Exhibit 1.1
EXECUTION COPY
4,000,000 Shares
AIRGATE PCS, INC.
Common Stock
UNDERWRITING AGREEMENT
----------------------
December 13, 2001
Credit Suisse First Boston Corporation
Xxxxxx Brothers Inc.
UBS Warburg LLC
Xxxxxxx Xxxxx & Company, L.L.C.
Xxxxxx Xxxxxx Partners LLC
TD Securities (USA) Inc.,
As Representatives of the Several Underwriters,
c/o Credit Suisse First Boston Corporation,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, X.X. 00000
Dear Sirs:
1. Introductory. The stockholders listed in Schedule A hereto (the "Selling
Stockholders") propose severally to sell an aggregate of 4,000,000 shares of
AirGate PCS, Inc., a Delaware corporation ("Company"), common stock, $.01 par
value per share ("Securities") (such 4,000,000 shares of Securities being
hereinafter referred to as the "Firm Securities"). The Company proposes to sell
to the Underwriters, at the option of the Underwriters, an aggregate of not more
than 600,000 additional shares of its Securities (such 600,000 additional shares
being hereinafter referred to as the "Optional Securities"). The Firm Securities
and the Optional Securities are herein collectively called the "Offered
Securities". The Company and the Selling Stockholders hereby agree with the
several Underwriters named in Schedule B hereto ("Underwriters") as follows:
2. Representations and Warranties of the Company. (a) The Company
represents and warrants to, and agrees with, the several Underwriters that:
(i) A shelf registration statement (No. 333- 73254) relating to
the Offered Securities, including a form of prospectus supplement, has
been filed with the Securities and Exchange Commission ("Commission")
and either (A) has been declared effective under the Securities Act of
1933 ("Act") and is not proposed to be amended or (B) is proposed to
be amended by amendment or post-effective amendment. If such
registration statement (the "initial registration statement") has been
declared effective, either (A) an additional registration statement
(the "additional registration statement") relating to the Offered
Securities may have been filed with the Commission pursuant to Rule
462(b) ("Rule 462(b)") under the Act and, if so filed, has become
effective upon filing pursuant to such Rule and the Offered Securities
all have been duly registered under the Act pursuant to the initial
registration statement and, if applicable, the additional registration
statement or (B) such an additional registration statement is proposed
to be filed with the Commission pursuant to Rule 462(b) and will
become effective upon filing pursuant to such Rule and upon such
filing the Offered Securities will all have been duly registered under
the Act pursuant to the initial registration statement and such
additional registration statement. If the Company does not propose to
amend the initial registration statement or if an additional
registration statement has been filed and the Company does not propose
to amend it, and if any post-effective amendment to either such
registration statement has been filed with the Commission prior to the
execution and delivery of this Agreement, the most recent amendment
(if any) to each such registration statement has been declared
effective by the Commission or has become effective upon filing
pursuant to Rule 462(c) ("Rule 462(c)") under the Act or, in the case
of the additional registration statement, Rule 462(b). For purposes of
this Agreement, "Effective Time" with respect to the initial
registration statement or, if filed prior to the execution and
delivery of this Agreement, the additional registration statement
means (A) if the Company has advised the Representatives that it does
not propose to amend such registration statement, the date and time as
of which such registration statement, or the most recent
post-effective amendment thereto (if any) filed prior to the execution
and delivery of this Agreement, was declared effective by the
Commission or has become effective upon filing pursuant to Rule
462(c), or (B) if the Company has advised the Representatives that it
proposes to file an amendment or post-effective amendment to such
registration statement, the date and time as of which such
registration statement, as amended by such amendment or post-effective
amendment, as the case may be, is declared effective by the
Commission. If an additional registration statement has not been filed
prior to the execution and delivery of this Agreement but the Company
has advised the Representatives that it proposes to file one,
"Effective Time" with respect to such additional registration
statement means the date and time as of which such registration
statement is filed and becomes effective pursuant to Rule 462(b).
"Effective Date" with respect to the initial registration statement or
the additional registration statement (if any) means the date of the
Effective Time thereof. The initial registration statement, as amended
at its Effective Time, including all material incorporated by
reference therein, including all information contained in the
additional registration statement (if any) and deemed to be a part of
the initial registration statement as of the Effective Time of the
additional
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registration statement pursuant to the General Instructions of the
Form on which it is filed and including all information (if any)
deemed to be a part of the initial registration statement as of its
Effective Time pursuant to Rule 430A(b) ("Rule 430A(b)") under the
Act, is hereinafter referred to as the "Initial Registration
Statement". The additional registration statement, as amended at its
Effective Time, including the contents of the initial registration
statement incorporated by reference therein and including all
information (if any) deemed to be a part of the additional
registration statement as of its Effective Time pursuant to Rule
430A(b), is hereinafter referred to as the "Additional Registration
Statement". The Initial Registration Statement and the Additional
Registration Statement are hereinafter referred to collectively as the
"Registration Statements" and individually as a "Registration
Statement". The form of prospectus relating to the Offered Securities,
as first or subsequently filed with the Commission pursuant to and in
accordance with Rule 424(b) ("Rule 424(b)") under the Act or (if no
such filing is required) as included in a Registration Statement,
including all material incorporated by reference in such prospectus,
is hereinafter referred to as the "Prospectus". No document has been
or will be prepared or distributed in reliance on Rule 434 under the
Act.
(ii) If the Effective Time of the Initial Registration Statement
is prior to the execution and delivery of this Agreement: (A) on the
Effective Date of the Initial Registration Statement, the Initial
Registration Statement conformed in all material respects to the
requirements of the Act and the rules and regulations of the
Commission ("Rules and Regulations") and did not include any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, (B) on the Effective Date of the Additional
Registration Statement (if any), each Registration Statement conformed
or will conform, in all material respects to the requirements of the
Act and the Rules and Regulations and did not include, or will not
include, any untrue statement of a material fact and did not omit, or
will not omit, to state any material fact required to be stated
therein or necessary to make the statements therein not misleading,
and (C) on the date of this Agreement, the Initial Registration
Statement and, if the Effective Time of the Additional Registration
Statement is prior to the execution and delivery of this Agreement,
the Additional Registration Statement each conforms, and at the time
of filing of the Prospectus pursuant to Rule 424(b) or (if no such
filing is required) at the Effective Date of the Additional
Registration Statement in which the Prospectus is included, each
Registration Statement and the Prospectus will conform, in all
material respects to the requirements of the Act and the Rules and
Regulations, and neither of such documents includes, or will include,
any untrue statement of a material fact or omits, or will omit, to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading. If the Effective Time of
the Initial Registration Statement is subsequent to the execution and
delivery of this Agreement: on the Effective Date of the Initial
Registration Statement, the Initial Registration Statement and the
Prospectus will conform in all material respects to the requirements
of the Act and the Rules and Regulations, neither of such documents
will include any untrue statement of a material fact or will
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omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and no
Additional Registration Statement has been or will be filed. The two
preceding sentences do not apply to statements in or omissions from a
Registration Statement or the Prospectus based upon written
information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood and
agreed that the only such information is that described as such in
Section 7(c) hereof.
(iii) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware,
with power and authority (corporate and other) to own its properties
and conduct its business as described in the Prospectus; and the
Company is duly qualified to do business as a foreign corporation in
good standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such
qualification, except to the extent that the failure to be so
qualified or in good standing could not reasonably be expected to have
a material adverse effect on the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries, taken as a whole ("Material Adverse Effect").
(iv) Each subsidiary of the Company has been duly incorporated or
formed, as applicable, and is an existing corporation or limited
liability company, as applicable, in good standing under the laws of
the jurisdiction of its incorporation or formation, with power and
authority (corporate or limited liability company, as applicable, and
other) to own its properties and conduct its business as described in
the Prospectus; and each subsidiary of the Company is duly qualified
to do business in good standing in all other jurisdictions in which
its ownership or lease of property or the conduct of its business
requires such qualification, except where the failure to be so
qualified could not be reasonably be expected to have a Material
Adverse Effect; all of the issued and outstanding capital stock or
limited liability company interests, as applicable, of each subsidiary
of the Company has been duly authorized and validly issued and is
fully paid and nonassessable; and the capital stock or limited
liability company interests, as applicable, of each subsidiary owned
by the Company, directly or through subsidiaries, is owned free from
liens, encumbrances and claims, except for liens that have been
granted to secure the Company's indebtedness.
