EXHIBIT 1.1
TRITON PCS HOLDINGS, INC.
CLASS A COMMON STOCK
UNDERWRITING AGREEMENT
December 6, 2001
Xxxxxxx Xxxxx Xxxxxx Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
Credit Suisse First Boston Corporation
First Union Securities, Inc.
c/o Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs and Mesdames:
Certain shareholders named in Schedule I hereto (the "Selling
Shareholders") of Triton PCS Holdings, Inc., a Delaware corporation (the
"Company"), severally propose to sell to the several Underwriters named in
Schedule II hereto (the "Underwriters"), 6,915,272 shares (the "Class A Shares")
of Class A Common Stock, par value $.01 per share (the "Class A Common Stock"),
of the Company and 284,728 shares (the "Class B Shares") of Class B Non-Voting
Common Stock, par value $.01 per share (the "Class B Common Stock") of the
Company, each Selling Shareholder selling the amount set forth opposite such
Selling Shareholder's name in Schedule I hereto. The Class A Shares and the
shares of the Class A Common Stock delivered to the Underwriters upon the sale
of the Class B Shares are hereinafter referred to collectively as the "Firm
Shares."
The Selling Shareholders also propose to sell to the several Underwriters
not more than an additional 764,054 shares (the "Additional Class A Shares") of
Class A Common Stock and 315,946 shares (the "Additional Class B Shares") of
Class B Common Stock beneficially owned by such Selling Shareholders if and to
the extent that you shall have determined to exercise the right to purchase such
shares of Class A Common Stock granted to the Underwriters in Section 3 hereof.
The Additional Class A Shares and the shares of Class A Common Stock delivered
to the Underwriters upon the sale of the Additional Class B Shares are
hereinafter collectively referred to as the "Additional Shares." The Firm
Shares and the Additional Shares are hereinafter collectively referred to as the
"Shares." The shares of Class A Common Stock and Class B Common Stock to be
outstanding after giving effect to the sales contemplated hereby are hereinafter
referred to collectively as the "Common Stock."
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The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement, including a prospectus, relating to the
Shares and other securities (the "Shelf Securities") of the Company and has
filed with, or transmitted for filing to, or shall promptly hereafter file with
or transmit for filing to, the Commission a prospectus supplement (the
"Prospectus Supplement") specifically relating to the Shares pursuant to Rule
424 under the Securities Act of 1933, as amended (the "Securities Act"), in the
form first used to confirm sales of the Shares. The term "Registration
Statement" means the registration statement, including the exhibits thereto, as
amended to the date of this Agreement. The term "Basic Prospectus" means the
related prospectus covering the Shelf Securities in the form first used to
confirm sales of the Shares. The term "Prospectus" means the Basic Prospectus
together with the Prospectus Supplement. The term "preliminary prospectus"
means a preliminary prospectus supplement specifically relating to the Shares
together with the Basic Prospectus. As used herein, the terms "Basic
Prospectus," "Prospectus" and "preliminary prospectus" shall include in each
case the documents, if any, incorporated by reference therein. The terms
"supplement," "amendment" and "amend" as used herein shall include all documents
deemed to be incorporated by reference in the Prospectus that are filed
subsequent to the date of the Basic Prospectus by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
1. Representations and Warranties of the Company. The Company represents
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and warrants to and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or, to the Company's
knowledge, threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or
will comply when so filed in all material respects with the Exchange Act
and the applicable rules and regulations of the Commission thereunder, (ii)
each part of the Registration Statement, when such part became effective,
did not contain, and each such part, as amended or supplemented, if
applicable, will not contain, any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, (iii) the Registration
Statement and the Prospectus comply and, as amended or supplemented, if
applicable, will comply in all material respects with the Securities Act
and the applicable rules and regulations of the Commission thereunder and
(iv) the Prospectus does not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading,
except that the representations and warranties set forth in this paragraph
do not apply to statements or omissions in the Registration Statement or
the Prospectus based upon information relating to any Underwriter furnished
to the Company in writing by such Underwriter through you expressly for use
therein.
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(c) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own or lease its
property and to conduct its business as described in the Prospectus and is
duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries, taken as a
whole.
(d) Each subsidiary of the Company has been duly organized, is
validly existing in good standing under the laws of the jurisdiction of its
organization, has the corporate or limited liability company power and
authority to own its property and to conduct its business as described in
the Prospectus and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its subsidiaries, taken
as a whole; all of the issued shares of capital stock of each subsidiary of
the Company have been duly and validly authorized and issued, are fully
paid and non-assessable and are owned directly by the Company, free and
clear of all liens, encumbrances, equities or claims, other than liens
granted to the lenders (the "Credit Facility Liens") under Triton PCS,
Inc.'s credit facility dated as of February 3, 1998, as amended as of
September 22, 1999, September 14, 2000 and September 26, 2001 and
restrictions on the Company with respect to such shares in the First
Amended and Restated Stockholders' Agreement dated as of October 27, 1999
(the "Stockholders' Agreement"), by and among AT&T Wireless PCS LLC, the
cash equity investors, management stockholders and independent directors
party thereto and the Company, in each case as described in the Prospectus.
(e) This Agreement has been duly authorized, executed and delivered
by the Company.
(f) The authorized capital stock of the Company conforms as to legal
matters to the description thereof contained in the Prospectus.
(g) The outstanding shares of Common Stock (including the Shares to
be sold by the Selling Shareholders) as of the date hereof have been duly
authorized and are validly issued, fully paid and non-assessable. Pursuant
to the Company's Second Restated Certificate of Incorporation, each Class B
Share and Additional Class B Share to be sold by the Selling Shareholders
pursuant to this Agreement will automatically convert into one share of
Class A Common Stock concurrently with the consummation of such sale. The
shares of Class A Common Stock received by the Underwriters as a result of
such automatic conversion will have been duly authorized and shall be
validly issued, fully paid and non-assessable.
(h) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement will not contravene
(1) any provision of
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applicable law or the certificate of incorporation or by-laws of the
Company or (2) in any material respect any provision of any agreement or
other instrument binding upon the Company or any of its subsidiaries that
is material to the Company and its subsidiaries, taken as a whole, or (3)
any judgment, order or decree of any governmental body, agency or court
having jurisdiction over the Company or any subsidiary, and no consent,
approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the Company
of its obligations under this Agreement, except such as may be required by
the National Association of Securities Dealers, Inc. (the "NASD") and
securities or Blue Sky laws of the various states in connection with the
offer and sale of the Shares.
(i) The sale of the Class B Shares and the Additional Class B Shares
to the Underwriters pursuant to this Agreement and their automatic
conversion into Class A Common Stock upon the sale thereof will not
contravene (1) any provision of applicable law or the certificate of
incorporation or by-laws of the Company or (2) in any material respect any
provision of any agreement or other instrument binding upon the Company or
any of its subsidiaries that is material to the Company and its
subsidiaries, taken as a whole, or (3) any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or
any subsidiary.
(j) There has not occurred any material adverse change, or any
development that could reasonably be expected to have a material adverse
change, in the condition, financial or otherwise, or in the earnings,
business or operations of the Company and its subsidiaries, taken as a
whole, from that set forth in the Prospectus (exclusive of any amendments
or supplements thereto subsequent to the date of this Agreement).
(k) There are no legal or governmental proceedings pending or, to the
Company's knowledge, threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of the Company or
any of its subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or any
statutes, regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be filed or
incorporated by reference as exhibits to the Registration Statement that
are not described, filed or incorporated as required.
(l) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Securities Act, complied when so filed in
all material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder.
(m) The Company is not, and after giving effect to the offering and
sale of the Shares will not be, required to register as an "investment
company" as such term is defined in the Investment Company Act of 1940, as
amended.
