EXHIBIT 1.1
SPECTRASITE, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
May [ ], 2004
Xxxxxxx, Xxxxx & Co.
Bear, Xxxxxxx & Co. Inc.
Citigroup Global Markets Inc.
Xxxxxx Brothers Inc.
Xxxxxxx Xxxxx & Associates, Inc.
As representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Certain stockholders named in Schedule II hereto (the "Selling
Stockholders") of SpectraSite, Inc., a Delaware corporation (the "Company"),
propose, subject to the terms and conditions stated herein, to sell to the
Underwriters named in Schedule I hereto (the "Underwriters") an aggregate of
9,010,779 shares (the "Firm Shares") and, at the election of the Underwriters,
up to 1,351,616 additional shares (the "Optional Shares") of common stock (par
value $0.01 per share) ("Stock") of the Company (the Firm Shares and the
Optional Shares that the Underwriters elect to purchase pursuant to Section 2
hereof being collectively called the "Shares").
1. (a) The Company represents and warrants to, and agrees with, each of
the Underwriters and the Selling Stockholders that:
(i) A registration statement on Form S-3, as amended, (File No.
333-114800) (the "Initial Registration Statement") in respect of the
Shares has been filed with the Securities and Exchange Commission (the
"Commission"); the Initial Registration Statement and any post-effective
amendment thereto, each in the form heretofore delivered to you, and,
excluding exhibits thereto, to you for each of the other Underwriters,
have been declared effective by the Commission in such form; other than a
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registration statement, if any, increasing the size of the offering (a
"Rule 462(b) Registration Statement"), filed pursuant to Rule 462(b) under
the Securities Act of 1933, as amended (the "Act"), which became effective
upon filing, no other document with respect to the Initial Registration
Statement has heretofore been filed with the Commission; and no stop order
suspending the effectiveness of the Initial Registration Statement, any
post-effective amendment thereto or the Rule 462(b) Registration
Statement, if any, has been issued and no proceeding for that purpose has
been initiated or threatened by the Commission (any preliminary prospectus
included in the Initial Registration Statement or filed with the
Commission pursuant to Rule 424(a) of the rules and regulations of the
Commission under the Act is hereinafter called a "Preliminary Prospectus";
the various parts of the Initial Registration Statement and the Rule
462(b) Registration Statement, if any, including all exhibits thereto and
including the information contained in the form of final prospectus filed
with the Commission pursuant to Rule 424(b) under the Act in accordance
with Section 5(a) hereof and deemed by virtue of Rule 430A under the Act
to be part of the Initial Registration Statement at the time it was
declared effective, each as amended at the time such part of the Initial
Registration Statement became effective or such part of the Rule 462(b)
Registration Statement, if any, became or hereafter becomes effective, are
hereinafter collectively called the "Registration Statement"; such final
prospectus, in the form first filed pursuant to Rule 424(b) under the Act,
is hereinafter called the "Prospectus";
(ii) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the Act and the rules and regulations of
the Commission thereunder, and did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter through
Xxxxxxx, Xxxxx & Co. expressly for use therein or by a Selling Stockholder
expressly for use in the preparation of the answers therein to Item 7 of
Form S-3;
(iii) The Registration Statement conforms, and the Prospectus and
any further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the rules and regulations of the Commission thereunder and do
not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto, and as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; pro-
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vided, however, that this representation and warranty shall not apply to
any statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter through
Xxxxxxx, Sachs & Co. expressly for use therein or by a Selling Stockholder
expressly for use in the preparation of the answers therein to Item 7 of
Form S-3;
(iv) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included in the
Prospectus any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action, order or
decree, otherwise than as set forth or contemplated in the Prospectus;
and, since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any change
in the capital stock, other than the issuance of stock upon the exercise
of outstanding stock options and outstanding stock warrants, to the extent
set forth or contemplated by the Prospectus or long-term debt of the
Company or any of its subsidiaries or any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the
Prospectus;
(v) The Company and its subsidiaries have good and marketable title
in fee simple to all real property and good and marketable title to all
personal property owned by them, in each case free and clear of all liens,
encumbrances and defects except such as are described in the Prospectus or
such as do not materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property by
the Company and its subsidiaries or such as do not and would not,
individually or in the aggregate, have a material adverse effect on the
business, properties, operations, condition (financial or otherwise),
stockholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole (a "Material Adverse Effect"); and any real
property and buildings held under lease by the Company and its
subsidiaries are held by them under valid, subsisting and enforceable
leases with such exceptions as are not material and do not interfere with
the use made and proposed to be made of such property and buildings by the
Company and its subsidiaries or such as do not and would not, individually
or in the aggregate, have a Material Adverse Effect;
(vi) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware, with
corporate power and authority to own its properties and conduct its
business as described in the Prospectus; and the Company is duly qualified
to do business as a foreign corporation in
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good standing in all other jurisdictions in which its ownership or lease
of property or the conduct of its business requires such qualification,
except where the failure to be so qualified would not, individually or in
the aggregate, have a Material Adverse Effect;
(vii) Each corporation, association, partnership or other business
entity of which more than 50% of the total voting power or other interests
entitled to vote in the election of directors, managers or trustees
thereof that is deemed by the Company to be significant to its operations,
as set forth on Schedule III hereto, and that is controlled, directly or
indirectly, by (i) the Company, (ii) the Company and one or more
subsidiaries or (iii) one or more subsidiaries of the Company (each, a
"Subsidiary" and collectively, the "Subsidiaries"), has been duly
incorporated or organized and is an existing corporation, partnership or
limited liability company in good standing under the laws of the
jurisdiction of its incorporation or organization with corporate,
partnership or limited liability company power and authority, as
applicable, to own its properties and conduct its business as described in
the Prospectus; and each Subsidiary of the Company is duly qualified to do
business as a foreign corporation, partnership or limited liability
company in good standing in all other jurisdictions in which its ownership
or lease of property or the conduct of its business requires such
qualification, except where the failure to be so qualified would not,
individually or in the aggregate, have a Material Adverse Effect; all of
the issued and outstanding capital stock, partnership or membership
interests of each Subsidiary has been duly authorized and validly issued
and is fully paid and nonassessable; and, except as disclosed in the
Prospectus, the capital stock or membership interests of each Subsidiary
are owned directly or indirectly by the Company, free and clear of all
liens, encumbrances and defects;
(viii) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the
Company have been duly authorized and validly issued, are fully paid and
non-assessable and conform in all material respects to the description of
the Stock contained in the Prospectus;
(ix) The compliance by the Company with all of the provisions of
this Agreement and the consummation of the transactions herein
contemplated will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party or
by which the Company or any of its subsidiaries is bound or to which any
of the property or assets of the Company or any of its subsidiaries is
subject, except any such conflict, breach, violation or default which has
been consented to or waived by the appropriate counterparty thereto, prior
to the execution and delivery of this
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Agreement, nor will such action result in any violation of the provisions
of the Certificate of Incorporation or By-laws of the Company or any
statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties, except for conflicts, breaches,
violations or defaults (other than any relating to the Certificate of
Incorporation or By-Laws of the Company) that would not, individually or
in the aggregate, have a Material Adverse Effect or, individually or in
the aggregate, impair the Company's ability to consummate the transactions
herein contemplated; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required on the part of the Company for the sale of the
Shares or the consummation by the Company of the transactions contemplated
by this Agreement, except (i) the registration under the Act of the Shares
and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky laws
in connection with the purchase and distribution of the Shares by the
Underwriters and (ii) where the failure to obtain such consent, approval,
authorization, order, registration or qualification would not have a
Material Adverse Effect or, individually or in the aggregate, impair the
