EXECUTION VERSION
UNDERWRITING AGREEMENT
WESTERN WIRELESS CORPORATION
12,000,000 Shares of Class A Common Stock
Underwriting Agreement
October 29, 2003
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Western Wireless Corporation, a Washington corporation (the "Company"),
proposes to issue and sell to the several Underwriters listed in Schedule I
hereto (the "Underwriters"), for whom you are acting as the representative (the
"Representative"), an aggregate of 12,000,000 shares of Class A common stock, no
par value, of the Company (the "Shares"). The shares of Class A common stock, no
par value, of the Company to be outstanding after giving effect to the sale of
the Shares are herein referred to as the "Common Stock".
The Company hereby confirms its agreement with the several Underwriters
concerning the purchase and sale of the Shares, as follows:
1. Registration Statement. The Company has prepared and filed
with the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), a registration
statement (File No. 333-108723) including a prospectus, relating to the Shares.
Such registration statement, as amended at the time it became effective,
including the information, if any, deemed pursuant to Rule 430A under the
Securities Act to be part of the registration statement at the time of its
effectiveness ("Rule 430A Information"), is referred to herein as the
"Registration Statement"; and as used herein, the term "Preliminary Prospectus"
means each prospectus included in such registration statement (and any
amendments thereto) before it became effective, any prospectus filed with the
Commission pursuant to Rule 424(a) under the Securities Act and the prospectus
included in the Registration Statement at the time of its effectiveness that
omits Rule 430A Information, and the term "Prospectus" means the prospectus
(including both the base prospectus and the prospectus supplement) in the form
first used to confirm sales of the Shares. If the Company has filed an
abbreviated registration statement pursuant to Rule 462(b) under the Securities
Act (the "Rule 462 Registration Statement"), then any reference herein to the
term "Registration Statement" shall be deemed to include such Rule 462
Registration Statement. Any reference in this Agreement to the Registration
Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the Securities Act, as of the
effective date of the Registration Statement or the date of such Preliminary
Prospectus or the Prospectus, as the case may be, and any reference to "amend",
"amendment" or "supplement" with respect to the Registration Statement, any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and include
any documents filed after such date under the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Exchange Act") that are deemed to be incorporated by
reference therein. Capitalized terms used but not defined herein shall have the
meanings given to such terms in the Registration Statement and the Prospectus.
2. Purchase of the Shares by the Underwriters. (a) The Company
agrees to issue and sell the Shares to the several Underwriters as provided in
this Agreement, and each Underwriter, on the basis of the representations,
warranties and agreements set forth herein and subject to the conditions set
forth herein, agrees, severally and not jointly, to purchase from the Company
the respective number of Shares set forth opposite such Underwriter's name in
Schedule I hereto at a price per share (the "Purchase Price") of $19.00.
(b) The Company understands that the Underwriters intend to make a
public offering of the Shares as soon after the effectiveness of this Agreement
as in the judgment of the Representative is advisable, and initially to offer
the Shares on the terms set forth in the Prospectus. The Company acknowledges
and agrees that the Underwriters may offer and sell Shares to or through any
affiliate of an Underwriter and that any such affiliate may offer and sell
Shares purchased by it to or through any Underwriter.
(c) Payment for the Shares shall be made by wire transfer in
immediately available funds to the account specified by the Company to the
Representative at the offices of Xxxxxxx Xxxxx & Xxxxx LLP, 000 Xxxxxx Xxxxxx,
Xxxxx 0000, Xxxxxxx, Xxxxxxxxxx 00000 at 10:00 A.M. New York City time on
November 3, 2003, or at such other time or place on the same or such other date,
not later than the fifth business day thereafter, as the Representative and the
Company may agree upon in writing. The time and date of such payment is referred
to herein as the "Closing Date".
Payment for the Shares shall be made against delivery to the
Representative through the facilities of the Depository Trust Company for the
respective accounts of the several Underwriters of the Shares in definitive form
registered in such names and in such denominations as the Representative shall
request in writing not later than two full business days prior to the Closing
Date with any transfer taxes payable in connection with the sale of the Shares
duly paid by the Company. The certificates for the Shares will be made available
for inspection and packaging by the Representative at the office of Xxxxxxx
Xxxxx & Xxxxx LLP set forth above not later than 1:00 P.M., Seattle time, on the
business day prior to the Closing Date.
3. Representations and Warranties. The Company represents and
warrants to each Underwriter that:
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(a) Preliminary Prospectus. No order preventing or suspending the
use of any Preliminary Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, complied in all material
respects with the Securities Act and did not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that the
Company makes no representation and warranty with respect to any statements or
omissions made in reliance upon and in conformity with information furnished to
the Company in writing by such Underwriter through the Representative expressly
for use in any Preliminary Prospectus.
(b) Registration Statement and Prospectus. No order suspending the
effectiveness of the Registration Statement has been issued by the Commission
and no proceeding for that purpose has been initiated or threatened by the
Commission; as of the applicable effective date of the Registration Statement
and any amendment thereto, the Registration Statement complied and will comply
in all material respects with the Securities Act, and did not and will not
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein not misleading; and as of the applicable filing date of the Prospectus
and any amendment or supplement thereto and as of the Closing Date, the
Prospectus will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; provided that the Company makes no representation and
warranty with respect to any statements or omissions made in reliance upon and
in conformity with information furnished to the Company in writing by such
Underwriter through the Representative expressly for use in the Registration
Statement and the Prospectus and any amendment or supplement thereto.
(c) Incorporated Documents. The documents incorporated by
reference in the Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects to the
requirements of the Securities Act or the Exchange Act, as applicable, and none
of such documents contained any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; and any further documents so filed and incorporated by
reference in the Prospectus, when such documents become effective or are filed
with the Commission, as the case may be, will conform in all material respects
to the requirements of the Securities Act or the Exchange Act, as applicable,
and 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, in the light of the circumstances under which they were made, not
misleading.
(d) Forward-Looking Statements. No forward-looking statement
(within the meaning of Section 27A of the Securities Act and Section 21E of the
Exchange Act) contained in the Registration Statement or the Prospectus has been
made or reaffirmed without a reasonable basis or has been disclosed other than
in good faith.
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(e) Statistical and Market Data. Nothing has come to the attention
of the Company that has caused the Company to believe that the statistical and
market-related data included in the Registration Statement or the Prospectus is
not based on or derived from sources that are reliable and accurate in all
material respects.
(f) Investment Company Act. The Company is not, and after giving
effect to the offering and sale of the Shares and the application of the
proceeds thereof as described in the Prospectus will not be, an "investment
company" or an entity "controlled" by an "investment company" within the meaning
of the Investment Company Act of 1940, as amended, and the rules and regulations
of the Commission thereunder (collectively, the "Investment Company Act").
(g) Margin Rules. Neither the issuance, sale and delivery of the
Shares nor the application of the proceeds thereof by the Company as described
in the Registration Statement and the Prospectus will violate Regulation T, U or
X of the Board of Governors of the Federal Reserve System or any other
regulation of such Board of Governors.
(h) No Broker's Fees. Neither the Company nor any of its
subsidiaries is a party to any contract, agreement or understanding with any
person (other than this Agreement) that would give rise to a valid claim against
the Company or any of its subsidiaries or any Underwriter for a brokerage
commission, finder's fee or like payment in connection with the offering and
sale of the Shares.
(i) No Stabilization. The Company has not taken, directly or
indirectly, any action designed to or that could reasonably be expected to cause
or result in any stabilization or manipulation of the price of the Shares.
(j) Significant Subsidiaries. The subsidiaries listed on Schedule
II attached hereto are the only "significant subsidiaries" of the Company (as
defined in Rule 1-02 of Regulation S-X under the Securities Act) (each, a
"Significant Subsidiary" and, collectively, the "Significant Subsidiaries").