(n) The Company and its subsidiaries (i) are in compliance with any
and all applicable foreign, federal, state and local laws and regulations
relating to the protection of hu-
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man health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("Environmental Laws"), (ii) have
received all permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective businesses and
(iii) are in compliance with all terms and conditions of any such permit,
license or approval, except where such noncompliance with Environmental
Laws, failure to receive required permits, licenses or other approvals or
failure to comply with the terms and conditions of such permits, licenses
or approvals would not, singly or in the aggregate, have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(o) There are no costs or liabilities associated with Environmental
Laws (including, without limitation, any capital or operating expenditures
required for clean-up, closure of properties or compliance with
Environmental Laws or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to third
parties) which would, singly or in the aggregate, have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(p) There are no contracts, agreements or understandings between the
Company and any person granting such person the right to (i) require the
Company to file a registration statement under the Securities Act with
respect to any securities of the Company, except as described in the
Prospectus, or (ii) require the Company to include such securities with the
Shares registered pursuant to the Registration Statement, except as
described in the Registration Statement.
(q) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, (i) the Company and
its subsidiaries have not incurred any material liability or obligation,
direct or contingent, nor entered into any material transaction not in the
ordinary course of business; (ii) the Company has not purchased any of its
outstanding capital stock (other than the repurchase of capital stock from
former employees in an aggregate amount not in excess of $50,000), nor
declared, paid or otherwise made any dividend or distribution of any kind
on its capital stock other than ordinary and customary dividends; and (iii)
there has not been any material change in the capital stock, short-term
debt or long-term debt of the Company and its consolidated subsidiaries,
except in each case as described in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this
Agreement).
(r) The Company and its subsidiaries have marketable title in fee
simple to all real property and good and marketable title to all personal
property owned by them that is material to the business of the Company and
its subsidiaries, in each case free and clear of all liens, encumbrances
and defects except such as are described in the Prospectus or such as do
not materially affect the value of such property and do not interfere with
the use made and proposed to be made of such property by the Company and
its subsidiaries; and any real property and buildings held under lease by
the Company and its subsidiaries are held by them under valid, subsisting
and enforceable leases with such exceptions as are not material and do
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not interfere with the use made and proposed to be made of such property
and buildings by the Company and its subsidiaries, in each case except as
described in the Prospectus.
(s) Except in each case as described in or contemplated by the
Prospectus, the Company and its subsidiaries own or possess, or can acquire
on reasonable terms, all material patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks and trade names currently
employed by them in connection with the business now operated by them, and
neither the Company nor any of its subsidiaries has received any notice of
infringement of or conflict with asserted rights of others with respect to
any of the foregoing which, singly or in the aggregate, if the subject of
an unfavorable decision, ruling or finding, would result in any material
adverse change in the condition, financial or otherwise, or in the
earnings, business or operations of the Company and its subsidiaries, taken
as a whole.
(t) No material labor dispute with the employees of the Company or
any of its subsidiaries exists, except as described in or contemplated by
the Prospectus, or, to the knowledge of the Company, is imminent; and the
Company is not aware of any existing, threatened or imminent labor
disturbance by the employees of any of its principal suppliers,
manufacturers or contractors that could result in any material adverse
change in the condition, financial or otherwise, or in the earnings,
business or operations of the Company and its subsidiaries, taken as a
whole.
(u) The Company and each of its subsidiaries are insured by insurers
of recognized financial responsibility against such losses and risks and in
such amounts as are prudent and customary in the businesses in which they
are engaged; neither the Company nor any such subsidiary has been refused
any insurance coverage sought or applied for; and neither the Company nor
any such subsidiary has any reason to believe that it will not be able to
renew its existing insurance coverage as and when such coverage expires or
to obtain similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not materially and adversely
affect the condition, financial or otherwise, or the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, except as
described in the Prospectus.
(v) The Company and its subsidiaries possess all licenses,
certificates, authorizations and permits issued by the appropriate federal,
state or foreign regulatory authorities necessary to conduct their
respective businesses, except where the failure to possess such licenses,
certificates, authorizations and permits would not, singly or in the
aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole, and neither the Company nor any such
subsidiary has received any notice of proceedings relating to the
revocation or modification of any such license, certificate, authorization
or permit which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a material adverse
change in the condition, financial or otherwise, or in the earnings,
business
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or operations of the Company and its subsidiaries, taken as a whole, except
as described in the Prospectus.
(w) The Company and its subsidiaries (i) are in compliance with any
and all applicable federal, state and local laws and regulations relating
to wireless communications services ("Telecom Laws"), (ii) have received
all permits, licenses or other approvals ("Telecom Licenses") required of
them under applicable Telecom Laws to conduct their respective businesses,
all of which were validly issued and are in full force and effect, with no
material restrictions or qualifications except as described in the
Prospectus (exclusive of any amendments or supplements thereto subsequent
to the date of this Agreement) and (iii) are in compliance with all terms
and conditions of any such Telecom License, except where such noncompliance
with Telecom Laws, failure to receive required Telecom Licenses, failure to
have such Telecom Licenses be validly issued or in full force and effect,
or failure to comply with the terms and conditions of such Telecom Licenses
would not, singly or in the aggregate, have a material adverse effect on
the Company and its subsidiaries, taken as a whole.
(x) Each of the Company and its subsidiaries has filed with the
Federal Communications Commission (the "FCC") all necessary and material
reports, documents, instruments, information and applications required to
be filed pursuant to the FCC's rules, regulations and requests.
(y) The Company has no reason to believe, and does not believe, that
the Telecom Licenses will not be renewed for a full term when they are due
for renewal.
(z) Except as described in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this
Agreement), each of (1) the agreements described in the Prospectus under
the captions "Certain Relationships and Related Transactions -- The
Stockholders' Agreement," "--License Agreement" and "-- Roaming Agreement"
and (2) Triton PCS's credit facility dated as of February 3, 1998, as
amended as of September 22, 1999, September 14, 2000 and September 26, 2001
is in full force and effect. Neither the Company nor any of its
subsidiaries is, or with the giving of notice or lapse of time or both
would be, in violation of or in default under (i) any provision of its
certificate of incorporation or by-laws (if it is a corporation), (ii) any
of those agreements referenced in clause (1) or (iii) any other indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which any of
them are bound, except for violations and defaults with respect to clauses
(ii) and (iii) of this paragraph which individually and in the aggregate
are not material to the Company and its subsidiaries, taken as a whole.
(aa) The Company and each of its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management's general
or specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability; (iii)
access to assets
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is permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is compared
with the existing assets at reasonable intervals and appropriate action is
taken with respect to any differences.
(bb) Except as described in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this
Agreement), the Company has not sold, issued or distributed any shares of
Common Stock during the six-month period preceding the date hereof,
including any sales pursuant to Rule 144A under, or Regulation D or
Regulation S of, the Securities Act, other than those described in Part II
of the Company's quarterly reports on Form 10-Q (the "Form 10-Qs"), if any,
filed since the Company's most recent annual report on Form 10-K (the "Form
10-K"), under Item 2 and shares issued pursuant to employee benefit plans,
qualified stock option plans or other employee compensation plans or
pursuant to outstanding options, rights or warrants.
(cc) The agreements (the "Filed Agreements") filed or incorporated by
reference as exhibits to the Registration Statement (or as exhibits to the
Form 10-K, Form 10-Qs or any other reports filed pursuant to the Exchange
Act and incorporated by reference in the Registration Statement) are the
only agreements material to the Company and its subsidiaries, taken as a
whole.
(dd) The Company has not taken, directly or indirectly, any action
designed to or that would constitute or that might reasonably be expected
to cause or result in, under the Exchange Act or otherwise, stabilization
or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Shares.
