EXHIBIT 1.1
_______________ Shares
TRITON PCS HOLDINGS, INC.
CLASS A COMMON STOCK, PAR VALUE $0.01 PER SHARE
UNDERWRITING AGREEMENT
__________, 1999
_____________, 1999
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxx Brothers Inc.
Xxxxxxx Xxxxx Xxxxxx Inc.
First Union Securities, Inc.
X.X. Xxxxxx Securities Inc.
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. International Limited
Xxxxxx Brothers International (Europe)
Salomon Brothers International Limited
First Union Securities, Inc.
X.X. Xxxxxx Securities Ltd.
c/o Morgan Xxxxxxx & Co. International Limited
00 Xxxxx Xxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
England
Dear Sirs and Mesdames:
Triton PCS Holdings, Inc., a Delaware corporation (the "Company"), proposes
to issue and sell to the several Underwriters (as defined below)
________________ shares of its Class A Common Stock, par value $.01 per share,
(the "Firm Shares").
It is understood that, subject to the conditions hereinafter stated,
____________ Firm Shares (the "U.S. Firm Shares") will be sold to the several
U.S. Underwriters named in Schedule I hereto (the "U.S. Underwriters") in
connection with the offering and sale of such U.S. Firm Shares in the United
States and Canada to United States and Canadian Persons (as such terms are
defined in the Agreement Between U.S. and International Underwriters of even
date herewith), and __________ Firm Shares (the "International Shares") will be
sold to the several International Underwriters named in Schedule II hereto (the
"International Underwriters") in connection with the offering and sale of such
International Shares outside the United States and Canada to persons other than
United States and Canadian Persons. Xxxxxx Xxxxxxx & Co. Incorporated, Xxxxxx
Brothers Inc., Xxxxxxx Xxxxx Xxxxxx Inc., First Union Securities, Inc. and X.X.
Xxxxxx Securities Inc. shall act as representatives (the "U.S. Representatives")
of the several U.S. Underwriters, and Xxxxxx Xxxxxxx & Co. International
Limited, Xxxxxx Brothers International (Europe), Salomon Brothers International
Limited, First Union Securities, Inc. and X.X. Xxxxxx Securities Ltd. shall act
as representatives (the "International Representatives") of the several
International Underwriters. The U.S. Underwriters and the International
Underwriters are hereinafter collectively referred to as the Underwriters.
The Company also proposes to issue and sell to the several U.S.
Underwriters not more than an additional __________ shares of its Class A Common
Stock, $.01 par value (the "Additional Shares") if and to the extent that the
U.S. Representatives shall have determined to exercise, on behalf of the U.S.
Underwriters, the right to purchase such shares of common stock granted to the
U.S. Underwriters in Section 2 hereof. The Firm Shares and the Additional Shares
are hereinafter collectively referred to as the "Shares." In connection with
the offering of the Shares, the Company will consummate the following
transactions (collectively, the "Stock Conversion"): (a) each existing share of
the Company's common stock will be converted into [twenty three] shares of Class
A Common Stock; (b) certain outstanding shares of the Company's Series C
Preferred Stock owned by X.X. Xxxxxx Investment Corporation will be converted
into shares of the Company's Class B Stock, $.01 par value, on a [twenty-three-
for-one] basis, and (c) all other outstanding shares of the Company's Series C
Preferred Stock will be converted into shares of the Company's Class A Common
Stock, $.01 par value, on a [twenty-three-for-one] basis. The shares of Class A
Common Stock, $.01 par value and Class B Common Stock, $.01 par value of the
Company to be outstanding after giving effect to the sales contemplated hereby
and the Stock Conversion are hereinafter referred to collectively as the "Common
Stock."
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement relating to the Shares. The registration
statement contains two prospectuses to be used in connection with the offering
and sale of the Shares: the U.S. prospectus, to be used in connection with the
offering and sale of Shares in the United States and Canada to United States and
Canadian Persons, and the international prospectus, to be used in connection
with the offering and sale of Shares outside the United States and Canada to
persons other than United States and Canadian Persons. The international
prospectus is identical to the U.S. prospectus except for the outside front
cover page. The registration statement as amended at the time it becomes
effective, including the information (if any) deemed to be part of the
registration statement at the time of effectiveness pursuant to Rule 430A under
the Securities Act of 1933, as amended (the "Securities Act"), is hereinafter
referred to as the
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"Registration Statement"; the U.S. prospectus and the international prospectus
in the respective forms first used to confirm sales of Shares are hereinafter
collectively referred to as the "Prospectus." If the Company has filed an
abbreviated registration statement to register additional shares of Common Stock
pursuant to Rule 462(b) under the Securities Act (the "Rule 462 Registration
Statement"), then any reference herein to the term "Registration Statement"
shall be deemed to include such Rule 462 Registration Statement.
Xxxxxx Brothers Inc. ("Xxxxxx Brothers") has agreed to reserve a portion of
the Shares to be purchased by it under this Agreement for sale to the Company's
directors, officers, employees and business associates and other parties related
to the Company (collectively, "Participants"), as set forth in the Prospectus
under the heading "Underwriters" (the "Directed Share Program"). The Shares to
be sold by Xxxxxx Brothers pursuant to the Directed Share Program are referred
to hereinafter as the "Directed Shares." 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 the
Underwriters as set forth in the Prospectus.
1. Representations and Warranties. The Company represents and warrants to
and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or, to the Company's
knowledge, threatened by the Commission.
(b) (i) The Registration Statement, when it became effective, did not
contain and, as amended or supplemented, if applicable, will not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading, (ii the Registration Statement and the Prospectus comply
and, as amended or supplemented, if applicable, will comply in all material
respects with the Securities Act and the applicable rules and regulations
of the Commission thereunder and (ii the Prospectus does not contain and,
as amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading, except that the representations and
warranties set forth in this paragraph do not apply to statements or
omissions in the Registration Statement or the Prospectus based upon
information relating to any Underwriter furnished to the
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Company in writing by such Underwriter through you expressly for use
therein.
(c) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the failure
to be so qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(d) Each subsidiary of the Company has been duly incorporated, is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority to
own its property and to conduct its business as described in the Prospectus
and is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries, taken as a
whole; all of the issued shares of capital stock of each subsidiary of the
Company have been duly and validly authorized and issued, are fully paid
and non-assessable and are owned directly by the Company, free and clear of
all liens, encumbrances, equities or claims, other than liens granted to
the lenders (the "Credit Facility Liens") under Triton PCS, Inc.'s credit
facility, as described in the Prospectus.
(e) This Agreement has been duly authorized, executed and delivered by
the Company.
(f) The authorized capital stock of the Company conforms as to legal
matters to the description thereof contained in the Prospectus.
(g) The shares of Common Stock outstanding prior to the issuance of
the Shares have been duly authorized and are validly issued, fully paid and
non-assessable; the shares of Common Stock to be issued in the Stock
Conversion have been duly authorized and, when issued and delivered in
exchange for the Company's existing shares of Common Stock and Series C
Preferred Stock will be validly issued, fully paid and non-assessable and
the issuance of such
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shares of Common Stock will not be subject to any preemptive or similar
rights.
(h) The Shares have been duly authorized and, when issued and
delivered in accordance with the terms of this Agreement, will be validly
issued, fully paid and non-assessable, and the issuance of such Shares will
not be subject to any preemptive or similar rights.
