1
EXHIBIT 1.1
_________ SHARES
AMERICAN COMMUNICATIONS SERVICES, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
April , 1997
Alex. Xxxxx & Sons Incorporated
Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation
As representatives of the
several underwriters named
in Schedule I hereto
c/o Alex. Xxxxx & Sons Incorporated
0 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
American Communications Services, Inc., a Delaware corporation
(the "Company"), proposes to issue and sell _________ shares of its common
stock, par value $.01 per share (the "Firm Shares"), to the several underwriters
named in Schedule I hereto (the "Underwriters"). The Company also proposes to
issue and sell to the several Underwriters not more than _________ shares of its
common stock, par value $.01 per share (the "Additional Shares"), if requested
by the Underwriters as provided in Section 2 hereof. The Firm Shares and the
Additional Shares are collectively called the "Shares." The shares of common
stock of the Company to be outstanding after giving effect to the sales
contemplated hereby are hereinafter referred to as the "Common Stock."
REGISTRATION STATEMENT AND PROSPECTUS. The Company has
prepared and filed with the Securities and Exchange Commission (the
"Commission") in accordance with the provisions of the Securities Act of 1933,
as amended, and the rules and regulations of the Commission thereunder
(collectively called the "Act"), a registration statement on Form SB-2
(Registration No. 333-20867) including a prospectus relating to the Shares,
which may be amended. The registration statement as amended at the time when it
becomes effective, including a registration statement (if any) filed pursuant to
Rule 462(b) under the Act increasing the size of the offering registered under
the Act and information (if any) deemed to be part of the registration
2
statement at the time of effectiveness pursuant to Rule 430A under that Act, is
hereinafter referred to as the "Registration Statement"; and the prospectus in
the form first used to confirm sales of Shares is hereinafter referred as the
"Prospectus."
AGREEMENTS TO SELL AND PURCHASE. On the basis of the
representations and warranties contained in this Agreement, and subject to its
terms and conditions, the Company agrees to issue and sell, and each Underwriter
agrees, severally and not jointly, to purchase from the Company at the purchase
price per share of $_____ (the "Purchase Price"), the number of Firm Shares set
forth opposite the name of such Underwriter in Schedule I hereto.
On the basis of the representations and warranties contained
in this Agreement, and subject to its terms and conditions, the Company agrees
to issue and sell the Additional Shares and the Underwriters shall have the
right to purchase, severally and not jointly, up to _________ Additional Shares
from the Company at the Purchase Price. Additional Shares may be purchased
solely for the purpose of covering over-allotments made in connection with the
offering of the Firm Shares. The Underwriters may exercise their right to
purchase Additional Shares in whole or in part from time to time by giving
written notice thereof to the Company within 30 days after the date of this
Agreement. You shall give any such notice on behalf of the Underwriters and such
notice shall specify the aggregate number of Additional Shares to be purchased
pursuant to such exercise and the date for payment and delivery thereof. The
date specified in any such notice shall be a business day (i) no earlier than
the Closing Date (as hereinafter defined), (ii) no later than the ten business
days after such notice has been given and (iii) no earlier than two business
days after such notice has been given. If any Additional Shares are to be
purchased, each Underwriter, severally and not jointly, agrees to purchase from
the Company the number of Additional Shares (subject to such adjustments to
eliminate fractional shares as you may determine) which bears the same
proportion to the total number of Additional Shares to be purchased from the
Company as the number of Firm Shares set forth opposite the name of such
Underwriter in Schedule I bears to the total number of Firm Shares.
The Company hereby agrees and the Company shall, prior to or
on the Closing Date, deliver an agreement (a "Lock-up Agreement") executed by
(i) each of the directors and executive officers of the Company, and (ii) each
principal stockholder of the Company listed on Annex I hereto, pursuant to which
each such person agrees not to, directly or indirectly, offer, sell, contract to
sell, grant any option to purchase, or otherwise dispose of any Common Stock,
including, without limitation, Common Stock acquired in connection with or
pursuant to the transactions described in the Registration Statement, or any
securities convertible into or exercisable or exchangeable for shares of Common
Stock or in any other manner transfer all or a portion of the economic
consequences associated with the ownership of any such Common Stock, for a
period of 180 days after the date of the Prospectus without the prior written
consent of Alex. Xxxxx & Sons Incorporated ("Alex. Xxxxx"); provided, however,
that during such 180-day period each person delivering an agreement described in
this sentence may
3
surrender shares of Preferred Stock (as defined in Section 6(n) below) owned by
such person to the Company for conversion into shares of Common Stock (in the
manner contemplated by the Prospectus); provided further, that the Lock-up
Agreement executed by each of The Xxxx Alternative Income Fund, L.P., ING Equity
Partners, L.P., Apex Investment Fund I, L.P., Apex Investment Fund II, L.P.,
Argentum Capital Partners, L.P., Environmental Private Equity Fund II, L.P. and
the Productivity Fund II, L.P. (collectively, the "Principal Investors") shall
provide that (i) a Principal Investor may exercise demand registration rights
pursuant to the terms of that certain Registration Rights Agreement dated as of
June 26, 1995 (the "Registration Rights Agreement") by and among the Company and
the entities who are signatories thereto (including the Principal Investors) at
any time so that the Company will be obligated to file a registration statement
pursuant to such demand no earlier than on the 150th day after the date of this
Agreement, provided that such Principal Investor may not offer or sell any
shares of the Company's Common Stock pursuant to any registration statement that
is filed pursuant to the exercise of such demand registration rights until the
181st day after the date of this Agreement; (ii) if the Company files a "shelf"
registration statement pursuant to Rule 415 under the Act for the benefit of any
stockholder of the Company prior to the 180th day after the date of this
Agreement, a Principal Investor may exercise its piggy-back registration rights
pursuant to the terms of the Registration Rights Agreement at any time so that
the Company will be obligated to appropriately include, by amendment or
otherwise, the shares such Principal Investor wishes to have included in such
"shelf" registration statement no earlier than on the 150th day after the date
of this Agreement, provided that such Principal Investor may not offer or sell
any shares of Common Stock pursuant to such "shelf" registration statement until
the 181st day after the date of this Agreement; and (iii) if the Company is
required to file and does file a registration statement under the Act for the
benefit of any stockholder of the Company with respect to an underwritten
offering of shares of Common Stock prior to the 180th day after the date of this
Agreement, a Principal Investor may exercise its piggy-back registration rights
pursuant to the terms of the Registration Rights Agreement in respect of, and
have shares of its Common Stock included on, such registration statement
commencing on the 150th day after the date of this Agreement, provided that the
inclusion of any Principal Investor's shares of Common Stock on such
registration statement shall be subject to any ability of the managing
underwriter of such underwritten offering to "cut back" or otherwise restrict
the inclusion of any Principal Investor's shares of Common Stock on such
registration statement shall be subject to the shares of Common Stock that such
Principal Investor so requested be included on such registration statement; and
provided further, that the Lock-up Agreements executed by each of the Principal
Investors shall provide that each of the Principal Investors' obligations
thereunder shall be released to the extent, but only to the extent, that Alex.
Xxxxx releases any other Principal Investor from any obligation under the
Lock-up Agreement executed by such Principal Investor. Notwithstanding the
foregoing, during such 180-day lock-up period, the Company may (i) issue and
sell the Shares to the Underwriters in accordance with this Agreement, (ii)
issue an aggregate of 17,260,864 shares of Common Stock upon the conversion of
the Company's outstanding shares of its Preferred Stock (as described in the
Prospectus) and the issuance of ____________ shares of Common Stock in payment
of $___________ million of accrued dividends thereon, (iii) issue shares of
Common Stock upon the exercise of stock options granted under the Company's 1994
Stock Option Plan and otherwise in the ordinary course of business consistent
with past practice as compensation for employees or consultants of the Company,
(iv) grant stock options under the Company's 1994 Stock Option Plan and
otherwise in the ordinary course of business consistent with past practice as
compensation for employees or consultants of the Company, (v) issue shares of
Common Stock upon the exercise of currently
4
outstanding warrants and options (in the aggregate amounts set forth in the
Prospectus) and (vi) issue shares of Common Stock or grant options or warrants
exercisable into shares of Common Stock, in connection with strategic alliances,
joint ventures or other business combinations not prohibited by the terms of the
Indentures (as that term is defined in the Prospectus) (collectively "Permitted
Combinations"), provided that no shares shall be issued as contemplated by this
clause (vi) unless such shares are made subject to the 180-day lock-up
provisions described above. The Company shall, on or prior to the Closing Date,
deliver an agreement executed by each stockholder of the Company listed on Annex
II hereto, pursuant to which each such person agrees not to, directly or
indirectly, offer, sell, contract to sell, grant any option to purchase, or
otherwise dispose of any Common Stock or any securities convertible into or
exercisable or exchangeable for shares of Common Stock or in any other manner
transfer all or a portion of the economic consequences associated with the
ownership of any Common Stock, for a period of 90 days after the date of the
Prospectus without the prior written consent of Alex. Xxxxx; provided, however,
that during such 90-day period each such person may surrender shares of
Preferred Stock owned by such person to the Company for conversion into shares
of Common Stock (in the manner contemplated by the Prospectus).
TERMS OF PUBLIC OFFERING. The Company is advised by you that
the Underwriters propose (i) to make a public offering of their respective
portions of the Shares as soon after the effective date of the Registration
Statement as in your judgment is advisable and (ii) initially to offer the
Shares upon the terms set forth in the Prospectus. The Representatives may from
time to time thereafter change the public offering price and other selling
terms. To the extent, if at all, that any Additional Shares are purchased
pursuant to Section 2 hereof, the Underwriters will offer them to the public on
the foregoing terms.
It is further understood that you will act as the
Representatives for the Underwriters in the offering and sale of the Shares in
accordance with a Master Agreement Among Underwriters entered into by you and
the several other Underwriters.
DELIVERY AND PAYMENT. Delivery to the Underwriters of and
payment for the Firm Shares shall be made in accordance with Rule 15c6-1 under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), at 10:00
A.M., New York City time, on the third or fourth business day following the date
of the public offering unless otherwise permitted by the Commission pursuant to
Rule 15c6-1 under the Exchange Act (the "Closing Date") at the offices of Piper
& Marbury L.L.P., 00 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000. The
Closing Date and the location of delivery of and the form of payment for the
Firm Shares may be varied by agreement between you and the Company.
Delivery to the Underwriters of and payment for any Additional
Shares to be purchased by the Underwriters shall be made at the offices of Piper
& Marbury L.L.P., 00 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000, at 10:00
A.M., New York City time, on the date specified in the applicable exercise
notice given by you pursuant to Section 2 (an "Option Closing Date"). Any such
Option Closing Date and the location of delivery of and the form of payment for
such Additional Shares may be varied by agreement between you and the Company.
Certificates for the Shares shall be registered in such
names and issued in such denominations as you shall request in writing not
later than two full business days prior to the Closing Date or an Option
Closing Date, as the case may be. Such
5
certificates shall be made available to you for inspection not later than 9:30
A.M., New York City time, on the business day next preceding the Closing Date or
the applicable Option Closing Date, as the case may be. Certificates in
definitive form evidencing the Shares shall be delivered to you on the Closing
Date or the applicable Option Closing Date, as the case may be, with any
transfer taxes thereon duly paid by the Company, for the respective accounts of
the several Underwriters, against payment of the Purchase Price therefor by wire
or certified or official bank checks payable in Federal funds to the order of
the Company.
AGREEMENTS OF THE COMPANY. The Company agrees with
you:
To use its best efforts to cause the Registration Statement to
become effective at the earliest possible time.
To advise you promptly and, if requested by you, to confirm
such advice in writing, (i) when the Registration Statement has become
effective and when any post-effective amendment to it becomes
effective, (ii) of any request by the Commission for amendments to the
Registration Statement or amendments or supplements to the Prospectus
or for additional information, (iii) of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration
Statement or of the suspension of qualification of the Shares for
offering or sale in any jurisdiction, or the initiation of any
proceeding for such purposes, and (iv) of the happening of any event
during the period referred to in paragraph (e) below which makes any
statement of a material fact made in the Registration Statement or the
Prospectus untrue or which requires the making of any additions to or
changes in the Registration Statement or the Prospectus in order to
make the statements therein not misleading. If at any time the
Commission shall issue any stop order suspending the effectiveness of
the Registration Statement, the Company will make every reasonable
effort to obtain the withdrawal or lifting of such order at the
earliest possible time.
