Exhibit 1.1
Crown Castle International Corp.
Debt Securities, Preferred and Common Stock
Underwriting Agreement
----------------------
Ladies and Gentlemen:
Crown Castle International Corp., a Delaware corporation (the "Company")
and, if there are Selling Stockholders, the selling stockholders named in a
schedule to the Terms Agreement (as defined in Article 2 below) (the "Selling
Stockholders"), propose[s], subject to the terms and conditions stated herein,
to issue and sell to the Underwriters named in a schedule to the Terms Agreement
(the "Underwriters") from time to time certain of its debt securities, preferred
stock or common stock (the "Offered Securities"). The representatives of the
Underwriters, if any, specified in a Terms Agreement are hereinafter referred to
as the "Representatives"; provided, however, that if the Terms Agreement does
not specify any representative of the Underwriters, the term "Representatives",
as used in this Agreement, shall mean the Underwriters. If the Offered
Securities are Debt Securities: The Offered Securities will be issued under an
indenture, dated as of ____, ____ (the "Indenture"), between the Company and a
trustee as Trustee, in one or more series, which series may vary as to interest
rates, maturities, redemption provisions, selling prices and other terms. If
the Offered Securities are Preferred Stock: The Offered Securities may be issued
in one or more series, which series may vary as to dividend rates, redemption
provisions, selling prices and other terms. Particular series or offerings of
Offered Securities will be sold pursuant to a Terms Agreement, for resale in
accordance with terms of offering determined at the time of sale.
1. (a) The Company, as of the date of each Terms Agreement, represents
and warrants to, and agrees with, each Underwriter that:
(i) A registration statement on Form S-3 relating to the Offered
Securities has been filed with the Securities and Exchange Commission (the
"Commission") and has become effective; no other document with respect to
the initial registration statement has heretofore been filed with the
Commission; and no stop order suspending the effectiveness of the initial
registration statement, any post-effective amendment thereto or Rule 462(b)
registration statement, if any, has been issued and no proceeding for that
purpose has been initiated or threatened by the Commission. Such
registration statement, as amended at the time of any Terms Agreement, is
hereinafter referred to as the "Registration Statement", and the prospectus
included in such Registration Statement, as supplemented and as
contemplated by Section 2 to reflect the terms of the Offered Securities
(if they are debt securities or preferred stock) and the terms of the
offering of the Offered Securities, as first filed with the Commission
pursuant to and in accordance with Rule 424(b) ("Rule 424(b)") under the
Securities Act of 1993 ("Act"), including all material incorporated by
reference therein, is hereinafter referred to as the "Prospectus".
(ii) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the Act and the rules and regulations of
the Commission thereunder, and did not 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 light of the
circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter expressly
for use therein [or by a Selling Stockholder].
(iii) The Registration Statement conforms and on the date of each Terms
Agreement will conform, and the Prospectus and any further amendments or
supplements to the Registration Statement or the Prospectus will conform,
in all material respects to the requirements of the Act and the rules and
regulations of the Commission ("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 date as to the
Prospectus and any amendment or supplement thereto and as of the date of
each Terms Agreement, 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; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter expressly for use therein [or by a
Selling Stockholder expressly for use in the preparation of the answers
therein];
(iv) 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,
otherwise than as set forth or contemplated in the Prospectus; and, since
the respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been any change in the capital
stock or long-term debt of the Company or any of its subsidiaries or any
material adverse change, or any development involving a prospective
material adverse change, except such as are described in the Prospectus or
such as would not be reasonably expected, in the aggregate, to result in a
material adverse effect on the condition (financial or other), business,
prospects, properties or results of operations of the Company and its
"significant subsidiaries" as defined in Rule 405 of the rules and
regulations of the Commission promulgated under the Act, taken as a whole
("Material Adverse Effect");
(v) The Company and its subsidiaries have good and marketable title to
all real property and good and marketable title to all personal property
owned by them, in each case free and clear of all liens, encumbrances and
defects except such as are described in the Prospectus; 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 would not be reasonably expected, in the aggregate, to result
in a Material Adverse Effect;
2
(vi) The Company is a corporation duly incorporated and validly existing
and in good standing under the laws of the State of Delaware with all
requisite corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus, and
is duly registered and qualified to conduct its business and is in good
standing in each jurisdiction or place where the nature of its properties
or the conduct of its business requires such registration or qualification,
except where the failure so to register or qualify or to be in good
standing would not have a Material Adverse Effect;
(vii) Each subsidiary of the Company is a corporation (or in the case of
Crown Atlantic Holding Company LLC, a limited liability company) duly
organized and validly existing and in good standing under the laws of the
its jurisdiction of organization with all requisite power and authority to
own, lease and operate its properties and to conduct its business as
described in the Prospectus, and is duly registered and qualified to
conduct its business and is in good standing in each jurisdiction or place
where the nature of its properties or the conduct of its business requires
such registration or qualification, except where the failure so to register
or qualify or to be in good standing would not have a Material Adverse
Effect;
(viii) None of the subsidiaries of the Company (other than the
subsidiaries designated as "Significant Subsidiaries" under the Terms
Agreement) (collectively, the "Significant Subsidiaries")) is a
"significant subsidiary," as such term is defined in Rule 405 of the rules
and regulations under the Act;
(ix) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued, are fully paid and non-
assessable and conform to the description of the Stock contained in the
Prospectus; and 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 (except for directors' qualifying
shares 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, except as set forth in the Prospectus;
(x) If the Offered Securities are Debt Securities: The Offered
Securities have been duly and validly authorized and, when issued and
delivered against payment therefor as provided pursuant to the Terms
Agreement, will be duly and validly executed, authenticated, issued and
delivered and will constitute valid and legally binding obligations of the
Company and will be entitled to the benefits provided by the Indenture
under which they are to be issued, which is substantially in the form filed
as an exhibit to the Registration Statement, the Indenture has been duly
authorized and duly qualified under the Trust Indenture Act and, when
executed and delivered by the Company and the Trustee, will constitute a
valid and legally binding instrument, enforceable in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditor's rights and to general equity principles; and the
Offered Securities and the Indenture will conform to the description
thereof in the Registration Statement and the Prospectus;
3
(xi) If the Offered Securities are Common Stock or are convertible into
Common Stock: The Offered Securities to be issued and sold by the Company
to the Underwriters pursuant to the Terms Agreement have been duly and
validly authorized and, when issued and delivered against payment therefor
as provided herein, will be duly and validly issued and fully paid and
nonassessable and will conform to the description of the Stock contained in
the Prospectus; and, except as described in the Prospectus, the
stockholders of the Company have no preemptive rights with respect to the
Offered Securities;
(xii) If the Offered Securities are Preferred Stock: The Offered
Securities have been duly authorized and, when the Offered Securities have
been delivered and paid for in accordance with the Terms Agreement on the
Closing Date, such Offered Securities will have been validly issued, fully
paid and nonassessable and will conform to the description thereof
contained in the Prospectus; and, except as described in the Prospectus,
the stockholders of the Company have no preemptive rights with respect to
the Offered Securities.
(xiii) If the Offered Securities are Convertible: When the Offered
Securities are delivered and paid for pursuant to the Terms Agreement at
the Time of Delivery, such Offered Securities will be convertible into
Common Stock of the Company in accordance with their terms (if the Offered
Securities are preferred stock) or the Indenture (if the Offered Securities
are debt securities); the shares of Common Stock initially issuable upon
conversion of such Offered Securities have been duly authorized and
reserved for issuance upon such conversion and, when issued upon such
conversion, will be validly issued, fully paid and nonassessable; the
outstanding share of Common Stock have been duly authorized and validly
issued, are fully paid and nonassessable and conform to the description
thereof contained in the Prospectus; and, except as described in the
Prospectus, the stockholders of the Company have no preemptive rights with
respect to the Common Stock.