2. Representations and Warranties of the Selling Shareholders. Each
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Selling Shareholder, severally and not jointly, represents and warrants to and
agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered
by or on behalf of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and
the performance by such Selling Shareholder of its obligations under, this
Agreement, the Custody Agreement signed by such Selling Shareholder and
Dow, Xxxxxx & Xxxxxxxxx, PLLC, as Custodian, relating to the deposit of the
Shares to be sold by such Selling Shareholder (the "Custody Agreement") and
the Power of Attorney appointing certain individuals as such Selling
Shareholder's attorneys-in-fact to the extent set forth therein, relating
to the transactions contemplated hereby and by the Registration Statement
(the "Power of Attorney") will not contravene (i) any provision of
applicable law, or the certificate of incorporation or by-laws of such
Selling Shareholder (if such Selling Shareholder is a corporation), or (ii)
in any material respect any agreement or other instrument binding upon such
Selling Shareholder that is material to such Selling Shareholder or (iii)
any judgment, order or decree of any governmental body, agency or court
having jurisdiction over such Selling Shareholder, and no consent,
approval, authorization or order of, or qualification with, any
governmental body or
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agency is required for the performance by such Selling Shareholder of its
obligations under this Agreement or the Custody Agreement or Power of
Attorney of such Selling Shareholder, except such as have been obtained or
as may be required by the NASD or the securities or Blue Sky laws of the
various states in connection with the offer and sale of the Shares.
(c) Such Selling Shareholder has, and on the Closing Date will have,
valid title to, or a valid "security entitlement" within the meaning of
Section 8-501 of the New York Uniform Commercial Code (the "UCC") in
respect of, the Shares to be sold by such Selling Shareholder free and
clear of all security interests, claims, liens, equities or other
encumbrances and the legal right and power, and all authorizations and
approvals required by law, to enter into this Agreement, the Custody
Agreement and the Power of Attorney and to sell, transfer and deliver the
Shares to be sold by such Selling Shareholder or a security entitlement in
respect of such Shares.
(d) The Custody Agreement and the Power of Attorney have been duly
authorized, executed and delivered by such Selling Shareholder and are
valid and binding agreements of such Selling Shareholder.
(e) Upon payment for the Shares to be sold by such Selling
Shareholder pursuant to this Agreement, delivery of such Shares, as
directed by the Underwriters, to Cede & Co. ("Cede") or such other nominee
as may be designated by The Depository Trust Company ("DTC"), registration
of such Shares in the name of Cede or such other nominee and the crediting
of such Shares on the books of DTC to securities accounts of the
Underwriters (assuming that neither DTC nor any such Underwriter has notice
of any adverse claim (within the meaning of Section 8-105 of the UCC to
such Shares)), (A) DTC shall be a "protected purchaser" of such Shares
within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of
the UCC, the Underwriters will acquire a valid security entitlement in
respect of such Shares and (C) no action based on any "adverse claim",
within the meaning of Section 8-102 of the UCC, to such Shares may be
asserted against the Underwriters with respect to such security
entitlement; for purposes of this representation, such Selling Shareholder
may assume that when such payment, delivery and crediting occur, (x) such
Shares will have been registered in the name of Cede or another nominee
designated by DTC, in each case on the Company's share registry in
accordance with its certificate of incorporation, bylaws and applicable
law, (y) DTC will be registered as a "clearing corporation" within the
meaning of Section 8-102 of the UCC and (z) appropriate entries to the
accounts of the several Underwriters on the records of DTC will have been
made pursuant to the UCC.
(f) All information relating to such Selling Shareholder furnished in
writing by or on behalf of such Selling Shareholder expressly for use in
(i) the Basic Prospectus under the caption "Principal and Selling
Stockholders" and (ii) the Prospectus Supplement under the caption "Selling
Stockholders" is, and on the Closing Date will be, true, correct and
complete, and does not, and on the Closing Date will not, contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make such information not
misleading, and the sale of the Shares by such Selling Shareholder pursuant
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hereto is not prompted by any material non-public information concerning
the Company or any of its subsidiaries which is not set forth in the
Prospectus or any supplement thereto.
(g) Such Selling Shareholder has not taken, directly or indirectly,
any action designed to or that would constitute or that might reasonably be
expected to cause or result in, under the Exchange Act or otherwise,
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Shares.
3. Agreements to Sell and Purchase. Each Selling Shareholder, severally
-------------------------------
and not jointly, hereby agrees to sell to the several Underwriters, and each
Underwriter, upon the basis of the representations and warranties herein
contained, but subject to the conditions hereinafter stated, agrees, severally
and not jointly, to purchase from such Selling Shareholder at $29.10 a share
(the "Purchase Price") the number of Firm Shares (subject to such adjustments to
eliminate fractional shares as you may determine) that bears the same proportion
to the number of Firm Shares to be sold by such Selling Shareholder as the
number of Firm Shares set forth in Schedule II hereto opposite the name of such
Underwriter bears to the total number of Firm Shares.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Selling Shareholders,
severally and not jointly, agree to sell to the Underwriters the Additional
Shares, and the Underwriters shall have a one-time right to purchase, severally
and not jointly, up to 1,080,000 Additional Shares at the Purchase Price. If you
elect to exercise such option, you shall so notify the Selling Shareholders in
writing not later than 30 days after the date of this Agreement, which notice
shall specify the number of Additional Shares to be purchased by the
Underwriters and the date on which such shares are to be purchased. Such date
may be the same as the Closing Date (as defined below) but not earlier than the
Closing Date nor later than ten business days after the date of such notice.
Additional Shares may be purchased as provided in this Section 3 solely for the
purpose of covering over-allotments made in connection with the offering of the
Firm Shares. If any Additional Shares are to be purchased, each Selling
Shareholder agrees, severally and not jointly, to sell the number of Additional
Shares (subject to such adjustments to eliminate fractional shares as you may
determine) that bears the same proportion to the maximum number of Additional
Shares that may be sold by such Selling Shareholder set forth in Schedule I
hereto as the total number of Additional Shares to be purchased bears to
1,080,000 and each Underwriter agrees, severally and not jointly, to purchase
from each Selling Shareholder the number of Additional Shares (subject to such
adjustments to eliminate fractional shares as you may determine) that bears the
same proportion to the total number of Additional Shares to be sold by such
Selling Shareholder as the number of Firm Shares set forth in Schedule II hereto
opposite the name of such Underwriter bears to the total number of Firm Shares.
The Company hereby agrees that it will not, without the prior written
consent of Xxxxxxx Xxxxx Xxxxxx Inc., on behalf of the Underwriters, offer,
sell, contract to sell, pledge, or otherwise dispose of, (or enter into any
transaction which is designed to, or might reasonably be expected to, result in
the disposition (whether by actual disposition or effective economic disposition
due to cash settlement or otherwise) by the Company or any affiliate of the
Company or any person in privity with the Company or any affiliate of the
Company), directly or indirectly, including the filing (or participation
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in the filing) of a registration statement with the Commission in respect of, or
establish or increase a put equivalent position or liquidate or decrease a call
equivalent position within the meaning of Section 16 of the Exchange Act, any
other shares of Class A Common Stock, Class B Common Stock or any shares of
capital stock of the Company (collectively, the "Capital Stock") or any
securities convertible into, or exercisable, or exchangeable for, shares of
Capital Stock, or publicly announce an intention to effect any such transaction,
for a period of 90 days after the date of this Agreement; provided, however,
that the Company may issue and sell Capital Stock or options to acquire Capital
Stock pursuant to any employee stock option plan, stock ownership plan or
dividend reinvestment plan of the Company in effect at the date of this
Agreement and the Company may issue Common Stock issuable upon the conversion of
securities or the exercise of warrants or options outstanding at date of this
Agreement.