(i) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement and the
consummation of the Stock Conversion will not contravene any provision of
applicable law or the certificate of incorporation or by-laws of the
Company or any agreement or other instrument binding upon the Company or
any of its subsidiaries that is material to the Company and its
subsidiaries, taken as a whole, or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or
any subsidiary, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement or in
connection with the Stock Conversion, except such as may be required by the
securities or Blue Sky laws of the various states, the laws of any foreign
jurisdiction or the Conduct Rules of NASD Regulation, Inc. in connection
with the offer and sale of the Shares.
(j) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from that
set forth in the Prospectus (exclusive of any amendments or supplements
thereto subsequent to the date of this Agreement).
(k) There are no legal or governmental proceedings pending or, to the
Company's knowledge, threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of the Company or
any of its subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or any
statutes, regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not described or filed as
required.
(l) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or filed
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pursuant to Rule 424 under the Securities Act, complied when so filed in
all material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder.
(m) The Company is not and, after giving effect to the offering and
sale of the Shares and the application of the proceeds thereof as described
in the Prospectus, will not be an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended.
(n) The Company and its subsidiaries (i) are in compliance with any
and all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), (ii have received all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct
their respective businesses and (ii are in compliance with all terms and
conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and
conditions of such permits, licenses or approvals would not, singly or in
the aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(o) There are no costs or liabilities associated with Environmental
Laws (including, without limitation, any capital or operating expenditures
required for clean-up, closure of properties or compliance with
Environmental Laws or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to third
parties) which would, singly or in the aggregate, have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(p) There are no contracts, agreements or understandings between the
Company and any person granting such person the right to (i) require the
Company to file a registration statement under the Securities Act with
respect to any securities of the Company, except as described in the
Prospectus or (ii) require the Company to include such securities with the
Shares registered pursuant to the Registration Statement.
(q) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, (i) the Company and
its subsidiaries have not incurred any material liability or obligation,
direct or contingent, nor entered into any material transaction not in the
ordinary course of business; (ii) the Company has not purchased any of its
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outstanding capital stock, nor declared, paid or otherwise made any
dividend or distribution of any kind on its capital stock other than
ordinary and customary dividends; and (ii there has not been any material
change in the capital stock, short-term debt or long-term debt of the
Company and its consolidated subsidiaries, except in each case as described
in the Prospectus (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement).
(r) The Company and its subsidiaries have marketable title in fee
simple to all real property and good and marketable title to all personal
property owned by them that is material to the business of the Company and
its subsidiaries, in each case free and clear of all liens, encumbrances
and defects except such as are described in the Prospectus or such as do
not materially affect the value of such property and do not interfere with
the use made and proposed to be made of such property by the Company and
its subsidiaries; and any real property and buildings held under lease by
the Company and its subsidiaries are held by them under valid, subsisting
and enforceable leases with such exceptions as are not material and do not
interfere with the use made and proposed to be made of such property and
buildings by the Company and its subsidiaries, in each case except as
described in the Prospectus.
(s) Except in each case as described in or contemplated by the
Prospectus, the Company and its subsidiaries own or possess, or can acquire
on reasonable terms, all material patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks and trade names currently
employed by them in connection with the business now operated by them, and
neither the Company nor any of its subsidiaries has received any notice of
infringement of or conflict with asserted rights of others with respect to
any of the foregoing which, singly or in the aggregate, if the subject of
an unfavorable decision, ruling or finding, would result in any material
adverse change in the condition, financial or otherwise, or in the
earnings, business or operations of the Company and its subsidiaries, taken
as a whole.
(t) No material labor dispute with the employees of the Company or any
of its subsidiaries exists, except as described in or contemplated by the
Prospectus, or, to the knowledge of the Company, is imminent; and the
Company is not aware of any existing, threatened or imminent labor
disturbance by the employees of any of its principal suppliers,
manufacturers or contractors that could result in any material
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adverse change in the condition, financial or otherwise, or in the
earnings, business or operations of the Company and its subsidiaries, taken
as a whole.
(u) The Company and each of its subsidiaries are insured by insurers
of recognized financial responsibility against such losses and risks and in
such amounts as are prudent and customary in the businesses in which they
are engaged; neither the Company nor any such subsidiary has been refused
any insurance coverage sought or applied for; and neither the Company nor
any such subsidiary has any reason to believe that it will not be able to
renew its existing insurance coverage as and when such coverage expires or
to obtain similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not materially and adversely
affect the condition, financial or otherwise, or the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, except as
described in the Prospectus.
(v) The Company and its subsidiaries possess all licenses,
certificates, authorizations and permits issued by the appropriate federal,
state or foreign regulatory authorities necessary to conduct their
respective businesses, except where the failure to possess such licenses,
certificates, authorizations and permits would not, singly or in the
aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole, and neither the Company nor any such
subsidiary has received any notice of proceedings relating to the
revocation or modification of any such license, certificate, authorization
or permit which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a material adverse
change in the condition, financial or otherwise, or in the earnings,
business or operations of the Company and its subsidiaries, taken as a
whole, except as described in the Prospectus.
(w) The Company and its subsidiaries (i) are in compliance with any
and all applicable federal, state and local laws and regulations relating
to wireless communications services ("Telecom Laws"), (ii have received all
permits, licenses or other approvals ("Telecom Licenses") required of them
under applicable Telecom Laws to conduct their respective businesses, all
of which were validly issued and are in full force and effect, with no
material restrictions or qualifications except as described in the
Prospectus (exclusive of any amendments or supplements thereto subsequent
to the date of this Agreement) and (ii are in compliance with all terms and
conditions of any such Telecom License, except where such noncompliance
with Telecom Laws, failure to receive required Telecom Licenses, failure to
have such Telecom Licenses be validly issued or in
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full force and effect, or failure to comply with the terms and conditions
of such Telecom Licenses would not, singly or in the aggregate, have a
material adverse effect on the Company and its subsidiaries, taken as a
whole.
(x) Each of the Company and its subsidiaries has filed with the
Federal Communication Commission (the "FCC") all necessary and material
reports, documents, instruments, information and applications required to
be filed pursuant to the FCC's rules, regulations and requests.
(y) The Company has no reason to believe, and does not believe, that
the Telecom Licenses will not be renewed for a full term when they are due
for renewal.
(z) Except as described in the Prospectus (exclusive of any amendments
or supplements thereto subsequent to the date of this Agreement), each of
(A) the agreements described in the Prospectus under the heading "Certain
Relationships and Related Party Transactions--The AT&T Agreements", (B)
Triton PCS's credit facility dated as of February 3, 1998, as amended as of
September 22, 1999 and (C) the securities purchase agreement described in
the Prospectus under the heading "Certain Relationships and Related Party
Transactions--The Securities Purchase Agreement" are in full force and
effect. Neither the Company nor any of its subsidiaries is, or with the
giving of notice or lapse of time or both would be, in violation of or in
default under (i) any of those agreements or (ii) any other indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which any of
them are bound, except for violations and defaults which individually and
in the aggregate are not material to the Company and its subsidiaries,
taken as a whole.