(xiv) The execution, delivery and performance of [If the Offered
Securities are Debt Securities: the Indenture] [If the Offered Securities
are Preferred Stock: the certificate of designations] and the Terms
Agreement and the issuance and sale of the Offered Securities and
compliance by the Company with all of the provisions thereof will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or (with the giving of notice or the lapse of time or both)
constitute a default under, (A) 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, (B) the provisions of the
charter, by-laws or other constitutive documents of the Company or any of
its subsidiaries or (C) 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 in
the cases of clause (A) or (C), such breaches, violations or defaults that
in the aggregate would not have a Material Adverse Effect; and no consent,
approval, authorization, order, registration or qualification of or with
any such court or governmental agency or body is required for the issue and
sale of the Securities or the consummation by the Company of the
transactions contemplated by the Terms Agreement (including the provisions
of this Agreement), except (A) the registration under the Act of the
Offered Securities and (B) such consents, approvals, authorizations,
4
registrations or qualifications as (1) may be required under the Exchange
Act and applicable state or foreign securities laws in connection with the
purchase and distribution of the Securities by the Underwriters, (2) as may
have already been obtained or made and (3) the failure to obtain or make
would not, individually or in the aggregate, have a Material Adverse
Effect;
(xv) No consent, approval, authorization, or order of, or filing with,
any governmental agency or body or any court is required for the
consummation of the transactions contemplated by the Terms Agreement
(including the provisions of this Agreement) in connection with the
issuance and sale of the Offered Securities by the Company, except such as
have been obtained and made under the Act and, if the Offered Securities
are debt securities, the Trust Indenture Act and such as may be required
under state securities laws;
(xvi) Neither the Company nor any of its subsidiaries (A) is in
violation of its charter, by-laws or other constitutive documents, (B) 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
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 or (C) 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, except for, in
the cases of clause (B) or (C), such defaults, violations or failures to
obtain that in the aggregate would not have a Material Adverse Effect;
(xvii) The statements set forth in the Prospectus under the caption
"Description of the [Capital Stock/Notes]", insofar as they purport to
constitute a summary of the terms of the Offered Securities, under the
caption "Certain US Income Tax Considerations for Non-U.S. Holders" and
under the caption "Underwriting", insofar as they purport to describe the
provisions of the laws and documents referred to therein, are accurate,
complete and fair;
(xviii) Other than as set forth in the Prospectus, 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 of the Company or any of
its subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, would individually or in the aggregate
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;
(xix) The Company is not and, after giving effect to the offering and
sale of the Offered Securities, will not be an "investment company", as
such term is defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act");
5
(xx) Neither the Company nor any of its affiliates does business with
the government of Cuba or with any person or affiliate located in Cuba
within the meaning of Section 517.075, Florida Statutes;
(xxi) KPMG LLP, who have certified certain financial statements of the
Company and its subsidiaries and of certain other business operations to be
acquired by the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder;
(xxii) If the Offered Securities are issued on or before January 1,
2000: The Company has reviewed its operations and that of its subsidiaries
and is in the process of reviewing any third parties with which the Company
or any of its subsidiaries has a material relationship 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. As a result of such
review, the Company has no reason to believe, and does not believe, that
the Year 2000 Problem will have a Material Adverse Effect. The "Year 2000
Problem" as used herein means any significant risk that computer hardware
or software used in the receipt, transmission, processing, manipulation,
storage, retrieval, retransmission or other utilization of data or in the
operation of mechanical or electrical systems of any kind will not, in the
case of dates or time periods occurring after December 31, 1999, function
in any material respect at least as effectively as in the case of dates or
time periods occurring prior to January 1, 2000;
(xxiii) Except as described in the Prospectus, there are no contracts,
agreements or understandings between the Company or any of its subsidiaries
and any person (other than as described in the Terms Agreement) granting
such person the right to require the Company or any of its subsidiaries to
file a registration statement under the Act with respect to any securities
of the Company and its subsidiaries owned or to be owned by such person or
to require the Company or any of its subsidiaries to include such
securities in the securities registered pursuant to the Registration
Statement or the Prospectus in any securities being registered pursuant to
any other registration statement filed by the Company or any of its
subsidiaries under the Act;
(xxiv) This Agreement and the Terms Agreement have been duly
authorized, executed and delivered by the Company and, assuming due
authorization, execution and delivery by the Underwriters, constitute the
valid and binding agreement of the Company, enforceable against the Company
in accordance with their terms (subject to applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer and other
similar laws affecting creditors' rights generally from time to time in
effect and to general principles of equity, including, without limitation,
concepts or materiality, reasonableness, good faith and fair dealing,
regardless of whether in a proceeding in equity or at law);
(xxv) If the Offered Securities are Common Stock or are convertible
into Common Stock:; Except as described in the Prospectus, the Company has
not sold or issued any shares of Common Stock during the six-month period
preceding the date of the Terms Agreement, including any sales pursuant to
Rule 144A under, or Regulation D or Regulation S of, the Act other than
shares issued pursuant to employee benefit plans or other employee
compensation plans or pursuant to outstanding options, rights or warrants;
6
(xxvi) The consolidated historical and pro forma financial
statements, together with the related notes thereto 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
Act applicable to registration statements on Form S-3 under the Act.
Such historical financial statements fairly present the financial
position of the Company at the respective dates indicated and the results
of operations and cash flows for the respective periods indicated, in
each case in accordance with generally accepted accounting principles
("GAAP") consistently applied throughout such periods. Such pro forma
financial statements have been prepared on a basis consistent with such
historical statements, except for the pro forma adjustments specified
therein, and give effect to assumptions made on a reasonable basis and in
good faith and present fairly the pro forma position, results of
operations and the other information purported to be shown therein at the
respective dates or the respective periods therein specified. The other
financial and statistical information and data filed as part of the
Registration Statement or included in the Prospectus, historical and pro
forma, are, in all material respects, fairly presented and prepared on a
basis consistent with such financial statements and the books and records
of the Company;
(xxvii) The Company and each of the Significant Subsidiaries has such
permits, licenses, franchises, certificates of need and other approvals
or authorizations of any governmental or regulatory authority
("Permits"), including, without limitation, any permits required by the
Federal Communications Commission ("FCC"), the Federal Aviation
Administration ("FAA") or the Office of Telecommunications ("OFTEL"), as
are necessary under applicable law to own their respective properties and
to conduct their respective businesses in the manner described in the
Prospectus, except to the extent that the failure to have such Permits
would not have a Material Adverse Effect. The Company and the
Significant Subsidiaries have fulfilled and performed, in all material
respects, all their respective obligations with respect to the Permits,
and no event has occurred which allows, or after notice or lapse of time
would allow, revocation or termination thereof or results in any other
material impairment of the rights of the holder of any such Permit,
subject in each case to such qualification as may be set forth in the
Prospectus and except to the extent that any such revocation or
termination would not have a Material Adverse Effect. Except as
described in the Prospectus, none of the Permits contains any restriction
that has not previously been satisfied and that is materially burdensome
to the Company or any of the Significant Subsidiaries;
(xxviii) For each existing tower of the Company not yet registered
with the FCC where registration will be required, the FCC's grant of an
application for registration of such tower will not have a significant
environmental effect as defined under Section 1.1307(a) of the FCC's
rules;
(xxix) The consummation of the transactions contemplated by this
Agreement shall not cause any third party to have any rights of first
refusal with respect to the acquisition of towers under any agreement
filed as an exhibit to, or incorporated by reference in, the Registration
Statement or the Prospectus (the "Material Agreements") that has not
already been described in the Prospectus as to which the Company and any
of the Significant Subsidiaries or any of their property or assets may be
subject;
7
(xxx) The Company and each of the Significant Subsidiaries owns or
possesses all patents, trademarks, trademark registration, service marks,
service xxxx registrations, trade names, copyrights, licenses,
inventions, trade secrets and rights described in the Prospectus as being
owned by any of them or necessary for the conduct of their respective
businesses, and neither the Company nor any of the Significant
Subsidiaries is aware of any claim to the contrary or any challenge by
any other person to the rights of the Company or any of the Significant
Subsidiaries with respect to such rights that, if determined adversely to
the Company or any such Significant Subsidiary, would in the aggregate
have a Material Adverse Effect;
(xxxi) Neither the Company nor any of its subsidiaries is involved in
any strike, job action or labor dispute with any group of employees, and,
to the knowledge of the Company and the Subsidiaries, no such action or
dispute is threatened;
(xxxii) The Company and each of its subsidiaries are 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) for which the Company would have any
liability; 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 nothing has occurred, whether by action or by
failure to act, which would cause the loss of such qualification;
(xxxiii) The Company and each of its subsidiaries have filed all
federal, state and local income and franchise tax returns required to be
filed through the date of the Terms Agreement and have paid all taxes due
thereon, and no tax deficiency has been determined adversely to the
Company or any of its subsidiaries nor does the Company or any of its
subsidiaries have any knowledge of any tax deficiency which, if
determined adversely to the Company or any of its subsidiaries, would
have a Material Adverse Effect;
(xxxiv) Since the date as of which information is given in the
Prospectus through the date of the Terms Agreement, and except as may
otherwise be disclosed in the Registration Statement or the Prospectus,
the Company has not (i) issued or granted any securities, (ii) incurred
any liability or obligation, direct or contingent, or entered into any
transaction, in each case not in the ordinary course of business which is
material to the Company and its subsidiaries taken as a whole or (iii)
declared or paid any dividend on its capital stock (excluding payment in
lieu of fractional shares upon conversion of certain senior preferred
convertible stock of the Company);
8
(xxxv) The Company (i) makes and keeps accurate books and records and
(ii) maintains a system of internal accounting controls sufficient to
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 in
conformity with GAAP and to maintain accountability for assets, (C)
access to its assets is permitted only in accordance with management's
general or specific authorization and (D) the reported accountability for
its assets is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any differences;
(xxxvi) Neither the Company nor any of its subsidiaries, nor 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;
(xxxvii) 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 any of 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 could not be reasonably likely to have,
singularly or in the aggregate, 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 has 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, 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;
and
(xxxviii) The Company and each of the Significant Subsidiaries carry,
or are covered by, insurance in such amounts and covering such risks as
is adequate for the conduct of its businesses and the value of its
properties and as is customary for companies engaged in similar
businesses in similar industries.