Company's ability to consummate the transactions herein contemplated;
(x) None of the Company or its subsidiaries is (i) in violation of
its certificate of incorporation or bylaws (or similar organizational
document), or (ii) in default (nor has any event occurred which with
notice or passage of time, or both, would constitute a default) in the
performance or observance of any obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which it is a party or to
which it is subject, which default would, individually or in the
aggregate, have a Material Adverse Effect;
(xi) The statements incorporated by reference into the Prospectus
relating to the description of the Company's Common Stock contained in the
Company's registration statement on Form 8-A (filed August 14, 2003),
insofar as they purport to constitute a summary of the terms of the Stock
and under the caption "Underwriting", insofar as they purport to describe
the provisions of the laws and documents referred to therein, are
accurate, complete and fair in all material respects;
(xii) Other than as set forth in the Prospectus, there are no legal
or governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of
its subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, would individually or in the aggregate
have a material adverse effect on the current or future consolidated
financial position, stockholders' equity or results of operations of the
Com-
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pany and its subsidiaries; and, to the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others;
(xiii)The Company is not and, after giving effect to the offering
and sale of the Shares, will not be an "investment company", as such term
is defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act");
(xiv) Neither the Company nor any of its affiliates does business
with the government of Cuba or with any person or affiliate located in
Cuba within the meaning of Section 517.075, Florida Statutes;
(xv) Ernst & Young LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder;
(xvi) Except as disclosed in the Prospectus, the Company and its
subsidiaries possess adequate certificates, authorities or permits issued
by appropriate governmental agencies or bodies necessary to conduct the
business now operated by them, except where failure to possess any such
certificates, authorities or permits would not, individually or in the
aggregate, have a Material Adverse Effect, and have not received any
notice of proceedings relating to the revocation or modification of any
such certificate, authority or permit that would, individually or in the
aggregate, have a Material Adverse Effect;
(xvii)Except as disclosed in the Prospectus, no labor dispute with
the employees of the Company or any subsidiary exists or, to the knowledge
of the Company, is imminent that would, individually or in the aggregate,
have a Material Adverse Effect;
(xviii) Except as disclosed in the Prospectus, the Company and its
subsidiaries own, possess or can acquire on reasonable terms, adequate
trademarks, trade names and other rights to inventions, know-how, patents,
copyrights, confidential information and other intellectual property
(collectively, "intellectual property rights") necessary to conduct the
business now operated by them, or presently employed by them, except where
failure to possess any such rights would not, individually or in the
aggregate, have a Material Adverse Effect, and have not received any
notice of infringement of or conflict with asserted rights of others with
respect to any intellectual property rights that, if determined adversely
to the Company or any of its subsidiaries, would, individually or in the
aggregate, have a Material Adverse Effect;
(xix) Each of the Company and its subsidiaries has filed all
necessary federal, state and foreign income and franchise tax returns,
except where the failure to so
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file such returns would not, individually or in the aggregate, have a
Material Adverse Effect, and have paid all taxes shown as due thereon; and
other than tax deficiencies which the Company or any of its subsidiaries
is contesting in good faith and for which adequate reserves have been
provided in accordance with generally accepted accounting principles,
there is no tax deficiency that has been asserted against the Company or
any of its subsidiaries that would, individually or in the aggregate, have
a Material Adverse Effect; and
(xx) The financial statements of the Company included in the
Prospectus present fairly in all material respects the financial position
of the Company and its consolidated subsidiaries as of the dates shown and
their results of operations and cash flows for the periods shown, and such
financial statements have been prepared in conformity with generally
accepted accounting principles in the United States applied on a
consistent basis, subject, in the case of interim statements, to normal
year-end adjustments, fresh start accounting adjustments and the absence
of footnotes.
(b) Each of the Selling Stockholders, severally and not jointly,
represents and warrants to, and agrees with, each of the Underwriters and the
Company that:
(i) All consents, approvals, authorizations and orders necessary for
the execution and delivery by such Selling Stockholder of this Agreement
and for the sale and delivery of the Shares to be sold by such Selling
Stockholder hereunder have been obtained; and such Selling Stockholder has
full right, power and authority to enter into this Agreement and to sell,
assign, transfer and deliver the Shares to be sold by such Selling
Stockholder hereunder;
(ii) The sale of the Shares to be sold by such Selling Stockholder
hereunder and the compliance by such Selling Stockholder with all of the
provisions of this Agreement and the consummation of the transactions
herein will not conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument
to which such Selling Stockholder is a party or by which such Selling
Stockholder is bound, or to which any of the property or assets of such
Selling Stockholder is subject, nor will such action result in any
violation of the provisions of the Certificate of Incorporation or By-laws
of such Selling Stockholder if such Selling Stockholder is a corporation,
the Partnership Agreement of such Selling Stockholder if such Selling
Stockholder is a partnership, the Certificate of Formation or the Limited
Liability Company Agreement if such Selling Stockholder is a limited
liability company or any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over such Selling
Stockholder or the property of such Selling Stockholder;
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(iii) Such Selling Stockholder has, and immediately prior to each
Time of Delivery (as defined in Section 4 hereof) such Selling Stockholder
will have, good and valid title to the Shares to be sold by such Selling
Stockholder hereunder free and clear of all liens, encumbrances, equities
or claims; and, upon delivery of such Shares and payment therefore
pursuant hereto, good and valid title to such Shares, free and clear of
all liens, encumbrances, equities or claims, will pass to the several
Underwriters;
(iv) Such Selling Stockholder has not taken and will not take,
directly or indirectly, any action which is designed to or which has
constituted or which might reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Shares;
(v) All written information furnished to the Company by the Selling
Stockholders expressly for use in the preparation of the answers to Item 7
of Form S-3 included in the Preliminary Prospectus and the Prospectus and
any further amendments or supplements to the Prospectus does not and will
not contain any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not misleading;
(vi) In order to document the Underwriters' compliance with the
reporting and withholding provisions of the Tax Equity and Fiscal
Responsibility Act of 1982 with respect to the transactions herein
contemplated, such Selling Stockholder will deliver to you prior to or at
the First Time of Delivery (as hereinafter defined) a properly completed
and executed United States Treasury Department Form W-9 (or other
applicable form or statement specified by Treasury Department regulations
in lieu thereof);
(vii) Certificates in negotiable form (and (a) with signatures
guaranteed by a commercial bank or trust company having an office or
correspondent in the United States or by a member firm of a registered
national securities exchange or of the National Association of Securities
Dealers, Inc. or (b) accompanied by a duly executed stock power or powers,
in blank, bearing signatures so guaranteed and (c) with all necessary
transfer tax stamps attached thereto) representing all of the Shares to be
sold by such Selling Stockholder hereunder have been delivered to
Equiserve Trust Company, N.A., as transfer agent and registrar of the
Company (the "Transfer Agent"); and
(viii)The Shares represented by the certificates held by the
Transfer Agent for such Selling Stockholder under this Agreement are
subject to the interests of the Underwriters hereunder; the instructions
and directions provided by such Selling Stockholder with respect to the
Shares, are to that extent irrevocable; the obligations of the Selling
Stockholders hereunder shall not be terminated by operation of law,
whether by the death or incapacity of any individual Selling Stockholder
or, in the
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case of an estate or trust, by the death or incapacity of any executor or
trustee or the termination of such estate or trust, or in the case of a
partnership or corporation, by the dissolution of such partnership or
corporation, or by the occurrence of any other event; if any individual
Selling Stockholder or any such executor or trustee should die or become
incapacitated, or if any such estate or trust should be terminated, or if
any such partnership or corporation should be dissolved, or if any other
such event should occur, before the delivery of the Shares hereunder,
certificates representing the Shares shall be delivered by or on behalf of
the Selling Stockholders in accordance with the terms and conditions of
this Agreement.
