EXHIBIT 1.1
GLOBAL SIGNAL INC.
5,750,000 Shares
Common Stock
FORM OF UNDERWRITING AGREEMENT
dated May ___, 2005
XXXXXX XXXXXXX & CO. INCORPORATED
BANC OF AMERICA SECURITIES LLC
CITIGROUP GLOBAL MARKETS INC.
XXXXXXX XXXXX & ASSOCIATES, INC.
XXXXXXXX & COMPANY, INC.
UNDERWRITING AGREEMENT
May ___, 2005
XXXXXX XXXXXXX & CO. INCORPORATED
BANC OF AMERICA SECURITIES LLC
CITIGROUP GLOBAL MARKETS INC.
XXXXXXX XXXXX & ASSOCIATES, INC.
XXXXXXXX & COMPANY, INC.
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
and
Banc of America Securities LLC
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
as Representatives of the several Underwriters
Ladies and Gentlemen:
Introductory. Global Signal Inc., a Delaware corporation (the "Company"),
proposes to issue and sell to the several underwriters named in Schedule A (the
"Underwriters") an aggregate of 5,575,000 shares (the "Firm Common Shares") of
its Common Stock, par value $0.01 per share (the "Common Stock"). In addition,
the Company has granted to the Underwriters an option to purchase up to an
additional 575,000 shares (the "Optional Common Shares") of Common Stock, as
provided in Section 2. The Firm Common Shares and, if and to the extent such
option is exercised, the Optional Common Shares are collectively called the
"Common Shares". Xxxxxx Xxxxxxx & Co. Incorporated, and Banc of America
Securities LLC have agreed to act as representatives of the several Underwriters
(in such capacity, the "Representatives") in connection with the offering and
sale of the Common Shares.
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-11 (File No.
333-121576), which contains a form of prospectus to be used in connection with
the public offering and sale of the Common Shares. Such registration statement,
as amended, including the financial statements, exhibits and schedules thereto,
in the form in which it was declared effective by the Commission under the
Securities Act of 1933 and the rules and regulations promulgated thereunder
(collectively, the "Securities Act"), including any information deemed to be a
part thereof at the time of effectiveness pursuant to Rule 430A or Rule 434
under the Securities Act, is called the "Registration Statement". Any
registration statement filed by the Company pursuant to Rule 462(b) under the
Securities Act is called the "Rule 462(b) Registration Statement", and from and
after the date and time of filing of the Rule 462(b) Registration Statement the
term "Registration Statement" shall include the Rule 462(b) Registration
Statement. Such prospectus, in the form
first furnished to the Underwriters for use by the Underwriters to confirm sales
of the Common Shares, is called the "Prospectus"; provided, however, if the
Company has, with the consent of the Representatives, elected to rely upon Rule
434 under the Securities Act, the term "Prospectus" shall mean the Company's
prospectus subject to completion (each, a "preliminary prospectus") dated May
___, 2005 (such preliminary prospectus is called the "Rule 434 preliminary
prospectus"), together with the applicable term sheet (the "Term Sheet")
prepared and filed by the Company with the Commission under Rules 434 and 424(b)
under the Securities Act and all references in this Agreement to the date of the
Prospectus shall mean the date of the Term Sheet. All references in this
Agreement to the Registration Statement, the Rule 462(b) Registration Statement,
a preliminary prospectus, the Prospectus or the Term Sheet, or any amendments or
supplements to any of the foregoing, shall include any copy thereof filed with
the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
System ("XXXXX").
The Company hereby confirms its agreements with the Underwriters as
follows:
SECTION 1. Representations and Warranties.
The Company hereby represents, warrants and covenants to each Underwriter
as follows:
(a) Compliance with Registration Requirements. The Registration Statement
and any Rule 462(b) Registration Statement have been declared effective by the
Commission under the Securities Act. No stop order suspending the effectiveness
of the Registration Statement or any Rule 462(b) Registration Statement is in
effect and no proceedings for such purpose have been instituted or are pending
or, to the best knowledge of the Company, are contemplated or threatened by the
Commission.
Each preliminary prospectus and the Prospectus when filed complied in all
material respects with the Securities Act and, if filed by electronic
transmission pursuant to XXXXX (except as may be permitted by Regulation S-T
under the Securities Act), was identical to the copy thereof delivered to the
Underwriters for use in connection with the offer and sale of the Common Shares.
Each of the Registration Statement, any Rule 462(b) Registration Statement and
any post-effective amendment thereto, at the time it became effective, at the
First Closing Date (as defined below) and any Option Closing Date (as defined
below), 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 to make
the statements therein not misleading. The Prospectus, as amended or
supplemented, as of its date, or the date of any such amendment or supplement,
and at the First Closing Date (as defined below) and any Option Closing Date (as
defined below), did not and will not contain 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 under which they were made, not
misleading. The representations and warranties set forth in the two immediately
preceding sentences do not apply to statements in or omissions from the
Registration Statement, any Rule 462(b) Registration Statement, or any
post-effective amendment thereto, or the Prospectus, or any amendments or
supplements thereto, made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by the
Representatives expressly for use therein. There are no contracts or other
documents required to
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be described in the Prospectus or to be filed as exhibits to the Registration
Statement which have not been described or filed as required.