(k) Organization and Good Standing. The Company and each
Significant Subsidiary has been duly incorporated or organized and is validly
existing in good standing (in jurisdictions where such concept applies) as a
corporation or other entity under the laws of the jurisdiction in which it is
chartered or organized, with full power and authority (corporate and other) to
own, lease or operate its properties and conduct its business as described in
the Prospectus, and has been duly qualified as a foreign entity for the
transaction of business and is in good standing (in jurisdictions where such
concept applies) under the laws of each other jurisdiction in which it owns or
leases properties or conducts any business so as to require such qualification,
except where the failure to be so qualified would not, individually or in the
aggregate, have a material adverse effect on the business, properties,
management, financial position, shareholders' equity, results of operations or
prospects of the Company and its subsidiaries taken as a whole (a "Material
Adverse Effect").
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(l) Capitalization. The Company has an authorized equity
capitalization as set forth in the Prospectus under the heading
"Capitalization"; all the issued and outstanding shares of capital stock of the
Company have been duly authorized and validly issued and are fully paid and
nonassessable, and are not subject to any pre-emptive or similar rights; and,
except as set forth in the Prospectus, no options, warrants or other rights to
purchase, agreements or other obligations to issue, or rights to convert any
obligations into or exchange any securities for, shares of capital stock of or
ownership interests in the Company are outstanding; the capital stock of the
Company conforms in all material respects to the description thereof contained
in the Registration Statement and the Prospectus.
(m) Capital Stock of Significant Subsidiaries. All of the
outstanding shares of capital stock of each Significant Subsidiary have been
duly authorized and validly issued and are fully paid and nonassessable, and,
except as otherwise set forth in the Prospectus, all outstanding shares of
capital stock of the Significant Subsidiaries (except for minority interests
representing less than 3% of such Significant Subsidiary) are owned by the
Company either directly or through wholly-owned subsidiaries free and clear of
any security interest, claim, lien or encumbrance other than liens granted
pursuant to (i) the Loan Agreement, dated as of April 25, 2000 (the "Loan
Agreement"), among the Company and the financial institutions named therein, as
amended, or (ii) any debt agreement to which Western Wireless International
Holding Corporation or its subsidiaries is a party (the "Foreign Financings").
(n) Due Authorization. The Company has full right, power and
authority to execute and deliver this Agreement and to perform its obligations
hereunder; and all action (corporate and other) required to be taken for the due
and proper authorization, execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby has been duly and validly
taken.
(o) Underwriting Agreement. This Agreement has been duly
authorized, executed and delivered by the Company.
(p) The Shares. The Shares to be issued and sold by the Company
hereunder have been duly authorized by the Company and, when issued and
delivered and paid for as provided herein, will be duly and validly issued and
will be fully paid and nonassessable and will conform to the descriptions
thereof in the Prospectus; and the issuance of the Shares is not subject to any
preemptive or similar rights.
(q) No Consents Required. No consent, approval, authorization,
filing or order of any court or governmental agency or body is required in
connection with the transactions contemplated herein, except for the
registration of the Shares under the Securities Act and such consents,
approvals, authorizations, filings, orders and registrations or qualifications
as may be required under applicable state securities laws in connection with the
purchase and distribution of the Shares by the Underwriters.
(r) No Conflicts. Neither the execution and delivery of this
Agreement, the issuance and sale of the Shares, nor the consummation of any
other of the transactions herein contemplated, nor the fulfillment of the terms
hereof will conflict with, result in a breach or
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violation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of its Significant Subsidiaries pursuant to, (i)
the charter or by-laws or similar organizational documents of the Company or any
of its Significant Subsidiaries; (ii) the terms of any indenture, contract,
lease, mortgage, deed of trust, note agreement, loan agreement, shareholders
agreement, registration rights agreement or other agreement, obligation,
condition, covenant or instrument to which the Company or any of its Significant
Subsidiaries is a party or bound or to which its or their property is subject;
or (iii) any statute, law, rule, regulation, judgment, order or decree
applicable to the Company or any of its Significant Subsidiaries of any court,
regulatory body, administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Company or any of its Significant
Subsidiaries or any of its or their properties.
(s) Financial Statements. The financial statements and the related
notes thereto incorporated by reference in the Registration Statement and the
Prospectus comply in all material respects with the applicable requirements of
the Securities Act and the Exchange Act, as applicable, and present fairly in
all material respects the financial position of the Company and its subsidiaries
as of the dates indicated and the results of their operations and the changes in
their cash flows for the periods specified; such financial statements have been
prepared in conformity with generally accepted accounting principles in the
United States applied on a consistent basis throughout the periods covered
thereby (except as otherwise noted therein), and the supporting schedules
incorporated by reference in the Registration Statement present fairly in all
material respects the information required to be stated therein; and the other
financial information included or incorporated by reference in the Registration
Statement and the Prospectus has been derived from the accounting records of the
Company and its subsidiaries and presents fairly in all material respects the
information shown thereby; and the pro forma financial information and the
related notes thereto included or incorporated by reference in the Registration
Statement and the Prospectus has been prepared in accordance with the applicable
requirements of the Securities Act and the Exchange Act, as applicable, and the
assumptions underlying such pro forma financial information are reasonable and
are set forth in the Registration Statement and the Prospectus.
(t) Legal Proceedings. Except as described in the Prospectus,
including, without limitation, the documents incorporated by reference in the
Prospectus, there are no legal, governmental or regulatory investigations,
actions, suits or proceedings pending or, to the knowledge of the Company,
threatened to which the Company or any of its subsidiaries is or may be a party
or to which any property of the Company or any of its subsidiaries is or may be
the subject that, individually or in the aggregate, if determined adversely to
the Company or any of its subsidiaries, could reasonably be expected to have a
Material Adverse Effect or materially and adversely affect the ability of the
Company to perform its obligations under this Agreement; and (i) there are no
current or pending legal, governmental or regulatory actions, suits or
proceedings that are required under the Securities Act to be described in the
Prospectus that are not so described and (ii) there are no statutes, regulations
or contracts or other documents that are required under the Securities Act to be
filed as exhibits to the Registration Statement or described in the Registration
Statement or the Prospectus that are not so filed or described.
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(u) No Material Adverse Change. Since the date of the most recent
financial statements of the Company incorporated by reference in the
Registration Statement and the Prospectus, (i) there has not been any change in
the capital stock (other than pursuant to the exercise of employee stock options
to purchase Common Stock and grants and purchases of Common Stock pursuant to
the Company's employee restricted stock and stock purchase plans) or long-term
debt of the Company or any of its subsidiaries, or any dividend or distribution
of any kind declared, set aside for payment, paid or made by the Company on any
class of capital stock, or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the business,
properties, management, financial position, shareholders' equity, results of
operations or prospects of the Company and its subsidiaries taken as a whole;
(ii) neither the Company nor any of its subsidiaries has entered into any
transaction or agreement that is material to the Company and its subsidiaries
taken as a whole or incurred any liability or obligation, direct or contingent,
that is material to the Company and its subsidiaries taken as a whole; and (iii)
neither the Company nor any of its subsidiaries has sustained any material loss
or interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor disturbance or dispute or
any action, order or decree of any court or arbitrator or governmental or
regulatory authority, except in each case as otherwise disclosed in the
Registration Statement and the Prospectus.
(v) Title to Real and Personal Property. The Company and its
subsidiaries have good and marketable title in fee simple to, or have valid
rights to lease or otherwise use, all items of real and personal property that
are material to the respective businesses of the Company and its subsidiaries,
in each case free and clear of all liens, encumbrances, claims and defects and
imperfections of title except those that (i) are described in the Prospectus
(including the Loan Agreement and the Foreign Financings), (ii) do not
materially interfere with the use made and proposed to be made of such property
by the Company and its subsidiaries or (iii) could not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect.