(v) The Offered Securities and all other outstanding shares of
capital stock of the Company have been duly authorized and validly
issued, fully paid and nonassessable and conform to the description
thereof contained in the Prospectus; and the stockholders of the
Company have no preemptive rights with respect to the Securities.
(vi) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company or
any Underwriter for a brokerage commission, finder's fee or other like
payment in connection with this offering.
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(vii) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file a
registration statement under the Act with respect to any securities of
the Company owned or to be owned by such person or to require the
Company to include such securities in the securities registered
pursuant to a Registration Statement or in any securities being
registered pursuant to any other registration statement filed by the
Company under the Act.
(viii) At the time of delivery, the Offered Securities will be
listed on the Nasdaq Stock Market's National Market.
(ix) No consent, approval, authorization, or order of, or filing
with, any governmental agency or body or any court is required to be
obtained or made by the Company for the consummation of the
transactions contemplated by this Agreement in connection with the
sale of the Offered Securities, except such as may be required by the
Act and such as may be required under state securities or "blue sky"
laws and as required in connection with the clearance of such offering
and sale with the National Association of Securities Dealers, Inc.
(x) The execution, delivery and performance of this Agreement,
and the consummation of the transactions herein contemplated will not
result in a breach or violation of any of the terms and provisions of,
or constitute a default under, (A) any statute, any rule, regulation
or order of any governmental agency or body or any court, domestic or
foreign, having jurisdiction over the Company or any subsidiary of the
Company or any of their properties, (B) any agreement or instrument to
which the Company or any such subsidiary is a party or by which the
Company or any such subsidiary is bound or to which any of the
properties of the Company or any such subsidiary is subject, or (C)
the charter or by-laws of the Company or any such subsidiary, except
in the case of a breach, violation or default under clauses (A) or (B)
that is not reasonably likely to result in a Material Adverse Effect.
(xi) This Agreement has been duly authorized, executed and
delivered by the Company.
(xii) Except as disclosed in the Prospectus, the Company and its
subsidiaries have good and marketable title to all real properties and
all other properties and assets owned by them, in each case free from
liens, encumbrances and defects that individually or in the aggregate
could reasonably be expected to have a Material Adverse Effect; and
except as disclosed in the Prospectus, the Company and its
subsidiaries hold any leased real or personal property under valid and
enforceable leases with no exceptions that individually or in the
aggregate could reasonably be expected to have a Material Adverse
Effect.
(xiii) The Company and its subsidiaries possess all licenses (or
in the case of the PCS spectrum licenses issued by the Federal
Communications Commission, have the right to use the spectrum licensed
to Sprint Corporation or the PCS Group of Sprint
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Corporation), certificates, authorities or permits issued by
appropriate governmental agencies or bodies necessary to conduct the
business now operated by them and have not received (or in the case of
the PCS spectrum licenses, to the Company's knowledge, neither Sprint
nor the PCS Group of Sprint has received) any notice of proceedings
relating to the revocation or modification of any such license,
certificate, authority or permit that, if determined adversely to the
Company or any of its subsidiaries, would individually or in the
aggregate have a Material Adverse Effect.
(xiv) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent
that could be reasonably be expected to have a Material Adverse
Effect.
(xv) The Company and its subsidiaries own, possess or can acquire
on reasonable terms, adequate trademarks, trade names and other rights
to inventions, know-how, patents, copyrights, confidential information
and other intellectual property (collectively, "intellectual property
rights") necessary to conduct the business now operated by them, or
presently employed by them, and have not received any notice of
infringement of or conflict with asserted rights of others with
respect to any intellectual property rights that, if determined
adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect.
(xvi) Except as disclosed in the Prospectus, neither the Company
nor any of its subsidiaries is in violation of any statute, any rule,
regulation, decision or order of any governmental agency or body or
any court, domestic or foreign, relating to the use, disposal or
release of hazardous or toxic substances or relating to the protection
or restoration of the environment or human exposure to hazardous or
toxic substances (collectively, "environmental laws"), owns or
operates any real property contaminated with any substance that is
subject to any environmental laws, is liable for any off-site disposal
or contamination pursuant to any environmental laws, or is subject to
any claim relating to any environmental laws, which violation,
contamination, liability or claim could individually or in the
aggregate reasonably be expected to have a Material Adverse Effect;
and the Company is not aware of any pending investigation which could
reasonably be expected to lead to such a claim.
(xvii) Except as disclosed in the Prospectus, there are no
pending actions, suits or proceedings against or affecting the
Company, any of its subsidiaries or any of their respective properties
that, if determined adversely to the Company or any of its
subsidiaries, could individually or in the aggregate reasonably be
expected to have a Material Adverse Effect, or would materially and
adversely affect the ability of the Company to perform its obligations
under this Agreement, or which are otherwise material in the context
of the sale of the Offered Securities; and no such actions, suits or
proceedings are threatened or, to the Company's knowledge,
contemplated.
(xviii) The financial statements included in each Registration
Statement and the Prospectus present fairly the financial position of
the Company and its consolidated
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subsidiaries as of the dates shown and their results of operations and
cash flows for the periods shown, and, except as otherwise disclosed
in the Prospectus, such financial statements have been prepared in
conformity with the generally accepted accounting principles in the
United States applied on a consistent basis; and the schedules
included in each Registration Statement present fairly the information
required to be stated therein.
(xix) Except as disclosed in the Prospectus, since the date of
the latest audited financial statements included in the Prospectus
there has been no material adverse change, nor any development or
event involving a prospective material adverse change, in the
condition (financial or other), business, properties or results of
operations of the Company and its subsidiaries taken as a whole
(exclusive of any amendments or supplements thereto subsequent to the
date of this Agreement), and, except as disclosed in or contemplated
by the Prospectus, there has been no dividend or distribution of any
kind declared, paid or made by the Company on any class of its capital
stock.
(xx) All of the contracts set forth under Item 14 of the
Company's Annual Report on Form 10-K for the year ended September 30,
2001, and all contracts filed thereafter constitute all of the
contracts required to be so filed pursuant to Item 601 of Regulation
S-K (the "Material Contracts").
(xxi) The Company is not and, after giving effect to the offering
and sale of the Offered Securities and the application of the proceeds
thereof as described in the Prospectus, will not be an "investment
company" as defined in the Investment Company Act of 1940.
(b) Each Selling Stockholder, severally and not jointly, represents
and warrants to, and agrees with, the several Underwriters that:
(i) Such Selling Stockholder has and on each Closing Date
hereinafter mentioned will have valid and unencumbered title to the
Offered Securities to be delivered by such Selling Stockholder on such
Closing Date and full right, power and authority to enter into this
Agreement and to sell, assign, transfer and deliver the Offered
Securities to be delivered by such Selling Stockholder on such Closing
Date hereunder; and upon the delivery of and payment for the Offered
Securities on each Closing Date hereunder the several Underwriters
will acquire valid and unencumbered title to the Offered Securities to
be delivered by such Selling Stockholder on such Closing Date.
(ii) As of the date hereof, the Selling Stockholders Information
(as defined herein) contained in the Prospectus or any amendments or
supplements thereto does not include 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 parties hereto agree that
(A) for each Selling Stockholder, "Selling Stockholders Information"
consists solely of the
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information with respect to beneficial ownership of Common Stock by
such Selling Stockholder under the caption "Selling Stockholders" in
the Prospectus, in each case, to the extent such information reflects
the information furnished to the Company by, or on behalf of, such
Selling Stockholder in writing expressly for use therein; (B) for
Blackstone Communications Partners I L.P., Blackstone iPCS Capital
Partners L.P. and Blackstone/iPCS L.L.C. (collectively, "Blackstone"),
"Selling Stockholders Information" also includes the biographical
information with respect to Xxxxxxx X. Xxxx under the caption
"Management" in the Prospectus; and (C) for Xxxxxxx X. Xxxxx, "Selling
Stockholders Information" also includes the biographical information
with respect to Xxxxxxx X. Xxxxx under the caption "Management" in the
Prospectus.