2. Subject to the terms and conditions herein set forth, each of the
Selling Stockholders agrees, severally and not jointly, to sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from each of the Selling Stockholders, at a purchase price per share of
$[ ], the number of Firm Shares set forth opposite the name of such Underwriter
in Schedule I hereto.
The Selling Stockholders, as and to the extent indicated in Schedule II
hereto, hereby grant, severally and not jointly, to the Underwriters the right
to purchase at their election up to 1,351,616 Optional Shares, at the purchase
price per share set forth in the paragraph above, for the sole purpose of
covering sales of shares in excess of the number of Firm Shares. Any such
election to purchase Optional Shares shall be made in proportion to the number
of Optional Shares to be sold by each Selling Stockholder. Any such election to
purchase Optional Shares may be exercised by written notice from you to the
Company and the Selling Stockholders, given within a period of 30 calendar days
after the date of this Agreement, setting forth the aggregate number of Optional
Shares to be purchased and the date on which such Optional Shares are to be
delivered, as determined by you but in no event earlier than the First Time of
Delivery (as defined in Section 4 hereof) or, unless you, the Company and the
Selling Stockholders otherwise agree in writing, earlier than two or later than
ten business days after the date of such notice.
3. Upon the authorization by you of the release of the Firm Shares, the
several Underwriters propose to offer the Firm Shares for sale upon the terms
and conditions set forth in the Prospectus.
4. (a) The Shares to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in such
names as Xxxxxxx, Xxxxx & Co. may request upon at least forty-eight hours' prior
notice to the Company and the Selling Stockholders shall be delivered by or on
behalf of the Selling Stockholders to Xxxxxxx, Sachs & Co., through the
facilities of The Depository Trust Company ("DTC"), for the account of such
Underwriter, against payment by or on behalf of such Underwriter of the purchase
price therefore by wire transfer of Federal (same-day) funds to the account
specified by each of the Selling Stockholders to Xxxxxxx, Xxxxx & Co. at least
forty-eight hours in
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advance. The Company will cause the certificates representing the Shares to be
made available for checking and packaging at least twenty-four hours prior to
the Time of Delivery (as defined below) with respect thereto at the office of
DTC or its designated custodian (the "Designated Office"). The time and date of
such delivery and payment shall be, with respect to the Firm Shares, 9:30 a.m.,
New York City time, on May [ ], 2004 or such other time and date as Xxxxxxx,
Sachs & Co. and each of the Selling Stockholders may agree upon in writing, and,
with respect to the Optional Shares, 9:30 a.m., New York time, on the date
specified by Xxxxxxx, Xxxxx & Co. in the written notice given by Xxxxxxx, Sachs
& Co. of the Underwriters' election to purchase such Optional Shares, or such
other time and date as Xxxxxxx, Xxxxx & Co., the Company and the Selling
Stockholders may agree upon in writing. Such time and date for delivery of the
Firm Shares is herein called the "First Time of Delivery", such time and date
for delivery of the Optional Shares, if not the First Time of Delivery, is
herein called the "Second Time of Delivery", and each such time and date for
delivery is herein called a "Time of Delivery".