(b) If there are Selling Stockholders: Each of the Selling Stockholders
represents and warrants to, and agrees with, each of the Underwriters and the
Company that:
9
(i) Such Selling Stockholder has, and immediately prior to the First
Time of Delivery (as defined in Section 2 hereof) such Selling
Stockholder will have, good and valid title to the Offered Securities to
be sold by such Selling Stockholder under the Terms Agreement on such
date, free and clear of all liens, encumbrances, equities or claims; and
upon delivery of such Offered Securities and payment therefor pursuant
hereto, good and valid title to such Offered Securities, free and clear
of all liens, encumbrances, equities or claims, will pass to the several
Underwriters;
(ii) Such Selling Stockholder has placed in custody under a custody
agreement (the "Custody Agreement") with the Company, 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 the
Offered Securities to be sold by such Selling Stockholder under the Terms
Agreement;
(iii) Such Selling Stockholder has duly and irrevocably executed and
delivered a power of attorney (the "Power of Attorney") 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 and of the Terms Agreement on behalf of such Selling Stockholder;
(iv) Such Selling Stockholder has full right, power and authority to
enter into this Agreement, the Power of Attorney and the Custody
Agreement; the execution, delivery and performance of this Agreement, the
Power of Attorney and the Custody Agreement by such Selling Stockholder
and the consummation by such Selling Stockholder of the transactions
contemplated hereby and thereby 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 such Selling Stockholder is a
party or by which such Selling Stockholder is bound or to which any of
the property or assets of such Selling Stockholder is subject, 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 such Selling Stockholder or the property or assets of
such Selling Stockholder; and, except for the registration of the Offered
Securities under the Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under the Exchange Act
and applicable state or foreign securities laws in connection with the
purchase and distribution of the Offered Securities by the Underwriters,
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,
the Power of Attorney or the Custody Agreement by such Selling
Stockholder and the consummation by such Selling Stockholder of the
transactions contemplated hereby and thereby;
(v) Such Selling Stockholder has no actual knowledge (as defined in
Section 6(f) hereof) of (i) any untrue statement or alleged untrue
statement of a material fact contained in Prospectus or in any amendment
or supplement thereto, in each case as of its date or as of the First
Time of Delivery or (ii) the omission or alleged omission to state in the
Prospectus,
10
or in any amendment or supplement thereto, in each case as of its date or
as of the First Time of Delivery, any material fact required to be stated
therein or necessary to make the statements therein not misleading;
(vi) Such 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 Offered Securities;
(vii) During the period beginning at the time of execution of the
Terms Agreement and ending the number of days after the Time of Delivery
specified under "Blackout" in the Terms Agreement, not to offer, sell,
contract to sell or otherwise dispose of, except as provided hereunder
and under the Terms Agreement, any securities of the Company that are
substantially similar to the Offered Securities, including but not
limited to any securities that are convertible into or exchangeable for,
or that represent the right to receive, Stock or any such substantially
similar securities (other than pursuant to employee stock option plans
existing on, or upon the conversion or exchange of convertible or
exchangeable securities outstanding as of, the date of this Agreement),
without your prior written consent;
(viii) The Offered Securities to be sold by such Selling Stockholder
under the Terms Agreement which are represented by the certificates held
in custody for such Selling Stockholder are subject to the interest of
the Underwriters, the arrangements made by such Selling Stockholder for
such custody are to that extent irrevocable, and the obligations of such
Selling Stockholder hereunder and under the Terms Agreement shall not be
terminated by any act of such Selling Stockholder, by operation of law,
by the death or incapacity of any individual Selling Stockholder or, in
the case of a trust, by the death or incapacity of any executor or
trustee or the termination of such trust, or the occurrence of any other
event; and
(ix) In order to document the Underwriters' compliance with the
reporting and withholding provisions of the Tax Equity and Fiscal
Responsibility Act of 1982 with respect to the transactions herein
contemplated, such Selling Stockholder will deliver to you prior to or at
the applicable Time of Delivery (as hereinafter defined) a properly
completed and executed United States Treasury Department Form W-9 (or
other applicable form or statement specified by Treasury Department
regulations in lieu thereof).
2. Purchase and Offering of Offered Securities.
The obligation of the Underwriters to purchase the Offered Securities
will be evidenced by an agreement or exchange of other written communications
("Terms Agreement") at the time the Company determines to sell the Offered
Securities. The Terms Agreement may also amend, modify or supplement this
Agreement as provided therein. The Terms Agreement will incorporate by
reference the provisions of this Agreement, except as otherwise provided
therein, and will specify the firm or firms which will be Underwriters, the
names of any Representatives, the principal amount or number of shares to be
purchased by each Underwriter, the purchase price to be paid by the Underwriters
and (if the Offered Securities are debt securities or preferred stock) the terms
of the Offered Securities not already specified (in the Indenture, in the case
of Offered Securities that are debt securities), including, but not limited to,
interest rate (if debt securities), dividend rate (if preferred
11
stock), maturity (if debt securities), any redemption provisions and any sinking
fund requirements. The Terms Agreement will also specify the time and date of
delivery and payment (such time and date, or such other time not later than
seven full business days thereafter as the Underwriter first named in the Terms
Agreement (the "Lead Underwriter") and the Company agree as the time for payment
and delivery, being herein and in the Terms Agreement referred to as the "Time
of Delivery") the place of delivery and payment and any details of the terms of
offering that should be reflected in the prospectus supplement relating to the
offering of the Offered Securities. For purposes of Rule 15c6-1 under the
Securities Exchange Act of 1934, the Time of Delivery (if later than the
otherwise applicable settlement date) shall be the date for payment of funds and
delivery of securities for all the Offered Securities sold pursuant to the
offering. The obligations of the Underwriters to purchase the Offered Securities
will be several and not joint. It is understood that the Underwriters propose to
offer the Offered Securities for sale as set forth in the Prospectus.
If the Offered Securities are debt securities and the Terms Agreement
specifies "Book-Entry Only" settlement or otherwise states that the provisions
of this paragraph shall apply, the Company will deliver against payment of the
purchase price the Offered Securities in the form of one or more permanent
global securities in definitive form (the "Global Securities") deposited with
the Trustee as custodian for The Depository Trust Company ("DTC") and registered
in the name of Cede & Co., as nominee for DTC. Interests in any permanent global
securities will be held only in book-entry form through DTC, except in the
limited circumstances described in the Prospectus. Payment for the Offered
Securities shall be made by the Underwriters (if the Terms Agreement specifies
that the Offered Securities will not trade in DTC's Same Day Funds Settlement
System) by certified or official bank check or checks in New York Clearing House
(next day) funds or (if the Terms Agreement specifies that the Offered
Securities will trade in DTC's Same Day Funds Settlement System) in Federal
(same day) funds by official check or checks or wire transfer to an account in
New York previously designated to the Lead Underwriter by the Company at a bank
acceptable to the Lead Underwriter, in each case drawn to the order of the
Company at the place of payment specified in the Terms Agreement on the Closing
Date, against delivery to the Trustee as custodian for DTC of the Global
Securities representing all of the Offered Securities.
3. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by the Representatives
and to file such Prospectus pursuant to Rule 424(b) under the Act not later than
the Commission's close of business on the second business day following the
execution and delivery of the Terms Agreement, or, if applicable, such earlier
time as may be required by Rule 430A(a)(3) under the Act; to make no further
amendment or any supplement to the Registration Statement or Prospectus which
shall be disapproved by the Representatives promptly after reasonable notice
thereof; 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 Prospectus, of the suspension of the
qualification of the Offered Securities 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
12
of any stop order or of any order preventing or suspending the use of the
Prospectus or suspending any such qualification, to promptly use its best
efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as the Representatives
may reasonably request to qualify the Offered Securities for offering and sale
under the securities laws of such jurisdictions as the Representatives may
request 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 Offered Securities, provided that in connection
therewith the Company shall not be required to qualify as a foreign corporation
or to file a general consent to service of process in any jurisdiction;
(c) Prior to Noon, New York City time, on the New York Business Day next
succeeding the date of the Terms Agreement and from time to time, to furnish the
Underwriters with copies of the Prospectus in New York City in such quantities
as the Representatives may reasonably request, and, if the delivery of the
Prospectus is required at any time prior to the expiration of nine months after
the time of issue of the Prospectus in connection with the offering or sale of
the Offered Securities 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 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 during such same period to amend or
supplement the Prospectus in order to comply with the Act [For Debt Securities:
or the Trust Indenture Act, or] to notify the Representatives and upon the
request of the Representatives to prepare and furnish without charge to each
Underwriter and to any dealer in securities as many copies as the Underwriters
may from time to time reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such statement or omission or
effect such compliance; and in case any Underwriter is required to deliver the
Prospectus in connection with sales of any of the Offered Securities at any time
nine months or more after the time of issue of the Prospectus, upon request of
the Representatives but at the expense of such Underwriter, to prepare and
deliver to such Underwriter as many copies as the Representatives may request of
an amended or supplemented Prospectus complying with Section 10(a)(3) of the
Act;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the date of
the Terms Agreement, an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and the
rules and regulations of the Commission thereunder (including, at the option of
the Company, Rule 158);
(e) During the period beginning at the time of the execution of the Terms
Agreement and ending the number of days after the Time of Delivery specified
under "Blackout" in the Terms Agreement, not to offer, sell, contract to sell or
otherwise dispose of, except as provided hereunder and under the Terms Agreement
any securities of the Company that are substantially similar to the Offered
Securities [For Common Stock] including but not limited to any securities that
are convertible into or exchangeable for, or that represent the right to
receive, Stock or any such substantially similar securities (other than pursuant
to employee stock option plans existing on, or upon the conversion or exchange
of convertible or exchangeable securities outstanding as of, the date of this
Agreement), without your prior written consent;
13
(f) To cause each of the persons listed on a schedule to the Term Agreement,
to the extent such person is not a Selling Stockholder hereunder and under the
Term Agreement, to enter into a lock-up agreement with the Underwriters, in form
and substance satisfactory to the Underwriters, providing that, during the
period beginning at the time of execution of the Terms Agreement and ending the
number of days after the Time of Delivery specified under "Blackout" in the
Terms Agreement, such person will not offer, sell, contract to sell or otherwise
dispose of, except as provided hereunder or under the Terms Agreement, any
securities of the Company that are substantially similar to the Offered
Securities, including but not limited to any securities that are convertible
into or exchangeable for, or that represent the right to receive, the Offered
Securities or any such substantially similar securities (other than pursuant to
employee stock option plans existing on, or upon the conversion or exchange of
convertible or exchangeable securities outstanding as of, the date of the Term
Agreement), without the prior written consent of the Underwriters;
(g) During a period of three years from the effective date of the
Registration Statement, to furnish to the Representatives copies of all reports
or other communications (financial or other) furnished to stockholders, and to
deliver to the Representatives (i) as soon as they are available, (A) copies of
any reports and financial statements furnished to or filed with the Commission
or any national securities exchange on which the Offered Securities or any class
of securities of the Company is listed [For Debt Securities: and (B) the
documents specified in the Indenture as in effect at the Time of Delivery];
(h) To use the net proceeds received by it from the sale of the Offered
Securities pursuant to this Agreement in the manner specified in the
Prospectus under the caption "Use of Proceeds";
(i) If Offered Securities are Common Stock: To use its best efforts to list
for quotation the Shares on the National Association of Securities Dealers
Automated Quotations National Market System ("NASDAQ"); and
(j) If the Company elects to rely upon Rule 462(b), the Company shall file
a Rule 462(b) Registration Statement with the Commission in compliance with Rule
462(b) by 10:00 P.M., Washington, D.C. time, on the date of this Agreement, and
the Company shall at the time of filing either pay to the Commission the filing
fee for the Rule 462(b) Registration Statement or give irrevocable instructions
for the payment of such fee pursuant to Rule 111(b) under the Act.
4. The Company covenants and agrees with the several Underwriters that the
Company will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of the Company's counsel and accountants in connection with the
registration of the Offered Securities under the Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, the Prospectus and amendments and supplements thereto and the mailing
and delivering of copies thereof to the Underwriters and dealers; (ii) the cost
of printing or producing any Agreement among Underwriters, this Agreement, the
Terms Agreement the Blue Sky Memorandum, [If the Offered Securities are Debt
Securities: the Indenture,] closing documents (including any compilations
thereof) and any other documents in connection with the offering, purchase, sale
and delivery of the Offered Securities; (iii) all expenses in connection with
the qualification of the Offered Securities for offering and sale under state
securities laws as provided in Section 3 hereof, including the fees and
disbursements of counsel for the Underwriters (not in excess, in the aggregate,
an amount specified in the Terms Agreement) in connection with such
qualification and in connection with the Blue Sky
14
surveys [If the Offered Securities are Debt Securities: and legal investment
surveys; (iv) any fees charged by securities rating services for rating the
Offered Securities] [If the Offered Securities are Common Stock: (v) all fees
and expenses in connection with listing the Offered Securities on the NASDAQ];
(vi) the filing fees incident to securing any required review by the National
Association of Securities Dealers, Inc. of the terms of the sale of the Offered
Securities; (vii) the cost of preparing certificates evidencing the Offered
Securities; (viii) the fees and expenses [If the Offered Securities are Debt
Securities: of the Trustee and any agent of the Trustee and the fees and
disbursements of counsel for the Trustee in connection with the Indenture and
the Offered Securities] [If the Offered Securities are Common Stock: any
transfer agent or registrar ; (ix) [If there are Selling Stockholders: all fees
and expenses of counsel to the Selling Stockholders, incurred in connection with
the public offering of the Offered Securities]; and (x) all other costs and
expenses incident to the performance of its obligations hereunder and under the
Terms Agreement which are not otherwise specifically provided for in this
Section. It is understood, however, except as provided in this Section, and
Sections 6 and 9 hereof, the Underwriters will pay all of their own costs and
expenses, including the fees of their counsel, transfer taxes on resale of any
of the Offered Securities by them, and any advertising expenses connected with
any offers they may make.