To furnish to you, without charge, four signed copies of the
Registration Statement as first filed with the Commission and of each
amendment to it, including all exhibits, and to furnish to you and each
Underwriter designated by you such number of conformed copies of the
Registration Statement as so filed and of each amendment to it, without
exhibits, as you may reasonably request.
Not to file any amendment or supplement to the Registration
Statement, whether before or after the time when it becomes effective,
or to make any amendment or supplement to the Prospectus of which you
shall not previously have been advised or to which you shall reasonably
object; and to prepare and file with the Commission, promptly upon your
reasonable request, any amendment to the Registration Statement or
supplement to the Prospectus which may be necessary or advisable in
connection with the distribution of the Shares by you, and to use its
best efforts to cause the same to become promptly effective.
6
Promptly after the Registration Statement becomes effective,
and from time to time thereafter for such period as in the opinion of
counsel for the Underwriters a prospectus is required by law to be
delivered in connection with sales by an Underwriter or dealer, to
furnish to each Underwriter and dealer as many copies of the Prospectus
(and of any amendment or supplement to the Prospectus) as such
Underwriter or dealer may reasonably request.
If during the period specified in paragraph (e) any event
shall occur as a result of which, in the opinion of counsel for the
Underwriters it becomes necessary to amend or supplement the Prospectus
in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if it is necessary to amend or supplement the Prospectus
to comply with any law, forthwith to prepare and file with the
Commission an appropriate amendment or supplement to the Prospectus so
that the statements in the Prospectus, as so amended or supplemented,
will not in the light of the circumstances when it is so delivered, be
misleading, or so that the Prospectus will comply with law, and to
furnish to each Underwriter and to such dealers as you shall specify,
such number of copies thereof as such Underwriter or dealers may
reasonably request.
Prior to any public offering of the Shares, to cooperate with
you and counsel for the Underwriters in connection with the
registration or qualification of the Shares for offer and sale by the
several Underwriters and by dealers under the state securities or Blue
Sky laws of such jurisdictions as you may request, to continue such
qualification in effect so long as required for distribution of the
Shares and to file such consents to service of process or other
documents as may be necessary in order to effect such registration or
qualification; provided, however, that the Company shall not be
required to qualify to do business as a foreign corporation in any such
jurisdiction in connection with such registration or qualification.
To mail and make generally available to its stockholders as
soon as reasonably practicable an earnings statement covering a period
of at least twelve months after the effective date of the Registration
Statement (but in no event commencing later than 90 days after such
date) which shall satisfy the provisions of Section 11(a) of and Rule
158 under the Act, and to advise you in writing when such statement has
been so made available.
During the period of five years after the date of this
Agreement, (i) to mail as soon as reasonably practicable after the end
of each fiscal year to the record holders of its Common Stock a
financial report of the Company and its subsidiaries on a consolidated
basis (and a similar financial report of all unconsolidated
subsidiaries, if any), all such financial reports to include a
consolidated balance sheet, a consolidated statement of operations, a
consolidated statement of cash flows and a consolidated statement of
7
stockholders' equity as of the end of and for such fiscal year,
together with comparable information as of the end of and for the
preceding year, certified by independent certified public accountants,
and (ii) to mail and make generally available as soon as practicable
after the end of each quarterly period (except for the last quarterly
period of each fiscal year) to such holders, a consolidated balance
sheet, a consolidated statement of operations and a consolidated
statement of cash flows (and similar financial reports of all
unconsolidated subsidiaries, if any) as of the end of and for such
period, and for the period from the beginning of such year to the close
of such quarterly period, together with comparable information for the
corresponding periods of the preceding year.
During the period of five years after the date of this
Agreement, for each quarter for which the Company prepares and
disseminates unaudited financial statements, to have such financial
statements reviewed by the Company's independent accountants in
accordance with SAS 71.
During the period of five years after the date of this
Agreement, to furnish to you as soon as available a copy of each report
or other publicly available information of the Company mailed to the
holders of Common Stock or filed with the Commission and such other
publicly available information concerning the Company and its
subsidiaries as you may reasonably request.
To pay all costs, expenses, fees and taxes incident to the
performance of its obligations under this Agreement, including those in
connection with (i) the preparation, printing, filing and distribution
under the Act of the Registration Statement (including financial
statements and exhibits), each preliminary prospectus and all
amendments and supplements to any of them prior to or during the period
specified in paragraph (e) of this Section 5, (ii) the printing and
delivery of the Prospectus and all amendments or supplements to it
during the period specified in paragraph (e) of this Section 5, (iii)
the issuance, transfer and delivery of the Shares to the Underwriters,
including, any transfer or taxes payable thereon, (iv) the printing and
delivery of this Agreement, the Preliminary and Supplemental Blue Sky
Memoranda and all other agreements, memoranda, correspondence and other
documents printed and delivered in connection with the offering of the
Shares (including in each case any disbursements of counsel for the
Underwriters relating to such printing and delivery), (v) the
registration or qualification of the Shares for offer and sale under
the securities or Blue Sky laws of the several states (including in
each case the fees and disbursements of counsel for the Underwriters
relating to such registration or qualification and memoranda relating
thereto), (vi) filings and clearance with the National Association of
Securities Dealers, Inc. (the "NASD") in connection with the offering,
(vii) the listing of the Shares on the Nasdaq National Market, (viii)
furnishing such copies of the Registration Statement, the Prospectus
and all amendments and supplements thereto as may be requested for use
in connection with the offering or sale of the Shares by the
Underwriters or by dealers to whom Shares may be sold, and (ix) the
cost and charges of any
8
transfer agent and registrar for the Shares.
To use its best efforts to maintain the inclusion of the
Common Stock in the Nasdaq National Market (or on a national securities
exchange) for a period of five years after the effective date of the
Registration Statement.
To apply the proceeds from the sale of the Shares in the
manner set forth under "Use of Proceeds" in the Prospectus.
To take such steps as shall be necessary to ensure that
neither the Company nor any subsidiary shall become an "investment
company" or a company "controlled" by an "investment company" within
the meaning of such terms under the Investment Company Act of 1940.
To comply with all provisions of all undertakings
contained in the Registration Statement.
Prior to the Closing Date and, if applicable, until the
Option Closing Date, to issue no press release or other communication
or hold any press conference with respect to the offering of the
Shares, or the financial condition, results of operations, operations,
business properties, assets, liabilities, or prospects of the Company,
without your prior consent, which consent shall not be unreasonably
withheld, unless the Company shall conclude upon the advise of counsel
that such press release or other communication should be issued at a
time prior to obtaining such consent.
(r) To use its best efforts to do and perform all things
required or necessary to be done and performed under this Agreement by
the Company prior to the Closing Date or any Option Closing Date, as
the case may be, and to satisfy all conditions precedent to the
delivery of the Shares.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to each Underwriter that:
A registration statement on Form SB-2 (File No. 333-20867)
with respect to the Shares has been carefully prepared by the Company
in conformity with the requirements of the Securities Act of 1933, as
amended (the "Act"), and the Rules and Regulations (the "Rules and
Regulations") of the Securities and Exchange Commission (the
"Commission") thereunder and has been filed with the Commission. Copies
of such registration statement, including any amendments thereto, the
preliminary prospectuses (meeting the requirements of the Rules and
Regulations) contained therein and the exhibits, financial statements
and schedules, as finally amended and revised, have heretofore been
delivered by the Company to you.
9
The Company meets the requirements for the use of a
Registration Statement on Form SB-2 under the Act. The Registration
Statement has become effective; no stop order suspending the
effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or threatened by the
Commission.
(i) Each part of the Registration Statement, when such part
became effective, did not contain and each such part, as amended or
supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading,
(ii) the Registration Statement and the Prospectus comply and, as
amended or supplemented, if applicable, will comply in all material
respects with the Act and (iii) the Prospectus does not contain and, as
amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, except that the representations
and warranties set forth in this paragraph (b) do not apply to
statements or omissions in the Registration Statement or the Prospectus
based upon information relating to any Underwriter and the plan of
distribution of the Shares by the Underwriters furnished to the Company
in writing on your behalf by Alex. Xxxxx expressly for use therein.
Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or
filed pursuant to Rule 424 under the Act, and each Registration
Statement filed pursuant to Rule 462(b) under the Act, if any, complied
when so filed in all material respects with the Act; and did not
contain an untrue statement of material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading, except that the representations and warranties
set forth in this paragraph (c) do not apply to statements or omissions
in the Registration Statement or the Prospectus based upon information
relating to any Underwriter and the plan of distribution of the Shares
by the Underwriters furnished to the Company in writing on your behalf
by Alex. Xxxxx expressly for use therein.
Each contract, agreement, instrument, lease, license or
other item required to be described in the Registration Statement or
the Prospectus or filed as an exhibit to the Registration Statement has
been so described or filed (or incorporated by reference therein), as
the case may be.
KPMG Peat Marwick LLP, who have certified certain
financial statements of the Company and its consolidated subsidiaries
and whose separate report with respect to the audited consolidated
financial statements and schedules for the fiscal years ended June 30,
1995, June 30, 1996 and December 31, 1996 appears in the Prospectus,
are independent public accountants with respect to the Company, as
required by and within the meaning of the Act.
10
The consolidated financial statements of the Company and its
consolidated subsidiaries included in the Registration Statement or any
preliminary prospectus, or to be included in the Prospectus present
fairly the consolidated financial position, results of operations and
charges in financial position of the Company and its consolidated
subsidiaries and the other information purported to be shown therein at
the respective dates and for the respective periods to which they
apply. The foregoing financial statements and related schedules and
notes have been prepared in accordance with generally accepted
accounting principles as in effect in the United States ("US GAAP")
consistently applied throughout the periods involved, except as
disclosed therein, and are, in all material respects, in accordance
with the books and records of the Company and its consolidated
subsidiaries. The summary and selected financial information included
in the Registration Statement and any preliminary prospectus, and to be
included in the Prospectus (other than information determined based
upon EBITDA (as defined below) and capital expenditure information),
has been fairly extracted from the audited consolidated financial
statements of the Company and its consolidated subsidiaries and fairly
present, on the basis stated in the Registration Statement, any
preliminary prospectus or the Prospectus, the information included
therein. The pro forma financial statements and other pro forma
financial information included in the Registration Statement and the
Prospectus present fairly the information shown therein, have been
prepared in accordance with the Commission's rules and guidelines with
respect to pro forma financial statements, have been properly compiled
on the pro forma bases described therein, and, in the opinion of the
Company, the assumptions used in the preparation thereof are reasonable
and the adjustments used therein are appropriate to give effect to the
transactions or circumstances referred to therein.
The financial information included in the Registration
Statement, any preliminary prospectus or the Prospectus that is based
upon (i) net income (loss) before net interest, income taxes,
depreciation and amortization ("EBITDA") and (ii) capital expenditures
fairly present, on the basis stated in the Registration Statement, any
preliminary prospectus or the Prospectus, the information included
therein.