(b) The documents to be delivered at each Time of Delivery by or on
behalf of the parties hereto pursuant to Section 7 hereof, including the cross
receipt for the Shares and any additional documents requested by the
Underwriters pursuant to Section 7(j) hereof, will be delivered at the offices
of Xxxxxx Xxxxxx & Xxxxxxx llp, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the
"Closing Location"), and the Shares will be delivered at the Designated Office,
all at such Time of Delivery. A meeting will be held at the Closing Location at
4:00 p.m., New York City time, on the New York Business Day next preceding such
Time of Delivery, at which meeting the final drafts of the documents to be
delivered pursuant to the preceding sentence will be available for review by the
parties hereto. For the purposes of this Section 4, "New York Business Day"
shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a
day on which banking institutions in New York are generally authorized or
obligated by law or executive order to close.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to file
such Prospectus pursuant to Rule 424(b) under the Act not later than the
Commission's close of business on the second business day following the
execution and delivery of this Agreement, or, if applicable, such earlier
time as may be required by Rule 430A(a)(3) under the Act; to make no
further amendment or any supplement to the Registration Statement or
Prospectus which shall be disapproved by you promptly after reasonable
notice thereof; to advise you, promptly after it receives notice thereof,
of the time when any amendment to the Registration Statement has been
filed or becomes effective or any supplement to the Prospectus or any
amended Prospectus has been filed and to furnish you with copies thereof;
to advise you, promptly after it receives notice thereof, of the issuance
by the Commission of any stop order or of any
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order preventing or suspending the use of any Preliminary Prospectus or
prospectus, of the suspension of the qualification of the Shares for
offering or sale in any jurisdiction, of the initiation or threatening of
any proceeding for any such purpose, or of any request by the Commission
for the amending or supplementing of the Registration Statement or
Prospectus or for additional information; and, in the event of the
issuance of any stop order or of any order preventing or suspending the
use of any Preliminary Prospectus or prospectus or suspending any such
qualification, promptly to use its best efforts to obtain the withdrawal
of such order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale under the
securities laws of such jurisdictions as you may request and to comply
with such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to complete
the distribution of the Shares, provided that in connection therewith the
Company shall not be required to qualify as a foreign corporation or to
file a general consent to service of process in any jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the New York
Business Day next succeeding the date of this Agreement and from time to
time, to furnish the Underwriters with written and electronic copies of
the Prospectus in New York City in such quantities as you may reasonably
request, and, if the delivery of a prospectus is required at any time
prior to the expiration of nine months after the time of issue of the
Prospectus in connection with the offering or sale of the Shares and if at
such time any event shall have occurred as a result of which the
Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances
under which they were made when such Prospectus is delivered, not
misleading, or, if for any other reason it shall be necessary during such
period to amend or supplement the Prospectus in order to comply with the
Act, to notify you and upon your request to prepare and furnish without
charge to each Underwriter and to any dealer in securities as many written
and electronic copies as you may from time to time reasonably request of
an amended Prospectus or a supplement to the Prospectus which will correct
such statement or omission or effect such compliance, and in case any
Underwriter is required to deliver a prospectus in connection with sales
of any of the Shares at any time nine months or more after the time of
issue of the Prospectus, upon your request but at the expense of such
Underwriter, to prepare and deliver to such Underwriter as many written
and electronic copies as you may request of an amended or supplemented
Prospectus complying with Section 10(a)(3) of the Act;
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(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and
the rules and regulations thereunder (including, at the option of the
Company, Rule 158);
(e) During the period beginning from the date hereof and continuing
to and including the date 60 days after the date of the Prospectus, not to
offer, sell, contract to sell or otherwise dispose of, except as provided
hereunder, any securities of the Company that are substantially similar to
the Shares, including but not limited to any securities that are
convertible into or exchangeable for, or that represent the right to
receive, Stock or any such substantially similar securities (other than
pursuant to employee stock option plans existing on, or upon the
conversion or exchange of convertible or exchangeable securities
outstanding as of, the date of this Agreement), without your prior written
consent; provided, however, that the foregoing agreement shall not limit
the Company's ability to (i) issue shares of Stock, warrants or
convertible securities as consideration for any merger, acquisition of
assets or stock of a third party, provided that the recipients of all such
shares of Stock, warrants or convertible securities agree with the Company
(which agreement may not be amended without the prior written consent of
Xxxxxxx, Xxxxx & Co.) to be subject to the foregoing lock-up agreement in
this Subsection 5(e) with respect to such shares of Stock, warrants or
convertible securities; or (ii) issue shares of Stock upon the exercise of
any warrants or convertible securities issued pursuant to the preceding
clause provided that such shares of Stock will be subject to the foregoing
lock-up to the same extent, if any, as the warrants or convertible
securities pursuant to which such shares of Stock were issued;
(f) If not otherwise available on XXXXX or a similar system during a
period of five years from the effective date of the Registration
Statement, to furnish to its stockholders as soon as practicable after the
end of each fiscal year an annual report (including a balance sheet and
statements of income, stockholders' equity and cash flows of the Company
and its consolidated subsidiaries certified by independent public
accountants) and, as soon as practicable after the end of each of the
first three quarters of each fiscal year (beginning with the fiscal
quarter ending after the effective date of the Registration Statement), to
make available to its stockholders consolidated summary financial
information of the Company and its subsidiaries for such quarter in
reasonable detail;
(g) If not otherwise available on XXXXX or a similar system during a
period of five years from the effective date of the Registration
Statement, to furnish to
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you copies of all reports or other communications (financial or other)
furnished to stockholders, and to deliver to you (i) as soon as they are
available, copies of any reports and financial statements furnished to or
filed with the Commission or any national securities exchange on which any
class of securities of the Company is listed; and (ii) such additional
information concerning the business and financial condition of the Company
as you may from time to time reasonably request (such financial statements
to be on a consolidated basis to the extent the accounts of the Company
and its subsidiaries are consolidated in reports furnished to its
stockholders generally or to the Commission); provided that the Company
shall not be required to deliver any information that would cause the
Company to make a filing under Regulation FD as promulgated under the
Exchange Act;
(h) If the Company elects to rely upon Rule 462(b), the Company
shall file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the
date of this Agreement, and the Company shall at the time of filing either
pay to the Commission the filing fee for the Rule 462(b) Registration
Statement or give irrevocable instructions for the payment of such fee
pursuant to Rule 111(b) under the Act; and
(i) Upon request of any Underwriter, to furnish, or cause to be
furnished, to such Underwriter an electronic version of the Company's
trademarks, servicemarks and corporate logo for use on the website, if
any, operated by such Underwriter for the purpose of facilitating the
on-line offering of the Shares (the "License"); provided, however, that
the License shall be used solely for the purpose described above, is
granted without any fee and may not be assigned or transferred.
6. The Company covenants and agrees with the several Underwriters that the
Company will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of the Company's counsel and accountants and one counsel for the
Selling Stockholders in connection with the registration of the Shares under the
Act and all other expenses in connection with the preparation, printing and
filing of the Registration Statement, any Preliminary Prospectus and the
Prospectus and amendments and supplements thereto and the mailing and delivering
of copies thereof to the Underwriters and dealers; (ii) the cost of printing or
producing any Agreement among Underwriters, this Agreement, the Blue Sky
Memorandum, closing documents (including any compilations thereof) and any other
documents in connection with the offering, purchase, sale and delivery of the
Shares; (iii) all expenses in connection with the qualification of the Shares
for offering and sale under state securities laws as provided in Section 5(b)
hereof, including the reasonable fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky survey; (iv) all fees and expenses in connection with listing the
Shares on the New York Stock Exchange; (v) the filing fees incident to, and the
fees and
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disbursements of counsel for the Underwriters in connection with, securing any
required review by the National Association of Securities Dealers, Inc. of the
terms of the sale of the Shares; (vi) the cost of preparing stock certificates;
(vii) the cost and charges of any transfer agent or registrar; and (viii) all
other costs and expenses incident to the performance of their respective
obligations hereunder which are not otherwise specifically provided for in this
Section. Each Selling Stockholder, severally and not jointly, covenants and
agrees with the several Underwriters that such Selling Stockholder will pay or
cause to be paid, unless otherwise provided in the registration rights agreement
between the Company and the Selling Stockholders, its pro rata share of the fees
and expenses of the Transfer Agent and all expenses and taxes incident to the
sale and delivery of the Shares to be sold by such Selling Stockholder to the
Underwriters hereunder; provided that Xxxxxxx, Sachs & Co. agrees to pay New
York State stock transfer tax, and the Selling Stockholder agrees to reimburse
Xxxxxxx, Xxxxx & Co. for associated carrying costs if such tax payment is not
rebated on the day of payment and for any portion of such tax payment not
rebated. It is understood, however, that the Company shall bear, and the Selling
Stockholders shall not be required to pay or to reimburse the Company for, the
cost of any other matters not directly relating to the sale and purchase of the
Shares pursuant to this Agreement, and that, except as provided in this Section,
and Sections 8 and 11 hereof, the Underwriters will pay all of their own costs
and expenses, including the fees of their counsel, stock transfer taxes on
resale of any of the Shares by them, and any advertising expenses connected with
any offers they may make.