(iii) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between any Selling
Stockholder and any person that would give rise to a valid claim
against any Selling Stockholder or any Underwriter for a brokerage
commission, finder's fee or other like payment in connection with this
offering.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, each Selling Stockholder agrees,
severally and not jointly, to sell to each Underwriter, and each Underwriter
agrees, severally and not jointly, to purchase from each Selling Stockholder, at
a purchase price of $47.75 per share, that number of Firm Securities (rounded up
or down, as determined by Credit Suisse First Boston Corporation ("CSFBC") and
Xxxxxx Brothers Inc. ("Xxxxxx") in their discretion, in order to avoid
fractions) set forth opposite the name of such Selling Stockholder in Schedule A
hereto.
Certificates in negotiable form for the Offered Securities to be sold by
certain of the Selling Stockholders hereunder have been placed in custody, for
delivery under this Agreement, under Custody Agreements made with American Stock
Transfer & Trust Company, as custodian ("Custodian"). Each Selling Stockholder
executing a Custody Agreement agrees that the shares represented by the
certificates held in custody for such Selling Stockholders under the Custody
Agreements are subject to the interests of the Underwriters hereunder, that the
arrangements made by the Selling Stockholders for such custody are to that
extent irrevocable, and that the obligations of the Selling Stockholders
hereunder shall not be terminated by operation of law, whether by the death of
any individual Selling Stockholder or the occurrence of any other event, or in
the case of a trust, by the death of any trustee or trustees or the termination
of such trust. If any individual Selling Stockholder or any such trustee or
trustees should die, or if any other such event should occur, or if any of such
trusts should terminate, before the delivery of the Offered Securities
hereunder, certificates for such Offered Securities shall be delivered by the
Custodian in accordance with the terms and conditions of this Agreement as if
such death or other event or termination had not occurred, regardless of whether
or not the Custodian shall have received notice of such death or other event or
termination.
The Custodian, TCW and Blackstone will deliver the Firm Securities to the
Representatives for the accounts of the Underwriters, against payment of the
purchase price in Federal (same day) funds by official bank check or checks or
wire transfer to an account at a
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bank acceptable to CSFBC and Xxxxxx drawn to the order of the Custodian, at the
office of the Custodian, at 10:00 A.M., New York time, on December 19, 2001, or
at such other time not later than seven full business days thereafter as CSFBC,
Xxxxxx and the Company determine, such time being herein referred to as the
"First Closing Date". For purposes of Rule 15c6-1 under the Securities Exchange
Act of 1934, the First Closing Date (if later than the otherwise applicable
settlement date) shall be the settlement date for payment of funds and delivery
of securities for all the Offered Securities sold pursuant to the offering. The
certificates for the Firm Securities so to be delivered will be in definitive
form, in such denominations and registered in such names as CSFBC and Xxxxxx
request and will be made available for checking and packaging at the above
office of the Custodian at least 24 hours prior to the First Closing Date.
In addition, upon written notice from CSFBC and Xxxxxx given to the Company
from time to time not more than 30 days subsequent to the date of the
Prospectus, the Underwriters may purchase all or less than all of the Optional
Securities at the purchase price per Security to be paid for the Firm
Securities. The Company agrees to sell to the Underwriters the number of
Optional Securities specified in such notice and the Underwriters agree,
severally and not jointly, to purchase such Optional Securities for the account
of each Underwriter in the same proportion as the number of Firm Securities set
forth opposite such Underwriter's name bears to the total number of Firm
Securities (subject to adjustment by CFSBC and Xxxxxx to eliminate fractions).
Such Optional Securities shall be purchased by the Underwriters only for the
purpose of covering over-allotments made in connection with the sale of the Firm
Securities. No Optional Securities shall be sold or delivered unless the Firm
Securities previously have been, or simultaneously are, sold and delivered. The
right to purchase the Optional Securities or any portion thereof may be
exercised from time to time and to the extent not previously exercised may be
surrendered and terminated at any time upon notice by CSFBC and Xxxxxx to the
Company.
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as an "Optional Closing Date", which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "Closing Date"), shall be determined by CSFBC
and Xxxxxx but shall be not later than five full business days after written
notice of election to purchase Optional Securities is given. The Company will
deliver the Optional Securities being purchased on each Optional Closing Date to
the Representatives for the accounts of the several Underwriters at the office
of Winston & Xxxxxx, 00 Xxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000. The
certificates for the Optional Securities being purchased on each Optional
Closing Date will be in definitive form, in such denominations and registered in
such names as CSFBC and Xxxxxx request upon reasonable notice prior to such
Optional Closing Date and will be made available for checking and packaging at
the above office of Winston & Xxxxxx at a reasonable time in advance of such
Optional Closing Date.
4. Offering by Underwriters. It is understood that the several Underwriters
propose to offer the Offered Securities for sale to the public as set forth in
the Prospectus.
5. Certain Agreements of the Company and the Selling Stockholders. The
Company agrees with the several Underwriters and the Selling Stockholders that:
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(a) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement, the Company will
file the Prospectus with the Commission pursuant to and in accordance with
subparagraph (1) or (2) (as consented to by CSFBC and Xxxxxx, such consent
not to be unreasonably withheld) of Rule 424(b) not later than the second
business day following the execution and delivery of this Agreement or if
applicable and if consented to by CSFBC and Xxxxxx, such consent not to be
unreasonably withheld, subparagraph (4) or (5). The Company will advise
CSFBC and Xxxxxx promptly of any such filing pursuant to Rule 424(b). If
the Effective Time of the Initial Registration Statement is prior to the
execution and delivery of this Agreement and an additional registration
statement is necessary to register a portion of the Offered Securities
under the Act but the Effective Time thereof has not occurred as of such
execution and delivery, the Company will file the additional registration
statement or, if filed, will file a post-effective amendment thereto with
the Commission pursuant to and in accordance with Rule 462(b) on or prior
to 10:00 P.M., New York time, on the date of this Agreement or, if earlier,
on or prior to the time the Prospectus is printed and distributed to any
Underwriter, or will make such filing at such later date as shall have been
consented to by CSFBC and Xxxxxx, such consent not to be unreasonably
withheld.
(b) The Company will advise CSFBC and Xxxxxx promptly of any proposal
to amend or supplement the initial or any additional registration statement
as filed or the related prospectus or the Initial Registration Statement,
the Additional Registration Statement (if any) or the Prospectus and will
not effect such amendment or supplementation without CSFBC's and Xxxxxx'x
consent, such consent not to be unreasonably withheld; and the Company will
also advise CSFBC and Xxxxxx promptly of the effectiveness of each
Registration Statement (if its Effective Time is subsequent to the
execution and delivery of this Agreement) and of any amendment or
supplementation of a Registration Statement or the Prospectus and of the
institution by the Commission of any stop order proceedings in respect of a
Registration Statement and will use its best efforts to prevent the
issuance of any such stop order and to obtain as soon as possible its
lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs as a result of which
the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it is necessary at any time to
amend the Prospectus to comply with the Act, the Company will promptly
notify CSFBC and Xxxxxx of such event and will promptly prepare and file
with the Commission, at its own expense, an amendment or supplement which
will correct such statement or omission or an amendment which will effect
such compliance. Neither CSFBC's nor Xxxxxx'x consent to, nor the
Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 6.
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(d) As soon as practicable, but not later than the Availability Date
(as defined below), the Company will make generally available to its
securityholders an earnings statement covering a period of at least 12
months beginning after the Effective Date of the Initial Registration
Statement (or, if later, the Effective Date of the Additional Registration
Statement) which will satisfy the provisions of Section 11(a) of the Act.
For the purpose of the preceding sentence, "Availability Date" means the
45th day after the end of the fourth fiscal quarter following the fiscal
quarter that includes such Effective Date, except that, if such fourth
fiscal quarter is the last quarter of the Company's fiscal year,
"Availability Date" means the 90th day after the end of such fourth fiscal
quarter.
(e) The Company will furnish to the Representatives copies of each
Registration Statement (six of which will be signed and will include all
exhibits), each related preliminary prospectus, and, so long as a
prospectus relating to the Offered Securities is required to be delivered
under the Act in connection with sales by any Underwriter or dealer, the
Prospectus and all amendments and supplements to such documents, in each
case in such quantities as CSFBC and Xxxxxx may reasonably request. The
Prospectus shall be so furnished on or prior to 3:00 P.M., New York time,
on the business day following the later of the execution and delivery of
this Agreement or the Effective Time of the Initial Registration Statement.