Subsequent to the respective dates as of which information is
given in the Registration Statement, except as set forth in the
Registration Statement, there has not been any material adverse change
in the business, properties, operations, condition (financial or other)
or results of operations of the Company and the subsidiaries (as
defined below) taken as a whole, whether or not arising from
transactions in the ordinary course of business, and since the date of
the latest balance sheet of the Company included in the Registration
Statement, and except as contemplated by the Registration Statement or
as may be contemplated by the Prospectus, (i) neither the Company nor
any subsidiary (A) has incurred or undertaken any liabilities or
obligations, direct or contingent, that
11
are, individually or in the aggregate, material to the Company and the
subsidiaries taken as a whole, or (B) entered into any transaction not
in the ordinary course of business that is material to the Company and
the subsidiaries taken as a whole; (ii) the Company has not declared or
paid any dividend on or made any distribution of or with respect to any
shares of its capital stock or redeemed, purchased or otherwise
acquired or agreed to redeem, purchase or otherwise acquire any shares
of its or its subsidiaries' capital stock; and (iii) there has not been
(A) any change in the capital stock of the Company or any subsidiary or
(B) any issuance of options, warrants, convertible securities or other
rights to purchase capital stock of the Company (other than the grant
of options pursuant to the Company's 1994 Stock Option Plan in the
ordinary course) or any subsidiary or otherwise as compensation to
employees or consultants of the Company in the ordinary course of
business consistent with past practice. As used in this Agreement, the
term "subsidiary" means any corporation, partnership, joint venture,
association, company, business trust or other entity in which the
Company, directly or indirectly, (i) beneficially owns or controls a
majority of the outstanding voting securities having by the terms
thereof ordinary voting power to elect a majority of the board of
directors (or other body fulfilling a substantially similar function)
of such entity (irrespective of whether or not at the time any class or
classes of such voting securities shall have or might have voting power
by reason of the happening of any contingency) or (ii) has the
authority or ability to control the policies of such entity (including,
but without limitation thereto, any partnership of which the Company or
a subsidiary is a general partner or owns or has the right to obtain a
majority of limited partnership interests and any joint venture in
which the Company or a subsidiary has liability similar to the
liability of a general partner of a partnership or owns or has the
right to obtain a majority of the joint venture interests).
The Company has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement and
to issue, sell and deliver the Shares in accordance with the terms and
conditions hereof, and has all requisite corporate power and authority
to execute, deliver and perform its obligations under the
Indemnification Agreement (as defined below). This Agreement and the
Indemnification Agreement have been duly and validly authorized,
executed and delivered by the Company and are legal and binding
obligations of the Company, enforceable against the Company in
accordance with their respective terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws affecting creditors' rights and
remedies generally, and subject, as to enforceability, to general
principles of equity, including principles of commercial
reasonableness, good faith and fair dealing (regardless of whether
enforcement is sought in a proceeding at law or in equity), and except
insofar as rights to indemnification and contribution contained therein
may be limited by federal or state securities laws or related public
policy. As used in this Agreement, the term "Indemnification Agreement"
means that certain indemnification agreement dated March 6, 1997
between the Company, on the one hand, and Alex. Xxxxx
12
and the other Underwriters, on the other hand, pursuant to which the
Company, among other things, agreed to hold you and the Underwriters
harmless against certain matters set forth therein.
The Company's execution and delivery of, and its performance
of its obligations under, this Agreement and the consummation of the
transactions contemplated hereby will not (i) conflict with or result
in a breach of any of the terms and provisions of, or constitute a
default under (or an event that with notice or lapse of time, or both,
would constitute a default under) or require approval or consent under,
or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any
subsidiary pursuant to the terms of, any agreement (other than
agreements to which the Company is a party that gives the other party
thereto Registration Rights (as such term is hereinafter defined in
this Agreement) (collectively, the "Registration Rights Agreements")),
contract, indenture, mortgage, lease, license, arrangement or
understanding to which the Company or a subsidiary is a party, or to
which any of its properties is subject, that is material to the Company
and the subsidiaries taken as a whole (hereafter, collectively,
"Material Contracts"), or any governmental franchise, license, permit
or authorization heretofore issued to the Company or any subsidiary
that is material to the Company and the subsidiaries taken as a whole
(hereafter, collectively, "Material Permits"), (ii) violate or conflict
with any provision of the certificate of incorporation, by-laws or
similar governing instruments of the Company or any subsidiary or (iii)
violate or conflict with any judgment, decree, order, statute, rule or
regulation of any court or any public, governmental or regulatory
agency or body having jurisdiction over the Company or any subsidiary
or any of its respective properties or assets, except for those
violations or conflicts, that, individually or in the aggregate, would
not have a material adverse effect on the business, prospects,
financial condition or results of operations of the Company and the
subsidiaries taken as a whole (hereafter, a "Material Adverse Effect").
No consent, approval, authorization, order, registration,
filing, qualification, license or permit of or with any court or any
public, governmental or regulatory agency or body having jurisdiction
over the Company or any subsidiary or any of its respective properties
or assets is required for the Company's execution and delivery of, and
its performance of its obligations under, this Agreement, and the
consummation of the transactions contemplated thereby, except the
registration of the Shares under the Act and the Exchange Act, the
authorization of the Shares for inclusion on the Nasdaq National Market
and such filings and registrations as may be required under state
securities or "Blue Sky" laws in connection with the purchase and
distribution of the Shares by the Underwriters.
All of the outstanding shares of capital stock of the Company
and all of the outstanding shares of capital stock (or similar
interests) of each of the subsidiaries have been duly and validly
authorized and issued, are fully paid and
13
nonassessable and were not issued in violation of any preemptive
rights. The Company owns directly or indirectly such percentage of the
outstanding capital stock (or similar interests) of each of its
subsidiaries as is set forth opposite the name of such subsidiary in
Schedule II hereto, free and clear of all claims, liens, security
interests, pledges, charges, encumbrances, stockholders agreements and
voting trusts, except as otherwise described in said Schedule II.
The Shares have been duly authorized and, when issued,
delivered and sold in accordance with the terms of this Agreement, will
be validly issued, fully paid and non-assessable, and will not have
been issued in violation of any preemptive rights, and the Underwriters
will receive valid title to those of the Shares to be purchased by them
from the Company, free and clear of all liens, security interests,
pledges, charges, encumbrances, stockholders' agreements and voting
trusts. The Company has, as of the date hereof, and will have, as of
the Closing Date and the Option Closing Date, if any, an authorized and
outstanding capitalization as set forth under the caption
"Capitalization" in the Registration Statement and as shall be set
forth in the Prospectus, both on a historical basis and as adjusted to
give effect to (i) the offering of the Shares, (ii) the conversion of
the Company's 9% Series A-1 Convertible Preferred Stock, par value
$1.00 per share (the "Series A Preferred Stock"), 9% Series B-1
Convertible Preferred Stock, par value $1.00 per share (the "Series B-1
Preferred Stock"), 9% Series B-2 Convertible Preferred Stock, par value
$1.00 per share (the "Series B-2 Preferred Stock"), 9% Series B-3
Convertible Preferred Stock, par value $1.00 per share (the "Series B-3
Preferred Stock"), and 9% Series B-4 Convertible Preferred Stock, par
value $1.00 per share (the "Series B-4 Preferred Stock", and
collectively with the Series A Preferred Stock, the Series B-1
Preferred Stock, the Series B-2 Preferred Stock and the Series B-3
Preferred Stock, the "Preferred Stock"), into an aggregate of
17,377,264 shares of Common Stock, and (iii) the acquisition of
Cybergate, Inc. as described in the Prospectus.
At the Closing, the Company's capital stock will conform to
the descriptions thereof set forth in the Registration Statement and as
shall be set forth in the Prospectus.
There is no commitment, plan or arrangement to issue,
and no outstanding option, warrant or other right calling for the
issuance of, any shares of capital stock (or similar interests) of the
Company or of any subsidiary or any security or other instrument that
by its terms is convertible into or exercisable or exchangeable for
capital stock (or similar interests) of the Company or such subsidiary,
except as described in the Registration Statement and the Prospectus or
as shall be granted as compensation for employees or consultants of the
Company in the ordinary course of business consistent with past
practice.
The Company has no subsidiaries other than those listed in
Schedule II hereto. Each of the Company and the subsidiaries has been
duly organized and
14
is validly existing as a corporation in good standing under the laws
of its jurisdictions of incorporation. Each of the Company and the
subsidiaries is duly qualified and in good standing as a foreign
corporation in each jurisdiction in which the character or location of
its properties (owned, leased or licensed) or the nature or conduct of
its business makes such qualification necessary, except for those
failures to be so qualified or in good standing that will not in the
aggregate have a Material Adverse Effect.
Each of the Company and the subsidiaries has all requisite
corporate power and authority, and all necessary consents, approvals,
authorizations, orders, registrations, filings, qualifications,
licenses (including, without limitation, all material licenses from the
Federal Communications Commission ("FCC") and state, local or other
governmental or regulatory authorities), and permits of and from all
public, regulatory or governmental agencies and bodies, to own, lease
and operate its properties and conduct its business as now being
conducted and as described in the Registration Statement and as shall
be described in the Prospectus (except for those the absence of which,
individually or in the aggregate, would not have a Material Adverse
Effect), and no such consent, approval, authorization, order,
registration, qualification, license or permit contains a materially
burdensome restriction that is not adequately disclosed in the
Registration Statement and the Prospectus. Neither the Company nor any
subsidiary has received any notice of proceedings relating to the
revocation or materially adverse modification of any such consents,
approvals, authorizations, orders, registrations, filings,
qualifications, licenses or permits. To the best of the Company's
knowledge, the descriptions in the Registration Statement and to be in
the Prospectus of federal, state or local statutes, laws, ordinances
and regulations governing the Company's and the subsidiaries'
respective businesses, properties or assets, including any proposed
amendments or additions to any such statutes, laws, ordinances or
regulations, fairly present the information required to be shown
therein.
Except with respect to the Registration Rights Agreements
neither the Company nor any subsidiary, nor to the best knowledge of
the Company, any other party, is in violation or breach of, or in
default under (nor has an event occurred that with notice, lapse of
time or both, would constitute a default under), any of the contracts
listed on Annex III hereto (collectively, the "Listed Contracts"), and
each of the Listed Contracts is in full force and effect, and is the
legal, valid, and binding obligation of the Company or such subsidiary,
as the case may be, and (subject to applicable bankruptcy, insolvency,
and other laws affecting the enforceability of creditors' rights
generally) is enforceable as to the Company or such subsidiary, as the
case may be, in accordance with its terms. Neither the Company nor any
subsidiary is in violation of its certificate of incorporation, by-laws
or similar governing instrument. With the exception of the Listed
Contracts, which may or may not fall within the definition of Material
Contracts, neither the Company nor any subsidiary is party to any other
Material Contract.
15
Except as described in the Registration Statement and as shall
be described in the Prospectus, there is no litigation, arbitration,
claim, governmental or other proceeding, complaint or investigation
pending or, to the best knowledge of the Company, threatened with
respect to the Company or any subsidiary, or any of its respective
operations, businesses, properties or assets, that, individually or in
the aggregate, might reasonably be expected to have a Material Adverse
Effect. Neither the Company nor any subsidiary is, or, to the best
knowledge of the Company, with the giving of notice or lapse of time or
both would be, in violation of or non-compliance with the requirements
of any Material Permit or the provisions of any law, rule, regulation,
order, judgment or decree, including, but without limitation thereto,
any applicable federal, state and local laws and regulations relating
to (i) zoning, land use, protection of the environment, human health
and safety or hazardous or toxic substances, wastes, pollutants or
contaminants and (ii) employee or occupational safety, discrimination
in hiring, promotion or pay of employees, employee hours and wages or
employee benefits, except as described in the Registration Statement
and as shall be described in the Prospectus or for such violations or
failures of compliance that, individually or in the aggregate, would
not have a Material Adverse Effect.
Neither the Company nor any subsidiary owns any real property.
Except as described in the Registration Statement and as shall be
described in the Prospectus, the Company and each subsidiary have (i)
good and marketable title to all personal properties owned by them,
free and clear of all liens, security interests, pledges, charges,
encumbrances, and mortgages, and (ii) valid, subsisting and
enforceable, and enjoy peaceful and undisturbed possession under,
leases or licenses for all real and personal properties leased or
licensed by them, including all rights-of-way, conduit, pole
attachment, service and fiber leases and agreements, in each case,
subject in each case to such exceptions as, individually or in the
aggregate, do not have and are not reasonably likely to have a Material
Adverse Effect. No real or personal property, rights-of-way, conduits,
pole attachments or fiber leased, licensed or used by the Company or by
a subsidiary lies in an area that is, or to the best knowledge of the
Company will be, subject to zoning, use, or building code restrictions
that would prohibit, and no state of facts relating to the actions or
inaction of another person or entity or his, her or its ownership,
leasing, licensing or use of any such real or personal property,
rights-of-way, conduits, pole attachments or fiber exists that would
prevent, the continued effective leasing, licensing or use of such real
or personal property, rights-of-way, conduits, pole attachments or
fiber in the business of the Company or such subsidiary as presently
conducted, subject to in each case such exceptions as, individually or
in the aggregate, do not have and are not reasonably likely to have a
Material Adverse Effect.