Each Selling Stockholder, severally and not jointly, covenants and
agrees with the several Underwriters that (i) such Selling Stockholder will take
all necessary action to cause the Transfer Agent for the Shares to prepare and
countersign a certificate or certificates representing the Shares which are to
be sold by the Selling Stockholders at each Time of Delivery registered in such
names and denominations as the Underwriters shall instruct the Transfer Agent;
(ii) such Selling Stockholder will take all necessary action to cause the
Transfer Agent for the Shares (A) to cause the Shares that are to be sold at
each Time of Delivery to be transferred upon the books of the Company into such
names and denominations as the Underwriters shall instruct and to exchange the
certificates representing such Shares for new certificates for such Shares
registered in such names and in such denominations as the Underwriters shall
instruct, and (B) to deliver such new certificates pursuant to this Agreement to
the Underwriters; and (iii) such Selling Stockholder will take all necessary
action to deliver an instruction letter to the Transfer Agent authorizing and
directing the Transfer Agent to deliver the Shares which are to be sold by the
Selling Stockholder at each Time of Delivery to the Underwriters upon
confirmation of payment of the purchase price for such Shares; provided, however
that until payment of the purchase price for the Shares to be sold by such
Selling Stockholder to the Underwriters has been made as provided in this
Agreement, the Shares and all other shares, if any, represented by the
certificates delivered to the Transfer Agent on behalf of each Selling
Stockholder, shall be maintained in separate accounts as directed by
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such Selling Stockholder and each Selling Stockholder shall, except as otherwise
specifically provided herein, have all rights of ownership thereto.
7. The obligations of the Underwriters hereunder, as to the Shares to be
delivered at each Time of Delivery, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
the Company and the Selling Stockholders herein are, at and as of such Time of
Delivery, true and correct, the condition that the Company and the Selling
Stockholders shall have performed all of its and their obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for
such filing by the rules and regulations under the Act and in accordance
with Section 5(a) hereof; if the Company has elected to rely upon Rule
462(b), the Rule 462(b) Registration Statement shall have become effective
by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; no
stop order suspending the effectiveness of the Registration Statement or
any part thereof shall have been issued and no proceeding for that purpose
shall have been initiated or threatened by the Commission; and all
requests for additional information on the part of the Commission shall
have been complied with to your reasonable satisfaction;
(b) Xxxxxx Xxxxxx & Xxxxxxx llp counsel for the Underwriters, shall
have furnished to you such written opinion or opinions (a draft of each
such opinion is attached as Annex II(a) hereto), dated such Time of
Delivery, with respect to the matters covered in paragraphs (i), (iv), (v)
and (vi) of subsection (c) below as well as such other related matters as
you may reasonably request, and such counsel shall have received such
papers and information as they may reasonably request to enable them to
pass upon such matters;
(c) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, counsel for the
Company, shall have furnished to you their written opinion (a draft of
such opinion is attached as Annex II(b) hereto), dated such Time of
Delivery, in form and substance satisfactory to you, to the effect that:
(i) The Company and each of the Subsidiaries has been duly
incorporated and is validly existing and in good standing under the
laws of the State of Delaware and, based solely on the certificate
of public officials in the respective jurisdiction (a copy of which
has been delivered to you by the Company), the Company is duly
qualified to do business in North Carolina. The Company and each of
the Subsidiaries has all necessary corporate power and authority to
execute, deliver and perform its obligations under the Underwrit-
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ing Agreement and to own and hold its properties and conduct its
business as described in the Registration Statement.
(ii) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued and outstanding shares of
the Common Stock of the Company have been duly authorized and are
validly issued and outstanding, fully paid and non-assessable. All
of the issued and outstanding shares of common stock of the
Subsidiaries have been duly authorized and are validly issued and
outstanding, fully paid and non-assessable, are owned of record
directly or indirectly by the Company and, to our knowledge, are
owned free and clear of all liens, encumbrances, equities or claims,
except as disclosed in the Prospectus.
(iii) The Common Stock of the Company conforms in all material
respects to the description thereof, contained in the Company's
registration statement on Form 8-A (filed August 14, 2003),
incorporated by reference into the Prospectus.
(iv) The Underwriting Agreement has been duly authorized,
executed and delivered by the Company.
(v) The statements in the Prospectus under the captions "Risk
Factors - Our failure to comply with federal, state and local laws
and regulations could result in our being fined, liable for damages
and, in some cases, losing our right to conduct some of our
business," "Risk Factors - Our failure to comply with environmental
laws could result in liability and claims for damages," "Business -
Regulatory and Environmental Matters" and "Underwriting," only to
the extent that they constitute summaries of United States federal
statutes, rules and regulations, or portions thereof, and agreements
referred to therein are accurate and fair in all material respects.
(vi) The Registration Statement and the Prospectus and any
further amendments and supplements thereto made by the Company prior
to the date hereof appear on their face to be appropriately
responsive in all material respects to the requirements of the Act
and the rules and regulations of the Commission under the Act except
for the financial statements, financial statement schedules and
other financial data included or incorporated by reference in or
omitted from either of them, as to which we express no opinion.
(vii) The compliance by the Company with all of the provisions
of the Underwriting Agreement applicable to it and the performance
by the Company of its obligations thereunder will not (i) result in
a violation of the Charter
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Documents, (ii) breach or result in a default under any agreement,
indenture or instrument listed as an Exhibit to the Registration
Statement or (iii) violate Applicable Law or any judgment, order or
decree of any court or arbitrator known to us, except in the case of
clauses (ii) and (iii) where the breach or violation would not have
a material adverse effect on the Company and its subsidiaries taken
as a whole. For purposes of this opinion, the term "Applicable Law"
means the federal laws of the United States, the laws of the State
of New York and the General Corporation Law of the State of Delaware
(the "GCL"), in each case which, in our experience, are normally
applicable to the transactions of the type contemplated by the
Underwriting Agreement.