Each Selling Shareholder hereby agrees that such Selling Shareholder will
not, without the prior written consent of Xxxxxxx Xxxxx Barney Inc., on behalf
of the Underwriters, offer, sell, contract to sell, pledge, or otherwise dispose
of (or enter into any transaction which is designed to, or might reasonably be
expected to, result in the disposition (whether by actual disposition or
effective economic disposition due to cash settlement or otherwise), by such
Selling Shareholder or any affiliate of such Selling Shareholder or any person
in privity with such Selling Shareholder or any affiliate of such Selling
Shareholder) directly or indirectly, or file (or participate in the filing of) a
registration statement with the Commission in respect of, or establish or
increase a put equivalent position or liquidate or decrease a call equivalent
position with in the meaning of Section 16 of the Exchange Act with respect to,
any shares of Capital Stock or any securities convertible into, or exercisable,
or exchangeable for such Capital Stock; or publicly announce an intention to
effect any such transaction, for a period of 150 days after the date of this
Agreement (in the case of X.X. Xxxxxx Partners (23A SBIC), LLC, X.X. Xxxxxx SBIC
LLC, Sixty Wall Street SBIC Fund, L.P., Equity-Linked Investors-II, and Private
Equity Investors, III, L.P.) or for a period of 90 days after the date of this
Agreement (in the case of Toronto Dominion Capital (U.S.A), Inc. and DAG-Triton
PCS, L.P.), other than (A) transactions by any person relating to shares of
Common Stock or other securities acquired in open market transactions after the
completion of the offering of the Shares, and (B) bona fide gifts, sales or
other dispositions of shares of any class of Capital Stock by any Selling
Shareholder other than the Company, in each case that are made exclusively
between and among such Selling Shareholder or affiliate of such Selling
Shareholder, including its partners (if a partnership) or members (if a limited
liability company); provided that it shall be a condition to any such transfer
under clause (B) that (i) the transferee executes an agreement in the form of
Exhibit B hereto, and (ii) no filing by any party (donor, donee, transferor or
transferee) under Section 16(a) of the Exchange Act shall be required or shall
be voluntarily made in connection with such transfer or distribution (other than
a filing on a Form 5).
If Xxxxxxx Xxxxx Xxxxxx Inc. shall release the Company or any Selling
Shareholder from the restrictions set forth in the immediately preceding
paragraphs, Xxxxxxx Xxxxx Barney Inc. will, concurrently with such release,
provide written notice to the Company and the Selling Shareholders.
The Company agrees that it will not take, directly or indirectly, any
action designed to or that would constitute or that might reasonably be expected
to cause or result in, under the Exchange Act or
-12-
otherwise, stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares.
Each Selling Shareholder hereby agrees that such Selling Shareholder will
not take, directly or indirectly, any action designed to or that would
constitute or that might reasonably be expected to cause or result in, under the
Exchange Act or otherwise, stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Shares.
4. Terms of Public Offering. The Selling Shareholders are advised by you
------------------------
that the Underwriters propose to make a public offering of their respective
portions of the Shares as soon after this Agreement has been entered into as in
your judgment is advisable. The Selling Shareholders are further advised by you
that the Shares are to be offered to the public initially at $30.55 per share
(the "Public Offering Price") and to certain dealers selected by you at a price
that represents a concession not in excess of $.87 per share under the Public
Offering Price.
5. Payment and Delivery. Payment for the Firm Shares to be sold by each
Selling Shareholder shall be made to such Selling Shareholder in Federal or
other funds immediately available in New York City against delivery of such Firm
Shares for the respective accounts of the several Underwriters at 10:00 a.m.,
New York City time, on December 12, 2001, or at such other time on the same or
such other date, not later than December 19, 2001, as shall be designated in
writing by you. The time and date of such payment are hereinafter referred to
as the "Closing Date."
Payment for any Additional Shares to be sold by each Selling Shareholder
shall be made to such Selling Shareholder in Federal or other funds immediately
available in New York City against delivery of such Additional Shares for the
respective accounts of the several Underwriters at 10:00 a.m., New York City
time, on the date specified in the notice described in Section 3 or at such
other time on the same or on such other date, in any event not later than
January 19, 2002, as shall be designated in writing by you. The time and date
of such payment are hereinafter referred to as the "Option Closing Date."
The Firm Shares and Additional Shares shall be registered in such names and
in such denominations as you shall request in writing not later than two full
business days prior to the Closing Date or the Option Closing Date, as the case
may be. The Firm Shares and Additional Shares shall be delivered to you on the
Closing Date or the Option Closing Date, as the case may be, for the respective
accounts of the several Underwriters, with any transfer taxes payable in
connection with the transfer of the Shares to the Underwriters duly paid,
against payment of the Purchase Price therefor.
6. Conditions to the Underwriters' Obligations. The several obligations
-------------------------------------------
of the Underwriters are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of any
review for a possible
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change that does not indicate the direction of the possible change, in the
rating accorded any of the Company's securities by any "nationally
recognized statistical rating organization," as such term is defined for
purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or otherwise,
or in the earnings, business or operations of the Company and its
subsidiaries, taken as a whole, from that set forth in the Prospectus
(exclusive of any amendments or supplements thereto subsequent to the date
of this Agreement) that, in your judgment, is material and adverse and that
makes it, in your judgment, impracticable or inadvisable to market the
Shares on the terms and in the manner contemplated in the Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer of the
Company, to the effect set forth in Section 6(a)(i) above and to the effect that
the representations and warranties of the Company contained in this Agreement
are true and correct as of the Closing Date and that the Company has complied
with all of the agreements and satisfied all of the conditions on its part to be
performed or satisfied hereunder on or before the Closing Date.
The officer signing and delivering such certificate may rely upon the best
of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion of
Dow Xxxxxx & Xxxxxxxxx, PLLC, outside counsel for the Company, dated the Closing
Date, to the effect that:
(i) the Company is validly existing as a corporation in good
standing under the laws of the State of Delaware, has the corporate power
and authority to own its property and to conduct its business as described
in the Prospectus;
(ii) each subsidiary of the Company is validly existing in good
standing under the laws of the jurisdiction of its organization or
incorporation, and has the corporate or limited liability company power and
authority to own its property and to conduct its business as described in
the Prospectus;
(iii) the outstanding shares of Common Stock (including the Shares to
be sold by the Selling Shareholders) have been duly authorized and are
validly issued, fully paid and non-assessable;
(iv) the statements relating to legal matters, documents or
proceedings included in the Prospectus under the captions "Description of
Capital Stock" and "Certain Relationships and Related Transactions" and
"Item 11 -- Executive Compensation and Employment Agreements -- Employment
Agreements" of the Form 10-K, in each case insofar as such statements
constitute summaries of the legal matters,
-14-
documents or proceedings referred to therein, accurately summarize the
matters referred to therein;
(v) to such counsel's knowledge, such counsel does not know of any
legal or governmental proceedings pending or threatened to which the
Company or any of its subsidiaries is a party or to which any of the
properties of the Company or any of its subsidiaries is subject that are
required to be described in the Registration Statement or the Prospectus
and that are not so described or of any applicable statutes, regulations,
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not described or filed as required;
(vi) this Agreement has been duly authorized, executed and delivered
by the Company;
(vii) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement will
not contravene any provision of United States Federal law and will not
contravene any provision of the Stockholders' Agreement in any material
respect, and no consent, approval, authorization or order of, or
qualification with, any United States Federal governmental body or agency
is required for the performance by the Company of its obligations under
this Agreement, except such as may be required by the NASD and securities
or Blue Sky laws of the various states in connection with the offer and
sale of the Shares by the Underwriters;
(viii) the conversion of the Class B Shares and the Additional Class B
Shares into shares of Class A Common Stock will not contravene any
provision of United States Federal law or the certificate of incorporation
or by-laws of the Company and will not contravene any provision of the
Stockholders' Agreement in any material respect;
(ix) the statements relating to legal matters, documents or
proceedings included in (A) the Prospectus under the captions "Certain
Material United States Tax Consequences to Non-U.S. Holders", "Description
of Certain Indebtedness" and "Underwriters" (but only as to the description
of this Agreement) and (B) the Registration Statement in Item 15, in each