(b) Distribution of Offering Material By the Company. The Company has not
distributed and will not distribute, prior to the earlier of the purchase of all
Optional Common Shares or the expiration of the period referred to in Section
2(c) and the completion of the Underwriters' distribution of the Common Shares,
any offering material in connection with the offering and sale of the Common
Shares other than a preliminary prospectus, the Prospectus or the Registration
Statement.
(c) The Underwriting Agreement. This Agreement has been duly authorized,
executed and delivered by, and is a valid and binding agreement of, the Company,
enforceable in accordance with its terms, except as rights to indemnification
hereunder may be limited by applicable law and except as the enforcement hereof
may be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting the rights and remedies of creditors or by
general equitable principles.
(d) Authorization of the Common Shares. The Common Shares to be purchased
by the Underwriters from the Company have been duly authorized for issuance and
sale pursuant to this Agreement and, when issued and delivered by the Company
pursuant to this Agreement, will be validly issued, fully paid and
nonassessable.
(e) No Applicable Registration or Other Similar Rights. Except as otherwise
disclosed in the Registration Statement or Prospectus, there are no persons with
registration or other similar rights to have any equity or debt securities
registered for sale under the Registration Statement or included in the offering
contemplated by this Agreement, except for such rights as have been duly waived.
(f) No Material Adverse Change. Except as otherwise disclosed in the
Prospectus, subsequent to the respective dates as of which information is given
in the Prospectus: (i) there has been no material adverse change, or any
development involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business, operations or prospects,
whether or not arising from transactions in the ordinary course of business, of
the Company and its subsidiaries, considered as one entity (any such change is
called a "Material Adverse Change"); (ii) the Company and its subsidiaries,
considered as one entity, have not incurred any material liability or
obligation, indirect, direct or contingent, not in the ordinary course of
business nor entered into any material transaction or agreement not in the
ordinary course of business; and (iii) there has been no dividend or
distribution of any kind declared, paid or made by the Company or, except for
dividends paid to the Company or other subsidiaries, any of its subsidiaries on
any class of capital stock or repurchase or redemption by the Company or any of
its subsidiaries of any class of capital stock.
(g) Independent Accountants.
(i) Ernst & Young LLP, who have expressed their opinion as set forth in
the Registration Statement with respect to the financial statements (which
term as used in this Agreement includes the related notes thereto) of (i)
the Company and (ii) Tower
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Ventures, Lattice Acquisition, Didier Communications Acquisition and Towers
of Texas Acquisition (the entities referred to in clause (ii) referred to
collectively as, the "E&Y Acquisition Entities"), filed with the Commission
as a part of the Registration Statement and included in the Prospectus, are
independent registered public or independent registered certified public
accountants as required by the Securities Act. In this Agreement and in the
applicable statements of revenue and certain expenses of the E&Y
Acquisition Entities included in the Registration Statement: (a) "Tower
Ventures" refers to a portfolio of 97 communications sites representing 97
of the 100 communications sites previously owned by Tower Ventures III LLC;
(b) "Lattice Acquisition" refers to a portfolio of 236 communications sites
under management or lease previously owned by Lattice Communications, LLC;
(c) "Didier Communication Acquisition" refers to a portfolio of 95
communications sites previously owned by Didier, Inc., Ozark Towers, Inc.,
Ridgeline Communications, Inc., Law Towers I, LLC and Centerville Towers,
LLC; and (d) "Towers of Texas Acquisition" refers to a portfolio of 48
communications sites previously owned by Towers of Texas, Inc.
(ii) KPMG LLP, who have expressed their opinion as set forth in the
Registration Statement with respect to the statements of revenue and
certain expenses of Sprint Sites USA, filed with the Commission as part of
the Registration Statement and included in the Prospectus, are independent
registered public or independent registered certified public accountants as
required by the Securities Act. In this Agreement and in the statements of
revenue and certain expenses of Sprint Sites, USA, included in the
Registration Statement, "Sprint Sites USA" refers to a portfolio of
approximately 6,600 communications sites previously leased by various
affiliates of Sprint Corporation.
(iii) PricewaterhouseCoopers LLP, who have expressed their opinion as
set forth in the Registration Statement with respect to the statement of
revenue and direct operating expenses of SunCom Acquisition, filed with the
Commission as part of the Registration Statement and included in the
Prospectus, are an independent registered public accounting firm as
required by the Securities Act. In this Agreement and in the statements of
revenue and direct operating expenses of SunCom Acquisition included in the
Registration Statement, "SunCom Acquisition" refers to a portfolio of 169
communications sites owned by various affiliates of Triton PCS Holdings,
Inc.
(iv) Xxxxx Xxxxxx PLLC, who have expressed their opinion as set forth
in the Registration Statement with respect to the statements of revenue and
certain expenses of ForeSite 2005 Acquisition, filed with the Commission as
part of the Registration Statement and included in the Prospectus, are
independent registered public or independent registered certified public
accountants as required by the Securities Act. In this Agreement and in the
statements of revenue and certain expenses of ForeSite 2005 Acquisition
included in the Registration Statement, "ForeSite 2005 Acquisition" refers
to a portfolio of 172 communications sites previously owned by various
affiliates of ForeSite LLC. The E&Y Acquisition Entities, Sprint Sites USA,
SunCom Acquisition and ForeSite 2005 Acquisition are herein collectively
referred to as the "Acquisition Entities".