(viii) Based on our review of Applicable Law, but without any
investigation concerning any other laws, rules or regulations, no
consent, approval, authorization or order of, or filing,
registration or qualification with, any Governmental Authority,
which has not been obtained, taken or made (other than as required
by any state securities laws, as to which we express no opinion) is
required under any Applicable Law for the performance by the Company
of its obligations under the Underwriting Agreement. For purposes of
this opinion, the term "Governmental Authority" means any executive,
legislative, judicial, administrative or regulatory body of the
State of New York, the State of Delaware or the United States of
America.
(ix) The Company is not required to be registered as an
investment company under the Investment Company Act of 1940, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
(x) To our knowledge (without making any docket search or
similar investigation) and other than as set forth in the
Prospectus, there are no legal proceedings pending or threatened
against the Company or the Subsidiaries that, if determined
adversely individually or in the aggregate, could reasonably be
expected to have a material adverse effect on the Company and the
Subsidiaries, taken as a whole, or could reasonably be expected to
materially impair the Company's ability to perform its obligations
under the Underwriting Agreement. To our knowledge, there are no
legal or governmental actions, suits or proceedings pending or
threatened which are required to be disclosed in the Registration
Statement, other than those disclosed therein.
They have participated in the preparation of the Registration Statement
and the Prospectus and, although the limitations inherent in the independent
verification of factual matters and in the role of outside counsel are such that
they have not undertaken to investigate or verify independently, and do not
assume responsibility for, the accuracy, completeness or fairness of the
statements contained in either of them (other than as explicitly stated in
para-
-17-
graph (v) above), based upon such participation (and relying as to certain
factual matters in their evaluation of materiality to the extent they deemed
reasonable on officers, employees and other representatives of the Company), no
facts have come to their attention that led them to believe that (a) the
Registration Statement or any amendment (except for the financial statements,
financial statement schedules and other financial data included in or omitted
from those documents, as to which they express no such belief), at the time it
became effective, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading or (b) the Prospectus or any amendment or
supplement (except for the financial statements, financial statement schedules
and other financial data included or omitted from those documents, as to which
they express no such belief), at the time the Prospectus was issued or on the
date of this letter, included or includes an untrue statement of a material fact
or omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading or that, as of the date hereof, either the Registration
Statement or the Prospectus or any amendment or supplement thereto made by the
Company (other than the financial statements and related schedules and other
financial data appearing therein or omitted therefrom, as to which they express
no opinion) contains an untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. They do not know of
any amendment to the Registration Statement required to be filed or of any
contracts or other documents of a character required to be filed as an exhibit
to the Registration Statement or required to be described in the Registration
Statement or the Prospectus which are not filed or described as required.
(d) The respective counsel for each of the Selling Stockholders, as
indicated in Schedule II hereto, each shall have furnished to you their
written opinion with respect to each of the Selling Stockholders for whom
they are acting as counsel, dated such Time of Delivery, in form and
substance satisfactory to you, to the effect that:
(i) This Agreement has been duly executed and delivered by or
on behalf of such Selling Stockholder; and the sale of the Shares to
be sold by such Selling Stockholder hereunder and the compliance by
such Selling Stockholder with all of the provisions of this
Agreement, and the consummation of the transactions herein
contemplated will not conflict with or result in a breach or
violation of any terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument known to such counsel to which such
Selling Stockholder is a party or by which such Selling Stockholder
is bound, or to which any of the property or assets of such Selling
Stockholder is subject, nor will such action result in any violation
of the provisions of the Certificate of Incorporation or By-laws of
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such Selling Stockholder if such Selling Stockholder is a
corporation, the Partnership Agreement of such Selling Stockholder
if such Selling Stockholder is a partnership, the Certificate of
Formation or the Limited Liability Company Agreement if such Selling
Stockholder is a limited liability company or any statute, order,
rule or regulation known to such counsel of any court or
governmental agency or body having jurisdiction over such Selling
Stockholder or the property of such Selling Stockholder;
(ii) No consent, approval, authorization or order of any court
or governmental agency or body is required for the consummation of
the transactions contemplated by this Agreement in connection with
the Shares to be sold by such Selling Stockholder hereunder, except
any such consent, approval, authorization or order which have been
duly obtained and are in full force and effect, such as have been
obtained under the Act and such as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of such Shares by the Underwriters;
(iii) Immediately prior to such Time of Delivery such Selling
Stockholder had good and valid title to the Shares to be sold at
such Time of Delivery by such Selling Stockholder under this
Agreement, free and clear of all liens, encumbrances, equities or
claims, and full right, power and authority to sell, assign,
transfer and deliver the Shares to be sold by such Selling
Stockholder hereunder; and
(iv) Good and valid title to such Shares, free and clear of
all liens, encumbrances, equities or claims, will pass upon delivery
of such Shares to each of the several Underwriters who purchase such
Shares in good faith and without notice of any such lien,
encumbrance, equity or claim or any other adverse claim within the
meaning of the Uniform Commercial Code.