case insofar as such statements constitute summaries of the legal matters,
documents or proceedings referred to therein, accurately summarize the
matters referred to therein;
(x) the Company is not required to register as an "investment
company" as such term is defined in the Investment Company Act of 1940, as
amended;
(xi) nothing has come to the attention of such counsel that causes
such counsel to believe that (A) any document, if any, filed pursuant to
the Exchange Act and incorporated by reference in the Prospectus (except
for financial statements and
-15-
schedules and other financial and statistical data included or incorporated
therein as to which such counsel need not express any opinion) did not
comply when so filed as to form in all material respects with the Exchange
Act and the applicable rules and regulations of the Commission thereunder,
(B) the Registration Statement or the Prospectus (except for financial
statements and schedules and other financial and statistical data included
or incorporated therein, as to which such counsel need not express any
belief) do not comply as to form in all material respects with the
requirements of the Securities Act and the applicable rules and regulations
of the Commission thereunder, (C) any part of the Registration Statement
(except for financial statements and schedules and other financial and
statistical data included therein as to which such counsel need not express
any belief), when such part became effective, contained any untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading, (D) the Registration Statement, as supplemented by the
Prospectus Supplement (except for financial statements and schedules and
other financial and statistical data included or incorporated therein as to
which such counsel need not express any belief) on the date of this
Agreement contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading or (E) the Prospectus (except for
financial statements and schedules and other financial and statistical data
included or incorporated therein as to which such counsel need not express
any belief) as of its date or as of the Closing Date contained or contains
any untrue statement of a material fact or omitted or omits 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;
(xii) the sale of the Shares and the execution, delivery and
performance by the Company of this Agreement, the Basic Prospectus and the
Prospectus Supplement (i) do not violate the Communications Act of 1934, as
amended, or the rules, regulations, published and publicly available orders
and published and publicly available policy statements promulgated by the
FCC (the "Communications Laws"), (ii) do not cause any violation,
cancellation, termination, revocation, forfeiture, or adverse modification
of any of the cellular licenses, permits or other authorizations issued to
the Company and its subsidiaries as listed in Annex A to such counsel's
opinion (the "FCC Licenses"), and (iii) do not require the approval of or
filing with the FCC;
(xiii) except as may be disclosed on Annex B to such opinion or in
the Prospectus and except for rule making proceedings and similar
proceedings of general applicability to the commercial mobile radio
services industry or substantial segments thereof, to such counsel's
knowledge, there is no notice of violation, order to show cause, petition
to deny or complaint, or investigatory proceeding pending against the
Company or any subsidiary of the Company listed in Annex A to such
counsel's opinion before the FCC that reasonably could be expected to
result in cancellation, termination, revocation, forfeiture or modification
of the FCC Licenses that individually or in the aggregate would have a
material adverse effect upon the Company and
-16-
its subsidiaries considered as a single enterprise. Such counsel may state,
however, that (i) the staff of the FCC's Wireless Telecommunications Bureau
has advised such counsel that no reliable central record of such matters
exists by individual licensee name, (ii) there is, to such counsel's
knowledge, no central location of orders, decisions, judgments or other
rulings that would permit the reliable identification of all such matters
that may be pending with respect to the Company or the subsidiaries of the
Company listed in Annex A to such opinion, and (iii) except as otherwise
noted in Annex B to such opinion, such counsel has not undertaken to
examine or to make inquiries with respect to any such records;
(xiv) the statements in the Prospectus under the captions "Business--
Regulation" and "--State Regulation and Local Approvals" in each case
insofar as such statements constitute summaries of legal matters, documents
or proceedings referred to therein, and insofar as they are, or refer to,
statements of federal communications law under the Communications Laws
applicable to commercial mobile radio services or legal conclusions with
respect to federal communications law under the Communications Laws
applicable to the commercial mobile radio services, accurately summarize
such legal matters, documents and proceedings in all respects material to
the business of the Company as described in the Prospectus; and
(xv) based on the review of FCC publicly available records and such
counsel's inquiry of the FCC described therein, each of the FCC Licenses is
held by the subsidiary of the Company listed in Annex A to such opinion as
the holder thereof, is in effect, and to such counsel's knowledge has not
been suspended, terminated or revoked. The Personal Communications Services
("PCS") and cellular radio licenses issued by the FCC and included in the
FCC Licenses listed in Annex A to such opinion authorize the holder thereof
listed in such Annex A to operate either a PCS or cellular system (as
indicated in such Annex A) in the markets listed in such Annex A without a
further PCS or cellular license issued by the FCC.
(d) The Underwriters shall have received on the Closing Date an opinion of
Xxxxx Xxxxx & Xxxxx, counsel for the Selling Shareholders, dated the Closing
Date, to the effect that:
(i) this Agreement has been duly authorized, executed and delivered
by or on behalf of each of such Selling Shareholders;
(ii) the execution and delivery by each such Selling Shareholder of,
and the performance by such Selling Shareholder of its obligations under,
this Agreement and the Custody Agreement and Powers of Attorney of such
Selling Shareholder will not contravene any provision of applicable law, or
the certificate of incorporation or by-laws (if such Selling Shareholder is
a corporation), the partnership agreement (if such Selling Shareholder is a
partnership) or the operating agreement (if such Selling Shareholder is a
limited liability company) of such Selling Shareholder, and no con-
-17-
sent, approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by such
Selling Shareholder of its obligations under this Agreement or the
Custody Agreement or Power of Attorney of such Selling Shareholder,
except such as have been obtained or as may be required by the
securities or Blue Sky laws of the various states in connection with
offer and sale of the Shares;
(iii) the conversion by any Selling Shareholder of the Class B
Shares and the Additional Class B Shares into shares of Class A Common
Stock will not contravene any provision of applicable law, or the
certificate of incorporation or by-laws (if such Selling Shareholder
is a corporation), the partnership agreement (if such Selling
Shareholder is a partnership) or the operating agreement (if such
Selling Shareholder is a limited liability company) of such Selling
Shareholder in any material respect;
(iv) each of such Selling Shareholders has valid title to, or a
valid security entitlement in respect of, the Shares to be sold by
such Selling Shareholder free and clear of all security interests,
claims, liens, equities and other encumbrances, and each of such
Selling Shareholders has the legal right and power, and all
authorization and approval required by law, to enter into this
Agreement and the Custody Agreement and Power of Attorney of such
Selling Shareholder and to sell, transfer and deliver the Shares to be
sold by such Selling Shareholder or a security entitlement in respect
of such Shares;
(v) the Custody Agreement and the Power of Attorney of each
such Selling Shareholder have been duly authorized, executed and
delivered by such Selling Shareholder and are valid and binding
agreements of such Selling Shareholder; and
(vi) upon delivery of the Shares to be sold by such Selling
Shareholders pursuant to the Underwriting Agreement and payment
therefor as contemplated therein, the Underwriters will acquire good
and marketable title to such Shares free and clear of any lien, claim,
security interest or other encumbrance, restriction on transfer or
other defect in title.
(e) The Underwriters shall have received on the Closing Date an
opinion of Xxxxxx Xxxxxx & Xxxxxxx in form and substance satisfactory to
the Underwriters.
With respect to Sections 6(c)(xii) above, Dow, Xxxxxx & Xxxxxxxxx, PLLC may
state that their beliefs are based upon their participation in the preparation
of the Registration Statement and Prospectus and any amendments or supplements
thereto and documents incorporated by reference thereto and review and
discussion of the contents thereof, but are without independent check or
verification, except as specified. With respect to Section 6(e) above, Xxxxx,
Xxxxx & Xxxxx may rely upon an opinion or opinions of counsel for any Selling
Shareholders and, with respect to factual matters and to the extent such counsel
deems appropriate, upon the representations of each Selling Shareholder
contained herein and in the Custody Agreement and Power of Attorney of such
Selling Shareholder and in other documents and instruments; provided that (A)
each such counsel for the Selling
-18-
Shareholders is satisfactory to your counsel, (B) a copy of each opinion so
relied upon is delivered to you and is in form and substance satisfactory to
your counsel, (C) copies of such Custody Agreements and Powers of Attorney and
of any such other documents and instruments shall be delivered to you and shall
be in form and substance satisfactory to your counsel and (D) Xxxxx, Xxxxx &
Xxxxx shall state in their opinion that they are justified in relying on each
such other opinion.