(w) Rights to Intellectual Property. To the best of its knowledge,
the Company and its subsidiaries own or possess adequate rights to use all
material patents, patent applications, trademarks, service marks, trade names,
trademark registrations, service xxxx registrations, copyrights, licenses and
know-how, including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures (collectively
"Intellectual Property Rights"), necessary for the conduct of their respective
businesses; the conduct of their respective businesses will not conflict with
any such Intellectual Property Rights of others, except to the extent that such
conflict would not reasonably be expected to, individually or in the aggregate,
have a Material Adverse Effect; and, except for any claims that would not
reasonably be expected to, individually or in the aggregate, have a Material
Adverse Effect, no claim has been filed against the Company or any of its
subsidiaries alleging the infringement by the Company or any of its subsidiaries
of any Intellectual Property Rights of any person.
(x) No Undisclosed Relationships. No relationship, direct or
indirect, exists between or among the Company or any of its subsidiaries, on the
one hand, and the directors, officers, shareholders, customers or suppliers of
the Company or any of its subsidiaries, on the other, that
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is required by the Securities Act to be described in the Registration Statement
and the Prospectus and that is not so described.
(y) No Violation or Default. Except as otherwise set forth in or
contemplated by the Prospectus, neither the Company nor any of its Significant
Subsidiaries is in violation or default of (i) any provision of its charter,
bylaws or similar organizational documents; (ii) the terms of any indenture,
contract, lease, mortgage, deed of trust, note agreement, loan agreement,
shareholders agreement, registration rights agreement or other agreement,
obligation, condition, covenant or instrument to which it is a party or bound or
to which its property is subject; or (iii) any statute, law, rule, regulation,
judgment, order or decree applicable to it of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority having
jurisdiction over it or any of its properties, except, in the case of clauses
(ii) and (iii) above, for any such default or violation that would not,
individually or in the aggregate, have a Material Adverse Effect.
(z) Independent Accountants. To the knowledge of the Company,
PricewaterhouseCoopers LLP, who have certified certain financial statements of
the Company and its consolidated subsidiaries and delivered their report with
respect to the audited consolidated financial statements and schedules
incorporated by reference in the Prospectus, are independent public accountants
with respect to the Company and its subsidiaries within the meaning of the
applicable rules and regulations adopted by the Commission.
(aa) FCC Permits. Except as otherwise set forth in or contemplated
by the Prospectus (exclusive of any amendment or supplement thereto), the
Company and its subsidiaries have such certificates of convenience or necessity,
easements, rights-of-way, operating rights, permits, licenses, franchises and
authorizations of governmental or regulatory authorities ("Permits"), including
Permits issued by the Federal Communications Commission (the "FCC"), as are
necessary to own their respective properties and to conduct their respective
businesses substantially in the manner described in the Prospectus, except for
any such Permits the absence of which could not reasonably be expected to result
in a Material Adverse Effect; the Company and its subsidiaries have fulfilled
all their material obligations with respect to such Permits and no event has
occurred which allows (or after notice or lapse of time would allow) revocation
or termination thereof or result in any other material impairment of the rights
of the holder of any such Permit, in each case which could reasonably be
expected to result in a Material Adverse Effect; and, except as described in the
Prospectus (exclusive of any amendment or supplement thereto), none of such
Permits contains any restriction that is burdensome to the Company or any of its
subsidiaries, except for restrictions that could not reasonably be expected to
have a Material Adverse Effect.
(bb) Accounting Controls. The Company and each of its subsidiaries
maintain a system of internal accounting controls sufficient to provide
reasonable assurance that (i) transactions are executed in accordance with
management's general or specific authorizations; (ii) transactions are recorded
as necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain asset accountability;
(iii) access to assets is permitted only in accordance with management's general
or specific
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authorization; and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(cc) Compliance With Environmental Laws. In the ordinary course of
its business, the Company periodically reviews the effect of applicable
non-U.S., U.S. federal, state and local laws and regulations relating to the
protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants (collectively, "Environmental
Laws") on the business, operations and properties of the Company and its
subsidiaries, in the course of which it identifies and evaluates associated
costs and liabilities (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance with
Environmental Laws or any permit, license or approval, any related constraints
on operating activities and any potential liabilities to third parties); on the
basis of such review, the Company has reasonably concluded that such associated
costs and liabilities would not, individually or in the aggregate, have a
Material Adverse Effect.
(dd) No Unlawful Payments. None of the Company, its subsidiaries
or, to the knowledge of the Company, any director, officer, agent, employee or
affiliate of the Company or any of its subsidiaries is aware of or has taken any
action, directly or indirectly, that would result in a violation by such persons
of Foreign Corrupt Practices Act of 1977, as amended, and the rules and
regulations thereunder (the "FCPA"), including, without limitation, making use
of the mails or any means or instrumentality of interstate commerce corruptly in
furtherance of an offer, payment, promise to pay or authorization of the payment
of any money, or other property, gift, promise to give, or authorization of the
giving of anything of value to any "foreign official" (as such term is defined
in the FCPA) or any foreign political party or official thereof or any candidate
for foreign political office, in contravention of the FCPA; and the Company, its
subsidiaries and, to the knowledge of the Company, its affiliates have conducted
their businesses in compliance with the FCPA and have instituted and maintain
policies and procedures designed to ensure, and which are reasonably expected to
continue to ensure, continued compliance therewith.
(ee) No Sanctions. None of the Company, any of its subsidiaries or,
to the knowledge of the Company, any director, officer, agent, employee or
affiliate of the Company or any of its subsidiaries is currently subject to any
U.S. sanctions administered by the Office of Foreign Assets Control of the U.S.
Department of the Treasury ("OFAC"); and the Company will not directly or
indirectly use the proceeds of the offering of the Shares, or lend, contribute
or otherwise make available such proceeds to any subsidiary, joint venture
partner or other person or entity, for the purpose of financing the activities
of any person currently subject to any U.S. sanctions administered by OFAC.
(ff) Taxes. The Company and its subsidiaries have paid all federal,
state, local and foreign taxes and filed all tax returns required to be paid or
filed through the date hereof; and except as otherwise disclosed in the
Prospectus, there is no tax deficiency that has been, or could reasonably be
expected to be, asserted against the Company or any of its subsidiaries or any
of their respective properties or assets, other than a use tax assessment for
billing services applicable to the Company's xxxxxxxx in South Dakota from 1994
to 1997, which assessment has
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been challenged by the Company in good faith and accrued for in the financial
statements referred to in subparagraph (s) above.
(gg) Lock-Up Agreements. Prior to the date hereof, the Company has
furnished to the Representative "lock-up agreements", each substantially in the
form of Exhibit A hereto, duly executed by each of Xxxx X. Xxxxxxx, Xxxxxxx X.
Xxxxxxxxx, Xxxxx X. Xxxxxxx, M. Xxxxx Xxxxxxxx, Xxxx Xxxxx and Xxxxxx Xxxxxxx,
relating to sales and certain other dispositions of shares of capital stock or
certain other securities, addressed to the Representative.
Any certificate signed by any officer of the Company and delivered to the
Representative or counsel for the Underwriters in connection with the offering
of the Shares shall be deemed a representation and warranty by the Company, as
to matters covered thereby, to each Underwriter.
4. Further Agreements of the Company. The Company covenants and
agrees with each Underwriter that:
(a) Effectiveness of the Registration Statement. The Company will
use its reasonable best efforts to, if required, file the final Prospectus with
the Commission within the time periods specified by Rule 424(b) and Rule 430A
under the Securities Act and to file promptly all reports and any definitive
proxy or information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date of the Prospectus and for so long as the delivery of a
prospectus is required in connection with the offering or sale of the Shares;
and the Company will use its reasonable best efforts to furnish copies of the
Prospectus to the Underwriters in New York City prior to 10:00 A.M., New York
City time, on the business day next succeeding the date of this Agreement in
such quantities as the Representative may reasonably request.