All other such documents shall be so furnished as soon as available. The
Company will pay the expenses of printing and distributing to the
Underwriters all such documents.
(f) The Company will arrange for the qualification of the Offered
Securities for sale under the laws of such jurisdictions as CSFBC and
Xxxxxx reasonably request and will continue such qualifications in effect
so long as required for the distribution; provided that the Company shall
not be obligated to qualify as a foreign corporation or take any action
that would subject it to general service of process in any jurisdiction
where it is not now so subject.
(g) For a period of 90 days after the date of the initial public
offering of the Offered Securities, the Company will not offer, sell,
contract to sell, pledge or otherwise dispose of, directly or indirectly,
or file with the Commission a registration statement under the Act relating
to, any additional shares of its Securities or securities convertible into
or exchangeable or exercisable for any shares of its Securities, or
publicly disclose the intention to make any such offer, sale, pledge,
disposition or filing, without the prior written consent of CSFBC and
Xxxxxx except grants of employee stock options pursuant to the terms of a
plan in effect on the date hereof, issuances of Securities pursuant to the
exercise of such options or warrants outstanding on the date hereof, or the
exercise of any other employee stock options outstanding on the date
hereof.
(h) The Company agrees with the several Underwriters that the Company
will pay all expenses incident to the performance of the obligations of the
Company and the Selling Stockholders, as the case may be, under this
Agreement, for any filing fees and other expenses (including reasonable
fees and disbursements of counsel) in
11
connection with qualification of the Offered Securities for sale under the
laws of such jurisdictions as CSFBC and Xxxxxx reasonably request and the
printing of memoranda relating thereto, for the filing fee incident to the
review by the National Association of Securities Dealers, Inc. of the
Offered Securities, for any travel expenses of the Company's officers and
employees and any other expenses of the Company in connection with
attending or hosting meetings with prospective purchasers of the Offered
Securities, for any transfer taxes on the sale by the Selling Stockholders
of the Offered Securities to the Underwriters and for expenses incurred in
distributing preliminary prospectuses and the Prospectus (including any
amendments and supplements thereto) to the Underwriters. It is understood,
however, that except as provided in this Section 5 or in Sections 7 or 9,
the Underwriters will pay all of their costs and expenses, including fees
and disbursements of their counsel, stock transfer taxes payable on resale
of any of the Securities by them and any advertising expenses connected
with any offers they may make.
The provisions of this Section 5 shall not supersede or otherwise
affect any agreement that the Company, the Underwriters and the Selling
Stockholders may otherwise have for the allocation of such expenses among
themselves.
(i) Each Selling Stockholder agrees, for a period of 90 days after the
date of the public offering of the Offered Securities, not to offer, sell,
contract to sell, pledge or otherwise dispose of, directly or indirectly,
any additional shares of the Securities of the Company or securities
convertible into or exchangeable or exercisable for any shares of
Securities, enter into a transaction which would have the same effect, or
enter into any swap, hedge or other arrangement that transfers, in whole or
in part, any of the economic consequences of ownership of the Securities,
whether any such aforementioned transaction is to be settled by delivery of
the Securities or such other securities, in cash or otherwise, or publicly
disclose the intention to make any such offer, sale, pledge or disposition,
or enter into any such transaction, swap, hedge or other arrangement,
without, in each case, the prior written consent of CSFBC and Xxxxxx.
6. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the Firm Securities on the
First Closing Date and the Optional Securities to be purchased on each Optional
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company and the Selling Stockholders herein, to
the accuracy of the statements of Company officers made pursuant to the
provisions of Section 6(h), to the performance by the Company and the Selling
Stockholders of their obligations hereunder and to the following additional
conditions precedent:
(a) The Representatives shall have received a letter, dated the date
of delivery thereof (which, if the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement, shall be on or prior to the date of this Agreement or, if the
Effective Time of the Initial Registration Statement is subsequent to the
execution and delivery of this Agreement, shall be prior to the filing of
the amendment or post-effective amendment to the registration statement to
be filed
12
shortly prior to such Effective Time), of KPMG LLP confirming that they are
independent public accountants within the meaning of the Act and the
applicable published Rules and Regulations thereunder and stating to the
effect that:
(i) in their opinion the financial statements and schedules
examined by them and included or incorporated by reference in the
Registration Statements comply as to form in all material respects
with the applicable accounting requirements of the Act and the related
published Rules and Regulations;
(ii) they have performed, if applicable, the procedures specified
by the American Institute of Certified Public Accountants for a review
of interim financial information as described in Statement of Auditing
Standards No. 71, Interim Financial Information, on the unaudited
financial statements included or incorporated by reference in the
Registration Statements;
(iii) on the basis of the review referred to in clause (ii) above
(if any), a reading of the latest available interim financial
statements of the Company, inquiries of officials of the Company who
have responsibility for financial and accounting matters and other
specified procedures, nothing came to their attention that caused them
to believe that:
(A) the unaudited financial statements included in the
Registration Statements 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 or any material
modifications should be made to such unaudited financial
statements for them to be in conformity with generally accepted
accounting principles;
(B) the unaudited consolidated revenue, net operating loss, net
loss and net loss per share amounts included in the Prospectus do
not agree with the amounts set forth in the unaudited
consolidated financial statements for those same periods or were
not determined on a basis substantially consistent with that of
the corresponding amounts in the audited statements of income;
(C) at the date of the latest available balance sheet read by
such accountants, or at a subsequent specified date not more than
three business days prior to the date of this Agreement, there
was any change in the capital stock or any increase in short-term
indebtedness or long-term debt of the Company and its
consolidated subsidiaries or, at the date of the latest available
balance sheet read by such accountants, there was any decrease in
consolidated net current assets or net assets, as compared with
amounts shown on the latest balance sheet included in the
Prospectus;
(D) for the period from the closing date of the latest income
statement included in the Prospectus to the closing date of the
latest available
13
income statement read by such accountants there were any
decreases, as compared with the corresponding period of the
previous year and with the period of corresponding length ended
the date of the latest income statement included in the
Prospectus, in consolidated net sales or net operating income in
the total or per share amounts of consolidated net income;
(E) (i) the pro forma financial information does not comply as to
form in all material respects with the applicable accounting
requirements of the Act and the Rules and Regulations, (ii) the
pro forma adjustments have not been properly applied to the
historical amounts in the compilation of those statements, (iii)
the methods followed in compiling the pro forma financial
information were not proper for such purpose, (iv) the pro forma
adjustments with respect to the pro forma financial information
were not appropriate adjustments or (v) the pro forma financial
information would require any further adjustments to give effect
to the proposed merger with iPCS, Inc. ("iPCS").
except in all cases set forth in clauses (C) and (D) above for
changes, increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter; and
(iv) they have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information
contained in the Registration Statements (in each case to the extent
that such dollar amounts, percentages and other financial information
are derived from the general accounting records of the Company and its
subsidiaries subject to the internal controls of the Company's
accounting system or are derived directly from such records by
analysis or computation) with the results obtained from inquiries, a
reading of such general accounting records and other procedures
specified in such letter and have found such dollar amounts,
percentages and other financial information to be in agreement with
such results, except as otherwise specified in such letter.
For purposes of this subsection, (i) if the Effective Time of the Initial
Registration Statements is subsequent to the execution and delivery of this
Agreement, "Registration Statements" shall mean the initial registration
statement as proposed to be amended by the amendment or post-effective amendment
to be filed shortly prior to its Effective Time, (ii) if the Effective Time of
the Initial Registration Statements is prior to the execution and delivery of
this Agreement but the Effective Time of the Additional Registration Statement
is subsequent to such execution and delivery, "Registration Statements" shall
mean the Initial Registration Statement and the additional registration
statement as proposed to be filed or as proposed to be amended by the
post-effective amendment to be filed shortly prior to its Effective Time, and
(iii) "Prospectus" shall mean the prospectus included in the Registration
Statements. All financial statements and schedules included in material
incorporated by reference into the Prospectus shall be deemed included in the
Registration Statements for purposes of this subsection.