(aa) The Company and each of its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management's general
or specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability; (ii
access to assets is permitted only in accordance with management's general
or specific authorization; and (iv the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
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(bb) Except as described in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this
Agreement), the Company has not sold, issued or distributed any shares of
Common Stock during the six-month period preceding the date hereof,
including any sales pursuant to Rule 144A under, or Regulation D or S of,
the Securities Act, other than those described in Part II of the
Registration Statement under Item 15 and shares issued pursuant to employee
benefit plans, qualified stock option plans or other employee compensation
plans or pursuant to outstanding options, rights or warrants.
(cc) The Company has reviewed its operations and that of its
subsidiaries to evaluate the extent to which the business or operations of
the Company or any of its subsidiaries will be affected by the "Year 2000
Problem" (that is, any significant risk that the computer hardware or
software applications used by the Company and its subsidiaries will not, in
the case of dates or time periods occurring after December 31, 1999,
function at least as effectively as in the case of dates or time periods
occurring prior to January 1, 2000); as a result of such review, (i) the
Company has no reason to believe, and does not believe, that (A) there are
any issues related to the Company's preparedness to address the Year 2000
Problem that are of a character required to be described or referred to in
the Registration Statement or the Prospectus which have not been accurately
described in the Registration Statement or the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this Agreement)
and (B) the Year 2000 Problem will have a material adverse effect on the
Company and its subsidiaries, taken as a whole and (ii) the Company
reasonably believes, after reasonable inquiry, that the suppliers, vendors,
customers or other material third parties used or serviced by the Company
and such subsidiaries are addressing or will address the Year 2000 Problem
in a timely manner, except to the extent that a failure to address the Year
2000 Problem by any supplier, vendor, customer or material third party
would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(dd) The Company has not offered, or caused Xxxxxx Brothers to offer,
Shares to any person pursuant to the Directed Share Program with the
specific intent to unlawfully influence (i) a customer or supplier of the
Company to alter the customer's or supplier's level or type of business
with the Company, or (ii) a trade journalist or publication to write or
publish favorable information about the Company or its products.
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(ee) The agreements filed as exhibits to the Registration Statement
are the only agreements material to the Company and its Subsidiaries, taken
as a whole.
2. Agreements to Sell and Purchase. The Company hereby agrees to sell to
the several Underwriters, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees, severally and not jointly, to purchase from the
Company the respective numbers of Firm Shares set forth in Schedules I and II
hereto opposite its names at U.S.$_____ a share ("Purchase Price").
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to sell
to the U.S. Underwriters the Additional Shares, and the U.S. Underwriters shall
have a one-time right to purchase, severally and not jointly, up to __________
Additional Shares at the Purchase Price. If the U.S. Representatives, on behalf
of the U.S. Underwriters, elect to exercise such option, the U.S.
Representatives shall so notify the Company in writing not later than 30 days
after the date of this Agreement, which notice shall specify the number of
Additional Shares to be purchased by the U.S. Underwriters and the date on which
such shares are to be purchased. Such date may be the same as the Closing Date
(as defined below) but not earlier than the Closing Date nor later than ten
business days after the date of such notice. Additional Shares may be purchased
as provided in Section 4 hereof solely for the purpose of covering over-
allotments made in connection with the offering of the Firm Shares. If any
Additional Shares are to be purchased, each U.S. Underwriter agrees, severally
and not jointly, to purchase the number of Additional Shares (subject to such
adjustments to eliminate fractional shares as the U.S. Representatives may
determine) that bears the same proportion to the total number of Additional
Shares to be purchased as the number of U.S. Firm Shares set forth in Schedule I
hereto opposite the name of such U.S. Underwriter bears to the total number of
U.S. Firm Shares.
The Company hereby agrees that, without the prior written consent of Xxxxxx
Xxxxxxx & Co. Incorporated on behalf of the Underwriters, it will not, during
the period ending 180 days after the date of the Prospectus, (i) offer, pledge,
sell, contract to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option, right or warrant to purchase, lend
or otherwise transfer or dispose of, directly or indirectly, any shares of
Common Stock or any securities convertible into or exercisable or exchangeable
for Common Stock or (ii) enter into any swap or other arrangement that transfers
to another, in whole or in part, any of the economic consequences of ownership
of the Common Stock, whether any such transaction described in clause (i) or
(ii) above is to be settled by delivery of Common Stock or such other
securities, in
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cash or otherwise. The foregoing sentence shall not apply to (A) the Shares to
be sold hereunder, (B) the issuance by the Company of shares of Common Stock
upon the exercise of an option or warrant or the conversion of a security
outstanding on the date hereof of which the Underwriters have been advised in
writing or (C) the grant of options or stock under the Company's 1999 Stock and
Incentive Plan or Employee Stock Purchase Plan as in effect on the date hereof.
3. Terms of Public Offering. The Company is advised by you that the
Underwriters propose to make a public offering of their respective portions of
the Shares as soon after the Registration Statement and this Agreement have
become effective as in your judgment is advisable. The Company is further
advised by you that the Shares are to be offered to the public initially at
U.S.$_____ a share (the "Public Offering Price") and to certain dealers selected
by you at a price that represents a concession not in excess of U.S.$____ a
share under the Public Offering Price, and that any Underwriter may allow, and
such dealers may reallow, a concession, not in excess of U.S.$____ a share, to
any Underwriter or to certain other dealers.
4. Payment and Delivery. Payment for the Firm Shares shall be made to the
Company in Federal or other funds immediately available in New York City against
delivery of such Firm Shares for the respective accounts of the several
Underwriters at 10:00 a.m., New York City time, on ____________, 1999, or at
such other time on the same or such other date, not later than _________,
1999, as shall be designated in writing by you. The time and date of such
payment are hereinafter referred to as the "Closing Date."
Payment for any Additional Shares shall be made to the Company in Federal
or other funds immediately available in New York City against delivery of such
Additional Shares for the respective accounts of the several Underwriters at
10:00 a.m., New York City time, on the date specified in the notice described in
Section 2 or at such other time on the same or on such other date, in any event
not later than _______, 1999, as shall be designated in writing by the U.S.
Representatives. The time and date of such payment are hereinafter referred to
as the "Option Closing Date."
Certificates for the Firm Shares and Additional Shares shall be in
definitive form and registered in such names and in such denominations as you
shall request in writing not later than one full business day prior to the
Closing Date or the Option Closing Date, as the case may be. The certificates
evidencing the Firm Shares and Additional Shares shall be delivered to you on
the Closing
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Date or the Option Closing Date, as the case may be, for the respective accounts
of the several Underwriters, with any transfer taxes payable in connection with
the transfer of the Shares to the Underwriters duly paid, against payment of the
Purchase Price therefor.
5. Conditions to the Underwriters' Obligations. The obligations of the
Company to sell the Shares to the Underwriters and the several obligations of
the Underwriters to purchase and pay for the Shares on the Closing Date are
subject to the condition that the Registration Statement shall have become
effective not later than 4:30 p.m. (New York City time) on the date hereof.
The several obligations of the Underwriters are subject to the following
further conditions:
(a) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of
any review for a possible change that does not indicate the direction
of the possible change, in the rating accorded any of the Company's
securities by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act; and
(ii) there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations of the Company
and its subsidiaries, taken as a whole, from that set forth in the
Prospectus (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement) that, in your judgment, is
material and adverse and that makes it, in your judgment, impracticable
to market the Shares on the terms and in the manner contemplated in the
Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer of
the Company, to the effect set forth in Section 5(a)(i) above and to the
effect that the representations and warranties of the Company contained in
this Agreement are true and correct as of the Closing Date and that the
Company has complied with all of the agreements and satisfied all of the
conditions on its part to be performed or satisfied hereunder on or before
the Closing Date.