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(h) Preparation of the Financial Statements. The consolidated financial
statements and schedules of the Company filed with the Commission as a part of
the Registration Statement and included in the Prospectus present fairly the
consolidated financial position of the Company and its subsidiaries as of and at
the dates indicated and the consolidated results of their operations and cash
flows for the periods specified. The statements of revenue and certain expenses
of each of the Acquisition Entities filed with the Commission as a part of the
Registration Statement and included in the Prospectus present fairly the revenue
and certain expenses of each of the Acquisition Entities for the periods
specified. Such financial statements and schedules of the Company and statements
of revenue and certain expenses of each of the Acquisition Entities have been
prepared in conformity with U.S. generally accepted accounting principles
applied on a consistent basis throughout the periods involved, except as may be
expressly stated in the related notes thereto. Such statements of revenue and
certain expenses of each of the Acquisition Entities were prepared for the
purpose of complying with the rules and regulations of the Commission, primarily
Rule 3-14 of Regulation S-X, and do not represent a complete presentation of the
results of operations as required by U.S. generally accepted accounting
principles. No other financial statements or schedules are required to be
included in the Registration Statement. The financial data set forth in the
Prospectus under the captions "Prospectus Summary--Summary Consolidated
Financial Information", "Capitalization" and "Selected Historical Consolidated
Financial Information" fairly present the information set forth therein on a
basis consistent with that of the audited and unaudited financial statements
contained in the Registration Statement.
The pro forma condensed consolidated financial statements of the
Company and its subsidiaries and the related notes thereto included in the
Registration Statement present fairly the information contained therein, have
been prepared in accordance with the Commission's rules and guidelines with
respect to pro forma financial statements and have been properly presented on
the bases described therein, and the assumptions used in the preparation thereof
are reasonable and the adjustments used therein are appropriate to give effect
to the transactions and circumstances referred to therein.
(i) Incorporation and Good Standing of the Company and its Subsidiaries.
Each of the Company and its subsidiaries has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation and has corporate power and authority to own,
lease and operate its properties and to conduct its business as described in the
Prospectus and, in the case of the Company, to enter into and perform its
obligations under this Agreement. Each of the Company and each subsidiary is
duly qualified as a foreign corporation to transact its business as described in
the Prospectus and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except for such jurisdictions where the
failure to so qualify or to be in good standing would not, individually or in
the aggregate, result in a Material Adverse Change. All of the issued and
outstanding capital stock of each subsidiary has been duly authorized and
validly issued, is fully paid and nonassessable and is owned by the Company,
directly or through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance or claim, except as described in the
Prospectus. The Company does not own or control, directly or indirectly, any
corporation, association or other entity other than the subsidiaries listed in
Exhibit 21.1 to the Registration Statement.
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(j) Capitalization and Other Capital Stock Matters. The authorized, issued
and outstanding capital stock of the Company is as set forth in the Prospectus
under the caption "Capitalization" (other than for subsequent issuances, if any,
pursuant to employee benefit plans described in the Prospectus or upon exercise
of outstanding options or warrants described in the Prospectus). The Common
Stock (including the Common Shares) conforms in all material respects to the
description thereof contained in the Prospectus, and such description conforms
to the rights set forth in the instruments defining the same. All of the issued
and outstanding shares of Common Stock have been duly authorized and validly
issued, are fully paid and nonassessable and have been issued in compliance with
federal and state securities laws. None of the outstanding shares of Common
Stock were issued in violation of any preemptive rights, rights of first refusal
or other similar rights to subscribe for or purchase securities of the Company.
There are no authorized or outstanding options, warrants, preemptive rights,
rights of first refusal or other rights to purchase, or equity or debt
securities convertible into or exchangeable or exercisable for, any capital
stock of the Company or any of its subsidiaries other than those described in
the Prospectus. The description of the Company's stock option, stock bonus and
other stock plans or arrangements, and the options or other rights granted
thereunder, set forth in the Prospectus accurately and fairly presents the
information required to be shown with respect to such plans, arrangements,
options and rights.
(k) Listing. The Common Shares have been approved for listing on the New
York Stock Exchange, subject only to official notice of issuance.