The Company, directly or through one or more of the
subsidiaries, owns or possesses all patents, patent rights, licenses,
inventions, copyrights,
16
trademarks, know- how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information, systems
or procedures), service marks and trade names (collectively,
"Intellectual Property") necessary to conduct its business as now
conducted and proposed to be conducted as disclosed in the
Registration Statement and as shall be disclosed in the Prospectus,
except where the failure to own or possess such Intellectual Property,
individually or in the aggregate, would not have a Material Adverse
Effect. Neither the Company nor any subsidiary has received notice of
infringement of or conflict with the asserted rights of others with
respect to any Intellectual Property. To the best knowledge of the
Company, there is no infringement by others of any Intellectual
Property of the Company or any subsidiary that has had or may in the
future reasonably be expected to have a Materially Adverse Effect.
Except as set forth in the Registration Rights Schedule (as
defined below) and except as disclosed in the Registration Statement
and the Prospectus, no person or entity has the right, by contract or
otherwise, to require registration under the Act of shares of capital
stock or other securities of the Company solely because of the filing
or effectiveness of the Registration Statement and the consummation of
the transactions contemplated by this Agreement (such rights are
hereinafter referred to as "Registration Rights"). The Company has
previously provided to Alex. Xxxxx and counsel for the Underwriters a
schedule, dated as of April __, 1997 (the "Registration Rights
Schedule"), which Registration Rights Schedule sets forth a correct and
complete list of (i) all security holders of the Company who have
Registration Rights; (ii) the number of shares of Common Stock held by
each such security holder (or shares of Common Stock underlying
securities convertible into or exer- cisable or exchangeable for Common
Stock) with respect to which each such security holder has Registration
Rights, and which of such shares of Common Stock are subject to under-
writers' "cut back" rights pursuant to any contract or agreement
pursuant to which such security holder's Registration Rights were
granted; and (iii) the number of shares of Common Stock held by such
security holder (or shares of Common Stock underlying securities
convertible into or exercis- able or exchangeable for Common Stock)
that, with respect to which each such security holder has Registration
Rights as of the date of the Registration Rights Schedule, are eligible
for sale pursuant to Rule 144 under the Act based upon the holding
period of such shares of Common Stock by such holder (assuming that no
actions have been taken by such holder and that no events have occurred
which interrupted such holding period or commenced a new holding
period). On the date of this Agreement, the Company has delivered to
Alex. Xxxxx and counsel for the Underwriters a letter from the Company
addressed to the Underwriters, dated the date of this Agreement (the
"Registration Rights Waiver Letter"), which Registration Rights Waiver
Letter sets forth a correct and complete list of those security holders
of the Company who have and who have not executed waivers of
Registration Rights. Those security holders who have executed waivers
of Registration
17
Rights have legally and effectively waived their Registration Rights.
Neither the Company nor, to the best knowledge of the
Company, any of its officers, directors or affiliates (as defined in
the Act) has taken or will take, directly or indirectly, prior to the
termination of the offering of the Shares contemplated by this
Agreement, any action designed to stabilize or manipulate the price of
the Common Stock, or that might reasonably be expected to cause or
result in stabilization or manipulation of the price of the Common
Stock.
Neither the Company nor any subsidiary is, or intends to
conduct its business in such a manner that it would become, an
"investment company" or a company "controlled" by an "investment
company" as such terms are defined in the Investment Company Act of
1940, as amended (the "Investment Company Act").
Except as may be set forth in the Prospectus, the Company
has not incurred any liability for a fee, commission, or other
compensation on account of the employment of a broker or finder or
financial advisor or consultant in connection with the transactions
contemplated by this Agreement.
(aa) To the Company's best knowledge, neither the Company nor
any subsidiary, nor any director, officer or employee of the Company or
any subsidiary has, directly or indirectly, used any corporate funds
for unlawful contributions, gifts, entertainment, or other unlawful
expenses relating to political activity; made any unlawful payment to
foreign or domestic government officials or employees or to foreign or
domestic political parties or campaigns from corporate funds; violated
any provision of the Foreign Corrupt Practices Act of 1977, as amended;
or made any bribe, rebate, payoff, influence payment, kickback, or
other unlawful payment.
(bb) The Company and each of the subsidiaries maintain systems
of internal accounting controls sufficient to provide reasonable
assurances that (i) transactions are executed in accordance with
management's general or specific authorization; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with US GAAP and to maintain accountability for assets;
(iii) the access to the respective assets of the Company and each
subsidiary, as the case may be, is permitted only in accordance with
management's general or specific authorization; and (iv) the recorded
accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to
any differences.
(cc) Other than as disclosed in the Registration Statement and
as shall be disclosed in the Prospectus, no labor dispute with the
employees of the Company or any subsidiary exists or, to the best
knowledge of the Company, is imminent that, individually or in the
aggregate, is or is reasonably likely to have a Material Adverse
Effect, and the Company is not aware of any existing or
18
imminent labor disturbance by the employees of any of its principal
suppliers or contractors that reasonably can be expected to have a
Material Adverse Effect.
(dd) (i) All United States Federal income tax returns of the
Company and each subsidiary required by law to be filed have been filed
and all taxes shown by such returns or which have otherwise been
assessed and are now due and payable have been paid, except assessments
against which appeals have been or will be promptly taken and (ii) the
Company and the subsidiaries have filed all other tax returns that are
required to have been filed by them pursuant to the applicable laws of
all other jurisdictions, except, as to each of the foregoing clauses
(i) and (ii), insofar as the failure to file such returns, individually
or in the aggregate, would not have a Material Adverse Effect, and the
Company and the subsidiaries have paid all taxes due pursuant to said
returns or pursuant to any assessment received by the Company or any
subsidiary, except for such taxes, if any, as are being contested in
good faith and as to which adequate reserves have been provided in
accordance with US GAAP. The charges, accruals and reserves on the
consolidated books of the Company in respect of any tax liability for
any years not finally determined are adequate to meet any assessments
or re-assessments for additional tax for any years not finally
determined, except to the extent of any inadequacy that would not have
a Material Adverse Effect.
(ee) The Company and each subsidiary is insured by insurers of
recognized financial responsibility against such losses and risks and
in such amounts as are prudent and customary in the businesses in which
the Company and the subsidiaries are engaged. The Company has no reason
to believe that it or any subsidiary will not be able to renew its
existing insurance coverage from similar insurers as may be necessary
to continue its business, except as disclosed in the Registration
Statement and as shall be disclosed in the Prospectus.
(ff) Except as disclosed in the Registration Statement and as
shall be disclosed in the Prospectus, there are no business
relationships or related party transactions of the nature described in
Item 404 of Regulation S-B of the Commission involving the Company or
any other persons referred to in such Item 404, except for such
transactions that would be considered immaterial under such Item 404.
(gg) The Company has filed in a timely manner (or pursuant to
an extension obtained in accordance with applicable law) each document
or report required to be filed by it pursuant to the Exchange Act, and
the rules and regulations thereunder; each such document or report at
the time it was filed conformed in all material respects to the
requirements of the Exchange Act and the rules and regulations there-
under; and none of such documents or reports contained an untrue
statement of any material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading.
19
(hh) The Company has not distributed and will not distribute
any prospectus or other written offering material in connection with
the offering of the Shares contemplated hereby other than any
preliminary prospectus, the Prospectus or other materials permitted by
the Act and the Regulations to be distributed by the Company.
(ii) The Company has complied with all provisions of
Section 517.075, Florida Statutes (Chapter 92-198, Laws of
Florida).
INDEMNIFICATION.
In addition to the Company's obligations to the Underwriters
provided in the Indemnification Agreement, the Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act from and against any and all losses, claims, damages, liabilities
and judgments caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) or any preliminary prospectus, or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as
such losses, claims, damages, liabilities or judgments are caused by any such
untrue statement or omission or alleged untrue statement or omission based upon
information relating to any Underwriters furnished in writing to the Company by
or on behalf of any Underwriter or relating to the plan of distribution of the
Shares by the Underwriters through you expressly for use therein; provided,
however, that the foregoing indemnity agreement with respect to any preliminary
prospectus shall not inure to the benefit of any Underwriter from whom the
person asserting any such losses, claims, damages and liabilities and judgements
purchased Shares, or any person controlling such Underwriter, if a copy of the
Prospectus (as then amended or supplemented if the Company shall have furnished
any amendments or supplements thereto) was not sent or given by or on behalf of
such Underwriter to such person, if required by law so to have been delivered,
at or prior to the written confirmation of the sale of the Shares to such
person, and if the Prospectus (as so amended and supplemented) would have cured
the defect giving rise to such loss, claim, damage, liability or judgment.
In case any action shall be brought against any Underwriter or
any person controlling such Underwriter, based upon any preliminary prospectus,
the Registration Statement or the Prospectus or any amendment or supplement
thereto and with respect to which indemnity may be sought against the Company,
such Underwriter shall promptly notify the Company in writing and the Company
shall assume the defense thereof, including the employment of counsel reasonably
satisfactory to such indemnified party and payment of all fees and expenses. Any
Underwriter or any such controlling person shall have the right to employ
separate
20
counsel in any such action and participate in the defense thereof, but the fees
and expenses of such counsel shall be at the expense of such Underwriter or such
controlling person unless (i) the employment of such counsel shall have been
specifically authorized in writing by the Company, (ii) the Company shall have
failed to assume the defense and employ counsel or (iii) the named parties to
any such action (including any im- pleaded parties) include both such
Underwriter or such controlling person and the Company and such Underwriter or
such controlling person shall have been advised by such counsel that there may
be one or more legal defenses available to it which are different from or
additional to those available to the Company (in which case the Company shall
not have the right to assume the defense of such action on behalf of such
Underwriter or such controlling person, it being understood, however, that the
Company shall not, in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the fees and
expenses of more than one separate firm of attorneys (in addition to any local
counsel) for all such Underwriters and controlling persons, which firm shall be
designated in writing by Alex. Xxxxx and that all such fees and expenses shall
be reimbursed as they are incurred). The Company shall not be liable for any
settlement of any such action effected without its written consent but if
settled with the written consent of the Company, the Company agrees to indemnify
and hold harmless any Underwriter and any such controlling person from and
against any loss or liability by reason of such settlement. Notwithstanding the
immediately preceding sentence, if in any case where the fees and expenses of
counsel are at the expense of the indemnifying party and an indemnified party
shall have requested the indemnifying party to reimburse the indemnified party
for such fees and expenses of counsel as incurred, such indemnifying party
agrees that it shall be liable for any settlement of any action effected without
its written consent if (i) such settlement is entered into more than ten
business days after the receipt by such indemnifying party of the aforesaid
request and (ii) such indemnifying party shall have failed to reimburse the
indemnified party in accordance with such request for reimbursement prior to the
date of such settlement. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such proceeding.
Each Underwriter agrees, severally and not
jointly, to indemnify and hold harmless the Company, its directors, its officers
who sign the Registration Statement and any person controlling the Company
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
to the same extent as the foregoing indemnity from the Company to each
Underwriter but only with reference to information relating to such Underwriter
and the plan of distribution of the Shares by the Underwriters furnished to the
Company in writing by or on behalf of such Underwriter expressly for use in the
Registration Statement, the Prospectus or any preliminary prospectus. The
Company acknowledges that the statements set forth in the last
21
paragraph of the cover page of the Prospectus, the legends concerning
stabilization and passive market making on the inside front cover page of the
Prospectus and the statements set forth under the caption "Underwriting" in the
Prospectus constitute the only information furnished in writing by or on behalf
of any Underwriter expressly for use in the Registration Statement, any
preliminary prospectus and the Prospectus. In case any action shall be brought
against the Company, any of its directors, any such officer or any person
controlling the Company based on the Registration Statement, the Prospectus or
any preliminary prospectus and in respect of which indemnity may be sought
against any Underwriter, the Underwriter shall have the rights and duties given
to the Company (except that if the Company shall have assumed the defense
thereof, such Underwriter shall not be required to do so, but may employ
separate counsel therein and participate in the defense thereof but the fees and
expenses of such counsel shall be at the expense of such Underwriter), and the
Company, its directors, any such officers and any person controlling the Company
shall have the rights and duties given to the Underwriter, by Section 7(b)
hereof.