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The officer signing and delivering such certificate may rely upon the
best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion
of Xxxxxxxxx, Xxxx & Xxxxxxx LLP, outside counsel for the Company, dated
the Closing Date, to the effect that
(i) the Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the State of
Delaware, has the corporate power and authority to own its property and
to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in Georgia,
Kentucky, North Carolina, Pennsylvania, South Carolina and Tennessee;
(ii) each subsidiary of the Company has been duly organized or
incorporated, is validly existing in good standing under the laws of
the jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described
in the Prospectus and is duly qualified to transact business and is in
good standing in Georgia, Kentucky, North Carolina, Pennsylvania, South
Carolina and Tennessee;
(iii) the authorized capital stock of the Company conforms as to
legal matters to the description thereof contained in the Prospectus;
(iv) the shares of Common Stock outstanding prior to the issuance
of the Shares have been duly authorized and are validly issued, fully
paid and non-assessable;
(v) all of the issued shares of capital stock of each subsidiary
of the Company have been duly and validly authorized and issued, are
fully paid and non-assessable and are, to such counsel's knowledge,
owned directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims, other than Credit Facility
Liens, as described in the Prospectus;
14
(vi) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement and
the consummation of the Stock Conversion will not contravene any
provision of applicable law or the certificate of incorporation or by-
laws of the Company or any agreement listed in the Exhibit Index to the
Registration Statement at the time the Registration Statement becomes
effective, or, to the best of such counsel's knowledge, any judgment,
order or decree of any governmental body, agency or court having
jurisdiction over the Company or any subsidiary, and no consent,
approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the
Company of its obligations under this Agreement or in connection with
the Stock Conversion, except such as may be required by the securities
or Blue Sky laws of the various jurisdictions in connection with the
offer and sale of the Shares by the Underwriters;
(vii) the statements (A) in the Prospectus under the captions
"The Wireless Communications Industry--Regulation", "--State Regulation
and Local Approvals", "Management--Employment Agreements", "Certain
Relationships and Related Transactions", "Description of Certain
Indebtedness", "Description of Capital Stock", "Certain Material United
States Tax Consequences to Non-U.S. Holders" and "Underwriters" (but
only as to the description of this Agreement) and (B) in the
Registration Statement in Items 14 and 15, in each case insofar as such
statements constitute summaries of the legal matters, documents or
proceedings referred to therein, fairly present the information called
for with respect to such legal matters, documents and proceedings and
fairly summarize the matters referred to therein;
(viii) to such counsel's knowledge, such counsel does not know of
any legal or governmental proceedings pending or threatened to which
the Company or any of its subsidiaries is a party or to which any of
the properties of the Company or any of its subsidiaries is subject
that are required to be described in the Registration Statement or the
Prospectus and are not so described or of any statutes, regulations,
contracts or other documents that
15
are required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
that are not described or filed as required;
(ix) such counsel (A) has no reason to believe that (except for
financial statements and schedules and other financial and statistical
data as to which such counsel need not express any belief) the
Registration Statement and the prospectus included therein at the time
the Registration Statement became effective contained any untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading and (B) has no reason to believe that (except
for financial statements and schedules and other financial and
statistical data as to which such counsel need not express any belief)
the Prospectus as of its date or as of the Closing Date contains any
untrue statement of a material fact or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(d) The Underwriters shall have received on the Closing Date an opinion
of Dow Xxxxxx & Xxxxxxxxx PLLC, outside counsel for the company, dated the
Closing Date, to the effect that:
(i) the Shares have been duly authorized and, when issued and
delivered in accordance with the terms of this Agreement, will be
validly issued, fully paid and non-assessable, and the issuance of such
Shares will not be subject to any preemptive or, to such counsel's
knowledge, similar rights;
(ii) the shares of Common Stock to be issued in connection with
the Stock Conversion have been duly authorized and, when issued and
delivered in exchange for the Company's existing shares of Common
Stock, Series C Preferred Stock [and Series D Preferred Stock], will be
validly issued, fully paid and non-assessable, and the issuance of such
shares of Common Stock will not be subject to any preemptive or, to
such counsel's knowledge, similar rights;
(iii) this Agreement has been duly authorized, executed and
delivered by the Company;
16
(iv) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement and
the consummation of the Stock Conversion will not contravene any
provision of applicable law or the certificate of incorporation or by-
laws of the Company or any agreement listed in the Exhibit Index to the
Registration Statement at the time the Registration Statement becomes
effective, or, to the best of such counsel's knowledge, any judgment,
order or decree of any governmental body, agency or court having
jurisdiction over the Company or any subsidiary, and no consent,
approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the
Company of its obligations under this Agreement or in connection with
the Stock Conversion, except such as may be required by the securities
or Blue Sky laws of the various jurisdictions in connection with the
offer and sale of the Shares by the Underwriters;
(v) the statements (A) in the Prospectus under the captions "The
Wireless Communications Industry--Regulation", "--State Regulation and
Local Approvals", "Management--Employment Agreements", "Certain
Relationships and Related Transactions", "Description of Certain
Indebtedness", "Description of Capital Stock", "Certain Material United
States Tax Consequences to Non-U.S. Holders" and "Underwriters" (but
only as to the description of this Agreement) and (B) in the
Registration Statement in Items 14 and 15, in each case insofar as such
statements constitute summaries of the legal matters, documents or
proceedings referred to therein, fairly present the information called
for with respect to such legal matters, documents and proceedings and
fairly summarize the matters referred to therein;
(vi) the Company is not and, after giving effect to the offering
and sale of the Shares and the application of the proceeds thereof as
described in the Prospectus, will not be an "investment company" as
such term is defined in the Investment Company Act of 1940, as amended;
(vii) such counsel (A) is of the opinion that the Registration
Statement and Prospectus (except for financial
17
statements and schedules and other financial and statistical data
included therein as to which such counsel need not express any opinion)
comply as to form in all material respects with the Securities Act and
the applicable rules and regulations of the Commission thereunder, (B)
has no reason to believe that (except for financial statements and
schedules and other financial and statistical data as to which such
counsel need not express any belief) the Registration Statement and the
prospectus included therein at the time the Registration Statement
became effective contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and (C) has no
reason to believe that (except for financial statements and schedules
and other financial and statistical data as to which such counsel need
not express any belief) the Prospectus as of its date or as of the
Closing Date contains any untrue statement of a material fact or omits
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading.
(e) The Underwriters shall have received on the Closing Date an opinion
of Dow Xxxxxx & Xxxxxxxxx PLLC, special regulatory counsel for the Company,
dated the Closing Date, in the form of Exhibit A hereto.
(f) The Underwriters shall have received on the Closing Date an opinion
of Xxxxx Xxxx & Xxxxxxxx, counsel for the Underwriters, dated the Closing
Date, covering the matters referred to in Sections 5(d)(i), 5(d)(ii),
5(c)(vii),5(d)(v) (but only as to the statements in the Prospectus under
"Underwriters") and 5(d)(vii) above.