14
(b) The Representatives shall have received a letter, dated the date
of delivery thereof (which, if the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement, shall be on or prior to the date of this Agreement or, if the
Effective Time of the Initial Registration Statement is subsequent to the
execution and delivery of this Agreement, shall be prior to the filing of
the amendment or post-effective amendment to the registration statement to
be filed shortly prior to such Effective Time), of Deloitte & Touche LLP
confirming that they are independent public accountants within the meaning
of the Act and the applicable published Rules and Regulations thereunder
and stating to the effect that:
(i) in their opinion the financial statements and schedules
examined by them and included or incorporated by reference in the
Registration Statements comply as to form in all material respects
with the applicable accounting requirements of the Act and the related
published Rules and Regulations;
(ii) they have performed the procedures specified by the American
Institute of Certified Public Accountants for a review of interim
financial information as described in Statement of Auditing Standards
No. 71, Interim Financial Information, on the unaudited financial
statements included or incorporated by reference in the Registration
Statements;
(iii) on the basis of the review referred to in clause (ii)
above, a reading of the latest available interim financial statements
of iPCS, inquiries of officials of iPCS who have responsibility for
financial and accounting matters and other specified procedures,
nothing came to their attention that caused them to believe that:
(A) the unaudited financial statements included in the
Registration Statements 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 or any material
modifications should be made to such unaudited financial
statements for them to be in conformity with generally accepted
accounting principles;
(B) the unaudited consolidated revenue, net operating loss, net
loss and net loss per share amounts included in the Prospectus do
not agree with the amounts set forth in the unaudited
consolidated financial statements for those same periods or were
not determined on a basis substantially consistent with that of
the corresponding amounts in the audited statements of income;
(C) at the date of the latest available balance sheet read by
such accountants, or at November 29, 2001, there was any change
in the capital stock or any increase in short-term indebtedness
or long-term debt of iPCS and its consolidated subsidiaries or,
at the date of the latest available balance sheet read by such
accountants, or at November 29, 2001 there was any decrease in
consolidated net current assets or net assets, as
15
compared with amounts shown on the latest balance sheet included
in the Prospectus;
(D) for the period from the closing date of the latest income
statement included in the Prospectus to the closing date of the
latest available income statement read by such accountants or at
November 29, 2001 there were any decreases, as compared with the
corresponding period of the previous year and with the period of
corresponding length ended the date of the latest income
statement included in the Prospectus, in consolidated net sales
or net operating income in the total or per share amounts of
consolidated net income;
except in all cases set forth in clauses (C) and (D) above for
changes, increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter; and
(iv) they have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information
contained in the Registration Statements (in each case to the extent
that such dollar amounts, percentages and other financial information
are derived from the general accounting records of iPCS and its
subsidiaries subject to the internal controls of iPCS' accounting
system or are derived directly from such records by analysis or
computation) with the results obtained from inquiries, a reading of
such general accounting records and other procedures specified in such
letter and have found such dollar amounts, percentages and other
financial information to be in agreement with such results, except as
otherwise specified in such letter.
For purposes of this subsection, (i) if the Effective Time of the Initial
Registration Statements is subsequent to the execution and delivery of this
Agreement, "Registration Statements" shall mean the initial registration
statement as proposed to be amended by the amendment or post-effective amendment
to be filed shortly prior to its Effective Time, (ii) if the Effective Time of
the Initial Registration Statements is prior to the execution and delivery of
this Agreement but the Effective Time of the Additional Registration Statement
is subsequent to such execution and delivery, "Registration Statements" shall
mean the Initial Registration Statement and the additional registration
statement as proposed to be filed or as proposed to be amended by the
post-effective amendment to be filed shortly prior to its Effective Time, and
(iii) "Prospectus" shall mean the prospectus included in the Registration
Statements. All financial statements and schedules included in material
incorporated by reference into the Prospectus shall be deemed included in the
Registration Statements for purposes of this subsection.
(c) If the Effective Time of the Initial Registration Statement is not
prior to the execution and delivery of this Agreement, such Effective Time
shall have occurred not later than 10:00 P.M., New York time, on the date
of this Agreement or such later date as shall have been consented to by
CSFBC and Xxxxxx. If the Effective Time of the Additional Registration
Statement (if any) is not prior to the execution and delivery of this
Agreement, such Effective Time shall have occurred not later than
16
10:00 P.M., New York time, on the date of this Agreement or, if earlier,
the time the Prospectus is printed and distributed to any Underwriter, or
shall have occurred at such later date as shall have been consented to by
CSFBC and Xxxxxx. If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement, the
Prospectus shall have been filed with the Commission in accordance with the
Rules and Regulations and Section 5(a) of this Agreement. Prior to such
Closing Date, no stop order suspending the effectiveness of a Registration
Statement shall have been issued and no proceedings for that purpose shall
have been instituted or, to the knowledge of any Selling Stockholder, the
Company or the Representatives, shall be contemplated by the Commission.
(d) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development or event
involving a prospective change, in the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as whole which, in the judgment of a majority in
interest of the Underwriters including the Representatives, is material and
adverse and makes it impractical or inadvisable to proceed with completion
of the public offering or the sale of and payment for the Offered
Securities; (ii) any downgrading in the rating of any debt securities of
the Company by any "nationally recognized statistical rating organization"
(as defined for purposes of Rule 436(g) under the Act), or any public
announcement that any such organization has under surveillance or review
its rating of any debt securities of the Company (other than an
announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating); (iii) any change in
U.S. or international financial, political or economic conditions if, in
the judgment of a majority in interest of the Underwriters including the
Representatives, the effect of any such change makes it impractical or
inadvisable to proceed with completion of the public offering or the sale
of and payment for the Offered Securities whether in the primary market or
in respect of dealings in the secondary market; (iv) any material
suspension or material limitation of trading in securities generally on the
New York Stock Exchange or the Nasdaq National Market, or any setting of
minimum prices for trading on such exchange, or any suspension of trading
of any securities of the Company on any exchange or in the over-the-counter
market; (v) any banking moratorium declared by U.S. Federal or New York
authorities; (vi) any major disruption of settlements of securities or
clearance services in the United States or (vii) any attack on, outbreak or
escalation of hostilities or act of terrorism involving the United States,
any declaration of war by Congress or any other national or international
calamity or emergency if, in the judgment of a majority in interest of the
Underwriters including the Representatives, the effect of any such attack,
outbreak, escalation, act, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of the public
offering or the sale of and payment for the Offered Securities.
(e) The Representatives shall have received an opinion, dated such
Closing Date, of Winston & Xxxxxx, counsel for the Company, to the effect
that:
17
(i) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware,
with corporate power and authority to own its properties and conduct
its business as described in the Prospectus; and the Company is duly
qualified to do business as a foreign corporation in good standing in
all other jurisdictions in which its ownership or lease of property or
the conduct of its business requires such qualification;
(ii) The Offered Securities delivered on such Closing Date and
all other outstanding shares of the Common Stock of the Company that
were issued in connection with the Company's merger with iPCS or
issued pursuant to option exercises since September 30, 2001, have
been duly authorized and validly issued, are fully paid and
nonassessable and conform to the description thereof contained in the
Prospectus; and the stockholders of the Company have no preemptive
rights with respect to the Securities;
(iii) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings known to such counsel between
the Company and any person granting such person the right to require
the Company to file a registration statement under the Act with
respect to any securities of the Company owned or to be owned by such
person or to require the Company to include such securities in the
securities registered pursuant to the Registration Statement or in any
securities being registered pursuant to any other registration
statement filed by the Company under the Act;
(iv) The Company is not and, after giving effect to the offering
and sale of the Offered Securities and the application of the proceeds
thereof as described in the Prospectus, will not be an "investment
company" as defined in the Investment Company Act of 1940.