In rendering the opinion in subparagraph (iii) such counsel may rely upon
a certificate of such Selling Stockholder in respect of matters of fact as
to ownership of, and liens, encumbrances, equities or claims on the Shares
sold by such Selling Stockholder; provided that such counsel shall state
that they have no knowledge of information inconsistent with that provided
in such certificate;
(e) On the date of the Prospectus at a time prior to the execution
of this Agreement, at 9:30 a.m., New York City time, on the effective date
of any post-effective amendment to the Registration Statement filed
subsequent to the date of this Agreement and also at each Time of
Delivery, Ernst & Young LLP shall have furnished to you a letter or
letters, dated the respective dates of delivery thereof, in form and
substance satisfactory to you, to the effect set forth in Annex I hereto
(the
-19-
executed copy of the letter delivered prior to the execution of this
Agreement is attached as Annex I(a) hereto and a draft of the form of
letter to be delivered on the effective date of any post-effective
amendment to the Registration Statement and as of each Time of Delivery is
attached as Annex I(b) hereto);
(f) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included in the Prospectus any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the
Prospectus, and (ii) since the respective dates as of which information is
given in the Prospectus there shall not have been any change in the
capital stock (other than the issuance of stock upon the exercise of
outstanding stock options and warrants, to the extent set forth or
contemplated by the Prospectus) or long-term debt of the Company or any of
its subsidiaries or any change, or any development involving a prospective
change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the Company and
its subsidiaries, otherwise than as set forth or contemplated in the
Prospectus, the effect of which, in any such case described in clause (i)
or (ii), is in the judgment of the Representatives so material and adverse
as to make it impracticable or inadvisable to proceed with the public
offering or the delivery of the Shares being delivered at such Time of
Delivery on the terms and in the manner contemplated in the Prospectus;
(g) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities by any
"nationally recognized statistical rating organization", as that term is
defined by the Commission for purposes of Rule 436(g)(2) under the Act,
and (ii) no such organization shall have publicly announced that it has
under surveillance or review, with possible negative implications, its
rating of any of the Company's debt securities;
(h) On or after the date hereof there shall not have occurred any of
the following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (ii) a suspension or
material limitation in trading in the Company's securities on the New York
Stock Exchange; (iii) a general moratorium on commercial banking
activities declared by either Federal or New York State authorities or a
material disruption in commercial banking or securities settlement or
clearance services in the United States; (iv) the outbreak or escalation
of hostilities involving the United States or the declaration by the
United States of a national emergency or war or (v) the occurrence of any
other calamity or crisis or any change in financial, political or economic
conditions in the United States or elsewhere,
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if the effect of any such event specified in clause (iv) or (v) in the
judgment of the Representatives makes it impracticable or inadvisable to
proceed with the public offering or the delivery of the Shares being
delivered at such Time of Delivery on the terms and in the manner
contemplated in the Prospectus;
(i) The Shares to be sold at such Time of Delivery shall have been
duly listed on the New York Stock Exchange;
(j) The Company has obtained and delivered to the Underwriters
executed copies of an agreement from the stockholders of the Company
listed on Schedule IV hereto, substantially to the effect set forth in
Subsection 5(e) hereof in form and substance satisfactory to you;
(k) The Company shall have complied with the provisions of Section
5(c) hereof with respect to the furnishing of prospectuses on the New York
Business Day next succeeding the date of this Agreement;
(l) Each of the Selling Stockholders shall have delivered or caused
to be delivered to the Transfer Agent no later than one day after the date
of this Agreement one or more certificates in negotiable form (and (a)
with signatures guaranteed by a commercial bank or trust company having an
office or correspondent in the United States or by a member firm of a
registered national securities exchange or of the National Association of
Securities Dealers, Inc. or (b) accompanied by a duly executed stock power
or powers, in blank, bearing signatures so guaranteed and (c) with all
necessary transfer tax stamps attached thereto) representing all of the
Shares to be sold by each of the Selling Stockholders; and
(m) The Company and the Selling Stockholders shall have furnished or
caused to be furnished to you at such Time of Delivery certificates of
officers of the Company and the Selling Stockholders, respectively,
satisfactory to you as to the accuracy of the representations and
warranties of the Company and the Selling Stockholders, respectively,
herein at and as of such Time of Delivery, as to the performance by the
Company and the Selling Stockholders of all of their respective
obligations hereunder to be performed at or prior to such Time of
Delivery, and as to such other matters as you may reasonably request, and
the Company shall have furnished or caused to be furnished certificates as
to the matters set forth in subsections (a) and (f) of this Section, and
as to such other matters as you may reasonably request.
8. (a) The Company will indemnify and hold harmless each Underwriter and
each Selling Stockholder against any losses, claims, damages or liabilities to
which such Underwriter or such Selling Stockholder may become subject, under the
Act or otherwise,
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insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse each Underwriter and
each Selling Stockholder for any legal or other expenses reasonably incurred by
such Underwriter or such Selling Stockholder in connection with investigating or
defending any such action or claim as such expenses are incurred; provided,
however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, the Registration Statement or the Prospectus
or any such amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through Xxxxxxx,
Xxxxx & Co. or by any Selling Stockholder expressly for use therein.
(b) Each of the Selling Stockholders, severally and not jointly,
will indemnify and hold harmless each Underwriter, the Company and the other
Selling Stockholders against any losses, claims, damages or liabilities, joint
or several, to which such Underwriter, the Company or such other Selling
Stockholder may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in any Preliminary Prospectus, the Registration Statement or
the Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by such Selling
Stockholder expressly for use therein; and will reimburse each Underwriter and
each other Selling Stockholder for any legal or other expenses reasonably
incurred by such Underwriter or such other Selling Stockholder in connection
with investigating or defending any such action or claim as such expenses are
incurred.
(c) Each Underwriter will indemnify and hold harmless the Company
and each Selling Stockholder against any losses, claims, damages or liabilities
to which the Company or such Selling Stockholder may become subject, under the
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue statement
or alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or any
-22-
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in any Preliminary
Prospectus, the Registration Statement or the Prospectus or any such amendment
or supplement in reliance upon and in conformity with written information
relating to such Underwriter furnished to the Company by such Underwriter
through Xxxxxxx, Sachs & Co., expressly for use therein; and will reimburse the
Company and each Selling Stockholder for any legal or other expenses reasonably
incurred by the Company or such Selling Stockholder in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(d) Promptly after receipt by an indemnified party under subsection
(a), (b) or (c) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the written consent of the indemnified party,
effect the settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party.
(e) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a), (b) or (c) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
-23-
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company, the Selling Stockholder and the
Underwriters from the offering of the Shares. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law or if the indemnified party failed to give the notice required under
subsection (d) above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company; the Selling Stockholder and the Underwriters in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
Selling Stockholders on the one hand and the Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from the offering
of the Shares purchased under this Agreement (before deducting expenses)
received by the Selling Stockholders bear to the total underwriting discounts
and commissions received by the Underwriters with respect to the Shares
purchased under this Agreement, in each case as set forth in the table on the
cover page of the Prospectus; provided that the relative benefits received by
any Selling Stockholder shall be deemed to be in the same proportion to the
total net proceeds from the offering received by such Selling Stockholder. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company, a Selling Stockholder or the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company, each of the Selling Stockholders and
the Underwriters agree that it would not be just and equitable if contributions
pursuant to this subsection (e) were determined by pro rata allocation (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 above in this subsection (e). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this subsection (e) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this subsection (e), no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the 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 in this subsection
(e) to contribute are several in proportion to their respective underwriting
obligations and not joint.
-24-
(f) The obligations of the Company and the Selling
Stockholders under this Section 8 shall be in addition to any liability which
the Company and the respective Selling Stockholders may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
any Underwriter or any Selling Stockholder within the meaning of the Act; and
the obligations of the Underwriters under this Section 8 shall be in addition to
any liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director of the
Company and to each person, if any, who controls the Company or any Selling
Stockholder within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Shares which it has agreed to purchase hereunder at a Time of Delivery, you
may in your discretion arrange for you or another party or other parties to
purchase such Shares on the terms contained herein. If within thirty-six hours
after such default by any Underwriter you do not arrange for the purchase of
such Shares, then the Selling Stockholders shall be entitled to a further period
of thirty-six hours within which to procure another party or other parties
satisfactory to you to purchase such Shares on such terms. In the event that,
within the respective prescribed periods, you notify the Company and the Selling
Stockholders that you have so arranged for the purchase of such Shares, or the
Selling Stockholders notifies you that it has so arranged for the purchase of
such Shares, you or the Selling Stockholders shall have the right to postpone
such Time of Delivery for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus, or in any other documents or arrangements, and the
Company agrees to file promptly upon notice of such arrangement any amendments
to the Registration Statement or the Prospectus which in your opinion may
thereby be made necessary. The term "Underwriter" as used in this Agreement
shall include any person substituted under this Section with like effect as if
such person had originally been a party to this Agreement with respect to such
Shares.