With respect to Sections 5(c)(ix) and 5(d)(vii) above, Dow, Xxxxxx &
Xxxxxxxxx PLLC, Xxxxxxxxx, Xxxx & Xxxxxxx LLP and Xxxxx Xxxx & Xxxxxxxx may
state that their opinion and belief are based upon their participation in
the preparation of the Registration Statement and Prospectus and any
amendments or supplements thereto and review and discussion of the contents
thereof, but are without independent check or verification, except as
specified.
The opinions of Xxxxxxxxx, Xxxx & Xxxxxxx LLP and Dow, Xxxxxx &
Xxxxxxxxx PLLC described in Section 5(c), 5(d) and 5(e) above shall be
rendered to the Underwriters at the request of the Company and shall so
state therein.
18
(g) The Underwriters shall have received, on each of the date hereof
and the Closing Date, letters dated the date hereof or the Closing Date, as
the case may be, in form and substance satisfactory to the Underwriters,
from each of (i) PricewaterhouseCoopers LLP, independent public accountants,
and (ii) Xxxxxx Xxxxxxxx LLP, independent public accountants, in each case
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in the Registration
Statement and the Prospectus; provided that the letters delivered on the
Closing Date shall use a "cut-off date" not earlier than the date hereof.
(h) The "lock-up" agreements, each substantially in the form of Exhibit
B hereto, between you and certain shareholders, officers and directors of
the Company relating to sales and certain other dispositions of shares of
Common Stock or certain other securities, delivered to you on or before the
date hereof, shall be in full force and effect on the Closing Date.
(i) The Stock Conversion shall have been consummated.
(j) The several obligations of the U.S. Underwriters to purchase
Additional Shares hereunder are subject to the delivery to the U.S.
Representatives on the Option Closing Date of such documents as they may
reasonably request with respect to the good standing of the Company, the due
authorization and issuance of the Additional Shares and other matters
related to the issuance of the Additional Shares.
6. Covenants of the Company. In further consideration of the agreements
of the Underwriters herein contained, the Company covenants with each
Underwriter as follows:
(a) To furnish to you, without charge, eleven copies of the
Registration Statement (including exhibits thereto) and for delivery to
each other Underwriter a conformed copy of the Registration Statement
(without exhibits thereto) and to furnish to you in New York City, without
charge, prior to 10:00 a.m. New York City time on the business day next
succeeding the date of this Agreement and during the period mentioned in
Section 6 below, as many copies of the Prospectus and any supplements and
amendments thereto or to the Registration Statement as you may reasonably
request.
(b) Before amending or supplementing the Registration Statement or the
Prospectus, to furnish to you a copy of each such
19
proposed amendment or supplement and not to file any such proposed
amendment or supplement to which you reasonably object, and to file with
the Commission within the applicable period specified in Rule 424(b) under
the Securities Act any prospectus required to be filed pursuant to such
Rule.
(c) If, during such period after the first date of the public offering
of the Shares as in the opinion of counsel for the Underwriters the
Prospectus is required by law to be delivered in connection with sales by
an Underwriter or dealer, any event shall occur or condition exist as a
result of which it is necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the circumstances
when the Prospectus is delivered to a purchaser, not misleading, or if, in
the opinion of counsel for the Underwriters, it is necessary to amend or
supplement the Prospectus to comply with applicable law, forthwith to
prepare, file with the Commission and furnish, at its own expense, to the
Underwriters and to the dealers (whose names and addresses you will furnish
to the Company) to which Shares may have been sold by you on behalf of the
Underwriters and to any other dealers upon request, either amendments or
supplements to the Prospectus so that the statements in the Prospectus as
so amended or supplemented will not, in the light of the circumstances when
the Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus, as amended or supplemented, will comply with law.
(d) To endeavor to qualify the Shares for offer and sale under the
securities or Blue Sky laws of such states as you shall reasonably request.
(e) To make generally available to the Company's security holders and
to you as soon as practicable an earning statement covering the twelve-
month period ending ________, 2000 that satisfies the provisions of Section
11(a) of the Securities Act and the rules and regulations of the Commission
thereunder.
(f) Whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, to pay or cause to be paid all
expenses incident to the performance of its obligations under this
Agreement, including: (i) the fees, disbursements and expenses of the
Company's counsel and the Company's accountants in connection with the
registration and delivery of the Shares under the Securities Act and all
other fees or expenses in connection with the preparation and filing of the
Registration Statement, any preliminary prospectus, the Prospectus and
amendments and supplements to any of the foregoing, including all
20
printing costs associated therewith, and the mailing and delivering of
copies thereof to the Underwriters and dealers, in the quantities
hereinabove specified, (ii all costs and expenses related to the transfer
and delivery of the Shares to the Underwriters, including any transfer or
other taxes payable thereon, (ii the cost of printing or producing any Blue
Sky or Legal Investment memorandum in connection with the offer and sale of
the Shares under state securities laws and all expenses in connection with
the qualification of the Shares for offer and sale under state securities
laws as provided in Section 6 hereof, including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky or
Legal Investment memorandum, (iv all filing fees and the reasonable fees
and disbursements of counsel to the Underwriters incurred in connection
with the review and qualification of the offering of the Shares by the
National Association of Securities Dealers, Inc., including, without
limitation, the reasonable fees and disbursements of counsel incurred on
behalf of Xxxxxx Xxxxxxx in its capacity as "qualified independent
underwriter", (v) all fees and expenses in connection with the preparation
and filing of the registration statement on Form 8-A relating to the Common
Stock and all costs and expenses incident to listing the Shares on the
Nasdaq National Market, (vi the cost of printing certificates representing
the Shares, (vi the costs and charges of any transfer agent, registrar or
depositary, (vi the costs and expenses of the Company relating to investor
presentations on any "road show" undertaken in connection with the
marketing of the offering of the Shares, including, without limitation,
expenses associated with the production of road show slides and graphics,
fees and expenses of any consultants engaged in connection with the road
show presentations with the prior approval of the Company, travel and
lodging expenses of the representatives and officers of the Company and any
such consultants, and the cost of any aircraft chartered in connection with
the road show, (ix all fees and disbursements of counsel incurred by the
Underwriters in connection with the Directed Share Program and stamp
duties, similar taxes or duties or other taxes, if any, incurred by the
Underwriters in connection with the Directed Share Program and (x) all
other costs and expenses incident to the performance of the obligations of
the Company hereunder for which provision is not otherwise made in this
Section. It is understood, however, that except as provided in this
Section, Section 7 entitled "Indemnity and Contribution", and the last
paragraph of Section 10 below, the Underwriters will pay all of their costs
and expenses, including fees and disbursements of their counsel, stock
transfer taxes payable on resale of any of the Shares by them and any
advertising expenses connected with any offers they may make.
21
(g) To place stop transfer orders on any Directed Shares that have been
sold to Participants subject to the three month restriction on sale,
transfer, assignment, pledge or hypothecation imposed by NASD Regulation,
Inc. under its Interpretative Material 2110-1 on free-riding and
withholding to the extent necessary to ensure compliance with the three
month restrictions.
(h) To comply with all applicable securities and other applicable laws,
rules and regulations in each jurisdiction in which the Directed Shares are
offered in connection with the Directed Share Program.