(l) Non-Contravention of Existing Instruments; No Further Authorizations or
Approvals Required. Neither the Company nor any of its "significant
subsidiaries" as such term is defined in Rule 1-02 of Regulation S-X of the
rules and regulations of the Commission under the Securities Act is in violation
of its charter or by-laws or is in default (or, with the giving of notice or
lapse of time, would be in default) ("Default") under any indenture, mortgage,
loan or credit agreement, note, contract, franchise, lease or other instrument
to which the Company or any of its subsidiaries is a party or by which it or any
of them may be bound (including, without limitation, the Amended and Restated
Loan and Security Agreement dated February 5, 2004 between Pinnacle Towers Inc.
and any other borrower or borrowers that may become a party thereto, as
Borrowers, and Towers Xxxxx LLC, as Lender, the Amended and Restated Loan and
Security Agreement, dated as of December 7, 2004, by and among Pinnacle Towers
Acquisition Holdings LLC, other Borrowers and Tower Xxxxx II LLC, the Second
Amended and Restated Credit Agreement, dated as of April 15, 2005, among Global
Signal Operating Partnership, L.P., Bank of America, N.A. and the other lenders
party thereto, the Acquisition Credit Agreement, dated as of April 25, 2005, by
and among Global Signal Acquisitions LLC, as Borrower, the Lenders from time to
time party thereto, and Xxxxxx Xxxxxxx Asset Funding Inc., as Administrative
Agent and Collateral Agent, the Investment Agreement, dated February 14, 2005,
by and among Global Signal OP, Fortress Investment Fund II LLC, various
affiliates of Xxxxxx Capital LLC and Xxxxxxxxx Capital Partners , L.P. and the
Agreement to Contribute, Lease and Sublease, by and among Sprint Corporation,
certain subsidiaries of Sprint Corporation and Global Signal Inc.) or to which
any of the property or assets of the Company or any of its subsidiaries is
subject (each, an "Existing Instrument"), except for such Defaults as would not,
individually or in the aggregate, result in a Material Adverse Change. The
Company's execution, delivery and performance of this Agreement and consummation
of the transactions contemplated hereby and by the Prospectus (i) have been duly
authorized by all necessary
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corporate action and will not result in any violation of the provisions of the
charter or by-laws of the Company or any subsidiary, (ii) will not conflict with
or constitute a breach of, or Default or a Debt Repayment Triggering Event (as
defined below), except such as will be satisfied through repayment made by the
Company with proceeds from the offering and sale of the Common Shares, under, or
result in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its subsidiaries pursuant to, or
require the consent of any other party to, any Existing Instrument, except for
such conflicts, breaches, Defaults, Debt Repayment Triggering Events, liens,
charges, encumbrances or consents as would not, individually or in the
aggregate, result in a Material Adverse Change and (iii) will not result in any
violation of any law, administrative regulation or administrative or court
decree applicable to the Company or any subsidiary. No consent, approval,
authorization or other order of, or registration or filing with, any court or
other governmental or regulatory authority or agency, is required for the
Company's execution, delivery and performance of this Agreement and consummation
of the transactions contemplated hereby and by the Prospectus, except the
registration under the Securities Act and such as have been obtained or made by
the Company under applicable state securities or blue sky laws and from the
National Association of Securities Dealers, Inc. (the "NASD"). As used herein, a
"Debt Repayment Triggering Event" means any event or condition which gives, or
with the giving of notice or lapse of time would give, the holder of any note,
debenture or other evidence of indebtedness (or any person acting on such
holder's behalf) the right to require the repurchase, redemption or repayment of
all or a portion of such indebtedness by the Company or any of its subsidiaries.
(m) No Material Actions or Proceedings. There are no legal or governmental
actions, suits or proceedings pending or, to the best of the Company's
knowledge, threatened (i) against or affecting the Company or any of its
subsidiaries, (ii) which has as the subject thereof any officer or director of,
or property owned or leased by, the Company or any of its subsidiaries or (iii)
relating to environmental or discrimination matters, where in any such case (A)
there is a reasonable possibility that such action, suit or proceeding might be
determined adversely to the Company or such subsidiary and (B) any such action,
suit or proceeding, if so determined adversely, would be expected to result in a
Material Adverse Change or adversely affect the consummation of the transactions
contemplated by this Agreement. No material labor dispute with the employees of
the Company or any of its subsidiaries exists or, to the best of the Company's
knowledge, is threatened or imminent.
(n) All Necessary Permits, etc. The Company and each subsidiary possess
such valid and current certificates, authorizations or permits issued by the
appropriate state, federal or foreign regulatory agencies or bodies, including
without limitation the Federal Communications Commission (the "FCC") and the
Federal Aviation Authority (the "FAA"), necessary to conduct their respective
businesses, except where a failure to possess such certificates, authorizations
or permits would not, singly or in the aggregate, result in a Material Adverse
Change, and neither the Company nor any subsidiary has received any notice of
proceedings relating to the revocation or modification of, or non-compliance
with, any such certificate, authorization or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, could
result in a Material Adverse Change.
(o) Title to Properties. Except as disclosed in the Prospectus, the Company
and each of its subsidiaries has good and marketable title to all the properties
and assets reflected as
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owned in the financial statements referred to in Section 1(i) above, in each
case free and clear of any security interests, mortgages, liens, encumbrances,
equities, claims and other defects, except (i) Permitted Encumbrances and (ii)
as would not result in a Material Adverse Change. The real property,
improvements, equipment and personal property held under lease by the Company or
any subsidiary are held under valid and enforceable leases, except as would not
result in a Material Adverse Change. "Permitted Encumbrances" shall mean (a)
liens that are expressly described in or contemplated by the Prospectus and (b)
customary easements and encumbrances and other exceptions to title which do not
materially impair the operation, development or use of the properties or assets
for the purposes intended therefor as contemplated in the Prospectus.