The opinions of Dow, Xxxxxx & Xxxxxxxxx, PLLC and Xxxxx Xxxxx & Xxxxx
described above and any opinions of counsel for any Selling Shareholder referred
to in the immediately preceding paragraph shall be rendered to the Underwriters
at the request of the Company or one or more of the Selling Shareholders, as the
case may be, and shall so state therein.
(f) The Underwriters shall have received, on each of the date hereof
and the Closing Date, letters dated the date hereof or the Closing Date, as
the case may be, in form and substance satisfactory to the Underwriters,
from PricewaterhouseCoopers LLP, independent public accountants containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements
and certain financial information contained in or incorporated by reference
into the Prospectus; provided that the letters delivered on the Closing
Date shall use a "cut-off date" not earlier than the date hereof.
(g) The "lock-up" agreements, each substantially in the form of
Exhibit B hereto, between you and certain shareholders, officers and
directors of the Company, listed in Exhibit A hereto, relating to sales and
certain other dispositions of shares of Common Stock or certain other
securities, delivered to you on or before the date hereof, shall be in full
force and effect on the Closing Date.
The several obligations of the Underwriters to purchase Additional Shares
hereunder are subject to the delivery to you on the Option Closing Date of such
documents as you may reasonably request with respect to the good standing of the
Company, the due authorization and issuance of the Additional Shares, other
matters related to the issuance of the Additional Shares and the transfer of
title to the Additional Shares to the Underwriters.
7. Covenants of the Company. In further consideration of the agreements
------------------------
of the Underwriters herein contained, the Company covenants with each
Underwriter as follows:
(a) To furnish to you, without charge, five copies of the
Registration Statement (including exhibits thereto) and for delivery to
each other Underwriter a conformed copy of the Registration Statement
(without exhibits thereto) and to furnish to you in New York City, without
charge, prior to 10:00 a.m. New York City time on the second business day
succeeding the date of this Agreement and so long as delivery of a
prospectus by an underwriter or dealer may be required under the Securities
Act, as many copies of the Prospectus, any documents incorporated by
reference therein and any supplements and amendments thereto or to the
Registration Statement as you may reasonably request.
-19-
(b) Before amending or supplementing the Registration Statement or
the Prospectus with respect to the Shares, to furnish to you a copy of each
such proposed amendment or supplement and not to file any such proposed
amendment or supplement to which you reasonably object, and to file with
the Commission within the applicable period specified in Rule 424(b) under
the Securities Act any prospectus required to be filed pursuant to such
Rule.
(c) If, at any time when a prospectus relating to the Shares is
required to be delivered under the Securities Act, any event shall occur or
condition exist as a result of which it is necessary to amend or supplement
the Prospectus in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if, in the opinion of counsel for the Underwriters, it is
necessary to amend or supplement the Prospectus to comply with applicable
law, forthwith to prepare, file with the Commission and furnish, at its own
expense, to the Underwriters and to the dealers (whose names and addresses
you will furnish to the Company) to which Shares may have been sold by you
and to any other dealers upon request, either amendments or supplements to
the Prospectus so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus, as amended or supplemented, will comply with law.
(d) To endeavor to qualify the Shares for offer and sale under the
securities or Blue Sky laws of such states as you shall reasonably request.
(e) To make generally available to the Company's security holders and
to you as soon as practicable an earning statement that satisfies the
provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder.
8. Expenses. Whether or not the transactions contemplated in this
--------
Agreement are consummated or this Agreement is terminated, the Company agrees to
pay or cause to be paid all expenses incident to the performance of its
obligations under this Agreement, including: (i) the fees, disbursements and
expenses of the Company's counsel, the Company's accountants in connection with
the registration and delivery of the Shares under the Securities Act and all
other fees or expenses in connection with the preparation and filing of the
Registration Statement, any preliminary prospectus, the Prospectus and
amendments and supplements to any of the foregoing, including all printing costs
associated therewith, and the mailing and delivering of copies thereof to the
Underwriters and dealers, in the quantities hereinabove specified, (ii) all
costs and expenses related to the transfer and delivery of the Shares to the
Underwriters, including any transfer or other taxes payable thereon, (iii) the
cost of printing or producing any Blue Sky or Legal Investment memorandum in
connection with the offer and sale of the Shares under state securities laws and
all expenses in connection with the qualification of the Shares for offer and
sale under state securities laws as provided in Section 7(d) hereof, including
filing fees and the reasonable fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky or Legal Investment memorandum, (iv) all filing fees and the reasonable
fees and disbursements of counsel to the Underwriters incurred in connection
with the review and qualification of the offering of the Shares by the National
Association of Securities Dealers, Inc., (v) all costs and expenses incident to
listing the
-20-
Shares on the New York Stock Exchange, (vi) the cost of printing certificates
representing the Shares, the costs and charges of any transfer agent, registrar
or depositary, (vii) $50,000 of the Company's costs and expenses relating to
investor presentations on any "road show" undertaken in connection with the
marketing of the offering of the Shares, including, without limitation, expenses
associated with the production of road show slides and graphics, fees and
expenses of any consultants engaged in connection with the road show
presentations with the prior approval of the Company, travel and lodging
expenses of the representatives and officers of the Company and any such
consultants, and the cost of any aircraft chartered in connection with the road
show (the balance of the Company's expenses relating to any "road show"
undertaken in connection with the marketing of the offering of the Shares shall
be paid by the Underwriters based upon their respective pro rata share of the
Shares being purchased), (viii) reasonable fees, disbursements and expenses of
counsel to the Selling Shareholders and (ix) all other costs and expenses
incident to the performance of the obligations of the Company hereunder for
which provision is not otherwise made in this Section. It is understood,
however, that except as provided in this Section, Section 9 entitled "Indemnity
and Contribution," and the last paragraph of Section 11 below, 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 Shares by
them and any advertising expenses connected with any offers they may make.
The provisions of this Section shall not supersede or otherwise affect any
agreement that the Selling Shareholders may otherwise have for the allocation of
such expenses among themselves.
9. Indemnity and Contribution. (a) The Company agrees to indemnify and
--------------------------
hold harmless each Underwriter, the directors, officers, employees and agents of
each Underwriter and each person, if any, who controls any Underwriter within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and each
affiliate of any Underwriter within the meaning of Rule 405 under the Securities
Act, from and against any and all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably incurred
in connection with defending or investigating any such action or claim) caused
by any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement or any amendment thereof, any preliminary
prospectus or the Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto), or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages or liabilities are caused by any such
untrue statement or omission or alleged untrue statement or omission based upon
information relating to any Underwriter furnished to the Company in writing by
such Underwriter through you expressly for use therein; provided that the
foregoing indemnity agreement with respect to any preliminary prospectus shall
not inure to the benefit of any Underwriter from whom the person asserting any
such losses, claims, damages or liabilities purchased Shares, or any person
controlling such Underwriter, if a copy of the Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) was not sent or given by or on behalf of such Underwriter to such
person, if required by law so to have been delivered, at or prior to the written
confirmation of the sale of the Shares to such person, and if the Prospectus (as
so amended or supplemented) would have cured the defect giving rise to
-21-
such losses, claims, damages or liabilities, unless such failure is the result
of noncompliance by the Company with Section 7(a) hereof.