7. Indemnity and Contribution. (a) The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), from and against any and all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably incurred
in connection with defending or investigating any such action or claim) caused
by any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement or any amendment thereof, any preliminary
prospectus or the Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto), or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages or liabilities are caused by any such
untrue statement or omission or alleged untrue statement or omission based upon
information relating to any Underwriter furnished to the Company in writing by
such Underwriter through you expressly for use therein; provided however, that
the foregoing indemnity agreement with respect to any preliminary prospectus
shall not inure to the benefit of any Underwriter from whom the person asserting
any such losses, claims, damages or liabilities purchased Shares, or any person
controlling such Underwriter, if a copy of the Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) was not sent or given by or on behalf of such Underwriter to such
person, if required by law so to have been delivered, at or prior to the written
confirmation of the sale of the Shares to such person, and if the Prospectus (as
so amended or supplemented) would have cured the defect giving rise to such
losses, claims, damages or liabilities.
(b) The Company also agrees to indemnify and hold harmless Xxxxxx Xxxxxxx
& Co. and each person, if any, who controls Xxxxxx Xxxxxxx within the meaning of
either Section 15 of the Act, or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages, liabilities and judgments incurred
22
as a result of Xxxxxx Xxxxxxx'x participation as a "qualified independent
underwriter" within the meaning of Rule 2720 of the Conduct Rules of NASD
Regulation, Inc. in connection with the offering of the Shares, except for any
losses, claims, damages, liabilities, and judgments resulting from Xxxxxx
Xxxxxxx'x, or such controlling person's, gross negligence, bad faith or willful
misconduct.
(c) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement and each person, if any, who controls the Company within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act to
the same extent as the foregoing indemnity from the Company to such Underwriter
set forth in Section 7 above, but only with reference to information relating to
such Underwriter furnished to the Company in writing by such Underwriter through
you expressly for use in the Registration Statement, any preliminary prospectus,
the Prospectus or any amendments or supplements thereto.
(d) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to Section 7, 7 or 7, such person (the "indemnified party")
shall promptly notify the person against whom such indemnity may be sought (the
"indemnifying party") in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by Xxxxxx Xxxxxxx & Co. Incorporated, in the case of
parties indemnified pursuant to Section 7(a) and Section 7(b), and by the
Company, in the case of parties indemnified pursuant to Section 7(c).
Notwithstanding anything contained herein to the contrary, if indemnity may be
sought pursuant to Section 7(b) hereof in respect of any such
23
proceeding, then in addition to any separate firm for such indemnified parties,
the indemnifying party shall be liable for the reasonable fees and expenses of
not more than one separate firm (in addition to any local counsel) for Xxxxxx
Xxxxxxx in its capacity as a "qualified independent underwriter" and all
persons, if any, who control Xxxxxx Xxxxxxx within the meaning of either Section
15 of the Act or Section 20 of the Exchange Act. The indemnifying party shall
not be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the second and third
sentences of this paragraph, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 120 days after receipt by such
indemnifying party of the aforesaid request; (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 90 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed the indemnified party in accordance with such request prior to
the date of such settlement. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any pending
or threatened proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding.
(e) To the extent the indemnification provided for in Section 7(a), 7(b) or
7(c) is unavailable to an indemnified party or insufficient in respect of any
losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Shares or (ii) if the allocation provided by
clause 7(e)(i) above is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
7(e)(i) above but also the relative fault of the Company on the one hand and of
the Underwriters on the other hand in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Underwriters on the other hand in
connection with the offering of the Shares shall be deemed to
24
be in the same respective proportions as the net proceeds from the offering of
the Shares (before deducting expenses) received by the Company and the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth in the table on the cover of the Prospectus, bear to the
aggregate Public Offering Price of the Shares. The relative fault of the Company
on the one hand and the Underwriters on the other hand shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or by the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Underwriters' respective
obligations to contribute pursuant to this Section 7 are several in proportion
to the respective number of Shares they have purchased hereunder, and not joint.
(f) The Company and the Underwriters agree that it would not be just or
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in Section 7(e). The amount paid or payable
by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the Shares
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or 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 remedies provided for in this Section 7 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
(g) The indemnity and contribution provisions contained in this Section 7
and the representations, warranties and other statements of the Company
contained in this Agreement shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii any investigation made
by or on behalf of any Underwriter or any person controlling any Underwriter or
by or on behalf of the Company, its officers or directors or any person
controlling the Company and (ii acceptance of and payment for any of the Shares.
25
8. Directed Share Program Indemnification. (a) The Company agrees to
indemnify and hold harmless Xxxxxx Brothers and each person, if any, who
controls Xxxxxx Brothers within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) (i) caused by any untrue statement or
alleged untrue statement of a material fact contained in any material prepared
by the Company or with the prior written consent of the Company and counsel for
the Company for distribution to Participants in connection with the Directed
Share Program, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading; (ii caused by the failure of any Participant to pay for
and accept delivery of Directed Shares that the Participant has agreed to
purchase; or (ii related to, arising out of, or in connection with the Directed
Share Program other than losses, claims, damages or liabilities (or expenses
relating thereto) that are finally judicially determined to have resulted from
the bad faith or gross negligence of Xxxxxx Brothers or such controlling person;
provided however, that the foregoing indemnity agreement with respect to any
preliminary prospectus shall not inure to the benefit of Xxxxxx Brothers or any
controlling person, if a copy of the Prospectus (as then amended or supplemented
if the Company shall have furnished any amendments or supplements thereto) was
not sent or given by or on behalf of Xxxxxx Brothers to such person, if required
by law so to have been delivered, at or prior to the written confirmation of the
sale of the Directed Shares to such person, and if the Prospectus (as so amended
or supplemented) would have cured the defect giving rise to such losses, claims,
damages or liabilities.
(b) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to Section 8(a) (an "indemnified Xxxxxx party"), the indemnified
Xxxxxx party shall promptly notify the Company in writing and the Company, upon
request of the indemnified Xxxxxx party, shall retain counsel reasonably
satisfactory to the indemnified Xxxxxx party to represent the Xxxxxx indemnified
party and any others the Company may designate in such proceeding and shall pay
the fees and disbursements of such counsel related to such proceeding. In any
such proceeding, any indemnified Xxxxxx party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified Xxxxxx party unless (i) the Company shall have agreed to the
retention of such counsel or (ii the named parties to any such proceeding
(including any impleaded parties) include both the Company and the indemnified
Xxxxxx party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them.
26
The Company shall not, in respect of the legal expenses of any indemnified
Xxxxxx party in connection with any proceeding or related proceedings in the
same jurisdiction, be liable for the fees and expenses of more than one separate
firm (in addition to any local counsel) for all indemnified Xxxxxx parties. Any
such firm for the indemnified Xxxxxx parties shall be designated in writing by
Xxxxxx Brothers. The Company shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the Company agrees to
indemnify the indemnified Xxxxxx party from and against any loss or liability by
reason of such settlement or judgment. Notwithstanding the foregoing sentence,
if at any time any indemnified Xxxxxx party shall have requested the Company to
reimburse it for fees and expenses of counsel as contemplated by the second and
third sentences of this paragraph, the Company agrees that it shall be liable
for any settlement of any proceeding effected without its written consent if (i)
such settlement is entered into more than 120 days after receipt by the Company
of the aforesaid request; (ii) the Company shall have received notice of the
terms of such settlement at least 90 days prior to such settlement being entered
into and (iii) the Company shall not have reimbursed the indemnified Xxxxxx
party in accordance with such request prior to the date of such settlement. The
Company shall not, without the prior written consent of Xxxxxx Brothers, effect
any settlement of any pending or threatened proceeding in respect of which any
indemnified Xxxxxx party is or could have been a party and indemnity could have
been sought hereunder by such indemnified Xxxxxx party, unless such settlement
includes an unconditional release of the indemnified Xxxxxx party from all
liability on claims that are the subject matter of such proceeding.