5. Conditions of the Obligations of the Underwriters.
The respective obligations of the Underwriters hereunder and under the
Terms Agreement as to the Offered Securities to be delivered at each Time of
Delivery, shall be subject, in the sole discretion of the Representatives, to
the condition that all representations and warranties of the Company [and the
Selling Stockholders] herein are, at and as of the Time of Delivery, true and
correct, the condition that the Company [and the Selling Stockholders] shall
have performed all of its and their obligations hereunder and under the Terms
Agreement theretofore to be performed and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to
Rule 424(b) within the applicable time period prescribed for such filing by the
rules and regulations under the Act and in accordance with Section 5(a) hereof;
if the Company has elected to rely upon Rule 462(b), the Rule 462(b)
Registration Statement shall have become effective by 10:00 P.M., Washington,
D.C. time, on the date of this Agreement; 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 all requests for additional information on the
part of the Commission shall have been complied with to the reasonable
satisfaction of the Representatives as the case may be;
(b) Xxxxxx & Xxxxxxx, counsel for the Underwriters, shall have furnished to
the Representatives, such written opinion or opinions, dated the Time of
Delivery, with respect to the matters covered in paragraphs (i), (v), (vi),
(vii) and (ix) and the paragraph following clause (xiv) of subsection (c) below
as well as such other related matters as the Representatives, as the case may
be, may reasonably request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such
matters;
(c) Cravath, Swaine & Xxxxx, counsel for the Company, shall have furnished
to the Representatives, as the case may be, their written opinion, dated the
Time of Delivery, in form and substance satisfactory to the Representatives, to
the effect that:
15
(i) The Company and each of the Significant Subsidiaries is a corporation
validly existing and in good standing under the laws of the state of its
incorporation or formation (which opinion may be based solely on a certificate
of the Secretary of State of such state), and has all requisite corporate power
and authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus. The Company and each of the Significant
Subsidiaries is duly registered and qualified to conduct its business and is in
good standing (which opinion may be based solely on a certificate of the
Secretary of State of such state), in each jurisdiction or place where, based on
a certificate of an officer of the Company, the nature of its properties or the
conduct of its business requires such registration or qualification, except
where the failure so to register or qualify or to be in good standing would not
have a Material Adverse Effect;
(ii) The Company has an authorized capitalization as set forth in the
Prospectus; and all of the issued shares of capital stock of the Company
(including the Offered Shares being delivered at such Time of Delivery); and the
shares conform to the description of the Stock contained in the Prospectus;
(iii) If the Offered Securities are Common Stock: Except as described in
the Prospectus, there are no preemptive or other rights to subscribe for or to
purchase, nor any restriction upon the voting or transfer of, any Offered
Securities pursuant to the Company's charter or by-laws or any agreement or
other instrument known to such counsel;
(iv) To the knowledge of such counsel, there are no agreements, contracts,
indentures, leases or other instruments to which the Company or any of the
Significant Subsidiaries is a party or to which any of their respective
properties or assets is subject that are required to be described in, or filed
as exhibits to, the Registration Statement and the Prospectus that have not been
so described or filed;
(v) The Registration Statement was declared effective under the Act as of
the date and time specified in such opinion, the Prospectus was filed with the
Commission pursuant to the subparagraph of Rule 424(b) of the Rules and
Regulations specified in such opinion on the date specified therein and no stop
order suspending the effectiveness of the Registration Statement has been issued
and, to the knowledge of such counsel, no proceeding for that purpose is pending
or threatened by the Commission;
(vi) If the Offered Securities are Debt Securities: The Indenture has been
duly and validly authorized, executed and delivered by the Company and, assuming
due authorization, execution and delivery by the Trustee, will constitute the
valid and binding agreement of the Company, enforceable against the Company in
accordance with its terms (subject to applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer and other similar laws affecting
creditors' rights generally from time to time in effect and to general
principles of equity, including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing, regardless of whether in a
proceeding in equity or at law); and the Indenture duly qualified under the
Trust Indenture Act;]
(vii) If the Offered Securities are Debt Securities: The Offered
Securities have been duly and validly authorized by the Company and when duly
executed by the Company in
16
accordance with the terms of the respective Indenture and, assuming due
authentication of the Securities by the Trustee, upon delivery to the
Underwriters against payment therefor in accordance with the terms of the Terms
Agreement, will have been validly issued and delivered, and will constitute
valid and binding obligations of the Company entitled to the benefits of the
respective Indenture, enforceable against the Company in accordance with their
terms (subject to applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer and other similar laws affecting creditors' rights generally
from time to time in effect and to general principles of equity, including,
without limitation, concepts of materiality, reasonableness, good faith and fair
dealing, regardless of whether in a proceeding in equity or at law); and the
Offered Securities and the Indenture conforms to the descriptions thereof in the
Prospectus;
(viii) If the Offered Securities are Common Stock: The Offered Securities
have been duly and validly authorized and are fully paid and nonassessable, when
issued, delivered and sold will conform to the description thereof described in
the Prospectus;
(ix) The Registration Statement and the Prospectus and any further
amendments and supplements thereto made by the Company prior to such Time of
Delivery (other than the financial statements and related schedules therein, as
to which such counsel need express no opinion) comply as to form in all material
respects with the requirements of the Act and the rules and regulations
thereunder;
(x) The statements contained (A) in the Prospectus under the captions
"Description of the [Notes/Capital Stock]", [If the Offered Securities are
Common Stock: "Shares Eligible for Future Sale"], "Underwriting" and "Certain
United States Federal Tax Consequences to Non-United States Holders" and (B) in
the Registration Statement in Items 14 and 15, in each case insofar as they are
descriptions of contracts, agreements or other legal documents, or refer to
statements of law or legal conclusions, are accurate in all material respects
and present fairly the information purported to be described therein;
(xi) The Terms Agreement has been duly and validly authorized, executed and
delivered by the Company.
(xii) This Agreement has been duly and validly authorized, executed
and delivered by the Company;
(xiii) None of the issuance, offer or sale of Offered Securities, the
execution, delivery or performance by the Company of this Agreement and the
Terms Agreement or compliance by the Company with the provisions hereof and of
the Terms Agreement (i) requires any consent, approval, authorization or other
order of, or registration or filing with, any court, regulatory body,
administrative agency or other governmental body, agency or official, or
conflicts or will conflict with or constitutes or will constitute a breach of,
or a default under, the certificate of incorporation or by-laws or other
organizational documents of the Company or (ii) conflicts or will conflict with
or constitutes or will constitute a breach of, or a default under, any Material
Agreement or violates or will violate any law, rule or regulation of the United
States, or the State of New York or the General Corporation Law of the State of
Delaware, or, to such counsel's knowledge, any order or decree of any court or
government agency or instrumentality or will result in the creation or
imposition of any
17
Lien upon any property or assets of the Company and each Significant Subsidiary
pursuant to the terms of any agreement or instrument to which any of them is a
party or by which any of them may be bound or under any to which any of their
property or assets is subject, except in each case such breaches, conflicts or
defaults that, individually or in the aggregate, would not have a Material
Adverse Effect. For purposes of the foregoing opinion, such counsel may assume
that any agreements referred to in clause (ii) above that are governed by laws
other than the laws of the State of New York, are governed by and would be
interpreted in accordance with the laws of the State of New York; and
(xiv) The Company is not and, upon sale of the Offered Securities to be
issued and sold thereby in accordance herewith and the application of the net
proceeds to the Company of such sale as described in the Prospectus under the
caption "Use of Proceeds," will not be an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
In addition, such counsel shall also state that such counsel has
participated in conferences with officers of the Company and with the
independent public accountants for the Company, concerning the preparation of
the Registration Statement and the Prospectus, and, although such counsel has
made certain inquiries and investigations in connection with the preparation of
the Registration Statement and the Prospectus, it is not passing upon and does
not assume any responsibility for the accuracy or completeness of the statements
contained in the Registration Statement and the Prospectus, and has not made any
independent check or verification thereof, except insofar as such statements
relate to such counsel and to clause (vii) above, and on the basis of the