(b) If, after giving effect to any arrangements for the
purchase of the Shares of a defaulting Underwriter or Underwriters by you and
the Selling Stockholders as provided in subsection (a) above, the aggregate
number of such Shares which remains unpurchased does not exceed one-eleventh of
the aggregate number of all the Shares to be purchased at such Time of Delivery,
then the Selling Stockholders shall have the right to require each
non-defaulting Underwriter to purchase the number of shares which such
Underwriter agreed to purchase hereunder at such Time of Delivery and, in
addition, to require each non-defaulting Underwriter to purchase its pro rata
share (based on the number of Shares which such Underwriter agreed to purchase
hereunder) of the Shares of such defaulting Underwriter or Underwriters for
which such arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
-25-
(c) If, after giving effect to any arrangements for the
purchase of the Shares of a defaulting Underwriter or Underwriters by you and
the Selling Stockholders as provided in subsection (a) above, the aggregate
number of such Shares which remains unpurchased exceeds one-eleventh of the
aggregate number of all the Shares to be purchased at such Time of Delivery, or
if the Selling Stockholders shall not exercise the right described in subsection
(b) above to require non-defaulting Underwriters to purchase Shares of a
defaulting Underwriter or Underwriters, then this Agreement (or, with respect to
the Second Time of Delivery, the obligations of the Underwriters to purchase and
of the Selling Stockholders to sell the Optional Shares) shall thereupon
terminate, without liability on the part of any non-defaulting Underwriter or
the Company or the Selling Stockholders, except for the expenses to be borne by
the Company and the Underwriters as provided in Section 6 hereof and the
indemnity and contribution agreements in Section 8 hereof; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company, the Selling Stockholders and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling person of any
Underwriter, or the Company, or any of the Selling Stockholders or any officer
or director or controlling person of the Company, or any controlling person of
any Selling Stockholder, and shall survive delivery of and payment for the
Shares.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
neither the Company nor the Selling Stockholders shall then be under any
liability to any Underwriter except as provided in Sections 6 and 8 hereof; but,
if for any other reason, any Shares are not delivered by or on behalf of the
Selling Stockholders as provided herein, each of the Selling Stockholders pro
rata (based on the number of shares to be sold by such Selling Stockholder
hereunder) will reimburse the Underwriters through you for all out-of-pocket
expenses approved in writing by you, including fees and disbursements of
counsel, reasonably incurred by the Underwriters in making preparations for the
purchase, sale and delivery of the Shares not so delivered, but the Company and
the Selling Stockholders shall then be under no further liability to any
Underwriter in respect of the Shares not so delivered except as provided in
Sections 6 and 8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by Xxxxxxx, Xxxxx & Co. on behalf of you as the
representatives and in all dealings with any Selling Stockholder hereunder, you
and the Company shall be entitled to act and rely upon any statement, request,
-26-
notice or agreement on behalf of such Selling Stockholder made or given by any
or all of the Selling Stockholders.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the representatives in care of Xxxxxxx, Sachs &
Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Registration
Department; if to any Selling Stockholder shall be delivered or sent by mail,
telex or facsimile transmission to counsel for such Selling Stockholder at its
address set forth in Schedule II hereto; and if to the Company shall be
delivered or sent by mail to the address of the Company set forth in the
Registration Statement, Attention: General Counsel; provided, however, that any
notice to an Underwriter pursuant to Section 8(d) hereof shall be delivered or
sent by mail, telex or facsimile transmission to such Underwriter at its address
set forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company or any Selling
Stockholder by you upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company and the Selling Stockholders and, to
the extent provided in Sections 8 and 10 hereof, the officers and directors of
the Company and each person who controls the Company, the Selling Stockholders
or any Underwriter, and their respective heirs, executors, administrators,
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement. No purchaser of any of the Shares from any
Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
14. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
17. The Company and the Selling Stockholders are authorized, subject to
applicable law, to disclose any and all aspects of this potential transaction
that are necessary to support any U.S. federal income tax benefits expected to
be claimed with respect to such transaction, and all materials of any kind
(including tax opinions and other tax analyses) related to those benefits,
without the Underwriters imposing any limitation of any kind.
-27-
If the foregoing is in accordance with your understanding, please sign
and return to us twelve counterparts hereof, and upon the acceptance hereof by
you, on behalf of each of the Underwriters, this letter and such acceptance
hereof shall constitute a binding agreement between each of the Underwriters,
the Company and each of the Selling Stockholders. It is understood that your
acceptance of this letter on behalf of each of the Underwriters is pursuant to
the authority set forth in a form of Agreement among Underwriters, the form of
which shall be submitted to the Company and the Selling Stockholders for
examination upon request, but without warranty on your part as to the authority
of the signers thereof.
Very truly yours,
SpectraSite, Inc.
By:
---------------------------------
Name:
Title:
AP Towers LLC
By: Apollo Management V, L.P.
as Manager
By: AIF V Management, Inc.,
as General Partner
By:
---------------------------------
Name:
Title:
OCM Opportunities Fund IV, L.P.
OCM Opportunities Fund IVb, L.P.
By: Oaktree Capital Management, LLC,
as General Partner
By:
---------------------------------
Name:
Title:
Capital Research and Management Company
as investment adviser for:
American High-Income Trust
The Bond Fund of America, Inc.
Capital World Bond Fund, Inc.
The Income Fund of America, Inc.
American Funds Insurance Series -- High
Income Bond Fund
American Funds Insurance Series -- Asset
Allocation Fund
American Funds Insurance Series -- Bond
Fund
By:
---------------------------------
Name:
Title:
American High-Income Trust
By:
---------------------------------
Name:
Title:
The Bond Fund of America, Inc.
By:
---------------------------------
Name:
Title:
The Income Fund of America, Inc.
By:
---------------------------------
Name:
Title:
Capital World Bond Fund, Inc.
By:
---------------------------------
Name:
Title:
American Funds Insurance Series -- High
Income Bond Fund
By:
---------------------------------
Name:
Title:
American Funds Insurance Series -- Asset
Allocation Fund
By:
---------------------------------
Name:
Title:
American Funds Insurance Series -- Bond
Fund
By:
---------------------------------
Name:
Title:
Accepted as of the date hereof:
Xxxxxxx, Xxxxx & Co.
Bear, Xxxxxxx & Co. Inc.
Citigroup Global Markets Inc.
Xxxxxx Brothers Inc.
Xxxxxxx Xxxxx & Associates, Inc.
By:
------------------------------------------------
(Xxxxxxx, Sachs & Co.)