(c) To the extent the indemnification provided for in Section 8(a) is
unavailable to an indemnified Xxxxxx party or insufficient in respect of any
losses, claims, damages or liabilities referred to therein, then the Company, in
lieu of indemnifying the indemnified Xxxxxx party thereunder, shall contribute
to the amount paid or payable by the indemnified Xxxxxx party as a result of
such losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and Xxxxxx Brothers on the other hand from the offering of the Directed
Shares or (ii) if the allocation provided by clause 8(c)(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 8(c)(i) above but also the
relative fault of the Company on the one hand and of the indemnified Xxxxxx
parties on the other hand in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the
Company on the one hand and of Xxxxxx Brothers on the other hand in connection
with the offering of the Directed Shares shall be deemed to be in the same
respective proportions as the net proceeds from the offering of
27
the Directed Shares (before deducting expenses) and the total underwriting
discounts and commissions received by Xxxxxx Brothers for the Directed Shares,
bear to the aggregate Public Offering Price of the Directed Shares. If the loss,
claim, damage or liability is caused by an untrue or alleged untrue statement of
a material fact, the relative fault of the Company on the one hand and Xxxxxx
Brothers on the other hand shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement or the omission or
alleged omission relates to information supplied by the Company or by Xxxxxx
Brothers and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(d) The Company and Xxxxxx Brothers agree that it would not be just or
equitable if contribution pursuant to this Section 8 were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in Section 8(c). The amount paid or
payable by the indemnified Xxxxxx parties as a result of the losses, claims,
damages and liabilities referred to in the immediately preceding paragraph shall
be deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by the indemnified Xxxxxx parties in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 8, no indemnified Xxxxxx party
shall be required to contribute any amount in excess of the amount by which the
total price at which the Directed Shares distributed to the public were offered
to the public exceeds the amount of any damages that such indemnified Xxxxxx
party has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. The remedies provided for in
this Section 8 are not exclusive and shall not limit any rights or remedies
which may otherwise be available to any indemnified Xxxxxx party at law or in
equity.
(d) The indemnity and contribution provisions contained in this Section 8
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
any indemnified Xxxxxx party or the Company, its officers or directors or any
person controlling the Company and (iii) acceptance of and payment for any of
the Directed Shares.
9. Termination. This Agreement shall be subject to termination by notice
given by you to the Company, if (a) after the execution and delivery of this
Agreement and prior to the Closing Date (i) trading generally shall have been
suspended or materially limited on or by, as the case may be, any of the New
York Stock Exchange, the American Stock Exchange, or the National Association of
Securities Dealers, Inc., (ii) trading of any securities of the Company shall
have been suspended on any exchange or in any over-the-counter market, (iii) a
general
28
moratorium on commercial banking activities in New York shall have been declared
by either Federal or New York State authorities or (iv there shall have occurred
any outbreak or escalation of hostilities or any change in financial markets or
any calamity or crisis that, in your judgment, is material and adverse and (b)
in the case of any of the events specified in clauses 9 through 9, such event,
singly or together with any other such event, makes it, in your judgment,
impracticable to market the Shares on the terms and in the manner contemplated
in the Prospectus.
10. Effectiveness; Defaulting Underwriters. This Agreement shall become
effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date or the Option Closing Date, as the case may be, any
one or more of the Underwriters shall fail or refuse to purchase Shares that it
has or they have agreed to purchase hereunder on such date, and the aggregate
number of Shares which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase is not more than one-tenth of the aggregate number
of the Shares to be purchased on such date, the other Underwriters shall be
obligated severally in the proportions that the number of Firm Shares set forth
opposite their respective names in Schedule I or Schedule II bears to the
aggregate number of Firm Shares set forth opposite the names of all such non-
defaulting Underwriters, or in such other proportions as you may specify, to
purchase the Shares which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase on such date; provided that in no event shall the
number of Shares that any Underwriter has agreed to purchase pursuant to this
Agreement be increased pursuant to this Section 10 by an amount in excess of
one-ninth of such number of Shares without the written consent of such
Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall fail
or refuse to purchase Firm Shares and the aggregate number of Firm Shares with
respect to which such default occurs is more than one-tenth of the aggregate
number of Firm Shares to be purchased, and arrangements satisfactory to you and
the Company for the purchase of such Firm Shares are not made within 36 hours
after such default, this Agreement shall terminate without liability on the part
of any non-defaulting Underwriter or the Company. In any such case either you or
the Company shall have the right to postpone the Closing Date, but in no event
for longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. If, on the Option Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Additional Shares and the
aggregate number of Additional Shares with respect to which such default occurs
is more than one-tenth of the aggregate number of Additional Shares to be
purchased, the non-defaulting Underwriters shall have the option to (i)
terminate their obligation hereunder to purchase Additional Shares or (ii)
purchase not less than the number of Additional Shares
29
that such non-defaulting Underwriters would have been obligated to purchase in
the absence of such default. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them,
because of any failure or refusal on the part of the Company to comply with the
terms or to fulfill any of the conditions of this Agreement, or if for any
reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder.
11. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
12. Applicable Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
13. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
Very truly yours,
TRITON PCS HOLDINGS, INC.
By:____________________________________________
Name:
Title:
30
Accepted as of the date hereof
XXXXXX XXXXXXX & CO. INCORPORATED
XXXXXX BROTHERS INC.
XXXXXXX XXXXX XXXXXX INC.
FIRST UNION SECURITIES, INC.
X.X. XXXXXX SECURITIES INC.
Acting severally on behalf of themselves and the
several U.S. Underwriters named in Schedule
I hereto.
By: Xxxxxx Xxxxxxx & Co. Incorporated
By:__________________________________________________________________
Name:
Title:
XXXXXX XXXXXXX & CO. INTERNATIONAL LIMITED
XXXXXX BROTHERS INTERNATIONAL (EUROPE)
SALOMON BROTHERS INTERNATIONAL LIMITED
FIRST UNION SECURITIES, INC.
X.X. XXXXXX SECURITIES LTD.
Acting severally on behalf of themselves and the
several International Underwriters named in
Schedule II hereto.
By: Xxxxxx Xxxxxxx & Co. International Limited
By:__________________________________________________________________
Name:
Title:
31
SCHEDULE I
U.S. UNDERWRITERS
Number of Firm Shares
Underwriter To Be Purchased
---------------------------------------- ----------------------
Xxxxxx Xxxxxxx & Co. Incorporated.....
Xxxxxx Brothers Inc...................
Xxxxxxx Xxxxx Xxxxxx Inc..............
First Union Securities, Inc...........
X.X. Xxxxxx Securities Inc............
[NAMES OF OTHER U.S. UNDERWRITERS].... ________________________
Total U.S. Firm Shares........... ________________________
EXHIBIT A
[To be provided]
SCHEDULE II
INTERNATIONAL UNDERWRITERS
Number of Firm Shares
Underwriter To Be Purchased
----------------------------------------- --------------------------
Xxxxxx Xxxxxxx & Co. International Limited.....
