25,000,000 SHARES
XXXXXX COMMUNICATIONS CORPORATION
CLASS A COMMON STOCK, PAR VALUE $0.001 PER SHARE
UNDERWRITING AGREEMENT
______________, 2000
XXXXXX BROTHERS INC.
BANC OF AMERICA SECURITIES LLC
XXXXXXX XXXXX XXXXXX INC.
DEUTSCHE BANK SECURITIES INC.
XXXXXXX, SACHS & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED,
As Representatives of the several
Underwriters named in Schedule 1,
c/x Xxxxxx Brothers Inc.
Three World Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
and
Banc of America Securities LLC
0 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Dear Sirs:
Xxxxxx Communications Corporation, an Oklahoma corporation (the
"Company"), proposes to sell 25,000,000 shares (the "Firm Stock") of the
Company's Class A Common Stock, par value $0.001 per share (the "Class A Common
Stock"). In addition, the Company and the stockholders of the Company named in
Schedule 2 hereto (the "Selling Stockholders") propose to grant to the
Underwriters named in Schedule 1 hereto (the "Underwriters") an option to
purchase up to an aggregate additional 3,750,000 shares of the Class A Common
Stock on the terms and for the purposes set forth in Section 3 (the "Option
Stock"). Xxxxxx Brothers Inc. and Banc of America Securities LLC are acting as
joint book running managers for the offering of the Stock and Xxxxxxx Xxxxx
Barney Inc. is acting as joint lead manager for the offering of the Stock.
Deutsche Bank Securities Inc., Xxxxxxx, Xxxxx & Co. and Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated are acting as co-managers for the offering of the
Stock. The Firm Stock and the Option Stock, if purchased, are hereinafter
collectively called the "Stock." This is to confirm the agreement concerning
the purchase of the Stock from the Company and, in
the case of the Option Stock, from the Company and the Selling Stockholders,
by the Underwriters.
It is understood that ________ shares of the Firm Stock initially
will be reserved by Xxxxxxx Xxxxx Barney Inc. out of the Stock set forth
opposite its name on Schedule I of this Agreement, for offer and sale upon
the terms and conditions set forth in the Prospectus (as defined below) and
in accordance with the rules and regulations of the National Association of
Securities Dealers, Inc. (the "NASD") to officers, directors, employees and
persons having business relationships with the Company and its subsidiaries
(collectively, "Participants") as set forth in the Prospectus under the
caption "Underwriting--Directed Share Program" who have heretofore delivered
to Xxxxxxx Xxxxx Xxxxxx Inc. offers or indications of interest to purchase
shares of Firm Stock in form satisfactory to Xxxxxxx Xxxxx Barney Inc. The
Firm Stock to be sold by Xxxxxxx Xxxxx Xxxxxx Inc. pursuant to the Directed
Share Program (the "Directed Shares") will be sold by Xxxxxxx Xxxxx Barney
Inc. pursuant to this Agreement at the public offering price. Any Directed
Shares not orally confirmed for purchase by any Participants by the end of
the business day on which this Agreement is executed will be offered to the
public by Xxxxxxx Xxxxx Xxxxxx Inc. as set forth in the Prospectus.
1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY. The
Company represents, warrants and agrees that:
(a) A registration statement on Form S-1, and amendments
thereto, with respect to the Stock has (i) been prepared by the
Company in conformity with the requirements of the United States
Securities Act of 1933, as amended (the "Securities Act"), and the
rules and regulations (the "Rules and Regulations") of the United
States Securities and Exchange Commission (the "Commission")
thereunder, (ii) been filed with the Commission under the Securities
Act and (iii) become effective under the Securities Act. Copies of
such registration statement and the amendments thereto have been
delivered by the Company to you as the representatives (the
"Representatives") of the Underwriters. As used in this Agreement,
"Effective Time" means the date and the time as of which such
registration statement, or the most recent post-effective amendment
thereto, if any, was declared effective by the Commission; "Effective
Date" means the date of the Effective Time; "Preliminary Prospectus"
means each prospectus included in such registration statement, or
amendments thereof, before it became effective under the Securities
Act and any prospectus filed with the Commission by the Company
pursuant to Rule 424(a) of the Rules and Regulations; "Registration
Statement" means such registration statement, as amended at the
Effective Time, including all information contained in the final
prospectus filed with the Commission pursuant to Rule 424(b) of the
Rules and Regulations in accordance with Section 6(a) hereof and
deemed to be a part of the registration statement as of the Effective
Time pursuant to paragraph (b)
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of Rule 430A of the Rules and Regulations and, in the event any
post-effective amendment thereto or any registration statement
filed with the Commission pursuant to Rule 462(b) of the Rules and
Regulations becomes effective prior to either Delivery Date, shall
also mean such registration statement as so amended or such
registration statement filed with the Commission pursuant to Rule
462(b) of the Rules and Regulations, as the case may be; and
"Prospectus" means such final prospectus, as first filed with the
Commission pursuant to paragraph (1) or (4) of Rule 424(b) of the
Rules and Regulations. The Commission has not issued any order
preventing or suspending the use of any Preliminary Prospectus.
(b) The Registration Statement conforms, and the Prospectus and
any further amendments or supplements to the Registration Statement or
the Prospectus will, when they become effective or are filed with the
Commission, as the case may be, conform in all respects to the
requirements of the Securities Act and the Rules and Regulations and
do not and will not, as of the applicable effective date (as to the
Registration Statement and any amendment thereto) and as of the
applicable filing date, the date hereof and each Delivery Date (as to
the Prospectus and any amendment or supplement thereto) contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein (in the case of the Prospectus, in light of the circumstances
under which they were made) not misleading; PROVIDED that no
representation or warranty is made as to information contained in or
omitted from the Registration Statement, the Prospectus or any further
amendments or supplements to the Registration Statement or the
Prospectus in reliance upon and in conformity with written information
furnished to the Company through the Representatives by or on behalf
of any Underwriter specifically for inclusion therein, it being
understood that the only information so furnished is specified in
Section 10(g).
(c) The Company and each of its subsidiaries (as defined in
Section 17) have been duly incorporated and are validly existing as
corporations in good standing under the laws of their respective
jurisdictions of incorporation, are duly qualified to do business and
are in good standing as foreign corporations in each jurisdiction in
which their respective ownership or lease of property or the conduct
of their respective businesses requires such qualification, except
where the failure to be so qualified would not reasonably be expected
to have a material adverse effect on the consolidated financial
position, stockholders' equity, results of operations, business or
prospects of the Company and its subsidiaries taken as a whole (a
"Material Adverse Effect"), and each have all power and authority
necessary to own or hold their respective properties and to conduct
the businesses in which they are engaged, except where the failure
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to have such power and authority would not reasonably be expected to
have a Material Adverse Effect; and none of the subsidiaries of the
Company (other than [Xxxxxx Operating Company LLC, Xxxxxx Cellular
Systems, Inc. and Xxxxxx/Sygnet Communications, Inc.] (collectively,
the "Significant Subsidiaries")) is a "significant subsidiary," as
such term is defined in Rule 405 of the Rules and Regulations.
(d) At the First Delivery Date (as defined in Section 5), the
Company will have an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the
Company will have been duly authorized and validly issued, will be
fully paid and non-assessable and will conform, in all material
respects, to the description thereof contained in the Prospectus. All
of the issued shares of capital stock of each subsidiary of the
Company have been duly authorized and validly issued and are fully
paid and non-assessable and (except as set forth in the Prospectus)
are owned directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims.
(e) The shares of the Stock to be issued and sold by the Company
to the Underwriters hereunder have been duly authorized and, when
issued and delivered against payment therefor as provided herein, will
be validly issued, fully paid and non-assessable and the Stock will
conform, in all material respects, to the description thereof
contained in the Prospectus. The certificates for the Class A Common
Stock (including the shares of Stock being delivered on the date
hereof) are in valid and sufficient form.
(f) This Agreement has been duly authorized, executed and
delivered by the Company and (assuming the due authorization,
execution and delivery thereof by the other parties thereto)
constitutes the legal, valid and binding agreement of the Company
enforceable against it in accordance with its terms, subject to the
effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) or an implied
covenant of good faith and fair dealing.
(g) The execution, delivery and performance of this Agreement by
the Company and the consummation of the transactions contemplated
hereby, by the Company's amended and restated certificate of
incorporation and by the Agreement and Plan of Recapitalization, dated
as of January [__], 2000, among the Company, Xxxxxx Operating Company,
Xxxxxx XX Limited Partnership, Xxxxxxx X. Xxxxxx, X.X. Childs Equity
Partners II, L.P., AT&T Wireless Services, Inc. and the holders of
issued and outstanding shares of the Company's pre-recapitalization
Class A Common Stock, par value $.001 per share, and Class D Preferred
Stock, par value $1.00 per share, listed on the signature pages
therein (the
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"Recapitalization Agreement"), providing for the recapitalization
described in the Prospectus under the captions "Capitalization" and
"Description of Capital Stock" (such actions are herein
collectively called the "Recapitalization"), (i) will not conflict
with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is bound
or to which any of the property or assets of the Company or any of
its subsidiaries is subject, except for such conflicts, breaches or
violations that, individually or in the aggregate, would not have a
Material Adverse Effect; (ii) nor will such actions result in any
violation of the provisions of the charter or by-laws of the
Company or any of its subsidiaries; (iii) nor will such actions
result in any violation of any statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of
their properties or assets, except for such violations that,
individually or in the aggregate, would not have a Material Adverse
Effect; and (iv) except for the registration of the Stock under the
Securities Act and such consents, approvals, authorizations,
registrations or qualifications as may be required (a) under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
(b) by applicable state or foreign securities laws in connection
with the purchase and distribution of the Stock by the Underwriters
and (c) by the NASD, no consent, approval, authorization or order
of, or filing or registration with, any such court or governmental
agency or body is required for the execution, delivery and
performance of this Agreement by the Company and the consummation
of the transactions contemplated hereby and by the Recapitalization.
(h) Except as described in the Registration Statement, there are
no contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file a
registration statement under the Securities Act with respect to any
securities of the Company owned or to be owned by such person or to
require the Company to include any securities owned or to be owned by
such person in the securities registered pursuant to the Registration
Statement or in any securities being registered pursuant to any other
registration statement filed by the Company under the Securities Act.
The holders of outstanding shares of the Company's capital stock are
not entitled to preemptive or other rights to subscribe for the Stock
other than preemptive or other rights set forth in the Registration
Statement which have been waived by the holders thereof. Except as
set forth in the Registration Statement, no options, warrants or other
rights to purchase, agreements or other obligations to issue, or
rights to convert any
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obligations into or exchange any securities for, shares of capital
stock of or ownership interests in the Company are outstanding.
(i) Except as described or contemplated in the Registration
Statement, the Company has not sold or issued any shares of Class A
Common Stock (or any securities of the same class as the Class A
Common Stock) during the six-month period preceding the date of the
Prospectus, including any sales pursuant to Rule 144A under, or
Regulations D or S of, the Securities Act.
(j) Neither the Company nor any of its subsidiaries has
sustained, since the date of the latest audited financial statements
included in the Prospectus, any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or
governmental action, order or decree; and, since such date, there has
not been any change in the capital stock of the Company or long-term
debt of the Company or any of its subsidiaries (other than as
described or contemplated in the Prospectus or pursuant to the
Recapitalization Agreement as described in the Prospectus under the
captions "Capitalization" and "Description of Capital Stock") or any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries.