foregoing such counsel's work in connection with this matter did not disclose
any information that gave such counsel reason to believe that the Registration
Statement and the Prospectus, as of its date or as of the Time of Delivery,
included or includes an untrue statement of a material fact or omitted or omits
to state a material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading (it being
understood that such counsel need express no belief or opinion with respect to
the financial statements and other financial data included therein);
The opinion of such counsel may be limited to the laws of the State of New
York, the General Corporation Law of the State of Delaware and the Federal laws
of the United States;
(d) E. Xxxxx Xxxx, general counsel to the Company, shall have furnished to
the Representatives, as the case may be, his written opinion, dated such Time of
Delivery, in form and substance reasonably satisfactory to the Representatives,
to the effect that:
(i) Each of the Company, and it subsidiaries is (other than [list
non-corporate entities]) a corporation validly existing and in good
standing under the laws of the state of its incorporation or formation
(which opinion may be based solely on a certificate of the Secretary of
State of such state), and has all requisite corporate power and authority
to own, lease and operate its properties and to conduct its business as
described in the Prospectus. Each of the Company, and its subsidiaries is
duly registered and qualified to conduct its business and is in good
standing (which opinion may be based solely on a certificate of the
Secretary of State of such state), in each jurisdiction or place where,
based on a certificate of an officer of the Company, the nature of its
properties or the conduct of its business requires such registration or
18
qualification, except where the failure so to register or qualify or to
be in good standing would not have a Material Adverse Effect;
(ii) All of the issued shares of capital stock of the Company and each
Subsidiary of the Company (other than as set forth in the Terms
Agreement) have been duly and validly authorized and issued and are fully
paid, non-assessable and (except for directors' qualifying shares) are
owned directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims, except as set forth in the Registration
Statement and the Prospectus (including the exhibits thereto);
(iii) To knowledge of such counsel, there are no legal or
governmental proceedings pending or threatened against the Company or any
of its Subsidiaries (other than as set forth in the Terms Agreement), or
to which any of their respective properties is subject, that are not
disclosed in the Prospectus and which are reasonably likely to have a
Material Adverse Effect or to materially affect the issuance of the
Offered Securities or the consummation of the transactions contemplated
by this Agreement;
(iv) To the knowledge of such counsel, except as described in the
Prospectus there are no contracts, agreements or understandings between
the Company or any of its Subsidiaries (other than as set forth in the
Terms Agreement) and any person granting such person the right to require
the Company or any of such Subsidiaries to file a registration statement
under the Act with respect to any securities of the Company owned or to
be owned by such person or to require the Company or any of such
Subsidiaries to include such securities in the securities registered
pursuant to the Registration Statement or in any securities being
registered pursuant to any other registration statement filed by the
Company or any of such Subsidiaries under the Act; and
(v) None of the issuance, offer or sale of Offered Securities, the
execution, delivery or performance by the Company of this Agreement or
the Terms Agreement or compliance by the Company with the provisions
hereof or of the Terms Agreement (i) requires any consent, approval,
authorization or other order of, or registration or filing with, any
court, regulatory body, administrative agency or other governmental body,
agency or official, or conflicts or will conflict with or constitutes or
will constitute a breach of, or a default under, the certificate of
incorporation or by-laws or other organizational documents of the Company
or (ii) conflicts or will conflict with or constitutes or will constitute
a breach of, or a default under, any Material Agreement or violates or
will violate any law, rule or regulation of the United States, or the
State of New York or the General Corporation Law of the State of
Delaware, or, to such counsel's knowledge, any order or decree of any
court or government agency or instrumentality or will result in the
creation or imposition of any Lien upon any property or assets of the
Company, ot its Significant Subsidiaries pursuant to the terms of any
agreement or instrument to which any of them is a party or by which any
of them may be bound or under any to which any of their respective
property or assets is subject, except in each case such breaches,
conflicts or defaults that, individually or in the aggregate, would not
have a Material Adverse Effect;
19
The opinion of such counsel may be limited to the laws of the State of
Texas, the General Corporation Law of the State of Delaware and the
Federal laws of the United States;
(e) Xxxxxx Xxxx, English counsel for CTSH and CTI, shall have furnished to
the Representatives, as the case may be, their written opinion, dated such Time
of Delivery, in form and substance reasonably to the Representatives, to the
effect that:
(i) CTI was duly incorporated on 9 May 1996 under the Companies Xxx
0000 as a private limited company; CTSH was duly incorporated on 27
August 1996 as a private limited company; a certificate of good standing
in respect of each of the Companies issued by the Companies Registration
Office on a date within three business days of the date of this opinion
is attached;
(ii) by a Certificate of Incorporation on Change of Name issued on 21
March 1997 CTI changed its name to "Castle Transmission International
Ltd."; by a Certificate of Incorporation on Change of Name issued on 25
February 1997, CTSH changed its name to "Castle Transmission Services
(Holdings) Ltd."; and
(iii) CTI is empowered by its Memorandum of Association to conduct
its business as described in the Prospectus;
(f) If there are Selling Shareholders: The counsel for each of the Selling
Stockholders, as indicated in a schedule to the Terms Agreement shall have
furnished to the Underwriter, its written opinion with respect to each of the
Selling Stockholders for whom they are acting as counsel, dated such Time of
Delivery, in form and substance satisfactory to the Underwriter, as the case may
be, to the effect that:
(i) Such Selling Stockholder has full right, power and authority to
enter into this Agreement, the Terms Agreement, the Power of Attorney and
the Custody Agreement; the execution, delivery and performance of this
Agreement, the Terms Agreement, the Power of Attorney and the Custody
Agreement by such Selling Stockholder and the consummation by such
Selling Stockholder of the transactions contemplated hereby and thereby
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 statute, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which such Selling Stockholder is a
party or by which such Selling Stockholder is bound or to which any of
the property or assets of such Selling Stockholder is subject, nor will
such actions result in any violation of any statute or any order, rule or
regulation known to such counsel of any court or governmental agency or
body having jurisdiction over such Selling Stockholder or the property or
assets of such Selling Stockholder; and, except for the registration of
the Offered Securities under the Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under
the Exchange Act and applicable state or foreign securities laws in
connection with the purchase and distribution of the Offered Securities
by the Underwriters, 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, the Power of Attorney or the Custody Agreement
20
by such Selling Stockholder and the consummation by such Selling
Stockholder of the transactions contemplated hereby and thereby;
(ii) The Terms Agreement has been duly executed and delivered by or on
behalf of such Selling Stockholder;
(iii)This Agreement has been duly executed and delivered by or on
behalf of such Selling Stockholder;
(iv) A Power-of-Attorney and a Custody Agreement have been duly
executed and delivered by such Selling Stockholder and constitute valid
and binding agreements of such Selling Stockholder, enforceable in
accordance with their respective terms, subject to the effects of
bankruptcy, insolvency, fraudulent transfer, reorganization,
receivership, 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) and an implied covenant
of good faith and fair dealing;
(v) Such Selling Stockholder has full right, power and authority to
sell, assign, transfer and deliver the Offered Securities to be sold by
such Selling Stockholder under the Terms Agreement; and
(vi) Upon physical delivery of the certificates representing the
Offered Securities to be sold by such Selling Stockholder under this
Agreement to the Underwriters in the State of New York with undated stock
powers duly endorsed in blank, and upon payment therefor in accordance
with the terms of this Agreement, the Underwriters will become the
"protected purchasers" (as defined in Section 8-303(a) of the New York
UCC) of such shares, free of any "adverse claim" (as defined in Section
8-102(a)(1) of the New York UCC), assuming that the Underwriters do not
have notice of any adverse claim to such shares.
In rendering such opinion, such counsel may (i) state that its opinion is
limited to matters governed by the Federal laws of the United States of America,
the laws of the State of New York and the General Corporation Law of the State
of Delaware and that such counsel is not admitted in the State of New York and
(ii) in rendering the opinions in Section (i) and (iv) above, rely upon a
certificate of such Selling Stockholder in respect of matters of fact as to
ownership of and liens, encumbrances, equities or claims on the shares of Stock
sold by such Selling Stockholder, provided that such counsel shall furnish
copies thereof to the Representatives and state that they believe that both the
Underwriters and they are justified in relying upon such certificate.