(v) No consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court is required to be
obtained or made by the Company for the consummation of the
transactions contemplated by this Agreement, except such as have been
obtained and made under the Act and such as may be required under
state securities or "blue sky" laws and the rules of the National
Association of Securities Dealers, Inc.;
(vi) The execution, delivery and performance of this Agreement
and the consummation of the transactions herein or therein
contemplated will not, to such counsel's knowledge, result in a breach
or violation of any of the terms and provisions of, or constitute a
default under, any statute, any rule, regulation or order of any
governmental agency or body or any court having jurisdiction over the
Company or any subsidiary of the Company or any of their properties,
or any Material Contract to which the Company or any such subsidiary
is a party or by which the Company or any such subsidiary is bound or
to which any of the properties of the Company or any such subsidiary
is subject, or the charter or by-laws of the Company or any such
subsidiary;
18
(vii) The Initial Registration Statement was declared effective
under the Act as of the date and time specified in such opinion, the
Additional Registration Statement (if any) was filed and became
effective under the Act as of the date and time (if determinable)
specified in such opinion, the Prospectus either was filed with the
Commission pursuant to the subparagraph of Rule 424(b) specified in
such opinion on the date specified therein or was included in the
Initial Registration Statement or the Additional Registration
Statement (as the case may be), and, to the best of the knowledge of
such counsel, no stop order suspending the effectiveness of a
Registration Statement or any part thereof has been issued and no
proceedings for that purpose have been instituted or are pending or
contemplated under the Act, and each Registration Statement and the
Prospectus, and each amendment or supplement thereto, as of their
respective effective or issue dates, complied as to form in all
material respects with the requirements of the Act and the Rules and
Regulations; such counsel have no reason to believe that any part of a
Registration Statement or any amendment thereto, as of its effective
date or as of such Closing Date, contained any untrue statement of a
material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading; or that the Prospectus or any amendment or supplement
thereto, as of its issue date or as of such Closing Date, contained
any untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; the descriptions in the Registration Statements and
Prospectus of statutes, legal and governmental proceedings (except for
the statements set forth under the caption "Business -- Regulation of
the Wireless Telecommunications Industry" in the Company's Annual
Report on Form 10-K for the year ended September 30, 2001), and
contracts and other documents are accurate and fairly present the
information required to be shown; and such counsel does not know of
any legal or governmental proceedings required to be described in a
Registration Statement or the Prospectus which are not described as
required or of any contracts or documents of a character required to
be described in a Registration Statement or the Prospectus or to be
filed as exhibits to a Registration Statement which are not described
and filed as required; it being understood that such counsel need
express no opinion as to the financial statements or other financial
data contained in the Registration Statements or the Prospectus; and
(viii) This Agreement has been duly authorized, executed and
delivered by the Company.
(f) The Representatives shall have received an opinion, dated such
Closing Date, of Xxxxxxx Xxxxxxx & Xxxxxxxx, O'Melveny & Xxxxx LLP and
Xxxxx Xxxxx, a Professional Corporation, counsel for the respective Selling
Stockholders, each substantially to the effect that:
(i) Each Selling Stockholder had valid and unencumbered title to
the Offered Securities delivered by Selling Stockholder on such
Closing Date and had full
19
right, power and authority to sell, assign, transfer and deliver the
Offered Securities delivered by such Selling Stockholder on such
Closing Date hereunder; and the several Underwriters have acquired
valid and unencumbered title to the Offered Securities purchased by
them from the Selling Stockholders on such Closing Date hereunder;
(ii) No consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court is required to be
obtained or made by any Selling Stockholder for the consummation of
the transactions contemplated by the Custody Agreement, if any, or
this Agreement in connection with the sale of the Offered Securities
sold by the Selling Stockholders, except such as have been obtained
and made under the Act and such as may be required under state
securities laws;
(iii) The execution, delivery and performance of the Custody
Agreement, if any, and this Agreement and the consummation of the
transactions therein and herein contemplated will not, to the
knowledge of such counsel, result in a breach or violation of any of
the terms and provisions of, or constitute a default under, any
statute, any rule, regulation or order of any governmental agency or
body or any court having jurisdiction over any Selling Stockholder or
any of their properties or any agreement or instrument to which any
Selling Stockholder is a party or by which any Selling Stockholder is
bound or to which any of the properties of any Selling Stockholder is
subject, or the charter or by-laws of any Selling Stockholder which is
a corporation; and
(iv) The Power of Attorney and related Custody Agreement, if any,
with respect to each Selling Stockholder has been duly authorized,
executed and delivered by such Selling Stockholder and constitute
valid and legally binding obligations of each such Selling Stockholder
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles; and
(v) This Agreement has been duly authorized, executed and
delivered by each Selling Stockholder.
(g) The Representatives shall have received from Xxxxx, Xxxxx & Xxxxx,
counsel for the Underwriters, such opinion or opinions, dated such Closing
Date, with respect to the incorporation of the Company, the validity of the
Offered Securities delivered on such Closing Date, the Registration
Statements, the Prospectus and other related matters as the Representatives
may reasonably require, and the Selling Stockholders and the Company shall
have furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(h) The Representatives shall have received a certificate, dated such
Closing Date, of the President or any Vice President and a principal
financial or accounting officer
20
of the Company in which such officers, to the best of their knowledge after
reasonable investigation, shall state that: the representations and
warranties of the Company in this Agreement are true and correct as of the
Closing Date; the Company has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied hereunder at or
prior to such Closing Date; no stop order suspending the effectiveness of
any Registration Statement has been issued and no proceedings for that
purpose have been instituted or are contemplated by the Commission; the
Additional Registration Statement (if any) satisfying the requirements of
subparagraphs (1) and (3) of Rule 462(b) was filed pursuant to Rule 462(b),
including payment of the applicable filing fee in accordance with Rule
111(a) or (b) under the Act, prior to the time the Prospectus was printed
and distributed to any Underwriter; and, subsequent to the dates of the
most recent financial statements in the Prospectus, there has been no
material adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as a whole except as set forth in or contemplated by the
Prospectus or as described in such certificate.
(i) The Representatives shall have received a letter, dated such
Closing Date, of KPMG LLP which meets the requirements of subsection (a) of
this Section, except that the specified date referred to in such subsection
will be a date not more than three days prior to such Closing Date for the
purposes of this subsection.
(j) The Representatives shall have received a letter, dated such
Closing Date, of Deloitte & Touche LLP which meets the requirements of
subsection (b) of this Section, except that the specified date referred to
in such subsection will be a date not more than three days prior to such
Closing Date for the purposes of this subsection.
(k) On or prior to the date of this Agreement, The Representatives
shall have received lockup letters from each of the executive officers and
directors of the Company.
(l) The Representatives shall have received a certificate, dated such
Closing Date, of Selling Stockholders in which the Selling Stockholders, to
the best of their knowledge after reasonable investigation, shall state
that: their representations and warranties in this Agreement are true and
correct and that the Selling Stockholders have complied with all agreements
and satisfied all conditions on their part to be performed or satisfied
hereunder at or prior to such Closing Date.
(m) The Custodian will deliver to CSFBC and Xxxxxx a letter stating
that they will deliver to each Selling Stockholder a United States Treasury
Department Form 1099 (or other applicable form or statement specified by
the United States Treasury Department regulations in lieu thereof) on or
before January 31 of the year following the date of this Agreement.
21
(n) The Representatives shall have received an opinion, dated such
Closing Date, of Wiley, Rein & Fielding LLP, counsel for the Company, to
the effect that the statements set forth under the caption "Business --
Regulation of the Wireless Telecommunications Industry" in the Company's
Annual Report on Form 10-K for the year ended September 30, 2001, insofar
as they purport to constitute a summary of the regulations applicable to
the operations of the Company under the Communications Act of 1934, fairly
summarize the matters therein described and are accurate and complete in
all material respects.
The Selling Stockholders and the Company will furnish the Representatives with
such conformed copies of such opinions, certificates, letters and documents as
the Representatives reasonably request. CSFBC and Xxxxxx may in their sole
discretion waive on behalf of the Underwriters compliance with any conditions to
the obligations of the Underwriters hereunder, whether in respect of an Optional
Closing Date or otherwise.
7. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each Underwriter, its partners, directors and officers and each
person, if any who controls such Underwriter within the meaning of Section 15 of
the Act, against any losses, claims, damages or liabilities, joint or several,
to which such Underwriter may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in any Registration Statement, the
Prospectus, or any amendment or supplement thereto, or any related 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 not misleading, and will reimburse each Underwriter
for any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with written information furnished
to the Company by any Underwriter through the Representatives specifically for
use therein, it being understood and agreed that the only such information
furnished by any Underwriter consists of the information described as such in
subsection (c) below and provided, further, that with respect to any untrue
statement or alleged untrue statement in or omission or alleged omission from
any preliminary prospectus the foregoing indemnity shall not inure to the
benefit of any Underwriter from whom the person asserting any such losses,
claims, damages or liabilities purchased the Offered Securities concerned, to
the extent that a prospectus relating to such Offered Securities was required to
be delivered by such Underwriter under the Act in connection with such purchase
and any such loss, claim, damage or liability of such Underwriter results from
the fact that there was not sent or given to such person, at or prior to the
written confirmation of the sale of such Offered Securities to such person, a
copy of the Prospectus (exclusive of material incorporated by reference) if the
Company had previously furnished copies thereof to such Underwriter.