(k) The historical and PRO FORMA financial statements, together
with the related notes, filed as part of the Registration Statement or
included in the Prospectus comply as to form in all material respects
with the requirements of Regulation S-X under the Securities Act
applicable to registration statements on Form S-1 under the Securities
Act. The historical financial statements (including the related notes
and supporting schedules) filed as part of the Registration Statement
or included in the Prospectus present fairly in all material respects
the financial condition and results of operations of the entities
purported to be shown thereby, at the dates and for the periods
indicated, and have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis
throughout the periods involved except as may be stated in the related
notes thereto. The unaudited PRO FORMA consolidated financial
statements have been prepared on a basis consistent with such
historical statements of the Company, except for the PRO FORMA
adjustments specified therein, and give effect to assumptions
described in the Prospectus which have been made on a reasonable basis
and in good faith. The unaudited proportionate adjusted statements of
operations, together with the related notes, included in the
Prospectus have been derived from the financial records of the Company
and American Cellular
6
Corporation and, in all material respects, have been prepared on a
basis consistent with such books and records of the Company and
American Cellular Corporation, except for the PRO FORMA adjustments
specified therein, and give effect to assumptions described in the
Prospectus which have been made on a reasonable basis and in good
faith. The other financial and statistical information and data
included in the Prospectus, historical and PRO FORMA, have been
derived from the financial records of the Company and, in all
material respects, have been prepared on a basis consistent with
such books and records of the Company and present fairly the
historical and proposed transactions contemplated by the Prospectus
and this Agreement. The industry, customer and statistical data
and estimates, and the information relating to American Cellular
Corporation included in the Prospectus are based on or derived from
sources that the Company believes are accurate and reliable in all
material respects.
(l) Xxxxxx Xxxxxxxx LLP, independent public accountants, who
have audited certain financial statements of the Company, whose report
appears in the Prospectus and who have delivered the initial letter
referred to in Section 9(h) hereof, are independent public accountants
with respect to the Company as required by the Securities Act and the
Rules and Regulations; based on the initial letter referred to in
Section 9(i) hereof, Ernst & Young LLP, independent auditors, whose
reports appear in the Prospectus and who have delivered the initial
letter referred to in Section 9(i) hereof with respect to Sygnet
Wireless, Inc., were independent accountants with respect to Sygnet
Wireless, Inc. for the periods covered by their report as required by
the Securities Act and the Rules and Regulations; and based on the
initial letter referred to in Section 9(j) hereof, Ernst & Young LLP,
independent auditors, whose reports appear in the Prospectus and who
have delivered the initial letter referred to in Section 9(j) hereof
with respect to American Cellular Corporation and its predecessor,
PriCellular Corporation, were independent accountants with respect to
American Cellular Corporation for the periods covered by their report
as required by the Securities Act and the Rules and Regulations.
(m) The Company and each of its subsidiaries have good and
marketable title to all real property and good title to all personal
property reflected as owned by them in the financial statements
referred to in Section 1(k) of this Agreement (or elsewhere in the
Prospectus), in each case free and clear of all liens, encumbrances
and defects except as are described in the Prospectus or such as would
not reasonably be expected to have a Material Adverse Effect; and all
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 would not reasonably be expected to
have a Material Adverse Effect.
7
(n) The Company and each of its subsidiaries carry, or are
covered by, insurance in such amounts and covering such risks as is
adequate for the conduct of their respective businesses and the value
of their respective properties and, to the Company's best knowledge,
as is customary for companies engaged in similar businesses in similar
industries and all such insurance is outstanding and in force.
(o) The Company and each of its subsidiaries own or possess
adequate rights to use all material patents, patent applications,
trademarks, service marks, trade names, trademark registrations,
service xxxx registrations, copyrights and licenses necessary for the
conduct of their respective businesses and have no reason to believe
that the conduct of their respective businesses will conflict with,
and have not received any notice of any claim of conflict with, any
such rights of others.
(p) There are no legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a party or of which
any property or assets of the Company or any of its subsidiaries is
the subject (i) which is required to be disclosed in the Registration
Statement which is not disclosed in the Prospectus or (ii) which, if
determined adversely to the Company or any of its subsidiaries, might
reasonably be expected to (A) have a material adverse effect on the
power or ability of the Company to perform its obligations under this
Agreement or the consummation of any of the transactions contemplated
hereby or in the Prospectus; or (B) have a Material Adverse Effect;
and to the best of the Company's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened
by others.
(q) There are no contracts or other documents which are required
to be described in the Prospectus or filed as exhibits to the
Registration Statement by the Securities Act or by the Rules and
Regulations which have not been described in the Prospectus or filed
or incorporated by reference as exhibits to the Registration Statement
as permitted by the Rules and Regulations.
(r) There are no relationships or related-party transactions
involving the Company or any other person required to be described in
the Prospectus pursuant to the Securities Act and the Rules and
Regulations which have not been so described in the Prospectus under
the caption "Certain Transactions."
(s) No labor disturbance by the employees of the Company or any
of its subsidiaries exists or, to the best knowledge of the Company,
is threatened or imminent which would have a Material Adverse Effect
and the Company is not aware of any such labor disturbances by the
8
employees of the principal suppliers, contractors or customers of the
Company or its subsidiaries.
(t) Neither the Company nor any of its subsidiaries has violated
any safety or similar law applicable to its business, nor any federal
or state law relating to discrimination in the hiring, promotion or
pay of employees nor any applicable federal or state wages and hours
laws, except for violations that, individually or in the aggregate,
would not have a Material Adverse Effect. The Company is in
compliance in all material respects with all presently applicable
provisions of the Employee Retirement Income Security Act of 1974, as
amended, including the regulations and published interpretations
thereunder ("ERISA"); no "reportable event" (as defined in ERISA) has
occurred with respect to any "pension plan" (as defined in ERISA)
except for such events that, individually or in the aggregate, would
not have a Material Adverse Effect; the Company has not incurred and
does not expect to incur liability under (i) Title IV of ERISA with
respect to termination of, or withdrawal from, any "pension plan" or
(ii) Sections 412 or 4971 of the Internal Revenue Code of 1986, as
amended, including the regulations and published interpretations
thereunder (the "Code"); and each "pension plan" for which the Company
would have any liability that is intended to be qualified under
Section 401(a) of the Code is so qualified in all material respects
and to the best of the Company's knowledge nothing has occurred,
whether by action or by failure to act, which would cause the loss of
such qualification.
(u) The Company has filed all federal, state and local income
and franchise tax returns required to be filed through the date hereof
and has paid all taxes reflected as due thereon, and no tax deficiency
has been determined adversely to the Company or any of its
subsidiaries which has had (nor does the Company have any knowledge of
any tax deficiency which, if determined adversely to the Company or
any of its subsidiaries, might have) a Material Adverse Effect.
(v) Since the date as of which information is given in the
Registration Statement through the date hereof, and except as may
otherwise be disclosed in the Prospectus, the Company has not (i)
issued or granted any securities (other than issuances, if any,
pursuant to employee benefit plans described in the Prospectus or upon
the exercise of outstanding options described in the Prospectus), (ii)
incurred any liability or obligation, direct or contingent, other than
liabilities and obligations which were incurred in the ordinary course
of business, (iii) entered into any transaction not in the ordinary
course of business except as disclosed in the Prospectus or (iv)
declared or paid any dividend on its capital stock.
(w) The Company and each of its subsidiaries (i) makes and keeps
accurate books and records and (ii) maintains internal accounting
controls
9
which provide reasonable assurance that (A) transactions are
executed in accordance with management's authorization, (B)
transactions are recorded as necessary to permit preparation of its
financial statements and to maintain accountability for its assets,
(C) access to its assets is permitted only in accordance with
management's authorization and (D) the reported accountability for
its assets is compared with existing assets at reasonable
intervals.
(x) Neither the Company nor any of its subsidiaries (i) is in
violation of its charter or by-laws, (ii) is in default in any
material respect, and no event has occurred which, with notice or
lapse of time or both, would constitute such a default, in the due
performance or observance of any term, covenant or condition contained
in any material indenture, mortgage, deed of trust, loan agreement or
other material agreement or instrument to which it is a party or by
which it is bound or to which any of its properties or assets is
subject, including, without limitation, operating agreements or (iii)
is in violation in any material respect of any law, ordinance,
governmental rule, regulation or court decree to which it or its
property or assets may be subject or has failed to obtain any material
license, permit, certificate, franchise or other governmental
authorization or permit necessary to the ownership of its property or
to the conduct of its business.
(y) Neither the Company nor any of its subsidiaries, nor to the
Company's best knowledge any director, officer, agent, employee or
other person associated with or acting on behalf of the Company or any
of its subsidiaries, has used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expense relating
to political activity; made any direct or indirect unlawful payment to
any foreign or domestic government official or employee from corporate
funds; violated or is in violation of any provision of the Foreign
Corrupt Practices Act of 1977; or made any bribe, rebate, payoff,
influence payment, kickback or other unlawful payment.
(z) There has been no storage, disposal, generation,
manufacture, refinement, transportation, handling or treatment of
toxic wastes, medical wastes, hazardous wastes or hazardous substances
by the Company or any of its subsidiaries (or, to the knowledge of the
Company, any of their predecessors in interest) at, upon or from any
of the property now or previously owned or leased by the Company or
its subsidiaries in violation of any applicable law, ordinance, rule,
regulation, order, judgment, decree or permit or which would require
remedial action under any applicable law, ordinance, rule, regulation,
order, judgment, decree or permit, except for any violation or
remedial action which would not have, or would not be reasonably
likely to have, singularly or in the aggregate with all such
10
violations and remedial actions, a Material Adverse Effect; there has
been no material spill, discharge, leak, emission, injection, escape,
dumping or release of any kind onto such property or into the
environment surrounding such property of any toxic wastes, medical
wastes, solid wastes, hazardous wastes or hazardous substances due to
or caused by the Company or any of its subsidiaries or with respect to
which the Company or any of its subsidiaries have knowledge, except
for any such spill, discharge, leak, emission, injection, escape,
dumping or release which would not have or would not be reasonably
likely to have, singularly or in the aggregate with all such spills,
discharges, leaks, emissions, injections, escapes, dumpings and
releases, a Material Adverse Effect; and the terms "hazardous wastes,"
"toxic wastes," "hazardous substances" and "medical wastes" shall have
the meanings specified in any applicable local, state, federal and
foreign laws or regulations with respect to environmental protection.
(ab) Neither the Company nor any subsidiary is, or will be after
the offering of the Stock and the use of proceeds therefrom, an
"investment company" within the meaning of such term under the
Investment Company Act and the rules and regulations of the Commission
thereunder.
(ac) Except as would not have a Material Adverse Effect, (i) the
Company and its subsidiaries, have (A) such permits, licenses,
franchises and authorizations of governmental or regulatory
authorities (federal, foreign, state or local) ("Permits"), including,
without limitation, under any applicable environmental laws, as are
necessary to own, lease and operate their respective properties and to
conduct their businesses as presently conducted and as proposed to be
conducted as described in the Prospectus, and (B) fulfilled and
performed all of their respective material obligations with respect to
the Permits, and (ii) to the Company's best knowledge no event has
occurred that would allow, or after notice or lapse of time would
allow, revocation or termination of any Permit or that would result in
any other material impairment of the rights granted to the Company or
any of its subsidiaries under any Permit, and the Company has no
reason to believe that any governmental body or agency is considering
limiting, suspending or revoking any Permit.