(b) Each Selling Shareholder agrees, severally and not jointly, to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act and each affiliate of any
Underwriter within the meaning of Rule 405 under the Securities Act, from and
against any and all losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses reasonably incurred in connection with
defending or investigating any such action or claim) caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereof, any preliminary prospectus or
the Prospectus (as amended or supplemented if the Company shall have furnished
any amendments or supplements thereto), or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, but only with reference
to information relating to such Selling Shareholder furnished in writing by or
on behalf of such Selling Shareholder expressly for use in (i) the Basic
Prospectus under the caption "Principal and Selling Stockholders" or (ii) the
Prospectus Supplement under the caption "Selling Stockholders"; provided that
the foregoing indemnity agreement with respect to any preliminary prospectus
shall not inure to the benefit of any Underwriter from whom the person asserting
any such losses, claims, damages or liabilities purchased Shares, or any person
controlling such Underwriter, if a copy of the Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) was not sent or given by or on behalf of such Underwriter to such
person, if required by law so to have been delivered, at or prior to the written
confirmation of the sale of the Shares to such person, and if the Prospectus (as
so amended or supplemented) would have cured the defect giving rise to such
losses, claims, damages or liabilities, unless such failure is the result of
noncompliance by the Company with Section 7(a) hereof. The liability of each
Selling Shareholder under the indemnity agreement contained in this paragraph
shall be limited to an amount equal to the aggregate Public Offering Price of
the Shares sold by such Selling Shareholder under this Agreement, less
applicable underwriting discounts and commissions.
(c) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, the Selling Shareholders, the directors of the
Company, the officers of the Company who sign the Registration Statement and
each person, if any, who controls the Company or any Selling Shareholder within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act, from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any amendment thereof,
any preliminary prospectus or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto), or caused
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
but only with reference to information relating to such Underwriter furnished to
the Company in writing by such Underwriter through you expressly for use in the
Registration Statement, any preliminary prospectus, the Prospectus or any
amendments or supplements thereto. The Company and
-22-
each Selling Shareholder acknowledge that the statements set forth in the last
paragraph of the cover page regarding delivery of the Shares and the third,
eighth, ninth, fifteenth and sixteenth paragraphs, excluding tables, as well as
the list of Underwriters and their respective participation in the sale of the
Shares under the heading "Underwriting" in the Prospectus Supplement, constitute
the only information furnished in writing by or on behalf of the several
Underwriters for inclusion in any preliminary prospectus or Prospectus.
(d) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to Section 9(a), 9(b) or 9(c) such person (the "indemnified
party") shall promptly notify the person against whom such indemnity may be
sought (the "indemnifying party") in writing and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably satisfactory
to the indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for (i) the fees and expenses of more than one separate firm (in
addition to any local counsel) for all Underwriters and all persons, if any, who
control any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act or who are affiliates of any
Underwriter within the meaning of Rule 405 under the Securities Act, (ii) the
fees and expenses of more than one separate firm (in addition to any local
counsel) for the Company, its directors, its officers who sign the Registration
Statement and each person, if any, who controls the Company within the meaning
of either such Section and (iii) the fees and expenses of more than one separate
firm (in addition to any local counsel) for all Selling Shareholders and all
persons, if any, who control any Selling Shareholder within the meaning of
either such Section, and that all such fees and expenses shall be reimbursed as
they are incurred. In the case of any such separate firm for the Underwriters
and such control persons and affiliates of any Underwriters, such firm shall be
designated in writing by Xxxxxxx Xxxxx Xxxxxx Inc. In the case of any such
separate firm for the Company, and such directors, officers and control persons
of the Company, such firm shall be designated in writing by the Company. In the
case of any such separate firm for the Selling Shareholders and such control
persons of any Selling Shareholders, such firm shall be designated in writing by
the persons named as attorneys-in-fact for the Selling Shareholders under the
Power of Attorney. The indemnifying party shall not be liable for any settlement
of any proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second and third sentences of this paragraph, the
indemnifying party agrees that it shall be liable
-23-
for any settlement of any proceeding effected without its written consent if (i)
such settlement is entered into more than 120 days after receipt by such
indemnifying party of the aforesaid request; (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 90 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed the indemnified party in accordance with such request prior to
the date of such settlement. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any pending
or threatened proceeding 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 settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding.
(e) To the extent the indemnification provided for in Section 9(a),
9(b) or 9(c) is unavailable to an indemnified party or insufficient in respect
of any losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party or parties on the other hand from the offering of the Shares,
or (ii) if the allocation provided by clause 9(e)(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 9(e)(i) above but also the relative
fault of the indemnifying party or parties on the one hand and of the
indemnified party or parties on the other hand in connection with the statements
or omissions that 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 Shareholders on the one hand and the
Underwriters on the other hand in connection with the offering of the Shares
shall be deemed to be in the same respective proportions as the net proceeds
from the offering of the Shares (before deducting expenses) received by the
Company and the Selling Shareholders and the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the table
on the cover of the Prospectus, bear to the aggregate Public Offering Price of
the Shares, it being understood that in no case shall an Underwriter (except as
may be provided in an agreement among underwriters relating to the offering of
the Shares) be responsible for any amount in excess of the underwriting
commission applicable to the Shares purchased by such Underwriter hereunder. The
relative fault of the Company and the Selling Shareholders on the one hand and
the Underwriters on the other hand 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 and Selling Shareholders or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The
Underwriters' respective obligations to contribute pursuant to this Section 9
are several in proportion to the respective number of Shares they have purchased
hereunder, and not joint. The liability of each Selling Shareholder under the
contribution agreement contained in this paragraph shall be limited to an amount
equal to the aggregate Public Offering Price of the Shares sold by such Selling
Shareholder under this Agreement, less applicable underwriting discounts and
commissions.
-24-
(f) The Company, the Selling Shareholders and the Underwriters agree
that it would not be just or equitable if contribution pursuant to this Section
9 were determined by pro rata allocation (even if the Underwriters were treated
as one entity for such purpose) or by any other method of allocation that does
not take account of the equitable considerations referred to in Section 9(e).
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 9, (i) the liability of each
Selling Shareholder under the contribution agreement contained in this paragraph
shall be limited to an amount equal to the aggregate Public Offering Price of
the Shares sold by such Selling Shareholder under this Agreement, less
applicable underwriting discounts and commissions and (ii) no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Shares underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages that such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or ommission or alleged ommission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Section are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
(g) The indemnity and contribution provisions contained in this
Section and the representations, warranties and other statements of the Company
and the Selling Shareholders contained in this Agreement shall remain operative
and in full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by or on behalf of any Underwriter, any
person controlling any Underwriter or any affiliate of any Underwriter, any
Selling Shareholder or any person controlling any Selling Shareholder, or the
Company, its officers or directors or any person controlling the Company and
(iii) acceptance of and payment for any of the Shares.
10. Termination. This Agreement shall be subject to termination by notice
-----------
given by you to the Company and the Selling Shareholders, if after the execution
and delivery of this Agreement and prior to the Closing Date (i) trading
generally shall have been suspended or materially limited or minimum prices
shall have been established on or by, as the case may be, any of the New York
Stock Exchange, the American Stock Exchange, or the National Association of
Securities Dealers, Inc., (ii) trading of any securities of the Company shall
have been suspended on any exchange or in any over-the-counter market, (iii) a
general moratorium on commercial banking activities shall have been declared by
either Federal or New York State authorities or (iv) there shall have occurred
any outbreak or escalation of hostilities, declaration by the United States of a
national emergency or war or any change in financial markets or any calamity or
crisis that makes it, in your judgment, impracticable or inadvisable to proceed
with the offering or delivery of the Shares on the terms and in the manner
contemplated in the Prospectus.
11. Effectiveness; Defaulting Underwriters. This Agreement shall become
--------------------------------------
effective upon the execution and delivery hereof by the parties hereto.