(b) Each Selling Stockholder, severally and not jointly, will
indemnify and hold harmless each Underwriter, its partners, directors and
officers and each person who
22
controls such Underwriter within the meaning of Section 15 of the Act,
against any losses, claims, damages or liabilities, joint or several, to
which such Underwriter may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in any Registration
Statement, the Prospectus, or any amendment or supplement thereto, or any
related 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 not
misleading, and will reimburse each Underwriter for any legal or other
expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that the Selling
Stockholders will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in conformity with
written information furnished to the Company by an Underwriter through the
Representatives specifically for use therein, it being understood and
agreed that the only such information furnished by any Underwriter consists
of the information described as such in subsection (c) below; provided,
further, that a Selling Stockholder shall only be subject to such liability
to the extent that the untrue statement or alleged untrue statement or
omission or alleged omission is based upon the Selling Stockholders
Information relating to such Selling Stockholder and provided, further,
that the liability under this subsection of each Selling Stockholder shall
be limited to an amount equal to the aggregate gross proceeds to such
Selling Stockholder from the sale of Securities sold by such Selling
Stockholder hereunder, after deducting underwriting discounts and
commissions but before out-of-pocket expenses, if any.
(c) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company, its directors and officers and each person, if any,
who controls the Company within the meaning of Section 15 of the Act, and
each Selling Stockholder, its partners, directors and officers and each
person who controls such Selling Stockholder against any losses, claims,
damages or liabilities to which the Company or such Selling Stockholder may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any material
fact contained in any Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus, or
arise out of or are based upon the omission or the alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case to the extent, but
only to the extent, that such untrue statement or alleged untrue statement
or omission or alleged omission was made in reliance upon and in conformity
with written information furnished to the Company by such Underwriter
through the Representatives specifically for use therein, and will
reimburse any legal or other expenses reasonably incurred by the Company
and each Selling Stockholder in connection with investigating or defending
any such loss, claim, damage, liability or action as such expenses are
incurred, it being understood and
23
agreed that the only such information furnished by any Underwriter consists
of the following information in the Prospectus furnished on behalf of each
Underwriter: the concession and reallowance figures appearing in the fourth
paragraph under the caption "Underwriting" and the information contained in
the ninth, tenth and eleventh paragraphs under the caption "Underwriting";
provided, that with respect to the eleventh paragraph, Xxxxxx Xxxxxx
Partners LLC shall be solely responsible for the information contained in
the eleventh paragraph under the caption "Underwriting".
(d) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against an indemnifying party
under subsection (a), (b) or (c) above, 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 otherwise than under subsection (a), (b) or (c)
above, except to the extent that such indemnifying party is materially
prejudiced as a result of such failure to give notice, in which case the
indemnifying party will be relieved of liability only to the extent of such
prejudice. In case any such action is brought against any indemnified party
and it notifies an indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the
extent that it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party),
and after notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof, the indemnifying party will
not be liable to such indemnified party under this Section for any legal or
other expenses subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of
investigation. It is understood that the indemnifying party shall not, in
connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees and expenses of more than
one separate firm and local counsel for all such indemnified parties. No
indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
action in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified
party unless such (i) settlement includes an unconditional release of such
indemnified party from all liability on any claims that are the subject
matter of such action and (ii) does not include a statement as to, or an
admission of, fault, culpability or a failure to act by or on behalf of an
indemnified party. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent which
shall not be unreasonably withheld.
(e) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a),
(b) or (c) above, then each indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a), (b) or (c)
above (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Selling Stockholders on the one
hand and the Underwriters on the other hand from the offering of the
Securities or (ii) if the allocation
24
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
and the Selling Stockholders on the one hand and the Underwriters on the
other hand in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities as well as any other relevant
equitable considerations. The relative benefits received by the Company and
the Selling Stockholders on the one hand and the Underwriters on the other
hand shall be deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses) received by the Company and
the Selling Stockholders bear to the total underwriting discounts and
commissions received by the Underwriters. The relative fault shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company, the Selling Stockholders or the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The amount paid by an
indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (e) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any action or claim
which is the subject of this subsection (e). Notwithstanding the provisions
of this subsection (e), no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the
Securities underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this
subsection (e) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(f) The obligations of the Company and the Selling Stockholders under
this Section shall be in addition to any liability which the Company and
the Selling Stockholders may otherwise have and shall extend, upon the same
terms and conditions, to each person, if any, who controls any Underwriter
(as hereinafter defined) within the meaning of the Act; and the obligations
of the Underwriters under this Section shall be in addition to any
liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each director of the
Company, to each officer of the Company who has signed a Registration
Statement and to each person, if any, who controls the Company within the
meaning of the Act.
8. Default of Underwriters. If any Underwriter or Underwriters default in
their obligations to purchase Offered Securities hereunder on either the First
Closing Date or any Optional Closing Date and the aggregate number of shares of
Offered Securities that such defaulting Underwriter or Underwriters agreed but
failed to purchase does not exceed 10% of the total number of shares of Offered
Securities that the Underwriters are obligated to purchase on such Closing Date,
CSFBC and Xxxxxx may make arrangements satisfactory to the Company
25
and the Selling Stockholders for the purchase of such Offered Securities by
other persons, including any of the Underwriters, but if no such arrangements
are made by such Closing Date, the non-defaulting Underwriters shall be
obligated severally, in proportion to their respective commitments hereunder, to
purchase the Offered Securities that such defaulting Underwriters agreed but
failed to purchase on such Closing Date. If any Underwriter or Underwriters so
default and the aggregate number of shares of Offered Securities with respect to
which such default or defaults occur exceeds 10% of the total number of shares
of Offered Securities that the Underwriters are obligated to purchase on such
Closing Date and arrangements satisfactory to CSFBC and Xxxxxx, the Company and
the Selling Stockholders for the purchase of such Offered Securities by other
persons are not made within 36 hours after such default, this Agreement will
terminate without liability on the part of any non-defaulting Underwriter, the
Company or the Selling Stockholders, except as provided in Section 9 (provided
that if such default occurs with respect to Optional Securities after the First
Closing Date, this Agreement will not terminate as to the Firm Securities or any
Optional Securities purchased prior to such termination). In any such case,
either the Representatives or the Company and/or Selling Stockholders shall have
the right to postpone the Closing Date, but in no event for longer than seven
days, in order that the required changes, if any, in the Registration Statement
and in the Prospectus or in any other documents or arrangements may be effected.
As used in this Agreement, the term "Underwriter" includes any person
substituted for an Underwriter under this Section. Nothing herein will relieve a
defaulting Underwriter from liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Selling Stockholders, of the Company or 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, or statement as to the
results thereof, made by or on behalf of any Underwriter, any Selling
Stockholder, the Company or any of their respective representatives, officers or
directors or any controlling person, and will survive delivery of and payment
for the Offered Securities. If this Agreement is terminated pursuant to Section
8 or if for any reason the purchase of the Offered Securities by the
Underwriters is not consummated, the Company shall remain responsible for the
expenses to be paid or reimbursed by them pursuant to Section 5 and the
respective obligations of the Company, the Selling Stockholders, and the
Underwriters pursuant to Section 7 shall remain in effect, and if any Offered
Securities have been purchased hereunder the representations and warranties in
Section 2 and all obligations under Section 5 shall also remain in effect. If
the purchase of the Offered Securities by the Underwriters is not consummated
for any reason other than solely because of the termination of this Agreement
pursuant to Section 8 or the occurrence of any event specified in clause (iii),
(iv), (v), (vi) or (vii) of Section 6(d), the Company will reimburse the
Underwriters for all out-of-pocket expenses (including fees and disbursements of
counsel) reasonably incurred by them in connection with the offering of the
Offered Securities.