(ad) Neither the Company nor any of its subsidiaries is a party
in interest or disqualified person (as those terms are defined in
Section 3(14) of ERISA and Section 4975 of the Code respectively) with
respect to any employee benefit plans other than employee benefit
plans sponsored by the Company or any of its subsidiaries and covering
employees of the Company or any of its subsidiaries.
11
(ae) All licenses and authorizations issued by the Federal
Communications Commission ("FCC") and state authorities governing
telecommunications matters (the "Licenses") required for the operation
of the business of the Company and its subsidiaries are in full force
and effect and there are no pending modifications, amendments or
revocation proceedings which would adversely affect the operation of
any of the telecommunications business currently owned by the Company
and its subsidiaries (the "Businesses"). All fees due and payable to
governmental authorities pursuant to the rules governing Licenses have
been paid. No event has occurred with respect to the Licenses held by
the Company, or its respective subsidiaries, which, with the giving of
notice or the lapse of time or both, would constitute grounds for
revocation of any Licenses. Each of the Company and its subsidiaries
is in compliance in all material respects with the terms of the
Licenses, as applicable, and there is no condition, event or
occurrence existing, nor is there any proceeding being conducted of
which the Company has received notice, nor, to the Company's best
knowledge, is there any proceeding threatened, by any governmental
authority, which would cause the termination, suspension, cancellation
or nonrenewal of any of the Licenses, or the imposition of any penalty
or fine (that is material to the Company and its subsidiaries, taken
as a whole) by any regulatory authority. No registrations, filings,
applications, notices, transfers, consents, approvals, audits,
qualifications, waivers or other action of any kind is required by
virtue of the execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby and the
Recapitalization, and the issuance and delivery of the Stock, to avoid
the loss of any such License, permit, consent, concession or other
authorization or any asset, property or right pursuant to the terms
thereof, or the violation or breach of any applicable law thereto.
(af) Except as disclosed in the Prospectus, since January 1,
2000, all of the Company's computer applications and, to the best
knowledge of the Company, those of the Company's suppliers, vendors
and customers, that are material to its or any of its subsidiaries'
business and operations have operated in the ordinary course of
business and are Year 2000 Compliant, except for such non-compliance
that would not have a Material Adverse Effect, and the occurrence of
calendar year 2000 has not had a Material Adverse Effect. For
purposes of this subsection (af), "Year 2000 Compliant" means (i) with
respect to Date Data, that such data is in proper format and (ii) with
respect to Date-Sensitive Systems, that each such system accurately
processes all Date Data, including for the twentieth and twenty-first
centuries, without loss of any functionality or performance,
including, without limitation, calculating, comparing, sequencing,
storing and displaying such Date Data (including all leap year
considerations), when used as a stand-alone system or in combination
with
12
other software or hardware; "Date Data" means any data of any kind
that consists of date information or which is otherwise derived
from, dependent on or related to date information; and "Date-Sensitive
System" means any software, microcode or hardware system or component,
including any electronic or electronically controlled system or
component that processes any Date Data and that is installed, in
development or on order, for internal or external use, or the
provision or operation of which provides a benefit to customers,
vendors, suppliers or any other party.
(ag) There are no contracts, agreements or understandings
between the Company and its subsidiaries and any other person that
would give rise to a valid claim against the Company or any of its
subsidiaries or the Underwriters for a brokerage commission, finder's
fee or like payment in connection with the issuance, purchase and sale
of the Stock, except (A) pursuant to or contemplated by this Agreement
and (B) contracts, agreements or understandings for the payment of a
brokerage commission, finder's fee or like payment to the
Underwriters.
(ah) There are no transfer taxes or other similar fees or
charges under federal law or the laws of any state or foreign
jurisdiction, or any political subdivision thereof, required to be
paid in connection with the execution and delivery of this Agreement
or the issuance by the Company or sale by the Company of the Stock
(including Directed Shares).
(ai) The Company has not taken, directly or indirectly, any
action designed to or which has constituted or which might reasonably
be expected to cause or result, under the Exchange Act or otherwise,
in stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Stock.
(aj) At the First Delivery Date the Company's amended and
restated certificate of incorporation providing for the
Recapitalization as described in the Prospectus will have been duly
filed with the Secretary of State of the State of Oklahoma and the
Recapitalization will have become effective.
(ak) (i) The Recapitalization Agreement, the Agreement and Plan
of Merger, dated October 5, 1999, among ACC Acquisition LLC, ACC
Acquisition Co. and American Cellular Corporation (the "Merger
Agreement"), the Amended and Restated Limited Liability Company
Agreement of ACC Acquisition LLC, dated as of January [__], 2000,
between AT&T Wireless Services JV Co., Xxxxxx XX Company [and ACC
Acquisition LLC] (the "LLC Agreement"), the Operating Agreement, dated
as of January [__], 2000, among AT&T Wireless Services, Inc. and its
affiliates, and ACC Acquisition LLC, on behalf of American Cellular
Corporation and its affiliates (the "Operating
13
Agreement"), and the Management Agreement, dated as of January [__],
2000, between Xxxxxx Cellular Systems, Inc. and ACC Acquisition
LLC, (the "Management Agreement" and, together with the Merger
Agreement, the Operating Agreement, the Management Agreement and
the LLC Agreement, the "American Cellular Agreements") are in full
force and effect and no party to the Recapitalization Agreement or
any of the American Cellular Agreements has sought to modify, amend
or waive any of the provisions thereof; (ii) the representations
and warranties of the Company, and to the knowledge of the Company
the representations and warranties of the other parties to the
Recapitalization Agreement and the American Cellular Agreements,
contained in the Recapitalization Agreement and the American
Cellular Agreements, respectively, were true and correct in all
respects as of the dates of the Recapitalization Agreement and the
American Cellular Agreements, respectively, and as of the date
hereof; the Company is not, and to the knowledge of the Company, no
other party to the Recapitalization Agreement or any of the
American Cellular Agreements is in breach of any of the terms
thereof; (iii) except as disclosed in or contemplated by the
Recapitalization Agreement or any of the American Cellular
Agreements, no consent, approval, authorization or order of, or
filing or registration with, any court or governmental agency or
body was required for the execution and delivery of, or is required
for the performance of, the Recapitalization Agreement or any of
the American Cellular Agreements by any of the parties thereto and
the consummation of the transactions contemplated thereby; and (iv)
other than the American Cellular Agreements, there are no other
material agreements relating to the Company's proposed joint
venture with AT&T Wireless Services, Inc. or to acquire American
Cellular Corporation.
(al) The Company has not distributed or forwarded any written or
electronic communications relating to the offering of the Stock or the
Directed Share Program to Participants or prospective Participants in
the Directed Share Program and has not authorized any other person to
distribute or forward such communications other than Xxxxxxx Xxxxx
Barney Inc.
(am) None of the Directed Shares has been or will be offered or
sold outside of the United States pursuant to the Directed Share
Program.
(an) The Nasdaq Stock Market has approved the Stock for
inclusion in the National Market System, subject only to official
notice of issuance.
2. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE SELLING
STOCKHOLDERS. Each Selling Stockholder severally, and not jointly, represents,
warrants and agrees that:
14
(a) The Selling Stockholder has, and immediately prior to the
Second Delivery Date (as defined in Section 5 hereof) the Selling
Stockholder will have good and valid title to the shares of Option
Stock to be sold by the Selling Stockholder hereunder on such date,
free and clear of all liens, encumbrances, equities or claims; and
upon delivery of such shares and payment therefor pursuant hereto, and
assuming each Underwriter has no notice of any adverse claim (as used
in Section 8-105 of the Uniform Commercial Code) good and valid title
to such shares, free and clear of all liens, encumbrances, equities or
claims, will pass to the several Underwriters.
(b) The Selling Stockholder has placed in custody under an
Irrevocable Power of Attorney and Custody Agreement (the "Irrevocable
Power of Attorney and Custody Agreement" and, together with all other
similar agreements executed by the other Selling Stockholders, the
"Irrevocable Power of Attorney and Custody Agreements") with UMB Bank,
n.a., as custodian (the "Custodian"), for delivery under this
Agreement, certificates in negotiable form (with signature guaranteed
by a commercial bank or trust company having an office or
correspondent in the United States or a member firm of the New York or
American Stock Exchanges) representing shares of the Company's common
stock that will be converted into shares of Class B Common Stock, par
value $0.001 per share, of the Company pursuant to the
Recapitalization Agreement (the "Class B Common Stock") and upon
transfer and delivery to the Underwriters hereunder will automatically
convert to shares of Class A Common Stock to be sold by the Selling
Stockholder hereunder as Option Stock.
(c) The Selling Stockholder has duly and irrevocably executed
and delivered a power of attorney contained in the Irrevocable Power
of Attorney and Custody Agreement appointing the Custodian and one or
more other persons, as attorneys-in-fact, with full power of
substitution, and with full authority (exercisable by any one or more
of them) to execute and deliver this Agreement and to take such other
action as may be necessary or desirable to carry out the provisions
hereof on behalf of the Selling Stockholder.
(d) This Agreement and the Irrevocable Power of Attorney and
Custody Agreement have been duly authorized by the Selling Stockholder
if the Selling Stockholder is a corporation, partnership, trust or
other business entity, and have each been duly executed and delivered
by or on behalf of such Selling Stockholder and constitute valid and
binding agreements of such Selling Stockholder, enforceable against
such Selling Stockholder in accordance with their respective terms.
15
(e) The Selling Stockholder has full right, power and authority
to enter into this Agreement and the Irrevocable Power of Attorney
and Custody Agreement; the execution, delivery and performance of
this Agreement and the Irrevocable Power of Attorney and Custody
Agreement by the Selling Stockholder and the consummation by the
Selling Stockholder of the transactions contemplated hereby and
thereby (i) will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Selling
Stockholder is a party or by which the Selling Stockholder is bound
or to which any of the property or assets of the Selling
Stockholder is subject, except for such conflicts, breaches or
violations that, individually or in the aggregate, would not have a
material adverse effect on the power or ability of the Selling
Stockholder to perform its obligations under this Agreement or the
consummation of any of the transactions contemplated hereby or in
the Prospectus; (ii) nor will such actions result in any violation
of the provisions of (x) the charter or by-laws of the Selling
Stockholder if the Selling Stockholder is a corporation, (y) the
partnership agreement and articles of partnership of the Selling
Stockholder if the Selling Stockholder is a partnership or (z) the
deed of trust of the Selling Stockholder if the Selling Stockholder
is a trust; (iii) nor will such actions result in any violation of
any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Selling
Stockholder or the property or assets of the Selling Stockholder,
except for such violations as will not have a material adverse
effect on the power or ability of the Selling Stockholder to
perform its obligations under this Agreement or the consummation of
any of the transactions contemplated hereby or in the Prospectus;
and (iv) except for the registration of the Option Stock under the
Securities Act and such consents, approvals, authorizations,
registrations or qualifications as may be required (a) under the
Exchange Act, (b) by applicable state or foreign securities laws in
connection with the purchase and distribution of the Option Stock
by the Underwriters and (b) by the NASD, no consent, approval,
authorization or order of, or filing or registration with, any such
court or governmental agency or body is required for the execution,
delivery and performance of this Agreement or the Irrevocable Power
of Attorney and Custody Agreement by the Selling Stockholder and
the consummation by the Selling Stockholder of the transactions
contemplated hereby and thereby.