If the indemnification provided for in this Section 7 is
unavailable to an indemnified party in respect of any losses, claims, damages,
liabilities or judgments referred to therein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims,
damages, liabilities and judgments (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the
Underwriters on the other hand from the offering of the Shares or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and
the Underwriters in connection with the statements or omissions which resulted
in such losses, claims, damages, liabilities or judgments, as well as any other
relevant equitable considerations. The relative benefits received by the Company
and the Underwriters shall be deemed to be in the same proportion as the total
net proceeds from the offering (before deducting expenses) received by the
Company, and the total underwriting discounts and commissions received by the
Underwriters, bear to the total price to the public of the Shares, in each case
as set forth in the table on the cover page of the Prospectus. The relative
fault of the Company and the Underwriters shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission to state a material fact relates to information supplied by
the Company or the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 7(d) were determined
by pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages, liabilities or
22
judgments referred to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 7, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Shares underwritten by it
and distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Section 7(d) are several in proportion to the
respective number of Shares purchased by each of the Underwriters hereunder and
not joint.
CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The obligations
of the Underwriters to purchase the Firm Shares under this Agreement are subject
to the satisfaction of each of the following conditions:
All the representations and warranties of the Company
contained in this Agreement shall be true and correct on the Closing
Date with the same force and effect as if made on and as of the Closing
Date.
The Registration Statement shall have become effective not
later than 5:00 P.M. (and in the case of a Registration Statement filed
under Rule 462(b) of the Act, not later than 10:00 P.M.), New York City
time, on the date of this Agreement or at such later date and time as
you may approve in writing, and at the Closing Date no stop order
suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been
commenced or shall be pending before or contemplated by the Commission.
(i) Since the date of the latest balance sheet included in the
Registration Statement and the Prospectus, there shall not have been
any material adverse change, or any development involving a prospective
material adverse change, in the condition, financial or otherwise, or
in the earnings, affairs or business prospects, whether or not arising
in the ordinary course of business, of the Company, from that set forth
in the Registration Statement and Prospectus, (ii) since the date of
the latest balance sheet included in the Registration Statement and the
Prospectus there shall not have been any change, or any development
involving a prospective material adverse change, in the capital stock
or in the long-term debt of the Company, (iii) the Company and its
subsidiaries shall have no liability or obligation, direct or
contingent, which is material to the Company and its subsidiaries,
taken as a whole, other than those disclosed in or contemplated by the
Registration Statement and the Prospectus and (iv) on the Closing Date
you shall have received a certificate dated the Closing Date, signed
23
by Xxxx X. Xxxxx, in his capacity as the Chief Executive Officer, and
by Xxxxx X. Xxxxxx, in his capacity as Chief Financial Officer of the
Company, to the effect that, as of the Closing Date or the Option
Closing Date, as the case may be, each represents as follows:
A. The Registration Statement has become effective
under the Act and no stop order suspending the effectiveness
of the Registrations Statement has been issued, and no
proceedings for such purpose have been taken or are, to his
knowledge, contemplated by the Commission;
B. The representations and warranties of the
Company contained in Section 6 hereof are true and
correct as of the Closing Date or the Option Closing
Date, as the case may be;
C. All filings required to have been made pur-
suant to Rules 424 or 430A under the Act have been
made;
D. He has carefully examined the Registration
Statement and the Prospectus and, in his opinion, as of the
effective date of the Registration Statement, the statements
contained in the Registration Statement were true and correct,
and such Registration Statement and Prospectus did not omit to
state a material fact required to be stated therein or
necessary in order to make the statements therein not
misleading, and since the effective date of the Registration
Statement, no event has occurred which should have been set
forth in a supplement to or an amendment of the Prospectus
which has not been so set forth in such supplement or
amendment; and
E. Since the respective dates as of which information
is given in the Registration Statement and Prospectus, there
has not been any material adverse change or any development
involving a prospective material adverse change in or
affecting the condition, financial or otherwise, of the
Company and its Subsidiaries taken as a whole or the earnings,
business, management, properties, assets, rights, operations,
condition (financial or otherwise) or prospects of the Company
and the Subsidiaries taken as a whole, whether or not arising
in the ordinary course of business.
You shall have received on the Closing Date the written
opinion of Xxxxx X. Xxxxxx, Esq., General Counsel for the Company,
dated the Closing Date, addressed to the Underwriters, and in form and
scope satisfactory to counsel for the Underwriters, to the effect that:
Each of the Company and the subsidiaries listed in
Schedule II to the Underwriting Agreement has all necessary
consents, approvals, authorizations, orders, registrations,
filings, qualifications, licenses
24
(including, without limitation, all material licenses from the
FCC and state, local or other governmental or regulatory
authorities) and permits of and from all public, regulatory or
governmental agencies and bodies to own, lease and license its
respective properties and conduct its respective business as
now being conducted, except for those the absence of which,
individually or in the aggregate, would not have a Material
Adverse Effect. Neither the Company nor any such subsidiary
(x) has received any notice of proceedings relating to
revocation or materially adverse modification of any such
consents, approvals, authorizations, orders, registrations,
filings, qualifications, licenses or permits, or (y) is
subject to any pending proceeding, complaint or investigation
before any federal, state or local regulatory authority, nor,
to such counsel's knowledge, has any such proceeding,
complaint or investigation been threatened, with respect to
the respective telecommunications businesses of the Company
and the subsidiaries.
There is no commitment, plan or arrangement to
issue, and no outstanding option, warrant or other right
calling for the issuance of, any shares of capital stock (or
similar interests) of the Company or of any subsidiary or any
security or other instrument that by its terms is convertible
into or exercisable or exchangeable for capital stock (or
similar interests) of the Company or any subsidiary, except as
described in the Registration Statement and the Prospectus or
as shall be granted as compensation for employees or
consultants of the Company in the ordinary course of business
consistent with past practice.
The Company's execution and delivery of, and its
performance of its obligations under, the Underwriting
Agreement and the consummation of the transactions
contemplated thereby do not and, when such performance is
required pursuant to the terms thereof, will not (A) conflict
with or result in a breach of any of the terms and provisions
of, or constitute a default under (or an event that with
notice or lapse of time, or both, would constitute a default
under) or require approval or consent under, or result in the
creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or any subsidiary
pursuant to the terms of, any Listed Contract or any permit
referred to in the opinions of local counsel attached hereto,
or (B) to such counsel's knowledge, violate or conflict with
any judgment, decree, order, statute, rule or regulation of
any court or any public, governmental or regulatory agency or
body having jurisdiction over the Company or any subsidiary or
any of its respective properties or assets, except for those
violations or conflicts that, individually or in the
aggregate, would not have a Material Adverse Effect. To such
counsel's knowledge, the permits referred to in the attached
opinions of local counsel are the only Material Permits.
25
To such counsel's knowledge, no consent, approval,
authorization, order, registration, filing, qualification,
license or permit of or with any public, governmental or
regulatory agency or body having jurisdiction over the
Company's or any subsidiary's telecommunications business is
required for the Company's execution and delivery of, and its
performance of its obligations under, the Underwriting
Agreement, and the consummation of the transactions
contemplated thereby, including, without limitation, the
issuance, sale and delivery of the Shares.
Insofar as statements in the Prospectus purport to
summarize the nature and status of litigation or the
provisions of statutes, laws, rules, regulations, orders,
judgments or decrees, in either case only those which relate
to the federal, state or local regulation of the respective
telecommunications businesses of the Company and the
subsidiaries, or Permits, such statements fairly summarize the
matters referred to therein in all material respects.
Except as described in the Prospectus, the Company
and each subsidiary have (i) good and marketable title to all
personal properties owned by them, free and clear of all
liens, security interests, pledges, charges, encumbrances, and
mortgages, and (ii) valid, subsisting and enforceable, and
enjoy peaceful and undisturbed possession under, leases or
licenses for all real and personal properties leased or
licensed by them, including all rights-of-way, conduit, pole
attachment, service and fiber leases and agreements, in each
case, subject in each case to such exceptions as, individually
or in the aggregate, do not have and are not reasonably likely
to have a Material Adverse Effect. No real or personal
property, rights-of-way, conduits, pole attachments or fiber
leased, licensed or used by the Company or by a subsidiary
lies in an area that is, or to the best knowledge of the
Company will be, subject to zoning, use, or building code
restrictions that would prohibit, and no state of facts
relating to the actions or inaction of another person or
entity or his, her or its ownership, leasing, licensing or use
of any such real or personal property, rights-of-way,
conduits, pole attachments or fiber exists that would prevent,
the continued effective leasing, licensing or use of such real
or personal property, rights-of-way, conduits, pole
attachments or fiber in the business of the Company or such
subsidiary as presently conducted, subject in each case to
such exceptions as, individually or in the aggregate, do not
have and are not reasonably likely to have a Material Adverse
Effect. With respect to the opinion given in the immediately
preceding sentence, such counsel has no reason to believe that
the Company or any subsidiary will not be able to conduct its
business as the Prospectus indicates is contemplated to be
conducted.
To such counsel's knowledge, neither the Company nor
any subsidiary, nor any other party, is in violation or breach
of, or in default
26
under (nor has an event occurred that with notice, lapse of
time or both, would constitute a default under), any
Material Contract, and each Material Contract is in full
force and effect, and is the legal, valid, and binding
obligation of the Company or such subsidiary, as the case
may be, and (subject to applicable bankruptcy, insolvency,
and other laws affecting the enforceability of creditors'
rights generally) is enforceable as to the Company or such
subsidiary, as the case may be, in accordance with its
terms. Neither the Company nor any subsidiary is in
violation of its certificate of incorporation, by-laws or
similar governing instrument.
In addition, such counsel shall state that she has
participated in conferences with officers and other representatives of
the Company, representatives of the independent certified public
accountants of the Company, representatives of the Underwriters and
counsel for the Underwriters at which the contents of the Registration
Statement, the Prospectus and any amendments thereof or supplements
thereto and related matters were discussed and, although such counsel
has not undertaken to investigate or verify independently and is not
passing upon, and does not assume any responsibility for, the accuracy,
completeness or fairness of the statements contained in the
Registration Statement or the Prospectus or any amendments thereof or
supplements thereto (except as to matters referred to in the last
sentence of clause (ii) above), no facts have come to her attention
which lead her to believe that the Registration Statement, on the
effective date thereof (or any post-effective amendment thereof as of
the date of such amendment), contained an untrue statement of a
material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading or that the Prospectus, on the date thereof or the date of
such opinion, contained an untrue statement of a material fact or
omitted to state any material fact required to be stated therein or
necessary to make the statements made therein, in light of the
circumstances under which they were made, not misleading (it being
understood that such counsel need express no view with respect to the
financial statements and related notes, the financial statement
schedules and the other financial and accounting data included
therein).