(b) Delivery of Copies. The Company will deliver, without charge,
(i) to the Representative, two signed copies of the Registration Statement as
originally filed and each amendment thereto, in each case including all exhibits
and consents filed therewith and documents incorporated by reference therein;
and (ii) to each Underwriter (A) a conformed copy of the Registration Statement
as originally filed and each amendment thereto (without exhibits) and (B) during
the Prospectus Delivery Period, as many copies of the Prospectus (including all
amendments and supplements thereto and documents incorporated by reference
therein) as the Representative may reasonably request. As used herein, the term
"Prospectus Delivery Period" means such period of time after the first date of
the public offering of the Shares as in the opinion of counsel for the
Underwriters a prospectus relating to the Shares is required by law to be
delivered in connection with sales of the Shares by any Underwriter or dealer.
(c) Amendments or Supplements. Before filing any amendment or
supplement to the Registration Statement or the Prospectus the Company will
furnish to the Representative and counsel for the Underwriters a copy of the
proposed amendment or supplement for review and will not file any such proposed
amendment or supplement to which the Representative reasonably objects.
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(d) Notice to the Representative. The Company will advise the
Representative promptly, and confirm such advice in writing, (i) when any
amendment to the Registration Statement has been filed or becomes effective;
(ii) when any supplement to the Prospectus or any amendment to the Prospectus
has been filed; (iii) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or the
receipt of any comments from the Commission relating to the Registration
Statement or any other request by the Commission for any additional information;
(iv) of the issuance by the Commission of any order suspending the effectiveness
of the Registration Statement or preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or the initiation or threatening of any
proceeding for that purpose; (v) of the occurrence of any event within the
Prospectus Delivery Period as a result of which the Prospectus as then amended
or supplemented would include any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances existing when the Prospectus is delivered to a
purchaser, not misleading; and (vi) of the receipt by the Company of any notice
with respect to any suspension of the qualification of the Shares for offer and
sale in any jurisdiction or the initiation or threatening of any proceeding for
such purpose; and the Company will use its reasonable best efforts to prevent
the issuance of any such order suspending the effectiveness of the Registration
Statement, preventing or suspending the use of any Preliminary Prospectus or the
Prospectus or suspending any such qualification of the Shares and, if any such
order is issued, will use its reasonable best efforts to obtain as soon as
possible the withdrawal thereof.
(e) Ongoing Compliance of the Prospectus. If during the Prospectus
Delivery Period (i) any event shall occur or condition shall exist as a result
of which the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances existing when the Prospectus is delivered to a
purchaser, not misleading or (ii) it is necessary to amend or supplement the
Prospectus to comply with applicable law, the Company will promptly notify the
Underwriters thereof and forthwith prepare and, subject to paragraph (c) above,
file with the Commission and furnish to the Underwriters and to such dealers as
the Representative may designate, such amendments or supplements to the
Prospectus as may be necessary so that the statements in the Prospectus as so
amended or supplemented will not, in the light of the circumstances existing
when the Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus will comply with law.
(f) Blue Sky Compliance. The Company will qualify the Shares for
offer and sale under the securities or Blue Sky laws of such jurisdictions as
the Representative shall reasonably request and will continue such
qualifications in effect so long as required for distribution of the Shares;
provided that the Company shall not be required to (i) qualify as a foreign
corporation or other entity or as a dealer in securities in any such
jurisdiction where it would not otherwise be required to so qualify, (ii) file
any general consent to service of process in any such jurisdiction or (iii)
subject itself to taxation in any such jurisdiction if it is not otherwise so
subject.
(g) Earning Statement. The Company will make generally available
to its security holders and the Representative as soon as practicable an earning
statement that satisfies the
- 11 -
provisions of Section 11(a) of the Securities Act and Rule 158 of the
Commission promulgated thereunder covering a period of at least twelve months
beginning with the first fiscal quarter of the Company occurring after the
"effective date" (as defined in Rule 158) of the Registration Statement.
(h) Clear Market. For a period of 90 days after the date of the
initial public offering of the Shares, the Company will not (i) offer, pledge,
announce the intention to sell, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase or otherwise transfer or dispose of, directly or
indirectly, any shares of capital stock of the Company or any securities
convertible into or exercisable or exchangeable for such capital stock or (ii)
enter into any swap or other agreement that transfers, in whole or in part, any
of the economic consequences of ownership of the capital stock of the Company or
any securities convertible into or exercisable or exchangeable for such capital
stock, whether any such transaction described in clause (i) or (ii) above is to
be settled by delivery of capital stock or such other securities, in cash or
otherwise, without the prior written consent of the Representative, other than
(w) the Shares to be sold hereunder, (x) any shares of capital stock of the
Company issued in connection with the Company's existing employee stock option,
restricted stock and stock purchase plans, (y) any shares of the Company's Class
A common stock issued in connection with the conversion of the Company's Class B
common stock and (z) any shares of the Company's Class A common stock issued in
connection with the conversion of the Company's 4 5/8% Convertible Subordinated
Notes due 2023 (the "Convertible Notes"), including any conversion made at a
conversion price less than the one provided for by the terms of such Convertible
Notes.
(i) Use of Proceeds. The Company will apply the net proceeds from
the sale of the Shares as described in the Prospectus under the heading "Use of
Proceeds".
(j) No Stabilization. The Company will not take, directly or
indirectly, any action designed to or that could reasonably be expected to cause
or result in any stabilization or manipulation of the price of the Shares.
(k) Exchange Listing. The Company will use its best efforts to
list for quotation the Shares on the National Association of Securities Dealers
Automated Quotations National Market (the "Nasdaq National Market").
(l) Reports. During a period of five years from the effective date
of the Registration Statement, the Company will furnish to the Representative,
as soon as they are available, copies of all reports or other communications
(financial or other) furnished to holders of the Shares, and copies of any
reports and financial statements furnished to or filed with the Commission or
any national securities exchange or automatic quotation system, except to the
extent such reports or financial statements are publicly available on the
Commission's XXXXX system.
5. Conditions of Underwriters' Obligations. The obligation of
each Underwriter to purchase the Shares on the Closing Date as provided herein
is subject to the performance by the
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Company of its covenants and other obligations hereunder and to the following
additional conditions:
(a) Registration Compliance; No Stop Order. The Registration
Statement (or if a post-effective amendment thereto is required to be filed
under the Securities Act, such post-effective amendment) shall have become
effective, and the Representative shall have received notice thereof, not later
than 5:00 P.M., New York City time, on the date hereof; no order suspending the
effectiveness of the Registration Statement shall be in effect, and no
proceeding for such purpose shall be pending before or threatened by the
Commission; the Prospectus shall have been timely filed with the Commission
under the Securities Act and in accordance with Section 4(a) hereof; and all
requests by the Commission for additional information shall have been complied
with to the reasonable satisfaction of the Representative.
(b) Representations and Warranties. The representations and
warranties of the Company contained herein shall be true and correct on the date
hereof and on and as of the Closing Date; and the statements of the Company and
its officers made in any certificates delivered pursuant to this Agreement shall
be true and correct on and as of the Closing Date.
(c) No Downgrade. Subsequent to the execution and delivery of this
Agreement, (i) no downgrading shall have occurred in the rating accorded any
debt securities of the Company by any "nationally recognized statistical rating
organization", as such term is defined by the Commission for purposes of Rule
436(g)(2) under the Securities Act and (ii) no such organization shall have
publicly announced that it has under surveillance or review, with negative
implications, its rating of any debt securities of the Company.