(f) The information furnished in writing by or on behalf of such
Selling Stockholder expressly for use in the Registration Statement
and the Prospectus and any further amendments or supplements to the
Registration Statement or the Prospectus (it being understood that
the only information so furnished is specified in the Prospectus
under the captions "Principal
16
and Selling Shareholders" and "Certain Transactions") do not and
will not, as of the applicable effective date (as to the
Registration Statement and any amendment thereto) and as of the
applicable filing date, the date hereof and the Second Delivery
Date (as to the Prospectus and any amendment or supplement thereto)
contain an untrue statement of a material fact with respect to such
Selling Stockholder or omit to state a material fact with respect
to such Selling Stockholder required to be stated therein or
necessary to make the statements therein regarding the Selling
Stockholder (in the case of the Prospectus, in light of the
circumstances under with they were made) not misleading.
(g) The Selling Stockholder has not taken and will not take,
directly or indirectly, any action which is designed to or which has
constituted or which might reasonably be expected to cause or result
in the stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the shares of the
Stock.
(h) Other than as disclosed in the Prospectus, within the past
five years the Selling Stockholder has held no position or office or
had any other relationship with the Company required to be disclosed
pursuant to the Securities Act and the Rules and Regulations. The
Selling Stockholder acknowledges and consents to the inclusion of its
name and address and the information under the heading "Principal and
Selling Shareholders--Selling Shareholders" in the Prospectus.
3. PURCHASE OF THE STOCK BY THE UNDERWRITERS. On the basis of the
representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Company agrees to sell 25,000,000 shares
of the Firm Stock to the several Underwriters and each of the Underwriters,
severally and not jointly, agrees to purchase the number of shares of the
Firm Stock set opposite that Underwriter's name in Schedule 1 hereto. The
respective purchase obligations of the Underwriters with respect to the Firm
Stock shall be rounded among the Underwriters to avoid fractional shares, as
the Representatives may determine.
In addition, the Company grants to the Underwriters an option to
purchase up to _________________ shares of Option Stock and the Selling
Stockholders severally, and not jointly, grant to the Underwriters an option
to purchase up to ________________ shares of Option Stock. The Option Stock
to be sold by each such Selling Stockholder hereunder shall be equal to the
number of shares of Option Stock set forth opposite each such Selling
Stockholder's name in Schedule 2 hereto. Such option is granted for the
purpose of covering over-allotments in the sale of Firm Stock and is
exercisable as provided in Section 5 hereof. Shares of Option Stock shall be
purchased severally for the account of the Underwriters in proportion to the
number of shares of Firm Stock set opposite the name of such Underwriters in
Schedule 1 hereto. The respective purchase obligations of each Underwriter
with respect to the Option Stock shall be adjusted by the Representatives so
that no Underwriter shall be obligated to purchase Option Stock in
17
less than 100 share amounts. The price of both the Firm Stock and any Option
Stock shall be $_____ per share.
The Company shall not be obligated to deliver any of the Stock to
be delivered on any Delivery Date (as hereinafter defined), as the case may
be, except upon payment for all the Stock to be purchased from the Company on
such Delivery Date as provided herein and no Selling Stockholders shall be
obligated to deliver any of the Option Stock to be delivered on the Second
Delivery Date (as hereinafter defined), except upon payment for all the
Option Stock to be purchased by the Underwriters from such Selling
Stockholder on such Second Delivery Date.
4. OFFERING OF STOCK BY THE UNDERWRITERS.
Upon authorization by the Representatives of the release of the
Firm Stock, the several Underwriters propose to offer the Firm Stock for sale
upon the terms and conditions set forth in the Prospectus.
It is understood that the Directed Shares initially reserved by the
several Underwriters for offer and sale in connection with the Directed Share
Program shall be allocated among such persons in accordance with timely
directions received by Xxxxxxx Xxxxx Xxxxxx Inc. from the Company; PROVIDED,
that under no circumstances will the Representatives or any Underwriter be
liable to the Company or to any such person for any action taken or omitted
in good faith in connection with such offering to Participants in the
Directed Share Program. It is further understood that any shares of such
Firm Stock which are not purchased by such persons will be offered by the
Underwriters to the public upon the terms and conditions set forth in the
Prospectus.
5. DELIVERY OF AND PAYMENT FOR THE STOCK. Delivery of and payment
for the Firm Stock shall be made at the office of Weil, Gotshal & Xxxxxx LLP,
000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at 10:00 a.m., New York City time,
on the third full business day following the date of this Agreement (or the
fourth business day if this Agreement is executed after 4:30 p.m. New York
City time) or at such other date or place as shall be determined by agreement
between the Representatives and the Company. This date and time are
sometimes referred to as the "First Delivery Date." On the First Delivery
Date, the Company shall deliver or cause to be delivered certificates
representing the Firm Stock to the Representatives for the account of each
Underwriter against payment to or upon the order of the Company of the
purchase price by wire transfer in immediately available funds. Time shall
be of the essence, and delivery at the time and place specified pursuant to
this Agreement is a further condition of the obligation of each Underwriter
hereunder. Upon delivery, the Firm Stock shall be registered in such names
and in such denominations as the Representatives shall request in writing not
less than two full business days prior to the First Delivery Date. For the
purpose of expediting the checking and packaging of the certificates for the
Stock, the Company shall make the certificates representing the Firm Stock
available for inspection by the Representatives in New York, New York, not
later than 2:00 P.M., New York City time, on the business day prior to the
First Delivery Date.
18
The option granted in Section 3 will expire 30 days after the date
of this Agreement and may be exercised in whole or in part from time to time
by written notice being given to the Company and the Selling Stockholders by
the Representatives. If the option is exercised in part, the Underwriters
shall purchase on a pro rata basis from the Company and each Selling
Stockholder that number of shares of Option Stock offered by the Company and
each Selling Stockholder, as the case may be, pursuant to Section 3 hereof.
Such notice shall set forth the aggregate number of shares of Option Stock as
to which the option is being exercised, the names in which the shares of
Option Stock are to be registered, the denominations in which the shares of
Option Stock are to be issued and the date and time, as determined by the
Representatives, when the shares of Option Stock are to be delivered;
PROVIDED, HOWEVER, that this date and time shall not be earlier than the
First Delivery Date nor earlier than the second business day after the date
on which the option shall have been exercised nor later than the fifth
business day after the date on which the option shall have been exercised.
The date and time the shares of Option Stock are delivered are sometimes
referred to as a "Second Delivery Date" and the First Delivery Date and any
Second Delivery Date are sometimes each referred to as a "Delivery Date".
Delivery of and payment for the Option Stock shall be made at the
place specified in the first sentence of the first paragraph of this Section
5 (or at such other place as shall be determined by agreement between the
Representatives, the Company and the Selling Stockholders) at 10:00 A.M., New
York City time, on such Second Delivery Date. On such Second Delivery Date,
the Company and each Selling Stockholder shall deliver or cause to be
delivered the certificates representing the Option Stock to be sold by them
to the Representatives for the account of each Underwriter against payment of
the purchase price by wire transfer in immediately available funds to or upon
the order of the Company, and in the case of the Selling Stockholders, to a
bank account designated by the Custodian pursuant to the Irrevocable Power of
Attorney and Custody Agreement. Time shall be of the essence, and delivery
at the time and place specified pursuant to this Agreement is a further
condition of the obligation of each Underwriter hereunder. Upon delivery,
the Option Stock shall be registered in such names and in such denominations
as the Representatives shall request in the aforesaid written notice. For
the purpose of expediting the checking and packaging of the certificates for
the Option Stock, the Company and each Selling Stockholder shall make the
certificates representing the Option Stock available for inspection by the
Representatives in New York, New York, not later than 2:00 P.M., New York
City time, on the business day prior to such Second Delivery Date.
6. FURTHER AGREEMENTS OF THE COMPANY. The Company agrees:
(a) To prepare the Prospectus in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b)
under the Securities Act not later than the Commission's close of
business on the second business day following the execution and
delivery of this Agreement or, if applicable, such earlier time as
may be required by Rule
19
430A(a)(3) under the Securities Act; to make no further amendment
or any supplement to the Registration Statement or to the
Prospectus unless the Representatives have previously been
furnished with a copy of such amendment or supplement and have
consented to such amendment or supplement (which consent shall not
be unreasonably withheld); to advise the Representatives, promptly
after it receives notice thereof, of the time when any amendment to
the Registration Statement has been filed or becomes effective or
any supplement to the Prospectus or any amended Prospectus has been
filed and to furnish the Representatives with copies thereof; to
advise the Representatives, promptly after it receives notice
thereof, of the issuance by the Commission of any stop order or of
any order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus, of the suspension of the qualification
of the Stock for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose,
or of any request by the Commission for the amending or supplementing
of the Registration Statement or the Prospectus or for additional
information; and, in the event of the issuance of any stop order or
of any order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus or suspending any such qualification,
to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and to
counsel for the Underwriters a signed copy of the Registration
Statement as originally filed with the Commission, and each amendment
thereto filed with the Commission, including all consents and
exhibits filed therewith;
(c) To deliver promptly to the Representatives such number of
the following documents as the Representatives shall reasonably
request: (i) conformed copies of the Registration Statement as
originally filed with the Commission and each amendment thereto (in
each case excluding exhibits other than this Agreement and the
computation of per share earnings) and (ii) each Preliminary
Prospectus, the Prospectus and any amended or supplemented
Prospectus; and, if the delivery of a prospectus is required at any
time after the Effective Time in connection with the offering or
sale of the Stock or any other securities relating thereto and if
at such time any events shall have occurred as a result of which
the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such
Prospectus is delivered, not misleading, or, if for any other
reason it shall be necessary to amend or supplement the Prospectus
in order to comply with the Securities Act, to notify the
Representatives and, upon their request, to prepare and furnish
without charge to each Underwriter and to any dealer in securities
as many copies as the Representatives may from time to time
reasonably request of an amended
20
or supplemented Prospectus which will correct such statement or
omission or effect such compliance.
