Very truly yours,
---------------------------------------
(Name of Purchaser)
By:
-----------------------------------
(Title)
-----------------------------------
-----------------------------------
-----------------------------------
Accepted as of the date first above written.
WORLDCOM, INC.
By:
----------------------------------------
PURCHASER - PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number of the representative of the Purchaser
with whom details of delivery on the Delivery Date may be discussed are as
follows: (Please print)
Telephone No.
Name (Including Area Code)
---- ---------------------
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EXHIBIT C
WORLDCOM, INC.
SIGNIFICANT SUBSIDIARIES
Name Jurisdiction in which Organized
---- -------------------------------
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EXHIBIT D
OPINION OF
COUNSEL FOR THE COMPANY
1. Each of the Company and its Subsidiaries has been
duly incorporated or formed and is validly existing in the jurisdiction of its
incorporation or formation, and has all consents, authorizations, approvals,
orders, certificates and permits of and from, and has made all declarations and
filings with, all federal, state, local and other governmental authorities, and
all courts or other tribunals, necessary to conduct its business as described
in the Prospectus, except to the extent that the lack of such consents,
authorizations, approvals, orders, certificates or permits could not have a
material adverse effect on the Company and its subsidiaries, taken as a whole.
2. All the outstanding shares of capital stock of each
Subsidiary have been duly and validly authorized and are duly issued and are
fully paid and nonassessable, and have not been issued and are not owned or
held in violation of any statutory preemptive right of stockholders; to the
knowledge of such counsel after due inquiry, such shares are not held in
violation of any other preemptive right of stockholders and except as otherwise
set forth in the Registration Statement, all outstanding shares of capital
stock of the Subsidiaries are owned by the Company either directly or through
wholly owned Subsidiaries free and clear of any perfected security interest
and, to the knowledge of such counsel, after due inquiry, any other material
security interests, stockholders' agreements or voting trusts.
3. To the knowledge of such counsel, there is no pending
or threatened action, suit or proceeding before any court or governmental
agency, authority or body or any arbitrator involving the Company or any of the
Subsidiaries of a character required to be disclosed in the Registration
Statement which is not adequately disclosed in the Prospectus, and there is no
contract or other document of a character required to be described in the
Registration Statement or the Prospectus, or to be filed as an exhibit, which
is not described or filed as required.
4. The Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), and has been
duly authorized, executed and delivered by the Company and is a valid and
binding agreement of the Company, enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or similar laws of general applicability relating to
or affecting creditors' rights and to general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or at
law), and except to the extent enforceability of any indemnification provisions
may be limited by public policy.
5. The Offered Securities have been duly authorized and,
when executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters in accordance with
the Underwriting Agreement, will be valid and binding obligations of the
Company, enforceable in accordance with their respective terms, and will be
entitled to the benefits of the Indenture, subject to applicable bankruptcy,
insolvency, fraudulent
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transfer, reorganization, moratorium or similar laws of general applicability
relating to or affecting creditors' rights and to general principles of equity
and except to the extent enforceability of any indemnification provisions may
be limited by public policy, and all conditions precedent to the issuance of
the Offered Securities provided for in the Indenture have been complied with
and the terms of the Offered Securities have been established in conformity
with the provisions of the Indenture.
6. The Underwriting Agreement has been duly authorized
and validly executed and delivered by the Company.
7. Neither the execution and delivery of the
Underwriting Agreement, the Indenture, nor the issuance and sale of the Offered
Securities, nor the consummation of any other of the transactions herein
contemplated nor the fulfillment of the terms hereof will conflict with, result
in a breach of, or constitute a default under the certificate of incorporation
or by-laws of the Company or the terms of any agreement filed as an exhibit to
the Registration Statement, or any judgment, order or regulation known to such
counsel to be applicable to the Company or any of its Subsidiaries of any
court, regulatory body, administrative agency, governmental body or arbitrator
having jurisdiction over the Company or any of its Subsidiaries.
8. The statements under "Description of [Offered
Securities]" and "Underwriting" (in the Prospectus Supplement), and
"Description of Debt Securities" (in the Basic Prospectus), insofar as such
statements constitute a summary of the documents referred to therein, fairly
present the information called for with respect to such documents.
9. The Registration Statement and all post-effective
amendments thereto have become effective under the Act; any required filing of
the Prospectus, and any supplements thereto, have been made in the manner and
within the time period required by the Act and the rules thereunder; to the
knowledge of such counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued, no proceedings for that purpose have
been instituted or threatened and the Registration Statement and the Prospectus
appear on their face to have been appropriately responsive in all material
respects to the applicable requirements of the Act and the rules thereunder.
10. To the knowledge of such counsel, no consent,
approval, authorization, license, certificate, permit or order of any court or
governmental agency or body is required for the consummation of the
transactions contemplated under the terms of the Underwriting Agreement, except
such as have been obtained under the Act and such as may be required by the
Federal Communications Commission or similar state regulatory authorities or
under the blue sky laws of any jurisdiction in connection with the purchase and
distribution of the Offered Securities by the Underwriters (as to which such
counsel need not opine) in connection with the purchase and distribution of the
Offered Securities by the Underwriters and such other approvals as have been
obtained.