(d) No Material Adverse Change. Subsequent to the execution and
delivery of this Agreement, no event or condition of a type described in Section
3(u) hereof shall have occurred or shall exist, which event or condition is not
described in the Prospectus (excluding any amendment or supplement thereto) and
the effect of which in the judgment of the Representative makes it impracticable
or inadvisable to proceed with the offering, sale or delivery of the Shares on
the Closing Date on the terms and in the manner contemplated by this Agreement
and the Prospectus.
(e) Officer's Certificate. The Representative shall have received
on and as of the Closing Date a certificate of the chief financial officer or
chief accounting officer of the Company and one additional senior executive
officer of the Company who is satisfactory to the Representative (i) confirming
that such officers have carefully reviewed the Registration Statement and the
Prospectus and, to the best knowledge of such officers, the representation set
forth in Section 3(b) hereof is true and correct, (ii) confirming that the other
representations and warranties of the Company in this Agreement are true and
correct and that the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or prior to
such Closing Date and (iii) to the effect set forth in paragraphs (a), (c) and
(d) above.
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(f) Comfort Letters. On the date of this Agreement and on the
Closing Date, PricewaterhouseCoopers LLP shall have furnished to the
Representative, at the request of the Company, letters, dated the respective
dates of delivery thereof and addressed to the Underwriters, in form and
substance reasonably satisfactory to the Representative, containing statements
and information of the type customarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and certain
financial information contained or incorporated by reference in the Registration
Statement and the Prospectus; provided, that the letter delivered on the Closing
Date shall use a "cut-off" date no more than three business days prior to such
Closing Date.
(g) Opinion of Company Counsel. Xxxxxxx Xxxxx & Xxxxx LLP, counsel
for the Company, shall have furnished to the Representative, at the request of
the Company, their written opinion, dated the Closing Date and addressed to the
Underwriters, in form and substance reasonably satisfactory to the
Representative, to the effect that:
(i) the Registration Statement was declared effective
under the Securities Act as of the date and time specified in such
opinion; the Prospectus was filed with the Commission pursuant to the
subparagraph of Rule 424(b) under the Securities Act specified in such
opinion on the date specified therein; and, to the knowledge of such
counsel, no order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose is pending
or threatened by the Commission;
(ii) the Registration Statement and the Prospectus (other
than the financial statements and related schedules therein, related
notes thereto and financial and statistical information derived
therefrom, as to which such counsel need express no opinion) comply as
to form in all material respects with the requirements of the
Securities Act;
(iii) the Company has been duly incorporated and is validly
existing as a corporation under the laws of the State of Washington,
with full corporate power and authority to own, lease or operate its
properties and conduct its business as described in the Prospectus, and
is duly qualified to do business as a foreign corporation and is in
good standing (in jurisdictions where such concept applies) under the
laws of each jurisdiction in which it owns or leases material
properties or conducts material business and where the failure to be so
qualified would, individually or in the aggregate, have a Material
Adverse Effect, except as set forth in or contemplated in the
Prospectus;
(iv) each of the Significant Subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the State of Delaware (except for WWC Texas RSA
Limited Partnership ("WWC Texas LP"), which has been duly formed and is
validly existing as a limited partnership in good standing under the
laws of the State of Delaware, and WWC License LLC, which has been duly
formed and is validly existing as a limited liability company in good
standing under the laws of the State of Delaware), with full corporate
(or partnership, in the case of WWC Texas LP, or limited liability
company, in the case of WWC License LLC) power and authority to own,
lease or operate its properties and conduct its business as described
in the Prospectus, and
- 14 -
is duly qualified to do business as a foreign corporation (or
partnership, in the case of WWC Texas LP, or limited liability company,
in the case of WWC License LLC) and is in good standing (in
jurisdictions where such concept applies) under the laws of each
jurisdiction in which it owns or leases material properties or conducts
material business and where the failure to be so qualified would,
individually or in the aggregate, have a Material Adverse Effect,
except as set forth in or contemplated in the Prospectus;
(v) the authorized capital stock of the Company consists
of 300,000,000 shares of authorized Class A common stock and Class B
common stock, no par value, and 50,000,000 shares of authorized
preferred stock; all of the outstanding shares of capital stock of the
Company have been duly and validly authorized and issued and are fully
paid and nonassessable; and (x) such shares are not subject to any
pre-emptive or similar rights and (y) except as set forth in the
Prospectus, no options, warrants or other rights to purchase,
agreements or other obligations to issue, or rights to convert any
obligations into or exchange any securities for, such shares of capital
stock of or ownership interests in the Company are outstanding in the
case of (x) or (y) either (1) to such counsel's knowledge or (2)
pursuant to (A) the Company's certificate of incorporation or bylaws or
(B) any agreement or other document to which the Company or any of its
subsidiaries is a party or is subject to or bound which has been filed
as an exhibit to the Registration Statement or to any report that has
been incorporated by reference into the Registration Statement or the
Prospectus;
(vi) all of the issued and outstanding shares of capital
stock (or, in the case of WWC Texas LP, partnership interests, or, in
the case of WWC License LLC, membership interests) of each Significant
Subsidiary have been duly and validly authorized and issued, are fully
paid and non-assessable, and, except as otherwise set forth in the
Prospectus (and except for minority interests representing less than 3%
of such Significant Subsidiary), are owned by the Company either
directly or through wholly-owned subsidiaries;
(vii) the Shares to be issued and sold by the Company
hereunder have been duly authorized, and when delivered to and paid for
by the Underwriters in accordance with the terms of this Agreement,
will be validly issued, fully paid and non-assessable and conform to
the descriptions thereof in the Prospectus; and the issuance of the
Shares is not subject to any preemptive or similar rights either (x) to
such counsel's knowledge or (y) pursuant to (1) the Company's
certificate of incorporation or bylaws or (2) any agreement or other
document to which the Company or any of its subsidiaries is a party or
is subject to or bound which has been filed as an exhibit to the
Registration Statement or to any report that has been incorporated by
reference into the Registration Statement or the Prospectus;
(viii) the statements set forth in the Prospectus under the
heading "Description of Common Stock", to the extent that they
constitute summaries of the terms of the Common Stock, matters of law
or regulation or legal conclusions, accurately and completely summarize
the matters described therein in all material respects;
- 15 -
(ix) the Company has full right, power and authority to
execute and deliver this Agreement and to perform its obligations
hereunder; and all action (corporate and other) required to be taken
for the due and proper authorization, execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby
have been duly and validly taken;
(x) this Agreement has been duly authorized, executed and
delivered by the Company;
(xi) No consent, approval, authorization, filing, order,
registration or qualification of or with any federal or Washington
court or arbitrator or governmental or regulatory authority is required
(other than any consent, approval, authorization, filing, order,
registration or qualification under the Communications Act or the FCC
Rules as to which such counsel need express no opinion) for the
execution, delivery and performance by the Company of this Agreement,
the issuance and sale of the Shares to be sold by the Company and
delivered on the Closing Date, and compliance by the Company with the
terms hereof and the consummation of the transactions contemplated by
this Agreement, except for (x) the registration of the Shares under the
Securities Act, (y) such consents, approvals, authorizations, filings,
orders and registrations or qualifications as may be required under
applicable state securities laws in connection with the purchase and
distribution of the Shares by the Underwriters or (z) such consents,
approvals, authorizations, filings, orders and registrations or
qualifications the failure of which to be obtained, individually or in
the aggregate, would not affect the validity of the Shares, their
issuance or delivery or the transactions contemplated by this Agreement
or result in a Material Adverse Effect;
(xii) the execution, delivery and performance by the
Company of this Agreement, the issuance and sale of the Shares to be