-25-
If, on the Closing Date or the Option Closing Date, as the case may be, any
one or more of the Underwriters shall fail or refuse to purchase Shares that it
has or they have agreed to purchase hereunder on such date, and the aggregate
number of Shares which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase is not more than one-tenth of the aggregate number
of the Shares to be purchased on such date, the other Underwriters shall be
obligated severally in the proportions that the number of Firm Shares set forth
opposite their respective names in Schedule II bears to the aggregate number of
Firm Shares set forth opposite the names of all such nondefaulting Underwriters,
or in such other proportions as you may specify, to purchase the Shares which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase on such date; provided that in no event shall the number of Shares that
any Underwriter has agreed to purchase pursuant to this Agreement be increased
pursuant to this Section 11 by an amount in excess of one-ninth of such number
of Shares without the written consent of such Underwriter. If, on the Closing
Date, any Underwriter or Underwriters shall fail or refuse to purchase Firm
Shares and the aggregate number of Firm Shares with respect to which such
default occurs is more than one-tenth of the aggregate number of Firm Shares to
be purchased, and arrangements satisfactory to you, the Company and the Selling
Shareholders for the purchase of such Firm Shares are not made within 36 hours
after such default, this Agreement shall terminate without liability on the part
of any nondefaulting Underwriter, the Company or the Selling Shareholders. In
any such case either you or the relevant Selling Shareholders 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. If, on
the Option Closing Date, any Underwriter or Underwriters shall fail or refuse to
purchase Additional Shares and the aggregate number of Additional Shares with
respect to which such default occurs is more than one-tenth of the aggregate
number of Additional Shares to be purchased, the nondefaulting Underwriters
shall have the option to (i) terminate their obligation hereunder to purchase
Additional Shares or (ii) purchase not less than the number of Additional Shares
that such nondefaulting Underwriters would have been obligated to purchase in
the absence of such default. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them,
because of any failure or refusal on the part of any Selling Shareholder to
comply with the terms or to fulfill any of the conditions of this Agreement, or
if for any reason any Selling Shareholder shall be unable to perform its
obligations under this Agreement, the Selling Shareholders will reimburse the
Underwriters or such Underwriters as have so terminated this Agreement with
respect to themselves, severally, for all out-of-pocket expenses (including the
fees and disbursements of their counsel) reasonably incurred by such
Underwriters in connection with this Agreement or the offering contemplated
hereunder.
12. Stockholders' Agreement. The Selling Shareholders confirm to the
-----------------------
Company that they do not need written notice of the filing of the Registration
Statement under the Stockholders' Agreement, and that the filing of the
Registration Statement satisfies any obligations that the Company may have to
the Selling Shareholders under the Stockholders' Agreement to register the
offering of the Shares that the Selling Shareholders propose to sell.
-26-
13. Counterparts. This Agreement may be signed in two or more
------------
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
14. Applicable Law. This Agreement shall be governed by and construed in
--------------
accordance with the internal laws of the State of New York.
15. Headings. The headings of the sections of this Agreement have been
--------
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
-27-
Very truly yours,
TRITON PCS HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxx
-----------------------------------
Name: Xxxxx X. Xxxxx
Title: Chief Financial Officer
The Selling Shareholders named in
Schedule I hereto, acting severally
By: /s/ Xxxxx X. Xxxxx
-----------------------------------
Attorney-in-Fact
-28-
Accepted as of the date hereof
XXXXXXX XXXXX XXXXXX INC.
XXXXXX XXXXXXX & CO. INCORPORATED
CREDIT SUISSE FIRST BOSTON CORPORATION
FIRST UNION SECURITIES, INC.
Acting severally on behalf of themselves and
the several Underwriters named in
Schedule II hereto
By: Xxxxxxx Xxxxx Barney Inc.
By: /s/ A. Xxxxx Xxxxxx
--------------------------------------
Name: A. Xxxxx Xxxxxx
Title: Vice President
SCHEDULE I
Maximum of
Number of Firm Shares To Additional Shares To
Selling Shareholder Be Sold Be Sold
--------------------------------------------------- ------------------------ --------------------
X.X. Xxxxxx Partners (23A SBIC), LLC 2,395,457 359,319
X.X. Xxxxxx SBIC LLC 2,006,129 300,919
Sixty Wall Street SBIC Fund, L.P. 100,184 15,027
Equity-Linked Investors-II 1,075,655 161,349
Private Equity Investors III, L.P. 1,247,575 187,136
Toronto Dominion Capital (U.S.A.), Inc. 225,000 33,750
DAG-Triton PCS, L.P. 150,000 22,500
------------------------ --------------------
Total: 7,200,000 1,080,000
======================== ====================
S-I
SCHEDULE II
Number of Firm Shares To Be
Underwriter Purchased
------------------------------------------------ ---------------------------
Xxxxxxx Xxxxx Xxxxxx Inc. 2,340,000
Xxxxxx Xxxxxxx & Co. Incorporated 2,340,000
Credit Suisse First Boston Corporation 1,260,000
First Union Securities, Inc. 1,260,000
-----------
Total Firm Shares 7,200,000
===========
S-II
EXHIBIT A
---------
Xxxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxx
Xxxxx X. Xxxxx
Xxxxxx Xxxxxxx
Xxxx X. Xxxxxxx
First Union Affordable Housing Development
Corporation
A-1
EXHIBIT B
---------
[FORM OF LOCK-UP LETTER]
------------------------
December ___, 2001
Xxxxxxx Xxxxx Barney Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
Credit Suisse First Boston Corporation
First Union Securities, Inc.
c/o Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
This letter is being delivered to you in connection with the proposed
Underwriting Agreement (the "Underwriting Agreement"), between Triton PCS
Holdings, Inc., a Delaware corporation (the "Company"), certain Selling
Shareholders and each of you as the Underwriters named therein, relating to an
underwritten public offering of Class A Common Stock, par value $.01 per share
(the "Common Stock"), of the Company.
In order to induce you and the other Underwriters to enter into the
Underwriting Agreement, the undersigned will not, without the prior written
consent of Xxxxxxx Xxxxx Xxxxxx Inc., offer, sell, contract to sell, pledge or
otherwise dispose of (or enter into any transaction which is designed to, or
might reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise) by the undersigned or any affiliate of the undersigned or any person
in privity with the undersigned or any affiliate of the undersigned), directly
or indirectly, including the filing (or participation in the filing) of a
registration statement with the Securities and Exchange Commission in respect
of, or establish or increase a put equivalent position or liquidate or decrease
a call equivalent position within the meaning of Section 16 of the Securities
Exchange act of 1934, as amended (the "Exchange Act"), and the rules and
regulations of the Securities and Exchange Commission promulgated thereunder
with respect to, any shares of Capital Stock of the Company or any securities
convertible into, or exercisable or exchangeable for such capital stock; or
publicly announce an intention to effect any such transaction, for a period of
90 days/a/ after the date of this Agreement other than (A) transactions by any
person other than the Company relating
__________________________
/a/ 150 days with respect to Xxxxxxx X. Xxxxxxxx, Xxxxxx X. Xxxxxxx and Xxxxx
X. Xxxxx.
B-1
to shares of Common Stock or other securities acquired in open market
transactions after Closing (as defined in the Underwriting Agreement), (B) bona
fide gifts, sales or other dispositions of shares of any class Capital Stock, in
each case that are made exclusively between and among the undersigned, or
members of the undersigned's family, or affiliates of the undersigned, including
its partners (if a partnership) or members (if a limited liability company) or
(C) the purchase or sale of any Common Stock in accordance with paragraph (c) of
Rule 10b5-1 promulgated under the Securities Exchange Act of 1934, as amended;
provided that it shall be a condition to any such transfer under clause (B) that
(i) the transferee executes a duplicate form of this letter, and (ii) no filing
by any party (donor, donee, tranferor or tranferee) under Section 16(a) of the
Exchange Act shall be required or shall be voluntarily made in connection with
such transfer or distribution (other than a filing on a Form 5), and that it
shall be a condition to any purchase or sale under clause (C) that such purchase
or sale shall be executed pursuant to a contract, instruction, plan or other
arrangement in existence prior to the date hereof.
If for any reason the Underwriting Agreement shall be terminated prior to
the Closing Date (as defined in the Underwriting Agreement), the agreement set
forth above shall likewise be terminated.
Yours very truly,
________________________________________
Name
________________________________________
Address
B-2