(g) On the date of the Prospectus at a time prior to the execution of this
Agreement, at 9:30 a.m., New York City time, on the effective date of any post-
effective amendment to the Registration Statement filed subsequent to the date
of the Terms Agreement and also at the Time of Delivery, KPMG Peat Marwick LLP
shall have furnished to the Representatives a letter or letters, dated the
respective dates of delivery thereof, in form and substance satisfactory to the
Representatives;
(h) 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, and (ii) since the respective dates as
of which information is given in the Prospectus
21
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 Offered Securities on the terms and in the manner contemplated
in the Prospectus;
(i) On or after the date of the Terms Agreement (i) no downgrading shall
have occurred in the rating accorded the Company's debt securities or preferred
stock by any nationally recognized statistical rating organization, as that term
is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and
(ii) no such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of any
of the Company's debt securities or preferred stock;
(j) On or after the date of the Terms Agreement there shall not have
occurred any of the following: (i) a suspension or material limitation in
trading in securities generally on the New York Stock Exchange or on NASDAQ;
(ii) a suspension or material limitation in trading in the Company's securities
on NASDAQ; (iii) a general moratorium on commercial banking activities declared
by either Federal or New York State authorities; or (iv) the outbreak or
escalation of hostilities involving the United States or the declaration by the
United States of a national emergency or war, if the effect of any such event
specified in this clause (iv) in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the public offering or the delivery
of the offered Securities on the terms and in the manner contemplated in the
Prospectus; or [If the Offered Securities are Debt Securities: (v) the
occurrence of any material adverse change in the existing financial, political
or economic conditions in the United States or elsewhere which, in the judgment
of the Representatives, would materially and adversely affect the financial
markets or the market for the Securities and other debt securities;
(k) If the Offered Securities are Common Stock: At such Time of Delivery
Nasdaq National Markets shall have approved the Offered Securities to be sold by
the Company [and the Selling Stockholders] for inclusion, subject only to
official notice of issuance and evidence of satisfactory distribution;
(l) If the Offered Securities are Common Stock: The Company has obtained
and delivered to the Underwriters executed copies of an agreement from the
persons identified a schedule to the Terms Agreement to the effect set forth in
Subsection 3(e) hereof in form and substance satisfactory to the Underwriter;
(m) The Company shall have complied with the provisions of Section 3(c)
hereof with respect to the furnishing of Prospectuses on the New York Business
Day next succeeding the date of this Agreement;
(n) The Company [and the Selling Stockholders] shall have furnished or
caused to be furnished to the Representatives at the Time of Delivery
certificates of officers of the Company [and the Selling Stockholders,
respectively] satisfactory to the Representatives as to (i) the accuracy of the
representations and warranties of the Company [and the Selling Stockholders,
respectively,] herein at and as of such Time of Delivery, (i) the performance by
the Company [and the Selling Stockholders] of
22
all of [its/their] obligations hereunder and under the Terms Agreement to be
performed at or prior to such Time of Delivery, [If the Offered Securities are
Common Stock: (iii) in the case of the Company and the Selling Stockholders, the
absence of untrue statements of material facts or omissions of material facts
required to be stated or necessary to make statements not misleading in the
Registration Statement and the Prospectus, (iv) in the case of the Company and
the Selling Stockholders, absence of events since the Effective Date which
should be set forth in a supplement or amendment to the Registration Statement
and the Prospectus, and (v) such other matters as the Underwriter may reasonably
request and the Company shall have furnished or caused to be furnished
certificates] as to the matters set forth in subsections (a) and (h) of this
Section and as to such other matters as the Representatives may reasonably
request;
(o) The Company shall have furnished to the Representatives a certificate,
in form and substance reasonably acceptable to counsel to the Representatives,
dated the First Time of Delivery, of its Chief Financial Officer with respect to
certain tower data of the Company set forth in the Prospectus; and
(p) If there are Selling Stockholders: The Representatives shall have
received a copy of the executed Custody Agreement and Power of Attorney from
each Selling Stockholder.
6. Indemnifications
(a) The Company [and the Selling Stockholders, jointly and severally] will
indemnify and hold harmless each Underwriter, their respective officers and
employees and each person, if any, who controls any Underwriter within the
meaning of the 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
Offered Securities), to which that Underwriter, officer, employee or controlling
person may become subject, under the Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon: (i) any
breach of the representations and warranties of [the Company or such Selling
Stockholder, as the case may be, contained herein; provided that the indemnity
by the Company and the Selling Stockholders solely with respect to this clause
(i) shall be several and not joint, (ii) any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or the
Prospectus or in any amendment or supplement thereto, or (iii) the omission or
alleged omission to in the Prospectus, or any amendment or supplement thereto,
or arise out of or are based upon the omission or alleged omission to state
therein any material fact required to be stated therein or necessary to make the
statements therein not misleading, 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 [and 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 the Registration Statement or the Prospectus or any such amendment or
supplement in reliance upon and in conformity with written information
concerning such Underwriter furnished to the Company by any Representatives by
or on behalf of any underwriter specifically for inclusion therein consented to
by it pursuant to Section 7 hereof; provided further that [neither] the Company
[nor any Selling Stockholder] shall be liable to any Underwriter under the
indemnity agreement in this paragraph 6(a)
23
with respect to the Prospectus to the extent that any such loss, claim, damage
or liability of such Underwriters results from the fact that such Underwriter
sold Offered Securities to a person as to whom there was not sent or given, at
or prior to written confirmation of such sale, a copy of the Prospectus as then
amended or supplemented if the Company had previously furnished copies thereof
in the quantity requested and in a timely manner in accordance with Section 3(c)
hereof to such Underwriter and the loss, claim, damage or liability of such
Underwriter results from an untrue statement or omission of a material fact
contained in the Registration Statement and corrected in the Prospectus as
amended or supplemented. If there are Selling Stockholders: Notwithstanding the
foregoing provisions, the indemnity and contribution obligations of the Selling
Stockholders shall be subject to the following additional limitations: (i) the
Underwriters shall pursue and satisfy any and all claims arising under this
Agreement or otherwise (collectively, "Claims") by seeking recovery from the
Company prior to pursuing any Claim against the Selling Stockholders and the
Underwriters shall thereafter be entitled to pursue any remaining unsatisfied
Claims by seeking recovery from the Selling Stockholders only following the
Company's failure to satisfy in full the Claims as a result of the Company's
insolvency, bankruptcy or liquidation; (ii) the aggregate amount of any Selling
Stockholder's indemnity and contribution obligations under this paragraph 6(a)
shall not exceed the net cash proceeds received by such Selling Stockholder from
its sale of Offered Securities in the offering after reduction for (A) taxes,
(B) underwriting commissions and discounts, (C) other fees and expenses incurred
by such Selling Stockholder relating to the offering, including legal and
financial advisory fees, and (D) the aggregate amount of any and all direct and
indirect costs or expenses incurred by such Selling Stockholder in defense or
settlement of any other claim against it relating or attributable to the
offering or the sale of Offered Securities by such Selling Stockholder
thereunder, including without limitation claims under the Act; and (iii) the
Selling Stockholders shall be liable under this paragraph 6(a) solely with
respect to any untrue statement of material fact contained in the Registration
Statement or Prospectus which was actually known by such Selling Stockholder as
of the date of the Registration Statement or Prospectus (or such amendment or
supplement thereto) to be untrue, or any omission to state a material fact which
was actually known by such Selling Stockholder as of the date of the
Registration Statement or the Prospectus (or such amendment or supplement
thereto) to be necessary to make the statements contained in the Registration
Statement or Prospectus (or such amendment or supplement thereto) in the light
of the circumstances under which they were made, not misleading as of the date
of the Registration Statement or Prospectus (or such amendment or supplement
thereto). The provisions of this Section 6 shall constitute the sole and
exclusive remedy available to the Underwriters with respect to any claims
against the Selling Stockholders relating to the offering or sale of Offered
Securities by such Selling Stockholders under the Terms Agreement;
(b) Each Underwriter, severally and not jointly, shall indemnify and hold
harmless the Company, its officers who sign the Registration Statement, each of
its directors (including any person who, with his or her consent, is named in
the Registration Statement or the Prospectus as about to become a director of
the Company), and each person, if any, who controls the Company within the
meaning of the Act, from and against any loss, claim, damage or liability, joint
or several, or any action in respect thereof, to which the Company or any such
director, officer or controlling person may become subject, under the 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 the Registration Statement or the Prospectus or in
any amendment or supplement thereto or (ii) the omission or alleged omission to
state in the Registration Statement or the Prospectus, or in
24
any amendment or supplement thereto, any material fact required to be stated
therein or necessary to make the statements therein 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 Representatives by or on behalf of that Underwriter specifically for
inclusion therein, and shall reimburse the Company and any such director,
officer or controlling person for any legal or other expenses reasonably
incurred by the Company 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 or any such director, officer,
employee or controlling person.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above 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 such subsection, notify the indemnifying party in
writing of the claim or the commencement thereof; provided, however, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have under this section 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 such subsection. In case 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 such subsection for any legal or other expenses,
subsequently incurred by the indemnified party, in connection with the defense
thereof; provided, however, that if the defendants in any such action include
both the indemnified party and the indemnifying party and the indemnified party
shall have in good faith reasonably concluded that there may be defenses
available to it which are different from or additional to those available to the
indemnifying party or if the interests of the indemnified party may be deemed to
conflict with the interests of the indemnifying party, the indemnified party
shall have the right to select a separate counsel in the defense of such action,
with the expenses and fees of such separate counsel and other expenses related
to such participation to be reimbursed by the indemnifying party as incurred,
provided further that in no event shall the foregoing proviso require the
indemnifying party to bear the fees and expenses of more than one separate
counsel, in addition to local counsel, for each of the following classes of
parties hereto: (i) 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
under this Section 6, (ii) the Company and its Subsidiaries and (iii) the
Selling Stockholders. 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 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
25
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 to the extent provided in this Section 6.