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Company or the
Representatives, be required by the Securities Act or requested by
the Commission;
(e) Prior to filing with the Commission any amendment to the
Registration Statement or supplement to the Prospectus or any
Prospectus pursuant to Rule 424 of the Rules and Regulations, to
furnish a copy thereof to the Representatives and counsel for the
Underwriters and obtain the consent of the Representatives to the
filing (which consent shall not be unreasonably withheld);
(f) As soon as practicable after the Effective Date, to make
generally available to the Company's security holders and to deliver
to the Representatives an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a)
of the Securities Act and the Rules and Regulations (including, at
the option of the Company, Rule 158);
(g) For a period of three years following the Effective Date,
to furnish to the Representatives copies of all materials furnished
generally by the Company to its shareholders and all public reports
and all reports and financial statements furnished by the Company to
the principal national securities exchange upon which the Class A
Common Stock may be listed pursuant to requirements of or agreements
with such exchange or to the Commission pursuant to the Exchange Act
or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Stock for
offering and sale under the securities laws of such jurisdictions as
the Representatives may request (including such jurisdictions as may
be require for the offering and sale of the Directed Shares) and to
comply with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of the Stock;
(i) (A) For a period of 180 days from the date of the
Prospectus, not to, directly or indirectly, (1) offer for sale, sell,
pledge or otherwise dispose of (or enter into any transaction or
device, or file any registration statement, other than a registration
statement on Form S-8, which is designed to, or could be expected to,
result in the disposition by any
21
person at any time in the future of) any shares of Class A Common
Stock, Class B Common Stock, Class C Common Stock, par value $.001
per share, of the Company, or Class D Common Stock, par value $.001
per share, of the Company, or any shares of the Company's
securities to be converted into the foregoing pursuant to the
Recapitalization Agreement (collectively, the "Capital Stock") or
securities convertible into or exchangeable for Capital Stock
(other than the Stock and shares issued pursuant to employee
benefit plans, stock option plans or other employee compensation
plans existing on the date hereof or pursuant to currently
outstanding options, warrants or rights), or sell or grant options,
rights or warrants with respect to any shares of Capital Stock or
securities convertible into or exchangeable for Capital Stock
(other than the grant of options pursuant to employee benefit
plans, stock option plans or other employee compensation plans
existing on the date hereof), or (2) enter into any swap or other
derivatives transaction that transfers to another, in whole or in
part, any of the economic benefits or risks of ownership of such
shares of Capital Stock, whether any such transaction described in
clause (1) or (2) above is to be settled by delivery of Capital
Stock or other securities, in cash or otherwise or (3) publicly
disclose an intention to make any such offer, sale, pledge, hedge,
swap or other transaction, or file any registration statement, in
each case, without the prior written consent of Xxxxxx Brothers
Inc. and Banc of America Securities LLC; and (B) to cause each of
the Company's executive officers listed in the Prospectus under the
caption "Management," directors and stockholders and optionholders
to furnish to the Representatives, prior to the First Delivery
Date, a letter or letters, in form and substance satisfactory to
counsel for the Underwriters, pursuant to which each such person
shall agree not to, directly or indirectly, (1) offer for sale,
sell, pledge or otherwise dispose of (or enter into any transaction
or device, including by way of delivery of any demand for
registration under the Securities Act, that is designed to, or
could be expected to, result in the disposition by any person at
any time in the future of) any shares of Capital Stock (including,
without limitation, shares of Capital Stock that the undersigned
acquires or has the right or power to dispose of and shares of
Capital Stock that may be issued upon exercise of any option or
warrant) or securities convertible into or exchangeable for Capital
Stock; PROVIDED, HOWEVER, that this clause (1) shall not prohibit
(a) the exercise of any options outstanding on the date of this
Agreement pursuant to the Company's 1996 Stock Option Plan or 2000
Stock Incentive Plan, but will apply to the securities issued upon
the exercise of such options, (b) Capital Stock sold pursuant to
the option of the Xxxxxx XX Limited Partnership, Xxxxxxx Xxxxxx and
certain of the Company's existing optionholders described under the
heading "Capitalization--The Recapitalization" in the Preliminary
Prospectus and (c)(i) the pledge of securities issued upon the
exercise of options outstanding on the date of this Agreement
pursuant to the Company's
22
1996 Stock Option Plan or 2000 Stock Incentive Plan or (ii)
pledges, existing on the date of this Agreement, of securities held
by the Xxxxxx XX Limited Partnership, provided, further that in the
case of this clause (c) the foregoing shall apply to the securities
so pledged and the pledgee of those securities shall agree to be
bound by the terms of the lock-up agreement, or (2) enter into any
swap or other derivatives transaction that transfers to another, in
whole or in part, any of the economic benefits or risks of
ownership of such shares of Capital Stock, whether any such
transaction described in clause (1) or (2) above is to be settled
by delivery of Capital Stock or other securities, in cash or
otherwise, in each case for a period of 180 days from the date of
the Prospectus, without the prior written consent of Xxxxxx
Brothers Inc. and Banc of America Securities LLC;
(j) To apply the net proceeds from the sale of the Stock being
sold by the Company as set forth in the Prospectus under the caption
"Use of Proceeds" and to file a Certificate of Elimination with the
Secretary of State of the State of Oklahoma within two business days
from the First Delivery Date to eliminate all of the Class D
Preferred Stock and Class E Preferred Stock, which is being
redeemed with the net proceeds from the sale of the Stock being
sold by the Company.
(k) To take such steps as shall be necessary to ensure that
neither the Company nor any subsidiary shall become an "investment
company" within the meaning of such term under the Investment Company
Act and the rules and regulations of the Commission thereunder;
(l) To comply with the Securities Act and the Rules and
Regulations and the Exchange Act (including the rules and regulations
thereunder) so as to permit the completion of the distribution of the
Stock as contemplated in this Agreement and the Prospectus; and
(m) Not to take, directly or indirectly, any action designed to
cause or result in, or that constitutes or might reasonably be
expected to constitute, the stabilization or manipulation of the
price of the Class A Common Stock.
(n) In connection with the Directed Share Program, the Company
will ensure that the Directed Shares will be restricted to the extend
required by the NASD or the NASD rules from sale, transfer,
assignment, pledge or hypothecation for a period of three months
following the date of the effectiveness of the Registration
Statement. Xxxxxxx Xxxxx Barney Inc. will notify the Company as to
which Participants will need to be so restricted. The Company will
direct the removal of such transfer restrictions upon the
expiration of such period of time.
23
7. FURTHER AGREEMENTS OF THE SELLING STOCKHOLDERS. Each Selling
Stockholder agrees:
(a) That the power of attorney and the custody arrangement for
the Option Stock to be sold by the Selling Stockholder hereunder,
which is represented by the certificates held in custody for the
Selling Stockholder, each pursuant to the Irrevocable Power of
Attorney and Custody Agreement is coupled with an interest and is
irrevocable and to the fullest extent not prohibited by law shall not
be terminated by any act of the Selling Stockholder or by operation
of law or by the occurrence of any event whatsoever, including
without limitation, the death, incapacity, dissolution, liquidation,
termination, bankruptcy or insolvency of the undersigned or any
similar event; and if, after the execution of this Agreement, any
such event shall occur before the completion of the transactions
contemplated by this Agreement, the attorneys-in-fact and the
Custodian named in the Irrevocable Power of Attorney and Custody
Agreement are nevertheless authorized and directed to complete all of
such transactions, as if such had not occurred and regardless of
notice thereof.
(b) To deliver to the Representatives prior to the Second
Delivery Date a properly completed and executed United States
Treasury Department Form W-8 (if the Selling Stockholder is a
non-United States person or Form W-9 (if the Selling Stockholder is
a United States person.)
8. EXPENSES. The Company agrees to pay (a) the costs incident to
the authorization, issuance, sale and delivery of the Stock and any taxes
payable in that connection; (b) the costs incident to the preparation,
printing and filing under the Securities Act of the Registration Statement
and any amendments and exhibits thereto; (c) the costs of distributing the
Registration Statement as originally filed and each amendment thereto and any
post-effective amendments thereof (including, in each case, exhibits), any
Preliminary Prospectus, the Prospectus and any amendment or supplement to the
Prospectus, all as provided in this Agreement; (d) the costs of producing and
distributing this Agreement and any other related documents in connection
with the offering, purchase, sale and delivery of the Stock; (e) the costs of
delivering and distributing the Irrevocable Power of Attorney and Custody
Agreements; (f) the filing fees incident to securing any required review by
the NASD of the terms of sale of the Stock (including the reasonable fees and
expenses of counsel for the Underwriters in connection therewith); (g) any
applicable listing or other fees; (h) all costs and expenses incident to the
offer and sale of the Directed Shares (including the reasonable fees and
expenses of counsel for the Underwriters in connection therewith); (i) the
fees and expenses of qualifying the Stock under the securities laws of the
several jurisdictions as provided in Section 6(h) (including filing fees and
the reasonable fees and expenses of counsel for the Underwriters relating to
such registration and qualification) and of preparing, printing and
distributing any materials in connection therewith; (j) all expenses
24
incident to the performance of the Selling Stockholders' obligations under,
and the consummation of the transactions contemplated by, this Agreement
(other than any underwriting discount), including (1) any stamp duties,
capital duties and stock transfer taxes, if any, payable upon the sale of the
Option Stock by the Selling Stockholders to the Underwriters, and their
transfer between the Underwriters pursuant to an agreement between such
Underwriters, (2) the fees and disbursements of the Selling Stockholders'
counsel and (3) the fees and expenses of the Custodian thereunder; and (k)
all other costs and expenses incident to the performance of the obligations
of the Company under this Agreement; PROVIDED that, except as provided in
this Section 8 and in Section 11 and Section 13 the Underwriters shall pay
their own costs and expenses, including the costs and expenses of their
counsel.
9. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The respective
obligations of the Underwriters hereunder are subject to the accuracy, when
made and on each Delivery Date, of the representations and warranties of the
Company contained herein, to the accuracy, when made and on the Second
Delivery Date, of the representations and warranties of the Selling
Stockholders contained herein, to the performance by the Company and the
Selling Stockholders of their respective obligations hereunder, and to each
of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the
Commission in accordance with Section 6(a); no stop order suspending
the effectiveness of the Registration Statement or any part thereof
shall have been issued and no proceeding for that purpose shall have
been initiated or threatened by the Commission; and any request of
the Commission for inclusion of additional information in the
Registration Statement or the Prospectus or otherwise shall have
been complied with.
(b) No Underwriter shall have discovered and disclosed to the
Company on or prior to such Delivery Date that the Registration
Statement or the Prospectus or any amendment or supplement thereto
contains an untrue statement of a fact which, in the opinion of Weil,
Gotshal & Xxxxxx LLP, counsel for the Underwriters, is material or
omits to state a fact which, in the opinion of such counsel, is
material and is required to be stated therein or is necessary to make
the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident
to the authorization, form and validity of this Agreement, the
Irrevocable Power of Attorney and Custody Agreements, the Stock, the
Registration Statement and the Prospectus, and all other legal
matters relating to this Agreement and the transactions
contemplated hereby shall be reasonably satisfactory in all
material respects to counsel for the Underwriters, and the Company
and the Selling Stockholders shall have furnished to such counsel
all documents and information that they may reasonably request to
enable them to pass upon such matters.
25
(d) McAfee & Xxxx A Professional Corporation shall have
furnished to the Representatives their written opinion, as counsel to
the Company, addressed to the Underwriters and dated such Delivery
Date, in form and substance reasonably satisfactory to the
Representatives, to the effect set forth in Exhibit 9(d) to this
Agreement.
(e) Xxxxxxxx & Worcester LLP shall have furnished to the
Representatives their written opinion, as counsel to each of the
Selling Stockholders, addressed to the Underwriters and dated the
Second Delivery Date, in form and substance reasonably satisfactory
to the Representatives, to the effect set forth in Exhibit 9(e) to
this Agreement.
(f) Xxxxxxxxx Xxxxxx Xxxxxx, LLP shall have furnished to the
Representatives their written opinion, as regulatory counsel to the
Company, addressed to the Underwriters and dated such Delivery Date,
in form and substance reasonably satisfactory to the Representatives,
to the effect set forth in Exhibit 9(f) to this Agreement.
(g) The Representatives shall have received from Weil,
Gotshal & Xxxxxx LLP, counsel for the Underwriters, such opinion or
opinions, dated such Delivery Date, with respect to the issuance
and sale of the Stock, the Registration Statement, the Prospectus
and other related matters as the Representatives may reasonably
require, and the Company shall have furnished to such counsel such
documents as they reasonably request for the purpose of enabling
them to pass upon such matters.