(p) Tax Law Compliance. The Company and its subsidiaries have filed all
necessary federal, state and foreign income and franchise tax returns and have
paid all taxes required to be paid by any of them and, if due and payable, any
related or similar assessment, fine or penalty levied against any of them,
except, in all cases, for any such amounts that the Company is contesting in
good faith and except in any case in which the failure to so file or pay would
not in the aggregate cause a Material Adverse Change. The Company has made, to
the extent required by GAAP, adequate charges, accruals and reserves in the
applicable financial statements referred to in Section 1(i) above in respect of
all federal, state and foreign income and franchise taxes for all periods as to
which the tax liability of the Company or any of its subsidiaries has not been
finally determined.
(q) REIT Qualification. The Company has, since its inception, been
organized and operated, and as of the First Closing Date and any Option Closing
Date (as defined below), as the case may be, will continue to be organized and
to operate, in a manner so as to qualify as a "real estate investment trust"
("REIT") under Sections 856 through 860 of the Internal Revenue Code of 1986, as
amended.
(r) Company Not an "Investment Company". The Company has been advised of
the rules and requirements under the Investment Company Act of 1940, as amended
(the "Investment Company Act"). The Company is not, and after receipt of payment
for the Common Shares will not be, an "investment company" within the meaning of
Investment Company Act.
(s) Insurance. Other than as set forth on Schedule B, each of the Company
and its subsidiaries are insured by institutions that are rated investment grade
with policies in such amounts and with such deductibles and covering such risks
as are generally deemed adequate and customary for their businesses including,
but not limited to, policies covering real and personal property owned or leased
by the Company and its subsidiaries against theft, damage, destruction, acts of
vandalism and earthquakes. Except for changes to director's and officer's
insurance, the Company has no reason to believe that it or any subsidiary will
not be able (i) to renew its existing insurance coverage as and when such
policies expire or (ii) to obtain comparable coverage from similar institutions
as may be necessary or appropriate to conduct its business as now conducted and
at a cost that would not result in a Material Adverse Change. Since November 1,
2002, neither of the Company nor any subsidiary has been denied any insurance
coverage which it has sought or for which it has applied.
(t) No Price Stabilization or Manipulation. The Company has not taken and
will not take, directly or indirectly, any action designed to or that might be
reasonably expected to cause
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or result in stabilization or manipulation of the price of the Common Stock or
any security of the Company to facilitate the sale or resale of the Common
Shares.
(u) Related Party Transactions. There are no business relationships or
related-party transactions involving the Company or any subsidiary or any other
person required to be described in the Prospectus which have not been described
as required.
(v) Company's Accounting System. Except as disclosed in the Prospectus, the
Company maintains a system of accounting controls sufficient to provide
reasonable assurances that (i) transactions are executed in accordance with
management's general or specific authorization; (ii) transactions are recorded
as necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain accountability for
assets; (iii) access to assets is permitted only in accordance with management's
general or specific authorization; and (iv) the recorded accountability for
assets is compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(w) Compliance with Environmental Laws. Except as would not, individually
or in the aggregate, result in a Material Adverse Change: (i) neither the
Company nor any of its subsidiaries is in violation of any federal, state, local
or foreign law or regulation relating to pollution or protection of human health
or the environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including without
limitation, laws and regulations relating to emissions, discharges, releases or
threatened releases of chemicals, pollutants, contaminants, wastes, toxic
substances, hazardous substances, petroleum and petroleum products
(collectively, "Materials of Environmental Concern"), or otherwise relating to
the manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Materials of Environment Concern (collectively,
"Environmental Laws"), which violation includes, but is not limited to,
noncompliance with any permits or other governmental authorizations required for
the operation of the business of the Company or its subsidiaries under
applicable Environmental Laws, or noncompliance with the terms and conditions
thereof, nor has the Company or any of its subsidiaries received any written
communication, whether from a governmental authority, citizens group, employee
or otherwise, that alleges that the Company or any of its subsidiaries is in
violation of any Environmental Law; (ii) there is no claim, action or cause of
action filed with a court or governmental authority, no investigation with
respect to which the Company has received written notice, and no written notice
by any person or entity alleging potential liability for investigatory costs,
cleanup costs, governmental responses costs, natural resources damages, property
damages, personal injuries, attorneys' fees or penalties arising out of, based
on or resulting from the presence, or release into the environment, of any
Material of Environmental Concern at any location owned, leased or operated by
the Company or any of its subsidiaries, now or in the past (collectively,
"Environmental Claims"), pending or, to the best of the Company's knowledge,
threatened against the Company or any of its subsidiaries or any person or
entity whose liability for any Environmental Claim the Company or any of its
subsidiaries has retained or assumed either contractually or by operation of
law; and (iii) to the best of the Company's knowledge, there are no past or
present actions, activities, circumstances, conditions, events or incidents,
including, without limitation, the release, emission, discharge, presence or
disposal of any Material of Environmental Concern, that reasonably could result
in a violation of any Environmental Law or
9
form the basis of a potential Environmental Claim against the Company or any of
its subsidiaries or against any person or entity whose liability for any
Environmental Claim the Company or any of its subsidiaries has retained or
assumed either contractually or by operation of law.