sold by the Company and delivered on the Closing Date, and compliance
by the Company with the terms of, and the consummation of the
transactions contemplated by, this Agreement will not (i) conflict with
or result in a breach or violation of any of the terms or provisions
of, or constitute a default under, or result in the imposition of any
lien, charge or encumbrance upon any property or assets of the Company
or any of its subsidiaries pursuant to, any term, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument which has been filed as an exhibit to the
Registration Statement or to any report that has been incorporated by
reference into the Registration Statement or the Prospectus or is
otherwise known to such counsel, (ii) result in any violation of the
provisions of the charter or by-laws or similar organizational
documents of the Company or any of its Significant Subsidiaries or
(iii) result in the violation of any Washington or federal law or
statute (other than the Communications Act or the FCC Rules as to which
such counsel need express no opinion) or any judgment, order, decree,
rule or regulation of any federal or Washington court or arbitrator or
governmental or regulatory authority binding on the Company of which
such counsel is aware, except, in the case of clause (iii), such
violations which would not, individually or in the aggregate,
- 16 -
affect the validity of the Shares, their issuance or delivery or the
transactions contemplated by this Agreement or result in a Material
Adverse Effect;
(xiii) to the knowledge of such counsel, except as described
in the Prospectus, there are no legal, governmental or regulatory
investigations, actions, suits or proceedings pending to which the
Company or any of its subsidiaries is or may be a party or to which any
property of the Company or any of its subsidiaries is or may be the
subject that, individually or in the aggregate, if determined adversely
to the Company or any of its subsidiaries, could reasonably be expected
to have a Material Adverse Effect or materially and adversely affect
the ability of the Company to perform its obligations under this
Agreement; to the knowledge of such counsel, no such investigations,
actions, suits or proceedings are threatened or contemplated by any
governmental or regulatory authority or threatened by others; and, to
the knowledge of such counsel, (i) there are no current or pending
legal, governmental or regulatory actions, suits or proceedings that
are required under the Securities Act to be described in the Prospectus
that are not so described and (ii) there are no statutes, regulations
or contracts or other documents that are required under the Securities
Act to be filed as exhibits to the Registration Statement or described
in the Registration Statement or the Prospectus that are not so filed
or described;
(xiv) the Company is not and, after giving effect to the
offering and sale of the Shares and the application of the proceeds
thereof as described in the Prospectus, will not be an "investment
company" within the meaning of the Investment Company Act;
(xv) the documents incorporated by reference in the
Prospectus or any further amendment or supplement thereto made by the
Company prior to the Closing Date other than the financial statements
and related schedules therein, related notes thereto and financial and
statistical information derived therefrom, as to which such counsel
need express no opinion), when they became effective or were filed with
the Commission, as the case may be, complied as to form in all material
respects with the requirements of the Securities Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission
thereunder; and
(xvi) such counsel shall also state that they have
participated in conferences with representatives of the Company and
with representatives of its independent accountants and its counsel at
which conferences the contents of the Registration Statement and the
Prospectus and any amendment and supplement thereto and related matters
were discussed and, although such counsel assumes no responsibility for
the accuracy, completeness or fairness of the Registration Statement,
the Prospectus and any amendment or supplement thereto (except as
expressly provided above), nothing has come to the attention of such
counsel to cause such counsel to believe that the Registration
Statement or any further amendment thereto made by the Company prior to
the Closing Date, as of its effective date and as of the Closing Date,
contained or contains an untrue statement of a material fact or omitted
or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or that the
Prospectus or any amendment or supplement thereto as of its date and as
of the Closing Date contained or contains any untrue statement of a
material fact or omitted or omits to state a material fact necessary to
make the
- 17 -
statements therein, in the light of the circumstances under which they
were made, not misleading other than the financial statements and
related schedules therein, related notes thereto and financial and
statistical information derived therefrom, as to which such counsel
need express no opinion).
In rendering such opinion, such counsel may rely as to matters of fact
on certificates of responsible officers of the Company and public officials that
are furnished to the Underwriters. The opinion of Xxxxxxx Xxxxx & Xxxxx LLP
described above shall be rendered to the Underwriters at the request of the
Company and shall so state therein.
(h) Opinion of Special Communications Regulatory Counsel. Xxxxxxxx
& Xxxxxxxx LLP, special communications regulatory counsel for the Company, shall
have furnished to the Representative, at the request of the Company, their
written opinion, dated the Closing Date, and addressed to the Underwriters, in
form and substance reasonably satisfactory to the Representative, to the effect
that:
(i) the Company and its subsidiaries have all Permits
from the FCC necessary to conduct their respective cellular telephone
businesses in the manner described in the Prospectus, which Permits are
material to the conduct of the Company's or such subsidiary's business;
(ii) the compliance by the Company with all of the
provisions of this Agreement and the consummation of the transactions
herein contemplated will not result in any conflict with or result in a
breach or violation of the Communications Act of 1934, as amended (the
"Communications Act"), or the published rules and regulations of the
FCC (the "FCC Rules") or any Permit issued to the Company or any of its
subsidiaries, as the case may be, under or pursuant to authority
granted under the Communications Act;
(iii) no consent, approval, authorization, order,
registration or qualification under the Communications Act or the FCC
Rules is required for the sale of the Shares as described in the
Prospectus or the consummation by the Company of the transactions
contemplated by this Agreement; and
(iv) other than as set forth or contemplated in the
Prospectus, such counsel does not know of any legal or governmental
proceedings pending before the FCC to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any
of its subsidiaries is the subject which, if determined adversely to
the Company or any of its subsidiaries, would individually or in the
aggregate have a Material Adverse Effect taken as a whole; and such
counsel does not know of any such proceedings that are threatened or
contemplated by the FCC.
In rendering such opinion, such counsel may rely as to matters of fact
on certificates of responsible officers of the Company and public officials that
are furnished to the Underwriters. The opinion of Xxxxxxxx & Xxxxxxxx LLP
described above shall be rendered to the Underwriters at the request of the
Company and shall so state therein.
- 18 -
(i) Opinion of Xxxxxxxx & Xxxxxxxx LLP. The Representative shall
have received on and as of the Closing Date an opinion of Xxxxxxxx & Xxxxxxxx
LLP, counsel for the Underwriters, with respect to such matters as the
Representative may reasonably request, and such counsel shall have received such
documents and information from the Company as they may reasonably request to
enable them to pass upon such matters.
(j) No Legal Impediment to Issuance. No action shall have been
taken and no statute, rule, regulation or order shall have been enacted, adopted
or issued by any federal, state or foreign governmental or regulatory authority
that would, as of the Closing Date, prevent the issuance or sale of the Shares;
and no injunction or order of any federal, state or foreign court shall have
been issued that would, as of the Closing Date, prevent the issuance or sale of
the Shares.
(k) Good Standing. The Representative shall have received as of
the Closing Date satisfactory evidence of the good standing (in jurisdictions
where such concept is applicable) of the Company and its Significant
Subsidiaries in their respective jurisdictions of organization and their good
standing as foreign entities in such other jurisdictions as the Representative
may reasonably request, in each case in writing or any standard form of
telecommunication from the appropriate governmental authorities of such
jurisdictions.
(l) Exchange Listing. The Shares to be delivered on the Closing
Date shall have been approved for quotation on the Nasdaq National Market,
subject to official notice of issuance.
(m) Lock-up Agreements. The "lock-up agreements", each
substantially in the form attached as Exhibit A hereto, duly executed by each of
Xxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxxxxx, Xxxxx X. Xxxxxxx, M. Xxxxx Xxxxxxxx, Xxxx
Xxxxx and Xxxxxx Xxxxxxx, relating to sales and certain other dispositions of
shares of capital stock or certain other securities, delivered to the
Representative on or before the date hereof, shall be in full force and effect
on the Closing Date.