In rendering such opinion, such counsel (i) may limit her
opinions to the laws of the District of Columbia, the corporate laws of
the State of Delaware and the federal laws of the United States of
America, and (ii) may rely (A) as to matters involving the application
of laws other than the laws of the District of Columbia, the corporate
laws of the State of Delaware and the federal laws of the United States
of America, to the extent such counsel deems proper and to the extent
specified in such opinion letter, if at all, upon a written opinion or
opinions (in form and scope reasonably satisfactory to counsel for the
Underwriters) of other counsel reasonably acceptable to counsel for the
Underwriters, familiar with the applicable laws; and (B) as to matters
of fact, to the extent such counsel may deem proper, on certificates of
responsible officers of the Company and certificates or other written
statements of officers of
27
departments of various jurisdictions having custody of documents
respecting the corporate existence or good standing of the Company and
the subsidiaries. In addition, such counsel may rely as to matters
involving the laws administered by the FCC or involving state
regulatory matters, to the extent such counsel deems proper and to the
extent specified in such opinion letter, if at all, upon a written
opinion of Xxxxxx, Xxxx & Xxxxxx (in substantially the form and scope
set forth in Section 8(g) hereof) or other state and local regulatory
counsel reasonably acceptable to counsel for the Underwriters. The
opinion of such counsel shall specifically state that the opinion of
any such other counsel is in form and scope satisfactory to such
counsel and, in such counsel's opinion, such counsel, you and counsel
for the Underwriters are justified in relying thereon. A copy of the
opinion of any such other counsel shall be delivered to counsel for the
Underwriters.
The opinion of Xxxxx X. Xxxxxx, Esq. described in this
paragraph (d) shall be rendered to you at the request of the Com-
pany and shall so state therein.
You shall have received on the Closing Date the written
opinion of Xxxx & Xxxxxxx, special counsel for the Company, dated the
Closing Date, addressed to the Underwriters, and in form and scope
satisfactory to counsel for the Underwriters, to the effect that:
The authorized capital stock of the Company as of
March 31, 1997 consisted of (i) 75,000,000 shares of common
stock, par value $0.01 per share and (ii) 1,500,000 shares of
preferred stock, par value $1.00 per share. Of such shares of
preferred stock authorized as of March 31, 1997, 186,664
shares were designated as 9% Series A-1 Convertible Preferred
Stock, par value $1.00 per share, 100,000 shares were
designated as 9% Series B-1 Convertible Preferred Stock, par
value $1.00 per share, 102,500 shares were designated as 9%
Series B-2 Convertible Preferred Stock, par value $1.00 per
share, 25,000 shares were designated as 9% Series B-3
Convertible Preferred Stock, par value $1.00 per share, and
50,000 shares were designated as 9% Series B-4 Convertible
Preferred Stock, par value $1.00 per share. The authorized
capital stock of the Company as of the date of this letter
consist of (i) 75,000,000 shares of common stock, par value
$0.01 per share and (ii) 1,500,000 shares of preferred stock,
par value $1.00 per share. Of such shares of preferred stock
authorized as of the date of this letter and giving effect to
the transactions contemplated by the Prospectus, no shares
which have been designated as any specific class or series are
outstanding at the time of the conversion of the Preferred
Stock.
All of the outstanding shares of capital stock of
the Company have been duly and validly authorized and issued,
are fully paid and nonassessable and were not issued in
violation of any preemptive rights.
28
The Company has all requisite corporate power and
authority to execute, deliver and perform its obligations
under the Indemnification Agreement. The Indemnification
Agreement has been duly and validly authorized, executed and
delivered by the Company. The Indemnification Agreement
constitutes a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms,
subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws
affecting creditors' rights and remedies generally, and
subject, as to enforceability, to general principles of
equity, including principles of commercial reasonableness,
good faith and fair dealing (regardless of whether enforcement
is sought in a proceeding at law or in equity), and except
insofar as rights to indemnification contained in the
Indemnification Agreement may be limited by federal or state
securities laws or related public policy.
Except as set forth in the Registration Rights
Schedule and except as disclosed in the Registration Statement
and the Prospectus, to such counsel's knowledge, no person or
entity has any Registration Rights. To such counsel's
knowledge, the Registration Rights Schedule sets forth a
correct and complete list, as of the date thereof, of (i) all
security holders of the Company who have Registration Rights;
(ii) the number of shares of Common Stock held by each such
security holder (or shares of Common Stock underlying
securities convertible into or exercisable or exchangeable for
Common Stock) with respect to which each such security holder
has Registration Rights, and which of such shares of Common
Stock are subject to under- writers' "cut back" rights
pursuant to any contract or agreement pursuant to which such
security holder's Registration Rights were granted; and (iii)
the number of shares of Common Stock held by such security
holder (or shares of Common Stock underlying securities
convertible into or exercisable or exchangeable for Common
Stock) that, with respect to which each such security holder
has Registration Rights as of the date of the Registration
Rights Schedule, are eligible for sale pursuant to Rule 144
under the Act (assuming the recently adopted amendments to
Rule 144 became effective as of the date of the Registration
Rights Schedule) based upon the holding period of such shares
of Common Stock by such holder (assuming that no actions have
been taken by such holder and that no events have occurred
which interrupted such holding period or commenced a new
holding period). To such counsel's knowledge, the Registration
Rights Waiver Letter sets forth a correct and complete list of
those security holders of the Company who have and who have
not executed waivers of Registration Rights. Those security
holders who have executed waivers of Registration Rights have
legally and effectively waived their Registration Rights.
29
To our knowledge, the statements contained
(i)(A) in the first paragraph and (B) in the third paragraph
under the caption "Risk Factors -- Shares Eligible for Future
Sale; Registration Rights" in the Prospectus and (ii)(A) in
the first paragraph and (B) in the third paragraph] under the
caption "Shares Eligible for Future Sale" are true and
accurate descriptions of the information purported to be
described therein.
In rendering such opinion, such counsel (i) may limit its
opinions to the laws of the State of New York and the State of
Illinois, and the corporate laws of the State of Delaware, and (ii) may
rely as to matters involving the application of laws other than the
laws of the State of New York and the State of Illinois, and the
corporate laws of the State of Delaware, to the extent such counsel
deems proper and to the extent specified in such opinion letter, if at
all, upon a written opinion or opinions (in form and scope reasonably
satisfactory to counsel for the Underwriters) of other counsel
reasonably acceptable to counsel for the Underwriters, familiar with
the applicable laws; and (B) as to matters of fact, to the extent such
counsel may deem proper, on certificates of responsible officers of the
Company. The opinion of such counsel shall specifically state that the
opinion of any such other counsel is in form and scope satisfactory to
such counsel and, in such counsel's opinion, such counsel, you and
counsel for the Underwriters are justified in relying thereon. A copy
of the opinion of any such other counsel shall be delivered to counsel
for the Underwriters.
The opinion of Xxxx & Xxxxxxx described in this paragraph (e)
shall be rendered to you at the request of the Company and shall so
state therein.
You shall have received on the Closing Date the written
opinion of Piper & Marbury L.L.P., special counsel for the Company,
dated the Closing Date, addressed to the Underwriters and in form and
scope satisfactory to counsel for the Underwriters, to the effect that:
Each of the Company and the subsidiaries
listed in Schedule II to the Underwriting Agreement has been
duly organized and is validly existing as a corporation in
good standing under the laws of its jurisdiction of
incorporation and is duly qualified and in good standing as a
foreign corporation in each jurisdiction in which the
character or location of its properties (owned, leased or
licensed) or the nature or conduct of its business makes such
qualification necessary, except for those failures to be so
qualified or in good standing that will not in the aggregate
have a Material Adverse Effect.
Each of the Company and the subsidiaries
listed on Schedule II to the Underwriting Agreement has all
requisite corporate power and authority to own, lease and
license its respective properties and conduct its respective
business as now being conducted and as
30
described in the Registration Statement and the Prospectus,
except in those cases where the failure to have such power or
authority would not individually or in the aggregate have a
Material Adverse Effect.
All of the issued and outstanding capital stock
(or similar interests) of each subsidiary listed on Schedule
II have been duly and validly authorized and issued, are fully
paid and nonassessable and were not issued in violation of any
preemptive rights and are owned by the Company or a
subsidiary, free and clear of all claims, liens, security
interests, pledges, charges, encumbrances, stockholders
agreements and voting trusts, except as otherwise described in
Schedule II to the Underwriting Agreement.
The Company meets the requirements for the use
of a registration statement on Form SB-2 under the Act. The
Registration Statement and the Prospectus (except for the
financial statements and the notes thereto, the financial
statement schedules and the other financial and accounting
data included therein, as to which no opinion need be
expressed) comply as to form in all material respects with the
requirements of the Act.
The Registration Statement became effective
under the Act on April __, 1997, and to the knowledge of such
counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose are, pending before or contemplated by the
Commission.
The Shares have been duly authorized and, when
issued, delivered and sold in accordance with the terms of the
Underwriting Agreement, will be validly issued, fully paid and
nonassessable, and will not have been issued in violation of
any preemptive rights.
The capital stock of the Company conforms in
all material respects to the descriptions thereof contained in
the Registration Statement and the Prospectus.
The Company's execution and delivery of, and
its performance of its obligations under, the Underwriting
Agreement and the consummation of the transactions
contemplated thereby do not and, when such performance is
required pursuant to the terms thereof, will not violate or
conflict with any provisions of the certificate of
incorporation, by-laws or similar governing instruments of the
Company or any subsidiary.
To such counsel's knowledge, no consent,
approval, authorization, order, registration, filing,
qualification, license or permit of or
31
with any court or any public, governmental or regulatory
agency or body having jurisdiction over the Company or any
subsidiary or any of the Company's or any subsidiary's
properties or assets, other than those relating to or
affecting the telecommunications businesses of the Company
and the subsidiaries (as to which counsel need not express
an opinion) is required for the Company's execution and
delivery of, and its performance of its obligations under,
the Underwriting Agreement, and the consummation of the
transactions contemplated thereby, including, without
limitation, the issuance, sale and delivery of the Shares,
except for (A) such as may be required under state
securities or Blue Sky laws in connection with the purchase
and distribution of the Shares by the Underwriters (as to
which such counsel need express no opinion) and (B) such as
have been made or obtained under the Act, the Exchange Act
or the rules of the Nasdaq National Market or the NASD.
Insofar as statements in the Prospectus
purport to summarize the nature and status of litigation or
the provisions of statutes, laws, rules, regulations, orders,
judgments or decrees (other than federal, state or local
regulation relating to or affecting the respective
telecommunications businesses of the Company and the
subsidiaries as to which counsel need not express an opinion),
or the terms of any Listed Contracts, such statements are
correct in all material respects and are fair summaries of the
matters referred to therein.
The Shares have been duly authorized for
quotation on the Nasdaq National Market, subject only to
official notice of issuance.
The Company has all requisite corporate right,
power and authority to execute, deliver and perform its
obligations under the Underwriting Agreement and to issue,
sell and deliver the Shares in accordance with the terms and
conditions thereof. The Underwriting Agreement has been duly
and validly authorized, executed and delivered by the Company.
The Underwriting Agreement constitutes a valid and binding
obligation of the Company, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium
and other similar laws affecting creditors' rights and
remedies generally, and subject, as to enforceability, to
general principles of equity, including principles of
commercial reasonableness, good faith and fair dealing
(regardless of whether enforcement is sought in a proceeding
at law or in equity), and except insofar as rights to
indemnification and contribution contained therein may be
limited by federal or state securities laws or related public
policy.
Upon delivery of and payment for the Shares to
be sold by the Company to each Underwriter in accordance with
the Underwriting Agreement, each Underwriter will acquire good
and
32
marketable title to the Shares so sold and delivered to it,
free and clear of all liens, pledges, charges, claims,
security interests, restrictions on transfer, agreements or
other defects of title whatsoever (other than those
resulting from any action taken by such Underwriter).
To such counsel's knowledge, there is no
litigation, arbitration or governmental or other action, suit,
proceeding or investigation before any court or before or by
any public, regulatory or governmental agency or body pending
or threatened against, or involving the properties or business
of, the Company or any subsidiary, that, if resolved against
the Company or such subsidiary, individually or, to the extent
involving related claims or issues, in the aggregate, is of a
character required to be disclosed in the Registration
Statement and the Prospectus that has not been properly
disclosed therein; and to such counsel's knowledge, there is
no contract or document concerning the Company or any
subsidiary of a character required to be described in the
Registration Statement and the Prospectus or to be filed as an
exhibit to the Registration Statement, that is not so
described or filed.
The Company is not and will not become an
"investment company" or a company "controlled" by an
"investment company" as defined in the Investment Company Act.