(x) Periodic Review of Costs of Environmental Compliance. In the ordinary
course of its business, the Company conducts a periodic review of the effect of
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 and the amount of its established reserves, the Company has
reasonably concluded that such associated costs and liabilities would not,
individually or in the aggregate, result in a Material Adverse Change.
(y) ERISA Compliance. The Company and its subsidiaries and any "employee
benefit plan" (as defined under the Employee Retirement Income Security Act of
1974, as amended, and the regulations and published interpretations thereunder
(collectively, "ERISA")) established or maintained by the Company, its
subsidiaries or their "ERISA Affiliates" (as defined below) are in compliance in
all material respects with ERISA. "ERISA Affiliate" means, with respect to the
Company or a subsidiary, any member of any group of organizations described in
Sections 414(b), (c), (m) or (o) of the Internal Revenue Code of 1986, as
amended, and the regulations and published interpretations thereunder (the
"Code") of which the Company or such subsidiary is a member. No "reportable
event" (as defined under ERISA) has occurred or is reasonably expected to occur
with respect to any "employee benefit plan" established or maintained by the
Company, its subsidiaries or any of their ERISA Affiliates. No "employee benefit
plan" established or maintained by the Company, its subsidiaries or any of their
ERISA Affiliates, if such "employee benefit plan" were terminated, would have
any "amount of unfunded benefit liabilities" (as defined under ERISA). Neither
the Company, its subsidiaries nor any of their ERISA Affiliates has incurred or
reasonably expects to incur any liability under (i) Title IV of ERISA with
respect to termination of, or withdrawal from, any "employee benefit plan" or
(ii) Sections 412, 4971, 4975 or 4980B of the Code. Each "employee benefit plan"
established or maintained by the Company, its subsidiaries or any of their ERISA
Affiliates that is intended to be qualified under Section 401(a) of the Code is
so qualified and nothing has occurred, whether by action or failure to act,
which would cause the loss of such qualification.
(z) Brokers. There is no broker, finder or other party that is entitled to
receive from the Company any brokerage or finder's fee or other fee or
commission as a result of any transactions contemplated by this Agreement.
(aa) No Outstanding Loans or Other Indebtedness. There are no outstanding
loans, advances (except normal advances for business expenses in the ordinary
course of business) or guarantees or indebtedness by the Company to or for the
benefit of any of the officers or directors of the Company or any of the members
of any of them, except as disclosed in the Prospectus.
10
(bb) Compliance with Laws. Except as otherwise provided in or contemplated
by this Section l, the Company has not been advised, and has no reason to
believe, that it and each of its subsidiaries are not conducting business in
compliance with all applicable laws, rules and regulations of the jurisdictions
in which it is conducting business, except where failure to be so in compliance
would not result in a Material Adverse Change.
(cc) Applicable Orders. No violation of, conflict with, or contravention
of, any of the judgments, orders and decrees affecting the Company or any of its
subsidiaries, other than a violation of, conflict with, or contravention of, any
of the judgments, orders and decrees listed on Schedule IV to Exhibit B hereto,
would be reasonably likely to result in a Material Adverse Change.
The Company acknowledges that the Underwriters and, for purposes of the
opinions to be delivered pursuant to Section 5 hereof, counsel to the Company
and counsel to the Underwriters, will rely upon the accuracy and truthfulness of
the foregoing representations and hereby consents to such reliance.
SECTION 2. Purchase, Sale and Delivery of the Common Shares.
(a) The Firm Common Shares. The Company agrees to issue and sell to the
several Underwriters the Firm Common Shares upon the terms herein set forth. On
the basis of the representations, warranties and agreements herein contained,
and upon the terms but subject to the conditions herein set forth, the
Underwriters agree, severally and not jointly, to purchase from the Company the
respective number of Firm Common Shares set forth opposite their names on
Schedule A. The purchase price per Firm Common Share to be paid by the several
Underwriters to the Company shall be $___ per share.
(b) The First Closing Date. Delivery of certificates for the Firm Common
Shares to be purchased by the Underwriters and payment therefor shall be made at
the offices of Sidley Xxxxxx Xxxxx & Xxxx LLP, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, XX
00000 (or such other place as may be agreed to by the Company and the
Representatives) at 9:00 a.m. New York time, on May ___, 2005 or such other time
and date not later than 1:30 p.m. New York time, on May ___, 2005 as the
Representatives shall designate by notice to the Company (the time and date of
such closing are called the "First Closing Date"). The Company hereby
acknowledges that circumstances under which the Representatives may provide
notice to postpone the First Closing Date as originally scheduled include, but
are in no way limited to, any determination by the Company or the
Representatives to recirculate to the public copies of an amended or
supplemented Prospectus or a delay as contemplated by the provisions of Section
10.