(h) At the time of execution of this Agreement, the
Representatives shall have received from Xxxxxx Xxxxxxxx LLP,
independent public accountants, a letter, in form and substance
satisfactory to the Representatives, addressed to the Underwriters
and dated the date hereof (i) confirming that they are independent
public accountants within the meaning of the Securities Act with
respect to the Company and are in compliance with the applicable
requirements relating to the qualification of accountants under
Rule 2-01 of Regulation S-X of the Commission and (ii) stating, as
of the date hereof (or, with respect to matters involving changes
or developments since the respective dates as of which specified
financial information is given in the Prospectus, as of a date not
more than five days prior to the date hereof), the conclusions and
findings of such firm with respect to the financial information and
other matters ordinarily covered by accountants' "comfort letters"
to underwriters in connection with registered public offerings.
(i) At the time of execution of this Agreement, the
Representatives shall have received from Ernst & Young LLP,
independent auditors, a letter, in form and substance satisfactory to
the Representatives, addressed to the Underwriters and dated the date
hereof (i) confirming that, the
26
periods covered by their report, they were independent public
accountants within the meaning of the Securities Act with respect
to Sygnet Wireless, Inc. and were in compliance with the applicable
requirements relating to the qualification of accountants under
Rule 2-01 of Regulation S-X of the Commission throughout such
periods and (ii) stating, as of the date hereof (or, with respect
to matters involving changes or developments since the respective
dates as of which specified financial information is given in the
Prospectus, as of a date not more than five days prior to the date
hereof), the conclusions and findings of such firm with respect to
the financial information and other matters ordinarily covered by
accountants' "comfort letters" to underwriters in connection with
registered public offerings.
(j) At the time of execution of this Agreement, the
Representatives shall have received from Ernst & Young LLP,
independent auditors, a letter, in form and substance satisfactory to
the Representatives, addressed to the Underwriters and dated the date
hereof (i) confirming that, for the periods covered by their report,
they were independent public accountants within the meaning of the
Securities Act with respect to American Cellular Corporation and its
predecessor, PriCellular Corporation, and were in compliance with the
applicable requirements relating to the qualification of accountants
under Rule 2-01 of Regulation S-X of the Commission throughout such
periods and (ii) stating, as of the date hereof (or, with respect to
matters involving changes or developments since the respective dates
as of which specified financial information is given in the
Prospectus, as of a date not more than five days prior to the date
hereof), the conclusions and findings of such firm with respect to
the financial information and other matters ordinarily covered by
accountants' "comfort letters" to underwriters in connection with
registered public offerings.
(k) With respect to the letters of Xxxxxx Xxxxxxxx LLP and
Ernst & Young LLP referred to in the preceding three paragraphs and
delivered to the Representatives concurrently with the execution of
this Agreement (the "initial letters"), the Company shall have
furnished to the Representatives letters (the "bring-down letters")
of such accountants, addressed to the Underwriters and dated such
Delivery Date (i) confirming that, for the periods covered by their
reports, they were independent public accountants within the meaning
of the Securities Act and are in compliance with the applicable
requirements relating to the qualification of accountants under Rule
2-01 of Regulation S-X of the Commission throughout such periods,
(ii) stating, as of the dates of their respective bring-down letters
(or, with respect to matters involving changes or developments since
the respective dates as of which specified financial information is
given in the Prospectus, as of a date not more than five days prior
to the date of the respective bring-down letters), the conclusions
and findings of such firms with respect to the financial information
and other
27
matters covered by their respective initial letters and (iii)
confirming in all material respects the conclusions and findings
set forth in their respective initial letters.
(l) The Company shall have furnished to the Representatives a
certificate, dated such Delivery Date, of its Chairman of the Board,
its President or a Vice President and its Chief Financial Officer
stating that:
(i) the representations, warranties and agreements of
the Company in Section 1 are true and correct as of such
Delivery Date; the Company has complied with all its agreements
contained herein; and the conditions set forth in Sections 9(a)
and 9(n) have been fulfilled;
(ii) they have carefully examined the Registration
Statement and any amendment thereto and the Prospectus and any
amendment or supplement thereto and, in their opinion (A) as of
the Effective Date (as to the Registration Statement and any
amendment thereto) and as of the applicable filing date, the
date hereof and each Delivery Date (as to the Prospectus and any
amendment or supplement thereto) did not include any untrue
statement of a material fact and did not omit to state a
material fact required to be stated therein or necessary to make
the statements therein (in the case of the Prospectus, in light
of the circumstances under which they were made) not misleading,
and (B) since the Effective Date no event has occurred which
should have been set forth in a supplement or amendment to the
Registration Statement or the Prospectus;
(iii) to the Company's best knowledge, based on due
inquiry, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose have been instituted or threatened; and
(iv) since the date of the most recent financial
statements included in the Prospectus (exclusive of any
supplement thereto), there has been no Material Adverse Effect,
whether or not arising from transactions in the ordinary course
of business, except as set forth in or contemplated in the
Prospectus (exclusive of any supplement thereto).
(m) Each Selling Stockholder (or the Custodian or one or more
attorneys-in-fact on behalf of the Selling Stockholders) shall have
furnished to the Representatives on the Second Delivery Date a
certificate, dated the Second Delivery Date, signed by, or on behalf
of, the Selling Stockholder (or the Custodian or one or more
attorneys-in-fact) stating
28
that the representations, warranties and agreements of the Selling
Stockholder contained herein are true and correct as of the Second
Delivery Date and that the Selling Stockholder has complied with
all agreements contained herein to be performed by the Selling
Stockholder at or prior to the Second Delivery Date.
(n) (i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited financial
statements included in the Prospectus any loss or interference with
its business from fire, explosion, flood or other calamity, whether
or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth
or contemplated in the Prospectus or (ii) since such date there
shall not have been any change in the capital stock or long-term
debt of the Company or any of its subsidiaries or any change, or
any development involving a prospective change, in or affecting the
general affairs, management, financial position, stockholders'
equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the
Prospectus, the effect of which, in any such case described in
clause (i) or (ii), is, in the judgment of the Representatives, so
material and adverse as to make it impracticable or inadvisable to
proceed with the public offering or the delivery of the Stock being
delivered on such Delivery Date on the terms and in the manner
contemplated in the Prospectus.
(o) Subsequent to the execution and delivery of this Agreement
there shall not have occurred any of the following: (i) trading in
securities generally on the New York Stock Exchange or the American
Stock Exchange or in the over-the-counter market, or trading in any
securities of the Company on any exchange or in the over-the-counter
market, shall have been suspended or minimum prices shall have been
established on any such exchange or such market by the Commission,
by such exchange or by any other regulatory body or governmental
authority having jurisdiction, (ii) a banking moratorium shall have
been declared by Federal or state authorities, (iii) the United
States shall have become engaged in hostilities, there shall have
been an escalation in hostilities involving the United States or
there shall have been a declaration of a national emergency or war
by the United States or (iv) there shall have occurred such a
material adverse change in general economic, political or financial
conditions (or the effect of international conditions on the
financial markets in the United States shall be such) as to make
it, in the judgment of a majority in interest of the several
Underwriters, impracticable or inadvisable to proceed with the
public offering or delivery of the Stock being delivered on such
Delivery Date on the terms and in the manner contemplated in the
Prospectus.
29
(p) The Nasdaq Stock Market shall have approved the Stock for
inclusion in the National Market System, subject only to official
notice of issuance.
(q) The Company shall have furnished to the Representatives a
letter addressed to the Representatives substantially in the form set
forth in Section 6(i) from each of the Company's officers, directors,
stockholders and option holders.
(r) The Company's amended and restated certificate of
incorporation creating the Class A Common Stock and redesignating the
12 1/4% Senior Exchangeable Preferred Stock due 2008 issued in
December 1998, the 12 1/4% Senior Exchangeable Preferred Stock due
2008 issued in December 1998 and the 13% Senior Exchangeable
Preferred Stock due 2008 issued in May 1999 shall have been filed
with the Secretary of State of the Sate of Oklahoma and shall have
become effective, the Company's Certificate of Elimination
eliminating the Class D Preferred Stock shall have been filed with
the Secretary of State of Oklahoma and shall have become effective,
the Recapitalization Agreement shall have been executed by the
parties thereto and the Recapitalization shall have become
effective.
(s) The distribution of the stock of the Company's wireline
telephone subsidiary, Logix Communications Enterprises Inc., to the
holders of the Company's Class A Common Stock and Class D Preferred
Stock existing prior to the Recapitalization shall have occurred;
Xxxxxx Xxxxxxxx LLP shall have delivered to the Company their written
opinion, as tax counsel to the Company, addressed to the Company,
that the distribution of the stock of Logix Communications
Enterprises will not cause the Company to realize taxable income in
form and substance reasonably satisfactory to the Representatives;
and the Representatives shall have received all certificates
referred to in the opinion of Xxxxxx Xxxxxxxx LLP addressed to the
Underwriters and dated such Delivery Date in form and substance
reasonably satisfactory to the Representatives.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably
satisfactory to counsel for the Underwriters.
10. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company shall indemnify and hold harmless each
Underwriter, its officers and employees and each person, if any, who controls
any Underwriter within the meaning of the Securities Act, from and against
any loss, claim, damage or liability, joint or several, or any action in
respect thereof (including, but not
30
limited to, any loss, claim, damage, liability or action relating to
purchases and sales of Stock), to which that Underwriter, officer, employee
or controlling person may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action arises
out of, or is based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained in (A) any Preliminary Prospectus, the
Registration Statement or the Prospectus or in any amendment or supplement
thereto, (B) any materials or information provided to investors by, or with
the approval of, the Company in connection with the marketing of the offering
of the Stock, including any roadshow or investor presentations made to
investors by the Company (whether in person or electronically) ("Roadshow
Materials") or (C) any application, filing or other material filed,
registered, distributed or otherwise furnished by the Company or with the
consent of the Company in connection with the securities laws of any state or
political subdivision thereof, including any Blue Sky Application, or any
material prepared by or with the consent of the Company for distribution in
connection with the Directed Share Program (collectively, the "Other Offering
Materials"), (ii) the omission or alleged omission to state in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or in
any amendment or supplement thereto, or in any Blue Sky Application, Roadshow
Materials or Other Offering Materials, any material fact required to be
stated therein or necessary to make the statements therein (in the case of
the Preliminary Prospectus, the Prospectus or any amendment or supplement
thereto or any Blue Sky Application or Other Offering Materials, in light of
the circumstances under which they were made) not misleading, (iii) any act
or failure to act or any alleged act or failure to act by any Underwriter in
connection with, or relating in any manner to, the Stock or the offering
contemplated hereby, and which is included as part of or referred to in any
loss, claim, damage, liability or action arising out of or based upon matters
covered by clause (i) or (ii) above, (iv) the failure of any Participant to
pay for and accept delivery of the Stock which immediately following the
Effective Time was subject to a properly confirmed agreement to purchase or
(v) the Directed Share Program (provided that the Company shall not be liable
under clause (iii) above to the extent that it is determined in a final
judgment by a court of competent jurisdiction that such covered loss, claim,
damage, liability or action resulted directly from any such acts or failures
to act undertaken or omitted to be taken by such Underwriter through its
gross negligence or willful misconduct), and shall reimburse each Underwriter
and each such officer, employee or controlling person promptly upon demand
for any legal or other expenses reasonably incurred by that Underwriter,
officer, employee or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that
the Company shall not be liable in any such case to the extent that any such
loss, claim, damage, liability or action arises out of, or is based upon, any
untrue statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or in any such amendment or supplement, in reliance upon and in
conformity with written information concerning such Underwriter furnished to
the Company through the Representatives by or on behalf of any Underwriter
specifically for inclusion therein which information consists solely of the
information specified in Section 10(g); PROVIDED, FURTHER, that this
indemnity shall not
31
apply to any Preliminary Prospectus to the extent that any such loss, claim,
damage, liability or expense of such Underwriter results from the fact that
such Underwriter sold Stock to a person as to whom it shall be established
that there was not sent or given, at or prior to the written confirmation of
such sale, a copy of the Prospectus in any case where such delivery is
required by the Securities Act if the Company shall have previously furnished
copies thereof in sufficient quantity to such Underwriter and the loss,
claim, damage, liability or expense of such Underwriter results from an
untrue statement or omission of a material fact contained in the Preliminary
Prospectus which was corrected in the Prospectus or in the Prospectus as then
amended or supplemented and such correction would have cured the defect
giving rise to such loss, claim, damage, liability or expense and the Company
shall have previously notified the Underwriter in writing of such untrue
statement or omission prior to the delivery of the Prospectus to the
Underwriter. The foregoing indemnity agreement is in addition to any
liability which the Company may otherwise have to any Underwriter or to any
officer, employee or controlling person of that Underwriter.