In addition, you shall have received a statement from such
counsel to the effect of the penultimate paragraph of Section 8(d)
hereof. In rendering such opinion, such counsel (i) may limit its
opinions to the laws of the State of New York, the State of Maryland,
the corporate laws of the State of Delaware and the federal laws of the
United States of America, and (ii) may rely (A) as to matters involving
the application of laws other than the laws of the State of New York,
the State of Maryland, the corporate laws of the State of Delaware and
the federal laws of the United States of America, to the extent such
counsel deems proper and to the extent specified in such opinion
letter, if at all, upon a written opinion or opinions (in form and
scope reasonably satisfactory to counsel for the Underwriters) of other
counsel reasonably acceptable to counsel for the Underwriters, familiar
with the applicable laws; and (B) as to matters of fact, to the extent
such counsel may deem proper, on certificates of responsible officers
of the Company and certificates or other written statements of officers
of departments of various jurisdictions having custody of documents
respecting the corporate existence or good standing of the Company and
the subsidiaries. The opinion of such counsel shall specifically state
that the opinion of any such other counsel is in form and scope
satisfactory to such counsel and, in such counsel's opinion, such
counsel, you and counsel for the Underwriters are justified in relying
thereon. A copy of the opinion of any such other counsel shall be
delivered to counsel for the Underwriters.
The opinion of Piper & Marbury L.L.P. described in this
paragraph (f) shall
33
be rendered to you at the request of the Company and shall so state therein.
You shall have received on the Closing Date the written
opinion of Xxxxxx, Xxxx & Xxxxxx, special regulatory counsel for the
Company, dated the Closing Date, addressed to the Underwriters, and in
form and scope reasonably satisfactory to counsel for the Underwriters,
to the effect that:
The Company and each subsidiary have all
necessary consents, approvals, authorizations, orders,
registrations, filings, qualifications, licenses and permits
of and from the FCC and other federal regulatory or
governmental agencies and bodies, to conduct their respective
telecommunications businesses as described in the Registration
Statement and the Prospectus.
There is no proceeding, complaint or
investigation pending or, to such counsel's knowledge,
threatened before the FCC or any other federal regulatory or
governmental agency or body with respect to the respective
telecommunications businesses of the Company and the
subsidiaries.
Insofar as statements in the Prospectus
purport to summarize the provisions of statutes, laws, rules,
regulations, orders, judgments or decrees relating to the
federal regulation of the respective telecommunications
businesses of the Company and the subsidiaries, such
statements are correct in all material respects.
The Company's execution and delivery of, and
its performance of its obligations under, the Underwriting
Agreement and the consummation of the transactions
contemplated thereby do not and, when such performance is
required pursuant to the terms thereof, will not, to such
counsel's knowledge, violate or conflict with any judgment,
decree, order, statute, rule or regulation of, or license,
permit or authorization granted to the Company or any
subsidiary by, the FCC or any other federal regulatory or
governmental agency or body,relating to the respective
telecommunications businesses of the Company or any
subsidiary.
In rendering such opinion, such counsel (i) may limit its
opinions to the laws of the District of Columbia and the federal laws
of the United States of America and (ii) may rely (A) as to matters
involving the application of laws other than the laws of the District
of Columbia and the federal laws of the United States of America, to
the extent such counsel deems proper and to the extent specified in
such opinion letter, if at all, upon a written opinion or opinions (in
form and scope reasonably satisfactory to counsel for the Underwriters)
of counsel reasonably acceptable to counsel for the Underwriters,
familiar with the applicable laws; and (B) may rely as to matters of
fact, to the extent such
34
counsel may deem proper, on certificates of responsible officers of the
Company and certificates or other written statements of officers of
departments of various jurisdictions having custody of documents
respecting the Company and the subsidiaries. The opinion of such
counsel shall specifically state that the opinion of any such other
counsel is in form and scope satisfactory to such counsel and, in such
counsel's opinion, such counsel, you and counsel for the Underwriters
are justified in relying thereon. A copy of the opinion of any such
other counsel shall be delivered to counsel for the Underwriters.
The opinion of Xxxxxx, Xxxx and Xxxxxx discussed in this
paragraph (g) shall be rendered to you at the request of the Company
and shall so state therein.
You shall have received on the Closing Date the written
opinion of Weil, Gotshal & Xxxxxx LLP, counsel for the Underwriters,
dated the Closing Date, and addressed to the Underwriters, to the
effect that:
The Company is a corporation duly organized,
validly existing and in good standing under the laws of the
State of Delaware and has all requisite corporate power and
authority to enter into and perform the Underwriting
Agreement.
The Shares have been duly authorized and, when
issued, delivered and sold in accordance with the terms of the
Underwriting Agreement, will be validly issued, fully paid and
nonassessable, and will not have been issued in violation of
any preemptive rights.
The Underwriting Agreement has been duly and
validly authorized, executed and delivered by the Company. The
Underwriting Agreement constitutes a valid and binding
obligation of the Company, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium
and other similar laws affecting creditors' rights and
remedies generally, and subject, as to enforceability, to
general principles of equity, including principles of
commercial reasonableness, good faith and fair dealing
(regardless of whether enforcement is sought in a proceeding
at law or in equity), and except insofar as rights to
indemnification and contribution contained therein may be
limited by federal or state securities laws or related public
policy.
The Registration Statement has become
effective under the Act on April __, 1997, no stop order
suspending the effectiveness of the Registration Statement has
been issued and no proceeding for that purpose are, to the
knowledge of such counsel, pending before or contemplated by
the Commission.
35
The statements under the captions "Description
of Capital Stock" and "Underwriting" in the Registration
Statement insofar as such statements constitute a summary of
legal matters, documents or proceedings referred to therein,
fairly present the information called for with respect to such
legal matters, documents and proceedings in all material
respects.
In addition, you shall have received a statement from such
counsel to the effect of the penultimate paragraph of Section 8(d)
hereof.
The Company shall have furnished to counsel for the
Underwriters such documents as such counsel may request for the purpose
of enabling such counsel to pass upon such matters.
At the time this Agreement is executed and at the Closing
Date, you shall have received a letter, from KPMG Peat Marwick LLP,
dated the date of its delivery, addressed to the Underwriters and in
form and substance reasonably satisfactory to you, to the effect that:
(i) they are independent public accountants with respect to the Company
within the meaning of the Act and stating that the answer to Item 13 of
the Registration Statement is correct insofar as it relates to them;
(ii) in their opinion, the consolidated financial statements of the
Company and its subsidiaries included in the Registration Statement and
the Prospectus and covered by their opinion included therein comply as
to form in all material respects with the applicable accounting
requirements of the Act and the applicable published rules and
regulations of the Commission thereunder; (iii) on the basis of
procedures (but not an examination made in accordance with generally
accepted auditing standards) consisting of a reading of the latest
available unaudited interim consolidated financial statements of the
Company and the subsidiaries, a reading of the minutes of meetings and
consents of the stockholders and boards of directors of the Company and
the subsidiaries and the committees of such boards subsequent to
December 31, 1996, inquiries of officers and other employees of the
Company and the subsidiaries who have responsibility for financial and
accounting matters of the Company and the subsidiaries with respect to
transactions and events subsequent to December 31, 1996, and other
specified procedures and inquiries to a date not more than five days
prior to the date of such letter, nothing has come to their attention
that would cause them to believe that: (A) with respect to the period
subsequent to December 31, 1996 there were, as of the date of the most
recent available monthly condensed consolidated financial statements of
the Company and its consolidated subsidiaries, if any, and as of a
specified date not more than five days prior to the date of such
letter, any changes in the capital stock or indebtedness of the Company
or any decrease in the net current assets or stockholders' equity of
the Company, in each case as compared with the amounts shown in the
most recent balance sheet included in the Registration Statement and
the Prospectus, except for changes or decreases that the Registration
Statement and the Prospectus disclose have occurred or may
36
occur; (B) that during the period from December 31, 1996 to
the date of the most recent available monthly condensed
consolidated financial statements of the Company and its
consolidated subsidiaries, if any, and to a specified date
not more than five days prior to the date of such letter,
there was any decrease in total revenues or any increase in
total or per share net loss, in each case as compared with
the corresponding period in the prior fiscal year, except
for such decreases or increases, as the case may be, that
the Prospectus discloses have occurred or may occur; or (C)
any unaudited pro forma consolidated condensed financial
statements included in the Prospectus do not comply as to
form in all material respects with the applicable accounting
requirements of the Act and the published rules and
regulations thereunder or the pro forma adjustments have not
been properly applied to the historical amounts in the
compilation of those statements; and (iv) stating that they
have compared specific dollar amounts, numbers of shares,
percentages of revenues and earnings and other financial
information pertaining to the Company and the subsidiaries
set forth in the Prospectus, which have been specified by
you prior to the date of this Agreement, to the extent that
such dollar amounts, numbers, percentages and information
may be derived from the general accounting and financial
records that are subject to the internal control structure
policies and procedures of the Company's accounting systems
or that have been derived directly from such accounting
records by analysis or computation, and excluding any
questions requiring an interpretation by legal counsel, with
the results obtained from the application of specified
readings, inquiries, and other appropriate procedures
specified by you (which procedures do not constitute an
examination in accordance with generally accepted auditing
standards) set forth in such letter, and found them to be in
agreement.
The NASD, upon review of the terms of the underwriting
arrangements for the public offering of the Shares, shall have raised
no objections thereto.
The Shares shall have been approved for quotation on the
Nasdaq National Market, subject to official notice of issuance.
On or prior to the Closing Date, the Company shall have
furnished to you the agreements specified in Section 2 hereof, in each
case, in form and substance satisfactory to counsel for the
Underwriters and in full force and effect.
The stockholders listed on Schedule III attached hereto (the
"Purchaser Stockholders") shall have executed and delivered a purchase
agreement, substantially in the form of Annex IV attached hereto,
pursuant to which each such Purchaser Stockholder agrees to purchase
from the Company the number of shares at the per share price set forth
opposite the name of such Purchaser Stockholder on Schedule III.
The purchase of Common Stock by each Purchaser Stockholder
shall have been consummated in accordance with the terms of the
purchase agreement relating to each such Purchaser Stockholder.
The holders of Preferred Stock listed on Schedule IV attached
hereto (the "Investing Preferred Stockholders") shall have executed and
delivered a letter agreement pursuant to which each such Investing
Preferred Stockholder agrees to accept the number of shares of Common
Stock set forth opposite the name of such Investing Preferred
Stockholder on Schedule IV in lieu of the payment of the cash dollar
amount of accrued dividends on the Preferred Stock also as set forth
opposite the name of such Investing Preferred Stockholder on
37
Schedule IV.
The Company shall not have failed at or prior to the
Closing Date to perform or comply with any of the agreements herein
contained and required to be performed or complied with by the Company
at or prior to the Closing Date.
Prior to the Closing Date, the Company shall have furnished to
you such further information, certificates and documents as you or
counsel for the Underwriters may reasonably request.
The several obligations of the Underwriters to purchase any
Additional Shares hereunder are subject to the delivery to you on the applicable
Option Closing Date of such documents as you or counsel for the Underwriters may
reasonably request with respect to the good standing of the Company, the due
authorization and issuance of such Additional Shares and other matters related
to the issuance of such Additional Shares.
EFFECTIVE DATE OF AGREEMENT; TERMINATION. This Agreement shall become
effective upon the later of (i) execution of this Agreement and (ii) when
notification of the effectiveness of the Registration Statement has been
released by the Commission.