(c) The Optional Common Shares; the Option Closing Date. In addition, on
the basis of the representations, warranties and agreements herein contained,
and upon the terms but subject to the conditions herein set forth, the Company
hereby grants an option to the several Underwriters to purchase, severally and
not jointly, up to an aggregate of 575,000 Optional Common Shares from the
Company at the purchase price per share to be paid by the Underwriters for the
Firm Common Shares. The option granted hereunder is for use by the Underwriters
solely in covering any over-allotments in connection with the sale and
distribution of the Firm Common Shares. The option granted hereunder may be
exercised in whole or from
11
time to time in part upon notice by the Representatives to the Company, which
notice or notices may be given at any time within 30 days from the date of this
Agreement. Such notice shall set forth (i) the aggregate number of Optional
Common Shares as to which the Underwriters are exercising the option, (ii) the
names and denominations in which the certificates for the Optional Common Shares
are to be registered and (iii) the time, date and place at which such
certificates will be delivered (which time and date may be simultaneous with,
but not earlier than, the First Closing Date; and in such case the term "First
Closing Date" shall refer to the time and date of delivery of certificates for
the Firm Common Shares and the Optional Common Shares). Any such time and date
of delivery, if subsequent to the First Closing Date, is called an "Option
Closing Date" and shall be determined by the Representatives and shall not be
earlier than three nor later than five full business days after delivery of such
notice of exercise. If any Optional Common Shares are to be purchased, each
Underwriter agrees, severally and not jointly, to purchase the number of
Optional Common Shares (subject to such adjustments to eliminate fractional
shares as the Representatives may determine) that bears the same proportion to
the total number of Optional Common Shares to be purchased as the number of Firm
Common Shares set forth on Schedule A opposite the name of such Underwriter
bears to the total number of Firm Common Shares. The Representatives may cancel
the option at any time prior to its expiration by giving written notice of such
cancellation to the Company.
(d) Public Offering of the Common Shares. The Representatives hereby advise
the Company that the Underwriters intend to offer for sale to the public, as
described in the Prospectus, their respective portions of the Common Shares as
soon after this Agreement has been executed and the Registration Statement has
been declared effective as the Representatives, in their sole judgment, have
determined is advisable and practicable.
(e) Payment for the Common Shares. Payment for the Common Shares shall be
made at the First Closing Date (and, if applicable, at any Option Closing Date)
by wire transfer of immediately available funds to the order of the Company.
It is understood that the Representatives have been authorized, for their
own account and the accounts of the several Underwriters, to accept delivery of
and receipt for, and make payment of the purchase price for, the Firm Common
Shares and any Optional Common Shares the Underwriters have agreed to purchase.
Each of the Representatives, individually and not as a Representative of the
Underwriters, may (but shall not be obligated to) make payment for any Common
Shares to be purchased by any Underwriter whose funds shall not have been
received by the Representative by the First Closing Date or any Option Closing
Date, as the case may be, for the account of such Underwriter, but any such
payment shall not relieve such Underwriter from any of its obligations under
this Agreement.
(f) Delivery of the Common Shares. The Company shall deliver, or cause to
be delivered, to the Representatives for the accounts of the several
Underwriters the Firm Common Shares at the First Closing Date, against the
irrevocable release of a wire transfer of immediately available funds for the
amount of the purchase price therefor. The Company shall also deliver, or cause
to be delivered, to the Representatives for the accounts of the several
Underwriters, the Optional Common Shares the Underwriters have agreed to
purchase at the First Closing Date or any Option Closing Date, as the case may
be, against the irrevocable release of a wire transfer of immediately available
funds for the amount of the purchase price therefor. Delivery of the Firm
12
Common Shares and the Optional Common Shares shall be made through the
facilities of The Depository Trust Company unless the Representatives shall
otherwise instruct, and shall be registered in such names and denominations as
the Representatives shall have requested at least one full business day prior to
the First Closing Date (or any Option Closing Date, as the case may be). Time
shall be of the essence, and delivery at the time and place specified in this
Agreement is a further condition to the obligations of the Underwriters.
(g) Delivery of Prospectus to the Underwriters. Not later than 12:00 p.m.
on the second business day following the date the Common Shares are first
released by the Underwriters for sale to the public, the Company shall deliver
or cause to be delivered, copies of the Prospectus in such quantities and at
such places as the Representative shall request.
SECTION 3. Additional Covenants of the Company.
The Company further covenants and agrees with each Underwriter as follows:
(a) Representatives' Review of Proposed Amendments and Supplements. During
such period beginning on the date hereof and ending on the later of the First
Closing Date or such date, as in the opinion of counsel for the Underwriters,
the Prospectus is no longer required by law to be delivered in connection with
sales by an Underwriter or dealer (the "Prospectus Delivery Period"), prior to
amending or supplementing the Registration Statement (including any registration
statement filed under Rule 462(b) under the Securities Act) or the Prospectus,
the Company shall furnish to the Representatives for review a copy of each such
proposed amendment or supplement, and the Company shall not file any such
proposed amendment or supplement to which the Representatives reasonably object
in writing.