(d) If the indemnification provided for in this Section 6 shall for any
reason be unavailable to or insufficient (other than by reason of the exceptions
provided therein) to hold harmless an indemnified party under subsection (a) or
(b) above 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 each party to the Terms
Agreement from the offering of the Offered Securities or (ii) if the allocation
provided by the clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of each party to the Terms Agreement 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, the
Underwriters, [and the Selling Stockholders] with respect to such offering shall
be deemed to be in the same proportion as the total net proceeds from the
offering of the Offered Securities purchased under this Agreement (before
deducting expenses) received by the Company, the [Selling Stockholders], and the
total underwriting discounts and commissions received by the Underwriters with
respect to the Offered Securities purchased under the Terms Agreement as set
forth in the table on the cover page of the Prospectus, bear to the sum of the
total proceeds from the sale of the Offered Securities (before deducting
expenses) in the offering. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company, [the Selling Stockholders] or
the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such 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 subsection (e)
were determined by pro rata allocation or by any other method of allocation
which does not take into account of 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 subsection (e) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
subsection (e), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Offered Securities
underwritten by it and distributed to the public was offered to the public,
exceeds the amount of any damages which such Underwriter, as the case may be,
has otherwise been required paid or become liable to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. [If there
are Selling Stockholders: No Selling Stockholder will be required to contribute
any amount in excess of the proceeds received by such person in respect of all
Offered Securities offered and sold by it pursuant to the Prospectus and] no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be
26
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (e) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) As used herein, the phrase "actual knowledge" means, with respect to
any natural person, the actual knowledge of such person and, with respect to any
other person, the actual knowledge of any natural person exercising control
(whether by ownership or management) over such person, and shall not imply any
duty to investigate or be deemed to include any knowledge that might have become
actually known following investigation. The phrase "actually known" shall have
a correlative meaning.
(f) The obligations of the Company under this Section 6 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; the obligations of the Underwriters
under this Section 6 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company (including any person
who, with his or her consent, is named in the Registration Statement or the
Prospectus as about to become a director of the Company) and to each person, if
any, who controls the Company within the meaning of the Act.
7. (a) If any Underwriter shall default in its obligation to purchase the
Offered Securities which it has agreed to purchase under the Terms Agreement, at
a Time of Delivery, the Representatives may in their discretion arrange for the
Representatives or another party or other parties to purchase such Offered
Securities on the terms contained herein. If within thirty-six hours after such
default by any Underwriter the Representatives do not arrange for the purchase
of such Offered Securities, then the Company, [and the Selling Stockholders]
shall be entitled to a further period of thirty-six hours within which to
procure another party or other parties satisfactory to the Representatives to
purchase such Offered Securities on such terms. In the event that, within the
respective prescribed periods, the Representatives notify the Company [and the
Selling Stockholders] that they have so arranged for the purchase of such
Offered Securities, or the Company [and the Selling Stockholders] notifies the
Representatives that it has [they have] so arranged for the purchase of such
Offered Securities, the Representatives or the Company shall have the right to
postpone the Time of Delivery for a period of not more than seven days, in order
to effect whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus, or in any other documents or arrangements, and the
Company agrees to file promptly any amendments to the Registration Statement or
the Prospectus which in the opinion of the Representatives may thereby be made
necessary. The term "Underwriter" as used in this Agreement shall include any
person substituted under this Section with like effect as if such person had
originally been a party to this Agreement with respect to such Offered
Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Offered Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company [and the Selling Stockholders] as provided in
subsection (a) above, the aggregate number of such Offered Securities which
remains unpurchased does not exceed one-eleventh of the aggregate principal
number of all the Offered Securities to be purchased at such Time of Delivery,
then the Company [and the Selling Stockholders] shall have the right to require
each non-defaulting Underwriter to purchase the number of Offered Securities
which such Underwriter agreed to purchase under the Terms Agreement at such Time
of Delivery and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata
27
share (based on the number of Offered Securities which such Underwriter agreed
to purchase under the Terms Agreement) of the Offered Securities of such
defaulting Underwriter or Underwriters for which such arrangements have not been
made; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Offered Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company [and the Selling Stockholders] as provided in
subsection (a) above, the aggregate number of Offered Securities which remains
unpurchased exceeds one-eleventh of the aggregate principal amount of all the
Offered Securities, or if the Company [and the Selling Stockholders] shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Offered Securities of a defaulting Underwriter or
Underwriters, then this Agreement shall thereupon terminate, without liability
on the part of any non-defaulting Underwriter, the Company, [or the Selling
Stockholders] except for the expenses to be borne by the Company [and the
Selling Stockholders] and the Underwriters as provided in Section 5 hereof and
the indemnity and contribution agreements in Section 6 hereof; but nothing
herein shall relieve a defaulting Underwriter from liability for its default.
8. The respective indemnities, agreements, representations, warranties and
other statements of the Company, [the Selling Stockholders] and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement and the Terms Agreement, shall remain
in full force and effect, regardless of any investigation (or any statement as
to the results thereof) made by or on behalf of any Underwriter or any
controlling person of any Underwriter or the Company, or any officer or director
or controlling person of the Company, [or any controlling person of any Selling
Stockholder,] and shall survive delivery of and payment for the Offered
Securities.
9. If this Agreement shall be terminated pursuant to Section 7 hereof,
neither the Company [nor the Selling Stockholders] shall then be under any
liability to any Underwriter except as provided in Sections 5 and 6 hereof; but,
if for any other reason, the Offered Securities are not delivered by or on
behalf of the Company [and the Selling Stockholders] as provided herein, the
Company [and each of the Selling Stockholders pro rata (based on the number of
Offered Securities to be sold by the Company and such Selling Shareholders under
the Terms Agreement)] will reimburse the Underwriters through the
Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of the Offered Securities not so delivered, but the Company [and the
Selling Stockholders] shall then be under no further liability to any
Underwriter except as provided in and Sections 5 and 6 hereof.
10. In all dealings hereunder and under the Terms Agreement, the
Representatives shall act on behalf of each of the Underwriters, and the parties
hereto shall be entitled to act and rely upon any statement, request, notice or
agreement on behalf of any Underwriter made or given by the Representatives
jointly or by the Lead Underwriter on behalf of the Representatives.
All statements, requests, notices, and agreements hereunder and under the
Terms Agreement shall be in writing, and if to the Underwriters shall be
delivered or sent by mail, telex or facsimile transmission to the
Representatives at the address specified in the Terms Agreement; [if to any
Selling Stockholder shall be delivered or sent by mail, telex, facsimile
transmission to counsel for such Selling Stockholder at its address set forth in
a schedule to the Terms Agreement;] and if to the Company
28
shall be delivered or sent by mail, telex or facsimile transmission to the
address of the Company set forth in the Registration Statement, Attention:
Secretary; provided, however, that any notice to an Underwriter pursuant to
Section 6(c) hereof shall be delivered or sent by mail, telex or facsimile
transmission to such Underwriter at its address set forth in its Underwriters'
Questionnaire, or telex constituting such Questionnaire, which address will be
supplied to the Company [or the Selling Stockholders] by the Representatives
upon request. Any such statements, requests, notices or agreements shall take
effect upon 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 any of the Representatives [If there are
Selling Stockholders: 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 their respective Attorneys-in-fact.]
11. This Agreement and the Terms Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriters, the Company and [the Selling
Stockholders and,] to the extent provided in Sections 6 and 8 hereof, the
officers and directors of the Company and each person who controls the Company,
[any Selling Stockholder,] any Underwriter, and their respective heirs,
executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement. No purchaser of
any of the Offered Securities from any Underwriter shall be deemed a successor
or assign by reason merely of such purchase.
12. Time shall be of the essence of this Agreement and the Terms
Agreement. As used herein, the term "business day" shall mean any day on which
the New York Stock Exchange, Inc. is open for trading.
13. This Agreement and the Terms Agreement shall be governed by and
construed in accordance with the laws of the State of New York without giving
effect to any provisions relating to conflicts of law.
14. This Agreement and the Terms Agreement may be executed by any one or
more of the parties hereto in any number of counterparts, each of which shall be
deemed to be an original, but all such counterparts shall together constitute
one and the same instrument.
Very truly yours,
Crown Castle International Corp.
By:
-----------------------------
Name:
Title:
29