This Agreement may be terminated at any time prior to the
Closing Date by you by written notice to the Company if any of the following has
occurred: (i) since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any material adverse change or
development involving a prospective material adverse change in the condition,
financial or otherwise, of the Company and its subsidiaries, taken as a whole,
or the earnings, affairs, or business prospects of the Company or any of its
subsidiaries, taken as whole, whether or not arising in the ordinary course of
business, which would, in your judgment, make it impracticable to market the
Shares on the terms and in the manner contemplated in the Prospectus, (ii) any
outbreak or escalation of hostilities or other national or international
calamity or crisis or change in economic conditions or in the financial markets
of the United States or elsewhere that, in your reasonable judgment, is material
and adverse and would, in your reasonable judgment, make it impracticable to
market the Shares on the terms and in the manner contemplated in the Prospectus,
(iii) the suspension or material limitation of trading in securities on the New
York Stock Exchange, the American Stock Exchange or the Nasdaq National Market
or limitation on prices for securities on any such exchange or Nasdaq National
Market, (iv) the enactment, publication, decree or other promulgation of any
federal or state statute, regulation, rule or order of any court or other
governmental authority which in your opinion materially and adversely affects,
or will materially and adversely affect, the business or operations of the
Company or any subsidiary, (v) the declaration of a banking moratorium by either
federal or New York State authorities or (vi) the taking of any action by any
federal, state or local government or agency in respect of its monetary or
fiscal affairs which in your opinion has a material adverse effect on the
financial markets in the United States.
If on the Closing Date or on an Option Closing Date, as the
case may be, any one or more of the Underwriters shall fail or refuse to
purchase the Firm Shares or Additional
38
Shares, as the case may be, which it or they have agreed to purchase hereunder
on such date and the aggregate number of Firm Shares or Additional Shares, as
the case may be, which such defaulting Underwriter or Underwriters, as the case
may be, agreed but failed or refused to purchase is not more than one-tenth of
the total number of Shares to be purchased on such date by all Underwriters,
each non-defaulting Underwriter shall be obligated severally, in the proportion
which the number of Firm Shares set forth opposite its name in Schedule I hereto
bears to the total number of Firm Shares which all the non-defaulting
Underwriters, as the case may be, have agreed to purchase, or in such other
proportion as you may specify, to purchase the Firm Shares or Additional Shares,
as the case may be, which such defaulting Underwriter or Underwriters, as the
case may be, agreed but failed or refused to purchase on such date; provided
that in no event shall the number of Firm Shares or Additional Shares, as the
case may be, which any Underwriter has agreed to purchase pursuant to Section 2
hereof be increased pursuant to this Section 9 by an amount in excess of
one-ninth of such number of Firm Shares or Additional Shares, as the case may
be, without the written consent of such Underwriter. If on the Closing Date or
on an Option Closing Date, as the case may be, any Underwriter or Underwriters
shall fail or refuse to purchase Firm Shares, or Additional Shares, as the case
may be, and the aggregate number of Firm Shares or Additional Shares, as the
case may be, with respect to which such default occurs is more than one-tenth of
the aggregate number of Shares to be purchased on such date by all Underwriters
and arrangements satisfactory to you and the Company for purchase of such Shares
are not made within 48 hours after such default, this Agreement will terminate
without liability on the part of any non-defaulting Underwriter and the Company.
In any such case which does not result in termination of this Agreement, either
you or the Company shall have the right to postpone the Closing Date or the
applicable Option Closing Date, as the case may be, but in no event for longer
than seven days, in order that the required changes, if any, in the Registration
Statement and Prospectus or any other documents or arrangements may be effected.
Any action taken under this paragraph shall not relieve any defaulting
Underwriter from liability in respect of any default of any such Underwriter
under this Agreement.
MISCELLANEOUS. Notices given pursuant to any pro-
vision of this Agreement shall be addressed as follows: (a) if to the Company,
to American Communications Services, Inc., 000 Xxxxxxxx Xxxxxxxx Xxxxxxx,
Xxxxx 000, Xxxxxxxxx Xxxxxxxx, Xxxxxxxx 00000, Attention: Xxxxx X. Xxxxxx,
Esq. (Fax No.: 000-000-0000), and (b) if to any Underwriter or to you, to you
c/o Alex. Xxxxx & Sons Incorporated, Xxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx
00000, Attention: Syndicate Department (Fax No.: (000) 000-0000), or in any
case to such other address or facsimile number as the person to be notified may
have requested in writing.
The respective indemnities, contribution agreements,
representations, warranties and other statements of the Company, its officers
and directors and of the several Underwriters set forth in or made pursuant to
this Agreement shall remain operative and in full force and effect, and will
survive delivery of and payment for the Shares, regardless of (i) any
investigation, or statement as to the results thereof, made by or on behalf of
any Underwriter or by or on behalf of the Company, the officers or directors of
the Company or any controlling person of the Company, (ii) acceptance of
39
the Shares and payment for them hereunder and (iii) termination of this
Agreement.
If this Agreement shall be terminated by the Underwriters
because of any failure or refusal on the part of the Company to comply with the
terms or to fulfill any of the conditions of this Agreement, the Company agrees
to reimburse the several Underwriters for all out-of-pocket expenses (including
the fees and disbursements of counsel for the Underwriters) reasonably incurred
by them.
Except as otherwise provided, this Agreement has been and is
made solely for the benefit of and shall be binding upon the Company, the
Underwriters, any controlling persons referred to herein and their respective
successors and assigns, all as and to the extent provided in this Agreement, and
no other person shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" shall not include a purchaser of
any of the Shares from any of the several Underwriters merely because of such
purchase.
For the purposes of this Agreement, "business day" means any
day on which the New York Stock Exchange is open for trading.
This Agreement shall be governed and construed in accordance
with the laws of the State of New York.
This Agreement may be signed in various counterparts, which
together shall constitute one and the same instrument.
Please confirm that the foregoing correctly sets forth the
agreement between the Company and the several Underwriters.
Very truly yours,
AMERICAN COMMUNICATIONS SERVICES, INC.
By:
Name:
Title:
Accepted as of the date first above written.
ALEX. XXXXX & SONS INCORPORATED
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
Acting severally on behalf of themselves and the several Underwriters
named in Schedule I hereto
40
By: ALEX. XXXXX & SONS
INCORPORATED
By:
Name: Xxxxx X. Xxxxxx
Title: Managing Director
41
SCHEDULE I
Number of
Name of Underwriter to be Purchased Firm Shares
-----------------------------------
Alex. Xxxxx & Sons Incorporated
Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation
TOTAL
------------
42
SCHEDULE II
SUBSIDIARIES *
Jurisdiction of Percentage
Name Incorporation of Equity
---- ------------- ---------
American Communication Services Delaware **
of Columbia, Inc.
American Communication Services Delaware **
of Fort Worth, Inc.
American Communication Services Delaware **
of Greenville, Inc.
American Communication Services Delaware 100
of Little Rock, Inc.
American Communication Services Delaware **
of Louisville, Inc.
American Communication Services Delaware 100
of Albuquerque, Inc.
American Communication Services Delaware 100
of Charleston, Inc.
American Communication Services Delaware 100
of Chattanooga, Inc.
American Communication Services Delaware **
of El Paso, Inc.
American Communication Services Delaware 100
of Lexington, Inc.
43
American Communication Services Delaware 100
of Pima County, Inc.
American Communication Services Delaware 100
of Birmingham, Inc.
---------------
* All subsidiaries are subject to restrictions and other
provisions of the Indentures.
** AT&T Credit owns 7.25% of outstanding stock of subsidiary, has a
security interest in the rest, which ASCI has pledged to AT&T Credit.
American Communication Services Delaware 100
of Mobile, Inc.
ACSI Advanced Technologies, Inc. Maryland 100
American Communication Services Maryland 100
of Irving, Inc.
American Communication Services Maryland 100
of Xxxxxxxxxx, Inc.
American Communication Services Maryland 100
of Amarillo, Inc.
American Communication Services Maryland 100
of Baton Rouge, Inc.
American Communication Services Maryland 100
of Xxxxxxx, Inc.
American Communication Services Maryland 100
of Spartanburg, Inc.
American Communication Services Maryland 100
of Columbus, Inc.
American Communication Services Maryland 100
of Las Vegas, Inc.
American Communication Services Maryland 100
of Maryland, Inc.
44
SCHEDULE III
PURCHASER STOCKHOLDERS
=======================================================================================================================
Purchaser Number of Shares Purchase Price Aggregate
Stockholder Purchased Per Share Purchase Price
=======================================================================================================================
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
=======================================================================================================================
45
SCHEDULE IV
INVESTING PREFERRED STOCKHOLDERS
=================================================================================================================
Investing Preferred Aggregate Amount of Number of Shares
Stockholder Dividends Owed on Received in Lieu of
Preferred Stock Cash Payment
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
=================================================================================================================
46
ANNEX I
STOCKHOLDERS SUBJECT TO 180-DAY LOCK-UP PERIOD
Xxxxxxx X. Xxxxxxxxx
Xxxx Xxxxx
Xxxxxxx X. Xxxxx
Xxxxxx X. Xxxxxxxx, III
Xxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxxxxx
Xxxxx X. Xxxxx
Xxxxxxxxxxx X. Xxxxxxxx
Xxxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxxxxxx
Xxxxx X. Xxxxx
The Xxxx Alternative Income Fund, L.P.
ING Equity Partners, L.P.
Apex Investment Fund I, L.P.
Apex Investment Fund II, L.P.
Argentum Capital Partners, L.P.
Blazerhold & Co.
Environmental Private Equity Fund II, L.P.
The Productivity Fund II, L.P.
47
ANNEX II
STOCKHOLDERS SUBJECT TO 90-DAY LOCK-UP PERIOD
Xxxx Xxxxx Capital, L.P.
Xxxx Xxxxx Capital International
Prime II Management, L.P.
48
ANNEX III
LISTED CONTRACTS
Indenture, dated November 14, 1995, between the Company and Chemical
Bank, as trustee, relating to $190,000,000 in principal amount of 13%
Senior Discount Notes due 2005;
Indenture, dated March 26, 1996, between the Company and Chemical Bank,
as trustee, relating to $120,000,000 in principal amount of 12 3/4%
Senior Discount Notes Due 2006;
Loan and Security Agreement, dated October 17, 1994, between
AT&T Credit Corporation and American Communication Services
of Louisville, Inc.;
Loan and Security Agreement, dated February 28, 1995,
between AT&T Credit Corporation and American Communication
Services of Fort Worth, Inc.;
Loan and Security Agreement, dated June 30, 1995, between
AT&T Credit Corporation and American Communication Services
of Greenville, Inc. and American Communication Services of
Columbia, Inc.;
Loan and Security Agreement, dated September 8, 1995,
between AT&T Credit Corporation and American Communications
Services of El Paso, Inc.;
Parent Support and Pledge Agreement (Louisville) dated
October 17, 1994, between the Company and AT&T Credit
Corporation;
Parent Support and Pledge Agreement (El Paso) dated
September 8, 1995, between the Company and AT&T Credit
Corporation;
Amendment No. 1 to Parent Support and Pledge Agreement
(Louisville) between the Company and AT&T Credit
Corporation;
Amendment No. 1 to Parent Support and Pledge Agreement (Fort
Worth) between the Company and AT&T Credit Corporation;
Amendment No. 1 to Loan and Security Agreement between
American Communications Services of Louisville, Inc. and
AT&T Credit Corporation;
Stock Purchase Agreement, dated October 17, 1994, between the Company
and AT&T Credit Corporation;
49
Stock Purchase Agreement, dated October 17, 1994, between
the American Communications Services of Louisville, Inc. and
AT&T Credit Corporation;
AT&T Credit Facility Master Agreement;
AT&T Credit Facility Addendums for Louisville, Fort Worth,
Greenville, Columbia and El Paso subsidiaries;
Master IRU Agreement, dated June 23, 1995, by and between
MCImetro Access Transmission Services, Inc. and the Company;
Agreement, dated as of June 15, 1996, by and between AT&T
Communications, Inc. and the Company;
Access Service Agreement, dated June 15, 1996, by and between LCI
International Telecom Corp. and the Company, and Addendum, dated
February 22, 1996;
General Agreement between Lucent Technologies, Inc. and the
Company, and Addendum Number One to the General Agreement
between Lucent Technologies, Inc. and the Company, executed
June 25, 1996.
Preferred Provider Amendment to Master Capacity Agreement
dated as of March 6, 1997 by and between MCImetro Access
Transmission Services, Inc. and the Company.
Settlement Agreement and Release dated March 11, 1997
between Xxxxxxx X. Xxxxx and the Company
Employment Agreement dated as of February 28, 1997 by and
between the Company and Xxxxx X. Xxxxxx.