11. Except as disclosed in the Prospectus, to the
knowledge of such counsel, no holders of securities of the Company have rights
to the registration of such securities under the Registration Statement.
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We have not ourselves checked the accuracy or completeness of,
or otherwise verified, the information furnished with respect to other matters
in the Registration Statement or Prospectus. We have generally reviewed and
discussed with your representatives and with certain officers and employees of,
and counsel and independent public accountants for, the Company the information
furnished, whether or not subject to our check and verification. On the basis
of such consideration, review and discussion, but without independent check or
verification, except as stated, we are of the opinion that (i) the Registration
Statement and Prospectus (other than the financial statements and related
schedules and other financial and statistical information contained therein, or
omitted therefrom and other than the sections of the Prospectus entitled ["Risk
Factors -- Regulation"] and ["Business -- Government Regulation and Co- carrier
Status"] as to which we are not called upon to express a belief), and except
for that part of the Registration Statement that constitutes the Statement of
Eligibility and Qualification (Form T-1) under the Trust Indenture Act) does
not, and on the date of the Underwriting Agreement did not, contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances in which they were
made, not misleading and (ii) the Prospectus (except as aforesaid) does not on
the date hereof contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading and (iii)
the Registration Statement and Prospectus (other than the financial statements
and related schedules and other financial and statistical information contained
therein, or omitted therefrom and other than the sections of the Prospectus
entitled ["Risk Factors -- Regulation"] and ["Business -- Government Regulation
and Co-carrier Status"] as to which we are not called upon to express a belief)
comply as to form in all material respects with the Act and the Trust Indenture
Act and the rules and regulations of the Commission thereunder.
We are members of the Bar of the State of [New York] and our
opinion is limited to the laws of the State of New York, the federal laws of
the United States of America and the Georgia Business Corporation Code.
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EXHIBIT E
OPINION OF
COUNSEL FOR THE UNDERWRITERS
1. The Company is a corporation validly existing and in
good standing under the laws of the State of Georgia and has corporate power to
transact the business in which it is now engaged.
2. The Underwriting Agreement, including the provisions
incorporated therein by reference, has been duly authorized, executed and
delivered by the Company.
3. The Registration Statement on Form S-3 with respect
to the Offered Securities, as amended (the "Registration Statement"), filed
with the Securities and Exchange Commission (the "Commission") pursuant to the
Securities Act of 1933, as amended (the "Act"), has become effective and
remains in effect at this date, and the Prospectus dated ___________ __, 199_,
including all documents incorporated by reference pursuant to the requirements
of Form S-3 under the Act constituting a part thereof (the "Basic Prospectus"),
as supplemented by the prospectus supplement dated __________ __, 199_ relating
to the Offered Securities (the "Prospectus Supplement") (the Basic Prospectus
as supplemented by the Prospectus Supplement being herein referred to as the
"Prospectus"), may lawfully be used for the purposes specified in the Act in
connection with the offer and sale of the Offered Securities in the manner
therein specified.
4. The Registration Statement and the Prospectus (except
the financial statements and other financial data included therein as to which
we express no opinion) appear on their face to be appropriately responsive in
all material respects to the requirements of the Act, the Securities Exchange
Act of 1934, as amended, and the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act") and to the applicable rules and regulations of the
Commission under said Acts. As to the financial statements included in the
Prospectus, we have made no examination of the Company's books of account and
we therefore express no opinion. As to the statements under "Description of
Debt Securities" in the Basic Prospectus, as supplemented by statements under
"Description of [Offered Securities]" in the Prospectus Supplement, we are of
the opinion that the statements are accurate and do not omit any material fact
required to be stated therein or necessary to make such statements, in the
light of the circumstances in which they were made, not misleading. As to
other matters we have not undertaken to determine independently the accuracy or
completeness of the statements contained in the Registration Statement or in
the Prospectus. We have, however, participated in extended conferences with
counsel for and representatives of the Company in connection with the
preparation of the Registration Statement, and we have reviewed all documents
incorporated by reference in the Prospectus pursuant to the requirements of
Form S-3 under the Act and such of the corporate records of the Company as we
deemed advisable. None of the foregoing disclosed to us any information which
gave us reason to believe that the Registration Statement or the Prospectus
(except the financial statements and other financial data included therein as
to which we express no opinion) contains on the date hereof, or on the date of
the Underwriting
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Agreement contained, any untrue statement of a material fact or omits to state
a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances in which they were made,
not misleading.
5. The Indenture has been duly authorized, executed and
delivered by the Company and conforms to the statements with respect thereto
contained in the Registration Statement and the Prospectus; is a legal, valid
and binding agreement of the Company enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency and other laws affecting
the enforcement of creditors' rights generally; and the Indenture has been duly
qualified under the Trust Indenture Act.