Xxxxxx Brothers International (Europe).........
Salomon Brothers International Limited.........
First Union Securities, Inc....................
X.X. Xxxxxx Securities Ltd.....................
[NAMES OF OTHER INTERNATIONAL CO-
MANAGER].................................... __________________________________
Total International Firm Shares.............
==================================
EXHIBIT B
[FORM OF LOCK-UP LETTER]
____________, 1999
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxx Brothers Inc.
Xxxxxxx Xxxxx Xxxxxx Inc.
First Union Securities, Inc.
X.X. Xxxxxx Securities Inc.
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Xxxxxx Xxxxxxx & Co. International Limited
Xxxxxx Brothers International (Europe)
Salomon Brothers International Limited
First Union Securities, Inc.
X.X. Xxxxxx Securities Ltd.
c/o Morgan Xxxxxxx & Co. International Limited
00 Xxxxx Xxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
England
Dear Sirs and Mesdames:
The undersigned understands that Xxxxxx Xxxxxxx & Co. Incorporated ("Xxxxxx
Xxxxxxx") and Xxxxxx Xxxxxxx & Co. International Limited ("MSIL") propose to
enter into an Underwriting Agreement (the "Underwriting Agreement") with Triton
PCS Holdings, Inc., a Delaware corporation (the "Company") providing for the
public offering (the "Public Offering") by the several Underwriters, including
Xxxxxx Xxxxxxx and MSIL (the "Underwriters") of ___ shares (the "Shares") of the
Class A Common Stock, $.01 par value, of the Company (together with the
Company's Class B Common Stock, $.01 par value, the "Common Stock").
To induce the Underwriters that may participate in the Public Offering to
continue their efforts in connection with the Public Offering, the undersigned
hereby agrees that, without the prior written consent of Xxxxxx Xxxxxxx on
behalf of the Underwriters, it will not, during the period commencing on the
date hereof and ending 180 days after the date of the final prospectus relating
to the Public Offering (the "Prospectus"), (1) offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant to purchase, lend, or otherwise
transfer or dispose of, directly or indirectly, any shares of Common Stock or
any securities convertible into or exercisable or exchangeable for Common Stock,
or (2) enter into any swap or other arrangement that transfers to another, in
whole or in part, any of the economic consequences of ownership of the Common
Stock, whether any such transaction described in clause (1) or (2) above is to
be settled by delivery of Common Stock or such other securities, in cash or
otherwise. The foregoing sentence shall not apply to (a) transactions relating
to shares of Common Stock or other securities acquired in open market
transactions after the completion of the Public Offering, (b) the pledge by the
undersigned of Common Stock to the Company pursuant to the terms of the
Securities Purchase Agreement dated as of October 8, 1997 among the Company and
the stockholders party thereto or (c) bona fide gifts, sales or other
dispositions of shares of any class of the Company's capital stock, in each case
that are made exclusively between and among the undersigned or members of the
undersigned's family, or affiliates of the undersigned; provided that it shall
be a condition to any such transfer under clause (c) that (i) the transferee
execute an agreement to the effect set forth herein in form and substance
reasonably satisfactory to Xxxxxx Xxxxxxx, and (ii) if the undersigned is a
reporting person subject to Section 16(a) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), any gift, sale or other disposition made
in accordance with this clause (c) shall only be permitted if it does not
require the undersigned to file, and the undersigned agrees not to voluntarily
file, a report of such transaction on Form 4 under the Exchange Act. In
addition, the undersigned agrees that, without the prior written consent of
Xxxxxx Xxxxxxx on behalf of the Underwriters, it will not, during the period
commencing on the date hereof and ending 180 days after the date of the
Prospectus, make any demand for or exercise any right with respect to, the
registration of any shares of Common Stock or any security convertible into or
exercisable or exchangeable for Common Stock.
2
Whether or not the Public Offering actually occurs depends on a number of
factors, including market conditions. Any Public Offering will only be made
pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation between the Company and the Underwriters.
Very truly yours,
-------------------------------------------------
Name
-------------------------------------------------
Address
CROSS-REFERENCE TARGET LIST
===========================
NOTE: Due to the number of targets some target names may not appear in the
target pull-down list.
(This list is for the use of the wordprocessor only, is not a part of this
document and may be discarded.)
ARTICLE/SECTION TARGET NAME ARTICLE/SECTION TARGET NAME ARTICLE/SECTION TARGET NAME ARTICLE/SECTION TARGET NAME
======================================== =========================== =========================== ============================
1................... represents warrants 7(d)........promptly notify
1(a)...........................regst.eff 7(e)........each contribute
1(b).....................regstmnt untrue 7(e)(i)..........proportion
1(c).......................valid company 7(f)......just or equitable
1(d)................... valid subsidiary 7(g).......remain operative
1(e)............................agt auth
1(f)..................auth capital stock 9...............termination
1(g)...................outstanding stock 9(a)........after execution
1(h).........................shares auth 9(a)(i)...trading generally
1(i)...................co applicable law 9(a)(ii).trading securities
1(j)......................adverse change 9(a)(iii)........moratorium
1(k)..................no pending proceed 9(a)(iv)...........outbreak
1(l)......................prosp complies
1(m)..................co. not investment 10........default underwrts
1(n).........................co. and sub
1(n)(i)..1(w)(i)..............compliance 11.............counterparts
1(n)(ii).1(w)(ii)............all permits
1(n)(iii).1(w)(iii) terms and conditions 12.......... applicable law
1(o).............environ law liabilities
1(p)........................no contracts 13.................headings
?.......................florida statutes
2..................agt to sell and purch
3.......................public off terms
4...................payment and delivery
5.................obligations underwrtrs
5(a).................subsequent to execu
5(a)(i)...................no downgrading
5(a)(ii)...........no change in business
5(b)................cert of exec officer
5(c).....................counsel opinion
5(c)(i)....................company valid
5(c)(ii)....................subsid valid
5(d)(iii)......................agt execu
5(c)(iii).............capital stock auth
5(c)(iv)...............stock outstanding
5(c)(v)....................issued shares
5(d)(i)......................auth shares
5(d)(ii).......................agt execu
5(c)(vi),5(d)(iv)..contra applicable law
5(c)(vii),5(d)(v).............statements
5(c)(vii)(A), 5(d)(v)(A)......prospectus
5(c)(vii)(B), 5(d)(v)(B)...reg statement
5(c)(viii)...................due inquiry
5(d)(vi)...............not investment co
?....................company and subsids
?.........................law compliance
?......................recvd all permits
?.........................terms and cond
5(d)(vii)...................such counsel
5(d)(vii)(A)............regstmnt opinion
5(c)(ix)(A), 5(d)(vii)(B)...believe that
5(c)(ix)(B), 5(d)(vii)(C)...no reason to
5(f).........................dpw opinion
5(g)..................underwrtr received
5(h).............................lock-up
5(i).................several obligations
6...........................co covenants
6(a)...................furnish signed cc
6(b).....................cc before amend
6(c).....................after pub offer
6(d).................endeavor to qualify
6(e)......................make available
6(f)........................not to offer
7......................indem and contrib
7(a)...................company indemnify
7(c).................underwrtr indemnify