(b) The Selling Stockholders, severally and not jointly, shall
indemnify and hold harmless each Underwriter, its officers and employees and
each person, if any, who controls any Underwriter within the meaning of the
Securities Act, from and against any loss, claim, damage or liability, joint
or several, or any action in respect thereof (including, but not limited to,
any loss, claim, damage, liability or action relating to purchases and sales
of Option Stock), to which that Underwriter, officer, employee or controlling
person may become subject, under the Securities Act or otherwise, insofar as
such loss, claim, damage, liability or action arises out of, or is based
upon, (i) any untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement or the
Prospectus or in any amendment or supplement thereto or (ii) the omission or
alleged omission to state in any Preliminary Prospectus, Registration
Statement or the Prospectus, or in any amendment or supplement thereto, any
material fact required to be stated therein or necessary to make the
statements therein (in the case of the Preliminary Prospectus, the Prospectus
or any amendment or supplement thereto, in light of the circumstances under
which they were made) not misleading, and shall reimburse each Underwriter,
its officers and employees and each such controlling person for any legal or
other expenses reasonably incurred by that Underwriter, its officers and
employees or controlling person in connection with investigating or defending
or preparing to defend against any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that the Selling
Stockholders shall not be liable in any such case to the extent that any such
loss, claim, damage, liability or action arises out of, or is based upon, any
untrue statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, the Registration Statement or the
Prospectus or in any suh amendment or supplement in reliance upon and in
conformity with written information concerning such Underwriter furnished to
the Company through the Representatives by or on behalf of any Underwriter
specifically for inclusion therein which information consists solely of the
information specified in Section 10(g); PROVIDED, FURTHER, that this
indemnity shall not apply to any Preliminary Prospectus to the extent that
any such loss,
32
claim, damage, liability or expense of such Underwriter results from the fact
that such Underwriter sold Stock to a person as to whom it shall be
established that there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the Prospectus in any case where such
delivery is required by the Securities Act if the Company shall have
previously furnished copies thereof in sufficient quantity to such
Underwriter and the loss, claim, damage, liability or expense of such
Underwriter results from an untrue statement or omission of a material fact
contained in the Preliminary Prospectus which was corrected in the Prospectus
or in the Prospectus as then amended or supplemented and such correction
would have cured the defect giving rise to such loss, claim, damage,
liability or expense and the Selling Stockholders shall have previously
notified the Underwriter in writing of such untrue statement or omission
prior to the delivery of the Prospectus to the Underwriter; PROVIDED,
FURTHER, that with respect to each Selling Stockholder, (i) the
indemnification provision in this paragraph (b) shall only apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission, or alleged untrue statement or omission relating to
the information furnished in writing by or on behalf of such Selling
Stockholder pursuant to Section 2(f) of this Agreement and (ii) each Selling
Stockholder's aggregate liability under this Section 10(b) shall be limited
to an amount equal to the net proceeds (after deducting the underwriting
discount but before deducting expenses) received by such Selling Stockholder
from the sale of Option Stock pursuant to this Agreement. The foregoing
indemnity agreement is in addition to any liability which the Selling
Stockholders may otherwise have to any Underwriter or any officer, employee
or controlling person of that Underwriter.
(c) Each Underwriter, severally and not jointly, shall indemnify
and hold harmless the Company, each Selling Stockholder, the officers,
employees and directors of the Company and each Selling Stockholder, and each
person, if any, who controls the Company or each Selling Stockholder,
respectively, within the meaning of the Securities Act, from and against any
loss, claim, damage or liability, joint or several, or any action in respect
thereof, to which the Company, any Selling Stockholder, or any such director,
officer or controlling person may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action arises
out of, or is based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained (A) in any Preliminary Prospectus, the
Registration Statement or the Prospectus or in any amendment or supplement
thereto, or (B) in any Blue Sky Application or Other Offering Materials or
(ii) the omission or alleged omission to state in any Preliminary Prospectus,
the Registration Statement or the Prospectus, or in any amendment or
supplement thereto, or in any Blue Sky Application or Other Offering
Materials, any material fact required to be stated therein or necessary to
make the statements therein (in the case of the Preliminary Prospectus, the
Prospectus or any amendment or supplement thereto or any Blue Sky Application
or Other Offering Materials, in light of the circumstances under which they
were made) not misleading, but in each case only to the extent that the
untrue statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information
concerning such Underwriter furnished to the Company through the
33
Representatives by or on behalf of that Underwriter specifically for
inclusion therein, which information consists solely of the information
specified in Section 10(g), and shall reimburse the Company, such Selling
Stockholder, and any such director, officer or controlling person fr any
legal or other expenses reasonably incurred by the Company, such Selling
Stockholder, or any such director, officer or controlling person in
connection with investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses are incurred.
The foregoing indemnity agreement is in addition to any liability which any
Underwriter may otherwise have to the Company, such Selling Stockholders, or
any such director, officer, employee or controlling person.
(d) Promptly after receipt by an indemnified party under this
Section 10 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party under this Section 10, notify the indemnifying party
in writing of the claim or the commencement of that action; PROVIDED,
HOWEVER, that the failure to notify the indemnifying party shall not relieve
it from any liability which it may have under this Section 10 except to the
extent it has been materially prejudiced by such failure and, PROVIDED
FURTHER, that the failure to notify the indemnifying party shall not relieve
it from any liability which it may have to an indemnified party otherwise
than under this Section 10. If any such claim or action shall be brought
against an indemnified party, and it shall notify the indemnifying party
thereof, the indemnifying party shall be entitled to participate therein and,
to the extent that it wishes, jointly with any other similarly notified
indemnifying party, to assume the defense thereof with counsel reasonably
satisfactory to the indemnified party. After notice from the indemnifying
party to the indemnified party of its election to assume the defense of such
claim or action, the indemnifying party shall not be liable to the
indemnified party under this Section 10 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; PROVIDED, HOWEVER, that
(i) the Representatives shall have the right to employ counsel to represent
jointly the Representatives and those other Underwriters and their respective
officers, employees and controlling persons who may be subject to liability
arising out of any claim in respect of which indemnity may be sought by the
Underwriters against the Company or Selling Stockholders under this Section
10 if, in the reasonable judgment of the Representatives, it is advisable for
the Representatives and those Underwriters, officers, employees and
controlling persons to be jointly represented by separate counsel, and in
that event the Company or the Selling Stockholders shall not have the right
to direct the defense of such action on behalf of those persons and the fees
and expenses of such separate counsel shall be paid by the Company or the
Selling Stockholders and (ii) the Representatives shall have the right to
employ one separate counsel (in addition to any local counsel) to represent
the Representatives and those other Underwriters and their respective
officers, employees and controlling persons for the defense of any losses,
claims, damages and liabilities arising out of the Directed Share Program.
No indemnifying party shall (i) without the prior written consent of the
indemnified parties (which consent shall not be unreasonably withheld),
settle or compromise or consent to the entry of any judgment with respect to
34
any pending or threatened claim, action, suit or proceeding in respect of
which indemnification or contribution may be sought hereunder (whether or not
the indemnified parties are actual or potential parties to such claim or
action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising
out of such claim, action, suit or proceeding, or (ii) be liable for any
settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with the consent
of the indemnifying party or if there be a final judgment of the plaintiff in
any such action, the indemnifying party agrees to indemnify and hold harmless
any indemnified party from and against any loss or liability by reason of
such settlement or judgment.
(e) If the indemnification provided for in this Section 10 shall
for any reason be unavailable to or insufficient to hold harmless an
indemnified party under Section 10(a), 10(b) or 10(c) in respect of any loss,
claim, damage or liability, or any action in respect thereof, referred to
therein, then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such
indemnified party as a result of such loss, claim, damage or liability, or
action in respect thereof, (i) in such proportion as shall be appropriate to
reflect the relative benefits received by the Company and the Selling
Stockholders, on the one hand, and the Underwriters, on the other, from the
offering of the Stock or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company and the Selling Stockholders, on the
one hand, and the Underwriters, on the other, with respect to the statements
or omissions which resulted in such loss, claim, damage or liability, or
action in respect thereof, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the
Selling Stockholders, on the one hand, and the Underwriters, on the other,
with respect to the offering of the Stock shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Stock purchased
under this Agreement (before deducting expenses) received by the Company and
the Selling Stockholders, on the one hand, and the total underwriting
discounts and commissions received by the Underwriters with respect to the
shares of the Stock purchased under this Agreement, on the other hand, bear
to the total gross proceeds from the offering of the shares of the Stock
under this Agreement, in each case as set forth in the table on the cover
page of the Prospectus. The relative fault shall be determned by reference
to whether the untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company, the Selling Stockholders or the Underwriters, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company,
the Selling Stockholders and the Underwriters agree that it would not be just
and equitable if contributions pursuant to this Section 10(e) were to be
determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which does
not take into account the equitable considerations referred to herein. The
amount paid or payable by an indemnified party as a result of the loss,
claim, damage or liability, or action in respect thereof, referred to above
in this
35
Section 10(e) shall be deemed to include, for purposes of this Section 10(e),
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 10(e), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Stock underwritten by it and distributed to the public was
offered to the public exceeds the amount of any damages which such
Underwriter has otherwise paid or become liable to pay by reason of any
untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute as provided in this Section 10(e) are
several in proportion to their respective underwriting obligations and not
joint.