(n) Additional Documents. On or prior to the Closing Date the
Company shall have furnished to the Representative such further certificates and
documents as the Representative may reasonably request.
All opinions, letters, certificates and other documents mentioned above
or elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
6. Indemnification and Contribution.
(a) Indemnification of the Underwriters. The Company agrees to
indemnify and hold harmless each Underwriter, its affiliates, directors and
officers and each person, if any, who controls such Underwriter within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act,
from and against any and all losses, claims, damages and liabilities (including,
without limitation, legal fees and other expenses incurred in connection with
any suit, action or proceeding or any claim asserted, as such fees and expenses
are incurred), joint or
- 19 -
several, that arise out of, or are based upon, any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement or
the Prospectus (or any amendment or supplement 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 in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except insofar as such losses, claims, damages or
liabilities arise out of, or are based upon, any untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in conformity
with any information furnished to the Company in writing by such Underwriter
through the Representative expressly for use therein, it being understood and
agreed that the only such information furnished by any Underwriter consists of
the information described as such in subsection (b) below.
(b) Indemnification of the Company. Each Underwriter agrees,
severally and not jointly, to indemnify and hold harmless the Company, its
directors, its officers who signed the Registration Statement and each person,
if any, who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the
indemnity set forth in paragraph (a) above, but only with respect to any losses,
claims, damages or liabilities that arise out of, or are based upon, any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with any information relating to such Underwriter
furnished to the Company in writing by such Underwriter through the
Representative expressly for use in the Registration Statement and the
Prospectus (or any amendment or supplement thereto) or any Preliminary
Prospectus, it being understood and agreed upon that the only such information
furnished by any Underwriter consists of the following information in the
Prospectus furnished on behalf of each Underwriter: the information contained in
the seventh and ninth paragraphs under the caption "Underwriting" and the
information contained in the last sentence of the eleventh paragraph under the
caption "Underwriting".
(c) Notice and Procedures. If any suit, action, proceeding
(including any governmental or regulatory investigation), claim or demand shall
be brought or asserted against any person in respect of which indemnification
may be sought pursuant to either paragraph (a) or (b) above, such person (the
"Indemnified Person") shall promptly notify the person against whom such
indemnification may be sought (the "Indemnifying Person") in writing; provided
that the failure to notify the Indemnifying Person shall not relieve it from any
liability that it may have under this Section 6 except to the extent that it has
been materially prejudiced (through the forfeiture of substantive rights or
defenses) by such failure; and provided, further, that the failure to notify the
Indemnifying Person shall not relieve it from any liability that it may have to
an Indemnified Person otherwise than under this Section 6. If any such
proceeding shall be brought or asserted against an Indemnified Person and it
shall have notified the Indemnifying Person thereof, the Indemnifying Person
shall retain counsel reasonably satisfactory to the Indemnified Person to
represent the Indemnified Person and any others entitled to indemnification
pursuant to this Section 6 that the Indemnifying Person may designate in such
proceeding and shall pay the fees and expenses of such counsel related to such
proceeding, as incurred. In any such proceeding, any Indemnified Person shall
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Person unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually agreed to the
contrary; (ii) the
- 20 -
Indemnifying Person has failed within a reasonable time to retain counsel
reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person
shall have reasonably concluded that there may be legal defenses available to it
that are different from or in addition to those available to the Indemnifying
Person; or (iv) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood and agreed that the Indemnifying Person shall not, in connection with
any proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be paid or reimbursed as they are incurred. Any such separate firm for any
Underwriter, its affiliates, directors and officers and any control persons of
such Underwriter shall be designated in writing by the Representative and any
such separate firm for the Company, its directors, its officers who signed the
Registration Statement and any control persons of the Company shall be
designated in writing by the Company. The Indemnifying Person shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the Indemnifying Person agrees to indemnify each Indemnified
Person from and against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified
Person shall have requested that an Indemnifying Person reimburse the
Indemnified Person for fees and expenses of counsel as contemplated by this
paragraph, the Indemnifying Person shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by the Indemnifying Person of such
request and (ii) the Indemnifying Person shall not have reimbursed the
Indemnified Person in accordance with such request prior to the date of such
settlement. No Indemnifying Person shall, without the written consent of the
Indemnified Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have been a
party and indemnification could have been sought hereunder by such Indemnified
Person, unless such settlement (x) includes an unconditional release of such
Indemnified Person, in form and substance reasonably satisfactory to such
Indemnified Person, from all liability on claims that are the subject matter of
such proceeding and (y) does not include any statement as to or any admission of
fault, culpability or a failure to act by or on behalf of any Indemnified
Person.
(d) Contribution. If the indemnification provided for in
paragraphs (a) and (b) above is unavailable to an Indemnified Person or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each Indemnifying Person under such paragraph, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to the amount
paid or payable by such Indemnified Person as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other from the offering of the Shares or (ii) if the allocation provided
by clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
but also the relative fault of the Company on the one hand and the Underwriters
on the other in connection with the statements or omissions that resulted in
such losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the
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Underwriters on the other shall be deemed to be in the same respective
proportions as the net proceeds (before deducting expenses) received by the
Company from the sale of the Shares and the total underwriting discounts and
commissions received by the Underwriters in connection therewith, in each case
as set forth in the table on the cover of the Prospectus, bear to the aggregate
offering price of the Shares. The relative fault of the Company on the one hand
and the Underwriters on the other shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
(e) Limitation on Liability. The Company and the Underwriters
agree that it would not be just and equitable if contribution pursuant to this
Section 6 were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
that does not take account of the equitable considerations referred to in
paragraph (d) above. The amount paid or payable by an Indemnified Person as a
result of the losses, claims, damages and liabilities referred to in paragraph
(d) above shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses incurred by such Indemnified Person in
connection with any such action or claim. Notwithstanding the provisions of this
Section 6, in no event shall an Underwriter be required to contribute any amount
in excess of the amount by which the total underwriting discounts and
commissions received by such Underwriter with respect to the offering of the
Shares exceeds the amount of any damages that such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
Section 6 are several in proportion to their respective purchase obligations
hereunder and not joint.
(f) Non-Exclusive Remedies. The remedies provided for in this
Section 6 are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any Indemnified Person at law or in equity.
7. Effectiveness of Agreement. This Agreement shall become
effective upon the execution and delivery hereof by the parties hereto.
8. Termination. This Agreement may be terminated in the absolute
discretion of the Representative, by notice to the Company, if after the
execution and delivery of this Agreement and prior to the Closing Date (i)
trading generally shall have been suspended or materially limited on or by
either of the New York Stock Exchange or the National Association of Securities
Dealers, Inc.; (ii) trading of any securities issued or guaranteed by the
Company shall have been suspended on any exchange or in any over-the-counter
market; (iii) a general moratorium on commercial banking activities shall have
been declared by federal or New York State authorities; or (iv) there shall have
occurred any outbreak or escalation of hostilities or any change in financial
markets or any calamity or crisis, either within or outside the United States,
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that, in the judgment of the Representative, is material and adverse and makes
it impracticable or inadvisable to proceed with the offering, sale or delivery
of the Shares on the Closing Date on the terms and in the manner contemplated by
this Agreement and the Prospectus.