10. Notices. All communications hereunder will be in writing and, if sent
to the Underwriters, will be mailed, delivered or telegraphed and confirmed to
the Representatives, c/o Credit Suisse First Boston Corporation, Eleven Madison
Avenue, New York, N.Y. 10010-3629, Attention: Transactions Advisory Group, or,
if sent to the Company, will be mailed, delivered or telegraphed and confirmed
to it at AirGate PCS, Inc., Xxxxxx Tower, 000 Xxxxxxxxx Xxxxxx XX, Xxxxx 0000,
Xxxxxxx, Xxxxxxx 00000, Attention: Chief Financial Officer with a copy to the
26
General Counsel of the Company or, if sent to Blackstone, will be mailed,
delivered or telegraphed and confirmed to The Blackstone Group at 000 Xxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxxxx X. Xxxx with a copy
to Xxxxxx X. Xxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, or if sent to TCW
Shared Opportunity Fund II, L.P., Shared Opportunity Fund IIB LLC, TCW Shared
Opportunity Fund III, L.P., TCW Leveraged Income Trust, L.P., TCW Leveraged
Income Trust II, L.P., TCW Leveraged Income Trust IV, L.P., TCW/Crescent
Mezzanine Partners II, L.P. and TCW/Crescent Mezzanine Trust II (collectively,
"TCW"), will be mailed, delivered or telegraphed and confirmed to 00000 Xxxxx
Xxxxxx Xxxx., Xxxxx 0000, Xxx Xxxxxxx, XX 00000, Attention: Xxxx Xxxxxxx, or, if
sent to Geneseo Communications, Inc., will be mailed, delivered or telegraphed
and confirmed to Geneseo Communications, Inc., 000 Xxxx Xxxxx Xxxxxx, Xxxxxxx,
XX 00000, or, if sent to Cambridge Telecom, Inc., will be mailed, delivered or
telegraphed and confirmed to Cambridge Telecom, Inc., 000 Xxxx Xxxxx Xxxxxx,
Xxxxxxx, XX 00000, or, if sent to Cass Communications, Inc., will be mailed,
delivered or telegraphed and confirmed to Cass Communications, Inc., 000 Xxxxxx
Xxxx, Xxxxxxxx, XX 00000, or, if sent to Technology Group, LLC, will be mailed,
delivered or telegraphed and confirmed to Technology Group, LLC, 0000 Xxxxx
Xxxxx Xxxxx 000, Xxxxxxxxxxxx, XX 00000, or, if sent to Montrose Mutual PCS,
will be mailed, delivered or telegraphed and confirmed to Montrose Mutual PCS,
000 Xxxxx Xxxx Xxxxxx, Xxxxxxxx, XX 00000, or, if sent to Gridley Enterprises,
Inc., will be mailed, delivered or telegraphed and confirmed to Gridley
Enterprises, Inc., 000 Xxxx Xxxxxxx, Xxxxxxx, XX 00000, or, if sent to Xxxxxxx
X. Xxxxx, will be mailed, delivered to telegraphed and confirmed at 00000
Xxxxxxxx Xxx Xxxx, Xxxxxxxxxx, XX 00000, Attention: Xxxxxxx X. Xxxxx; provided,
however, that any notice to an Underwriter pursuant to Section 7 will be mailed,
delivered or telegraphed and confirmed to such Underwriter.
11. Successors. This 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, and no other person
will have any right or obligation hereunder.
12. Representation. The Representatives will act for the several
Underwriters in connection with the transactions contemplated by this Agreement,
and any action under this Agreement taken by the Representatives jointly or by
CSFBC or Xxxxxx will be binding upon all the Underwriters.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York, without regard to principles
of conflicts of laws.
The Company hereby submits to the non-exclusive jurisdiction of the Federal
and state courts in the Borough of Manhattan in The City of New York in any suit
or proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby.
27
If the foregoing is in accordance with the Representatives' understanding
of our agreement, kindly sign and return to the Company one of the counterparts
hereof, whereupon it will become a binding agreement among the Selling
Stockholders, the Company and the several Underwriters in accordance with its
terms.
Very truly yours,
AIRGATE PCS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President, General Counsel and
Secretary
BLACKSTONE COMMUNICATIONS PARTNERS I L.P.
By: Blackstone Communications Management Associates I
L.L.C., its General Partner
By: /s/ Xxxxxxxx X. Xxxxxx
-------------------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Member
BLACKSTONE iPCS CAPITAL PARTNERS L.P.
By: Blackstone Media Management Associates III
L.L.C., its General Partner
By: /s/ Xxxxxxxx X. Xxxxxx
-------------------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Member
BLACKSTONE/iPCS L.L.C.
By: Blackstone Media Management Associates III
L.L.C., as General Partner of Blackstone iPCS
Offshore Capital Partners L.P., a Member
By: /s/ Xxxxxxxx X. Xxxxxx
-------------------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Member
TCW SHARED OPPORTUNITY FUND II, L.P.
By: TCW Investment Management Company
Its Investment Manager
By: /s/ Xxxx-Xxxx Xxxxxx
-------------------------------------------------
Name: Xxxx-Xxxx Xxxxxx
Title: Managing Director
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
SHARED OPPORTUNITY FUND IIB LLC
By: TCW Asset Management Company
as its Investment Advisor
By: /s/ Xxxx-Xxxx Xxxxxx
-------------------------------------------------
Name: Xxxx-Xxxx Xxxxxx
Title: Managing Director
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
TCW SHARED OPPORTUNITY FUND III, L.P.
By: TCW Asset Management Company
Its Investment Advisor
By: /s/ Xxxx-Xxxx Xxxxxx
-------------------------------------------------
Name: Xxxx-Xxxx Xxxxxx
Title: Managing Director
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
TCW LEVERAGED INCOME TRUST, L.P.
By: TCW Advisers (Bermuda), Ltd.
as its General Partner
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
By: TCW Investment Management Company
as Investment Adviser
By: /s/ Xxxx-Xxxx Xxxxxx
-------------------------------------------------
Name: Xxxx-Xxxx Xxxxxx
Title: Managing Director
TCW LEVERAGED INCOME TRUST II, L.P.
By: TCW (XXXX XX), L.P.
as its General Partner
By: TCW Advisers (Bermuda), Ltd.
its General Partner
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
By: TCW Investment Management Company
as Investment Adviser
By: /s/ Xxxx-Xxxx Xxxxxx
-------------------------------------------------
Name: Xxxx-Xxxx Xxxxxx
Title: Managing Director
TCW LEVERAGED INCOME TRUST IV, L.P.
By: TCW Asset Management Company
as its Investment Advisor
By: /s/ Xxxx-Xxxx Xxxxxx
-------------------------------------------------
Name: Xxxx-Xxxx Xxxxxx
Title: Managing Director
AND
By: TCW Asset Management Company
as its Managing Member of
TCW (XXXX XX) L.L.C., the General Partner
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
TCW/CRESCENT MEZZANINE PARTNERS II, L.P. AND
TCW/CRESCENT MEZZANINE TRUST II
By: TCW/Crescent Mezzanine II, L.L.C.
its Investment Manager.
By: TCW/Crescent Mezzanine, L.L.C.
as its Managing Owner
By: /s/ Xxxxx X. Shelvet, Jr.
-------------------------------------------------
Name: Xxxxx X. Shelvet, Jr.
Title: Senior Vice President
GENESEO COMMUNICATIONS, INC
CAMBRIDGE TELECOM, INC.
CASS COMMUNICATIONS, INC.
TECHNOLOGY GROUP, LLC
MONTROSE MUTUAL PCS
GRIDLEY ENTERPRISES, INC.
SHEPHERD'S ENDOWMENT
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Attorney-in-Fact
/s/ Xxxxxxx X. Xxxxx
-------------------------------------------------
Xxxxxxx X. Xxxxx, individually
The foregoing Underwriting Agreement is
hereby confirmed and accepted as of the
date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXX BROTHERS INC.
UBS WARBURG LLC
TD SECURITIES (USA) INC.,
XXXXXX XXXXXX PARTNERS LLC
XXXXXXX XXXXX & COMPANY, L.L.C.
Acting on behalf of themselves and as the
Representatives of the several
Underwriters.
By Credit Suisse First Boston Corporation
By: /s/ Xxxxxx Xxxxx
-------------------------------------------
Name: Xxxxxx Xxxxx
Title: Managing Director
By Xxxxxx Brothers Inc.
By: /s/ Xxxxx Xxxxxxxxxxx
-------------------------------------------
Name: Xxxxx Xxxxxxxxxxx
Title: Managing Director