6. The Offered Securities have been duly authorized,
and, when executed, authenticated and delivered by the Company in accordance
with the Indenture against payment therefor in accordance with the Underwriting
Agreement, will be legal, valid and binding obligations of the Company and will
be entitled to the benefits afforded by the Indenture; and the Offered
Securities conform in all material respects to the description thereof in the
Prospectus.
We have also examined the opinion dated the date hereof of
________, special counsel for the Company, delivered in accordance with the
provisions of Section 5 of the Underwriting Agreement, which opinion is
substantially responsive to the terms of the Underwriting Agreement.
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EXHIBIT F
LETTERS OF INDEPENDENT PUBLIC ACCOUNTANTS
A. We are independent certified public accountants with respect
to the Company and its Subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder.
B. In our opinion, the financial statements and any supplementary
financial information and schedules (and, if applicable, prospective financial
statements and/or pro forma financial information) examined by us and included
in the Prospectus or the Registration Statement comply as to form in all
material respects with the applicable accounting requirements of the Act and
the related published rules and regulations thereunder; to the extent
applicable, we have made a review in accordance with standards established by
the American Institute of Certified Public Accountants of the unaudited
consolidated interim financial statements, selected financial data, pro forma
financial information, prospective financial statements, selected financial
data, pro forma financial information, prospective financial statements, and/or
condensed financial statements derived from audited financial statements of the
Company for the periods specified herein, as indicated in our reports thereon,
copies of which have been furnished to the Manager.
C. The unaudited summary and selected financial information with
respect to the consolidated results of operations and financial position of the
Company for the three most recent fiscal years (or such shorter period as
applicable) included in the Prospectus agrees with the corresponding amounts
(after restatements where applicable) in the audited consolidated financial
statements for such period.
D. On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Company and its Subsidiaries, inspection of the
minute books of the Company and its Subsidiaries since the date of the latest
audited financial statements included in the Prospectus, inquiries of officials
of the Company and its Subsidiaries responsible for financial and accounting
matters and such other inquiries and procedures as specified herein, nothing
came to our attention that caused us to believe that:
1. the unaudited consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the Act and
the related published rules and regulations thereunder, or are not in
conformity with generally accepted accounting principles applied on a
basis substantially consistent with the basis for the audited
consolidated statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the Prospectus;
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2. any other unaudited income statement data and balance
sheet items included in the Prospectus do not agree with the
corresponding items in the unaudited consolidated financial statements
from which such data and items were derived, and any such unaudited
data and items were not determined on a basis substantially consistent
with the basis for the corresponding amounts in the audited
consolidated financial statements included in the Prospectus;
3. the unaudited financial statements which were not
included in the Prospectus but from which were derived any unaudited
condensed financial statements referred to in Clause (A) and any
unaudited income statement data and balance sheet items included in
the Prospectus and referred to in Clause B were not determined on a
basis substantially consistent with the basis for the audited
consolidated financial statements included in the Prospectus;
4. any unaudited pro forma consolidated condensed
financial statements included in the Prospectus do not comply as to
form in all material respects with the applicable accounting
requirements of the Act and the published rules and regulations
thereunder or the pro forma adjustments have not been properly applied
to the historical amounts in the compilation of those statements;
5. as of a specified date not more than five days prior
to the date hereof, there have been any changes in the consolidated
capital stock (other than issuances of capital stock upon exercise of
options and stock appreciation rights, upon earn-outs of performance
shares and upon conversions of convertible securities, in each case
which were outstanding on the date of the latest financial statements
included in the Prospectus) or any increase in the consolidated
long-term debt of the Company and its Subsidiaries, or any decreases
in consolidated net current assets or net assets or other items
specified by the Manager, or any increases in any items specified by
the Manager, in each case as compared with amounts shown in the latest
balance sheet included in the Prospectus, except in each case for
changes, increases or decreases which the Prospectus discloses have
occurred or may occur or which are described herein; and
6. for the period from the date of the latest financial
statements included in the Prospectus to the specified date referred
to in Clause E there were any decreases in consolidated net revenues
or operating profit or the total or per share amounts of consolidated
net income or other items specified by the Manager, or any increases
in any items specified by the Manager, in each case as compared with
the comparable period of the preceding year and with any other period
of corresponding length specified by the Manager, except in each case
for decreases or increases which the Prospectus discloses, have
occurred or may occur or which are described herein; and
E. In addition to the examination referred to in our report(s)
included in the Prospectus and the limited procedures, inspection of minute
books, inquiries and other procedures referred to in paragraphs (ii) and (iv)
above, we have carried out certain specified procedures, not constituting an
examination in accordance with generally accepted auditing standards, with
respect to certain
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amounts, percentages and financial information specified by the Manager, which
are derived from the general accounting records of the Company and its
Subsidiaries, which appear in the Prospectus, or in Part II of, or in exhibits
and schedules to, the Registration Statement specified by the Manager, and have
compared certain of such amounts, percentages and financial information with
the accounting records of the Company and the subsidiaries and have found them
to be in agreement.
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