9. Intentionally Omitted.
10. Payment of Expenses. (a) Whether or not the transactions
contemplated by this Agreement are consummated or this Agreement is terminated,
the Company will pay or cause to be paid all costs and expenses incident to the
performance of its obligations hereunder, including without limitation, (i) the
costs incident to the authorization, issuance, sale, preparation and delivery of
the Shares and any taxes payable in connection therewith; (ii) the costs
incident to the preparation, printing and filing under the Securities Act of the
Registration Statement, the Preliminary Prospectus and the Prospectus (including
all exhibits, amendments and supplements thereto) and the distribution thereof;
(iii) the costs of reproducing and distributing this Agreement; (iv) the fees
and expenses of the Company's counsel and independent accountants; (v) the fees
and expenses incurred in connection with the registration or qualification and
determination of eligibility for investment of the Shares under the laws of such
jurisdictions as the Representative may designate and the preparation, printing
and distribution of a Blue Sky Memorandum (including the related fees and
expenses of counsel for the Underwriters); (vi) the cost of preparing stock
certificates; (vii) the costs and charges of any transfer agent and any
registrar; (viii) all expenses and application fees incurred in connection with
any filing with, and clearance of the offering by, the National Association of
Securities Dealers, Inc.; (ix) all expenses incurred by the Company in
connection with any "road show" presentation to potential investors; and (x) all
expenses and application fees related to the listing of the Shares on the Nasdaq
National Market.
(b) If (i) this Agreement is terminated pursuant to Section 8,
(ii) the Company for any reason fails to tender the Shares for delivery to the
Underwriters other than by reason of a default by any of the Underwriters or
(iii) the Underwriters decline to purchase the Shares for any reason permitted
under this Agreement, the Company agrees to reimburse the Underwriters for all
out-of-pocket costs and expenses (including the reasonable fees and expenses of
their counsel) reasonably incurred by the Underwriters in connection with this
Agreement and the offering contemplated hereby.
11. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the parties hereto and their
respective successors and the officers and directors and any controlling persons
referred to in Section 6 hereof. Nothing in this Agreement is intended or shall
be construed to give any other person any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision contained herein.
No purchaser of Shares from any Underwriter shall be deemed to be a successor
merely by reason of such purchase.
12. Survival. The respective indemnities, rights of contribution,
representations, warranties and agreements of the Company and the Underwriters
contained in this Agreement or made by or on behalf of the Company or the
Underwriters pursuant to this Agreement or any certificate delivered pursuant
hereto shall survive the delivery of and payment for the Shares and
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shall remain in full force and effect, regardless of any termination of this
Agreement or any investigation made by or on behalf of the Company or the
Underwriters.
13. Certain Defined Terms. For purposes of this Agreement, (a)
except where otherwise expressly provided, the term "affiliate" has the meaning
set forth in Rule 405 under the Securities Act; (b) the term "business day"
means any day other than a day on which banks are permitted or required to be
closed in New York City; and (c) the term "subsidiary" has the meaning set forth
in Rule 405 under the Securities Act.
14. Miscellaneous.
(a) Intentionally Omitted.
(b) Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted and confirmed by any standard form of telecommunication. Notices to
the Underwriters shall be given to the Representative c/o X.X. Xxxxxx Securities
Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (fax: (000) 000-0000);
Attention: Equity Capital Markets. Notices to the Company shall be given to it
at the address set forth in the Prospectus; Attention: General Counsel.
(c) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
(d) Counterparts. This Agreement may be signed in counterparts
(which may include counterparts delivered by any standard form of
telecommunication), each of which shall be an original and all of which together
shall constitute one and the same instrument.
(e) Amendments or Waivers. No amendment or waiver of any provision
of this Agreement, nor any consent or approval to any departure therefrom, shall
in any event be effective unless the same shall be in writing and signed by the
parties hereto.
(f) Headings. The headings herein are included for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
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If the foregoing is in accordance with your understanding, please
indicate your acceptance of this Agreement by signing in the space provided
below.
Very truly yours,
WESTERN WIRELESS CORPORATION
By /s/ M. Xxxxx Xxxxxxxx
-----------------------------------
Name: M. Xxxxx Xxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
Accepted: October 29, 2003
X.X. XXXXXX SECURITIES INC.
By /s/ Xxxx Xxxxxxx
------------------------------
Name: Xxxx Xxxxxxx
Title: Managing Director
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Schedule I
Underwriter Number of Shares
----------- ----------------
X.X. Xxxxxx Securities Inc. 12,000,000
----------
Total 12,000,000
==========
I-1
Schedule II
Significant Subsidiaries
1. WWC Holding Co., Inc. (Delaware)
2. WWC License LLC (Delaware)
3. WWC Texas RSA Limited Partnership (Delaware)
4. Western Wireless International Austria Corporation (Delaware)
5. Western Wireless International Holding Corporation (Delaware)
6. Western Wireless International Ireland Corporation (Delaware)
7. Western Wireless International Slovenia Corporation (Delaware)
II-1
Exhibit A
FORM OF LOCK-UP AGREEMENT
__________, 2003
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Re: Western Wireless Corporation - Public Offering
Ladies and Gentlemen:
The undersigned understands that you propose to enter into an
Underwriting Agreement (the "Underwriting Agreement") with Western Wireless
Corporation, a Washington corporation (the "Company"), providing for the public
offering (the "Public Offering") by X.X. Xxxxxx Securities Inc. of Class A
common stock, no par value, of the Company (the "Securities"). Capitalized terms
used herein and not otherwise defined shall have the meanings set forth in the
Underwriting Agreement.
In consideration of your agreement to purchase and make the Public
Offering of the Securities, and for other good and valuable consideration the
receipt of which is hereby acknowledged, the undersigned hereby agrees that,
without the prior written consent of X.X. Xxxxxx Securities Inc., the
undersigned will not, during the period ending 90 days after the date of the
prospectus supplement relating to the Public Offering (the "Prospectus"), (1)
offer, pledge, announce the intention to sell, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant to purchase, or otherwise transfer or dispose of,
directly or indirectly, any shares of capital stock of the Company or any
securities convertible into or exercisable or exchangeable for such capital
stock (including without limitation, securities which may be deemed to be
beneficially owned by the undersigned in accordance with the rules and
regulations of the Securities and Exchange Commission and securities which may
be issued upon exercise of a stock option or warrant) or (2) enter into any swap
or other agreement that transfers, in whole or in part, any of the economic
consequences of ownership of capital stock of the Company or any securities
convertible into or exercisable or exchangeable for such capital stock or
publicly announce an intention to do any of the foregoing, whether any such
transaction described in clause (1) or (2) above is to be settled by delivery of
capital stock of the Company or such other securities, in cash or otherwise. In
addition, the undersigned agrees that, without the prior written consent of X.X.
Xxxxxx Securities Inc., it will not, during the period ending 90 days after the
date of the Prospectus, make any demand for or exercise any right with respect
to, the registration of any shares of capital stock or any security convertible
into or exercisable or exchangeable for such capital stock. The foregoing shall
not
II-1-
apply to the issuance of capital stock upon the exercise of options granted
under the Company's existing employee stock option plans.
In furtherance of the foregoing, the Company, and any duly appointed
transfer agent for the registration or transfer of the securities described
herein, are hereby authorized to decline to make any transfer of such securities
if transfer thereof would constitute a violation or breach of this lock-up
agreement.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to enter into this lock-up agreement. All authority
herein conferred or agreed to be conferred and any obligations of the
undersigned shall be binding upon the successors, assigns, heirs or personal
representatives of the undersigned.
The undersigned understands that, if the Underwriting Agreement does
not become effective, or if the Underwriting Agreement (other than the
provisions thereof which survive termination) shall terminate or be terminated
prior to payment for and delivery of the Securities to be sold thereunder, the
undersigned shall be released from all obligations under this lock-up agreement.
The undersigned understands that you are entering into the Underwriting
Agreement and proceeding with the Public Offering in reliance upon this lock-up
agreement.
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This lock-up agreement shall be governed by and construed in accordance
with the laws of the State of New York, without regard to the conflict of laws
principles thereof.
Very truly yours,
By: _______________________
Name:
Title:
- 3 -