(f) Any losses, claims, damages, liabilities or expenses for which
an indemnified party is entitled to indemnification or contribution under
this Section 10 shall be paid by the indemnifying party to the indemnified
party as such losses, claims, damages, liabilities or expenses are incurred,
but in all cases no later than thirty (30) days of invoice to the
indemnifying party. If at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees and
expenses of counsel for which the indemnifying party is responsible pursuant
to the terms hereof, such indemnifying party agrees that it shall be liable
for any settlement effected without its written consent if (i) such
settlement is entered into more than sixty (60) 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 sixty
(60) days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
(g) The Underwriters severally confirm and the Company
acknowledges that the statements with respect to the public offering of the
Stock by the Underwriters set forth in the last paragraph on the cover page
of, the names of the Underwriters in the table under "Underwriting--General,"
the first paragraph under "Underwriting--Commissions and Expenses," the first
five paragraphs under "Underwriting--Stabilization, Short Positions and
Penalty Bids" and the second paragraph under "Underwriting--Offers and Sales
Outside the United States" in the Prospectus are correct and constitute the
only information concerning such Underwriters furnished in writing to the
Company by or on behalf of the Underwriters specifically for inclusion in the
Registration Statement and the Prospectus.
11. DEFAULTING UNDERWRITERS.
If, on any Delivery Date, any Underwriter defaults in the
performance of its obligations under this Agreement, the remaining
non-defaulting Underwriters shall be obligated to purchase the Stock which
the defaulting Underwriter agreed but failed to purchase on such Delivery
Date in the respective proportions which the number of shares
36
of the Firm Stock set forth opposite the name of each remaining
non-defaulting Underwriter in Schedule 1 hereto bears to the total number of
shares of the Firm Stock set forth opposite the names of all the remaining
non-defaulting Underwriters in Schedule 1 hereto; PROVIDED, HOWEVER, that the
remaining non-defaulting Underwriters shall not be obligated to purchase any
of the Stock on such Delivery Date if the total number of shares of the Stock
which the defaulting Underwriter or Underwriters agreed but failed to
purchase on such date exceeds 9.09% of the total number of shares of the
Stock to be purchased on such Delivery Date, and any remaining non-defaulting
Underwriter shall not be obligated to purchase more than 110% of the number
of shares of the Stock which it agreed to purchase on such Delivery Date
pursuant to Section 3. If the foregoing maximums are exceeded, the remaining
non-defaulting Underwriters, or those other underwriters satisfactory to the
Representatives who so agree, shall have the right, but shall not be
obligated, to purchase, in such proportion as may be agreed upon among them,
all the Stock to be purchased on such Delivery Date. If the remaining
Underwriters or other underwriters satisfactory to the Representatives do not
elect to purchase the shares which the defaulting Underwriter or Underwriters
agreed but failed to purchase on such Delivery Date, this Agreement (or, with
respect to the Second Delivery Date, the obligation of the Underwriters to
purchase, and of the Company and the Selling Stockholders to sell, the Option
Stock) shall terminate without liability on the part of any non-defaulting
Underwriter or the Company or the Selling Stockholders, except that the
Company and the Selling Stockholders will continue to be liable for the
payment of expenses to the extent set forth in Sections 8 and 13. As used in
this Agreement, the term "Underwriter" includes, for all purposes of this
Agreement unless the context requires otherwise, any party not listed in
Schedule 1 hereto who, pursuant to this Section 11, purchases Stock which a
defaulting Underwriter agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting Underwriter of
any liability it may have to the Company and the Selling Stockholders for
damages caused by its default. If other underwriters are obligated or agree
to purchase the Stock of a defaulting or withdrawing Underwriter, either the
Representatives or the Company may postpone the Delivery Date for up to seven
full business days in order to effect any changes that in the opinion of
counsel for the Company or counsel for the Underwriters may be necessary in
the Registration Statement, the Prospectus or in any other document or
arrangement.
12. TERMINATION. The obligations of the Underwriters hereunder
may be terminated by the Representatives by notice given to and received by
the Company prior to delivery of and payment for the Firm Stock if, prior to
that time, any of the events described in Sections 9(n) or 9(o), shall have
occurred.
13. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the Company or
any Selling Stockholder shall fail to tender the Stock for delivery to the
Underwriters by reason of any failure, refusal or inability on the part of
the Company or the Selling Stockholders to perform any agreement on its part
to be performed, or because any other condition of the Underwriters'
obligations hereunder required to be fulfilled by the
37
Company or the Selling Stockholders is not fulfilled, the Company and the
Selling Stockholders will reimburse the Underwriters for all reasonable
out-of-pocket expenses (including fees and disbursements of counsel) incurred
by the Underwriters in connection with this Agreement and the proposed
purchase of the Stock, and upon demand the Company and the Selling
Stockholders shall pay the full amount thereof to the Representatives. If
this Agreement is terminated pursuant to Section 11 by reason of the default
of one or more Underwriters, neither the Company nor any Selling Stockholder
shall be obligated to reimburse any defaulting Underwriter on account of
those expenses.
14. NOTICES, ETC. All statements, requests, notices and
agreements hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail,
telex or facsimile transmission to:
(i) Xxxxxx Brothers Inc., Three World Financial Center, New
York, New York 10285, Attention: Syndicate Department
(Fax: 000-000-0000), with a copy, in the case of any notice
pursuant to Section 10(d), to the Director of Litigation, Office
of the General Counsel, Xxxxxx Brothers Inc., 0 Xxxxx Xxxxxxxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000; and
(ii) Banc of America Securities LLC, 0 Xxxx 00xx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, XX 00000, Attention: [ ]
(Fax: 212-[ ]), with a copy, in the case of any
notice pursuant to Section 10(d), to Xxxxxx X. Xxxxxxxxx,
Managing Director, Bank of America, N.A., Legal Department,
NC1-007-20-01, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, XX 00000-0000.
with a copy to Weil, Gotshal & Xxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Xxxxxx X. Xxxxxxx, Esq.
(Fax: 000-000-0000); and
(b) if to the Company, shall be delivered or sent by mail, telex
or facsimile transmission to the address of the Company set forth in
the Registration Statement, Attention: Xxxxx X. Xxxxxxxxxxx, Vice
President - Chief Financial Officer / Xxxxxx X. Xxxxxx, Vice President
Senior Corporate Counsel (Fax: 000-000-0000),
with a copy to McAfee & Xxxx, A Professional Corporation, 000 Xxxxx
Xxxxxxxx, Xxxxx 0000, Xxxxxxxx Xxxx, Xxxxxxxx 00000, Attention:
Xxxxxxxx X. Xxxx, Esq. (Fax: 000-000-0000);
(c) if to the Selling Stockholders, shall be delivered or sent by
mail, telex or facsimile transmission to [X. X. Childs Equity Partners
II,
38
L.P., Xxx Xxxxxxx Xx., 00xx Xxxxx, Xxxxxx, XX 00000, Attention:
Xxxx X. Xxxxxxxx, Vice President (Fax: 000-000-0000)],
with a copy to Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, Xxx Xxxxxx
Xxxxxx, Xxxxxx, XX 00000-0000, Attention: [ ], Esq.
(Fax: 000-000-0000);
PROVIDED, HOWEVER, that any notice to an Underwriter pursuant to Section
10(d) shall be delivered or sent by mail, telex or facsimile transmission to
such Underwriter at its address set forth in its acceptance telex to the
Representatives, which address will be supplied to any other party hereto by
the Representatives upon request. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof. The Company and
the Selling Stockholders shall be entitled to act and rely upon any request,
consent, notice or agreement given or made on behalf of the Underwriters by
Xxxxxx Brothers Inc. and Banc of America Securities LLC on behalf of the
Representatives and the Company and the Underwriters shall be entitled to act
and rely upon any request, consent, notice or agreement given or made on
behalf of the Selling Stockholders by the Custodian.
15. Persons Entitled to Benefit of Agreement. This Agreement
shall inure to the benefit of and be binding upon the Underwriters, the
Company, the Selling Stockholders and their respective personal
representatives and successors. This Agreement and the terms and provisions
hereof are for the sole benefit of only those persons, except that (A) the
representations, warranties, indemnities and agreements of the Company and
the Selling Stockholders contained in this Agreement shall also be deemed to
be for the benefit of the person or persons, if any, who control any
Underwriter within the meaning of Section 15 of the Securities Act and (B)
the indemnity agreement of the Underwriters contained in Section 10(c) of
this Agreement shall be deemed to be for the benefit of (i) directors of the
Company, officers of the Company who have signed the Registration Statement
and any person controlling the Company within the meaning of Section 15 of
the Securities Act and (ii) any person controlling a Selling Stockholder
within the meaning of Section 15 of the Securities Act. Nothing in this
Agreement is intended or shall be construed to give any person, other than
the persons referred to in this Section 15, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision
contained herein.
16. SURVIVAL. The respective indemnities, representations,
warranties and agreements of the Company, the Selling Stockholders and the
Underwriters contained in this Agreement or made by or on behalf on them,
respectively, pursuant to this Agreement, shall survive the delivery of and
payment for the Stock and shall remain in full force and effect, regardless
of any investigation made by or on behalf of any of them or any person
controlling any of them.
17. DEFINITION OF THE TERMS "BUSINESS DAY" AND "SUBSIDIARY". For
purposes of this Agreement, (a) "business day" means each Monday, Tuesday,
Wednesday, Thursday or Friday which is not a day on which banking
institutions in New
39
York are generally authorized or obligated by law or executive order to close
and (b) "subsidiary" has the meaning set forth in Rule 405 of the Rules and
Regulations.
18. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of New York.
19. COUNTERPARTS. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
20. HEADINGS. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning
or interpretation of, this Agreement.
40
If the foregoing correctly sets forth the agreement among the
Company, the Selling Stockholders and the Underwriters, please indicate your
acceptance in the space provided for that purpose below.
Very truly yours,
XXXXXX COMMUNICATIONS CORPORATION
By:
---------------------------------------
Name:
Title:
The Selling Stockholders named in Schedule 2 to
this Agreement
By:
---------------------------------------
ATTORNEY-IN-FACT
41
Accepted:
XXXXXX BROTHERS INC.
BANC OF AMERICA SECURITIES LLC
XXXXXXX XXXXX XXXXXX INC.
DEUTSCHE BANK SECURITIES INC.
XXXXXXX, SACHS & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED,
For themselves and as Representatives
of the several Underwriters named
in Schedule 1 hereto
By XXXXXX BROTHERS INC.
By:
------------------------------
Name:
AUTHORIZED REPRESENTATIVE
By BANC OF AMERICA SECURITIES LLC
By:
------------------------------
Name:
AUTHORIZED REPRESENTATIVE
By XXXXXXX XXXXX XXXXXX INC.
By:
------------------------------
Name:
AUTHORIZED REPRESENTATIVE
42
By DEUTSCHE Bank SECURITIES INC.
By:
------------------------------
Name:
AUTHORIZED REPRESENTATIVE
By XXXXXXX, SACHS & CO.
By:
------------------------------
Name:
AUTHORIZED REPRESENTATIVE
By XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
By:
------------------------------
Name:
AUTHORIZED REPRESENTATIVE
43
SCHEDULE 1
Number of
Underwriters Shares
------------ ------
Xxxxxx Brothers Inc. . . . . . . . . . . . . . . . . . . . .
Banc of America Securities LLC . . . . . . . . . . . . . . .
Xxxxxxx Xxxxx Xxxxxx Inc . . . . . . . . . . . . . . . . . .
Deutsche Bank Securities Inc . . . . . . . . . . . . . . . .
Xxxxxxx, Sachs & Co. . . . . . . . . . . . . . . . . . . . .
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated . . . . .
-----------
Total ===========
44
SCHEDULE 2
Number of Shares
Name and address of Selling Stockholders of Option Stock
---------------------------------------- ----------------
[To be supplied by Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP]
-----------
Total ===========
45