(b) Securities Act Compliance. After the date of this Agreement, the
Company shall promptly advise the Representatives (i) of the receipt of any
comments of, or requests for additional or supplemental information from, the
Commission with respect to the Registration Statement, (ii) of the time and date
of any filing of any post-effective amendment to the Registration Statement or
any amendment or supplement to any preliminary prospectus or the Prospectus,
(iii) of the time and date that any post-effective amendment to the Registration
Statement becomes effective and (iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or any
post-effective amendment thereto or of any order preventing or suspending the
use of any preliminary prospectus or the Prospectus, or of any proceedings for
45 days after the date of this Agreement that adversely affect the listing or
quotation of the Common Stock from any securities exchange upon which it is
listed for trading or included or designated for quotation, or of the
threatening or initiation of any proceedings for any of such purposes. If the
Commission shall enter any such stop order at any time, the Company will use its
best efforts to obtain the lifting of such order at the earliest possible
moment. Additionally, the Company agrees that it shall comply with the
provisions of Rules 424(b), 430A and 434, as applicable, under the Securities
Act.
(c) Amendments and Supplements to the Prospectus and Other Securities Act
Matters. If during the Prospectus Delivery Period, any event shall occur or
condition exist as a result of which it is necessary to amend or supplement the
Prospectus in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a
13
purchaser, not misleading, or if in the opinion of counsel for the Underwriters
it is otherwise necessary to amend or supplement the Prospectus to comply with
applicable law, the Company agrees to promptly prepare (subject to Section 3(a)
hereof), file with the Commission and furnish at its own expense to the
Underwriters and to dealers, amendments or supplements to the Prospectus so that
the statements in the Prospectus as so amended or supplemented will not, in the
light of the circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus, as amended or supplemented, will comply
with law.
(d) Copies of any Amendments and Supplements to the Prospectus. The Company
agrees to furnish the Representatives, without charge, during the Prospectus
Delivery Period, as many copies of the Prospectus and any amendments and
supplements thereto as the Representatives may request.
(e) Blue Sky Compliance. The Company shall cooperate with the
Representatives and counsel for the Underwriters to qualify or register the
Common Shares for sale under (or obtain exemptions from the application of) the
state securities or blue sky laws of those jurisdictions designated by the
Representatives, shall comply with such laws and shall continue such
qualifications, registrations and exemptions in effect so long as required for
the distribution of the Common Shares. The Company shall not be required to
qualify as a foreign corporation or to take any action that would subject it to
general service of process in any such jurisdiction where it is not presently
qualified or where it would be subject to taxation as a foreign corporation. The
Company will advise the Representatives promptly of the suspension of the
qualification or registration of (or any such exemption relating to) the Common
Shares, of which it is aware, for offering, sale or trading in any jurisdiction
or any initiation or threat of any proceeding for any such purpose, and in the
event of the issuance of any order suspending such qualification, registration
or exemption, the Company shall use its best efforts to obtain the withdrawal
thereof at the earliest possible moment.
(f) Use of Proceeds. The Company shall apply the net proceeds from the sale
of the Common Shares sold by it in the manner described under the caption "Use
of Proceeds" in the Prospectus.
(g) Transfer Agent. The Company shall maintain, at its expense, a registrar
and transfer agent for the Common Stock.
(h) Earnings Statement. As soon as practicable, the Company will make
generally available to its security holders an earnings statement (which need
not be audited) that satisfies the provisions of Section 11(a) of the Securities
Act, including Rule 158 thereunder.
(i) Periodic Reporting Obligations. During the Prospectus Delivery Period
the Company shall file, on a timely basis, with the Commission and the New York
Stock Exchange all reports and documents required to be filed by it under the
Exchange Act.
(j) Company to Provide Interim Financial Statements. Prior to the First
Closing Date and any Option Closing Date, the Company will furnish the
Underwriters, as soon as they have been prepared by or are available to the
Company, a copy of any unaudited interim
14
financial statements of the Company for any period subsequent to the period
covered by the most recent financial statements appearing in the Registration
Statement and the Prospectus.
(k) Listing. The Company will use its best efforts to list, subject to
notice of issuance, the Common Shares on the New York Stock Exchange.
(l) Agreement Not to Offer or Sell Additional Securities. During the period
commencing on the date hereof and ending on the 30th day following the date of
the Prospectus, the Company will not directly or indirectly offer, pledge, sell,
contract to sell, sell any option or contract to purchase or otherwise dispose
of any shares of Common Stock or any securities convertible into or exercisable
or exchangeable for shares of Common Stock, or in any manner transfer all or a
portion of the economic consequences associated with the ownership of shares of
Common Stock, or cause a registration statement covering any shares of Common
Stock to be filed, without the prior written consent of the Representatives;
provided, however, that the Company may issue shares of its Common Stock or
options to purchase its Common Stock, or Common Stock upon exercise of options,
pursuant to any stock option, stock bonus or other stock plan or arrangement
described in the Prospectus; and provided further that the Company may issue
Common Stock upon exercise of outstanding options or warrants; and provided
further that the Company may issue shares of Common Stock or options to purchase
its Common Stock in mergers or acquisitions provided that the recipient of such
shares or options agrees in writing with the Representatives, in an agreement in
the form of Exhibit A hereto, not to sell, offer, dispose of or otherwise
transfer any such shares or options during such 30-day period without the prior
written consent of the Representatives (which consent may be withheld at the
sole discretion of the Representatives); and provided further that the Company
may issue shares of Common Stock or options to purchase its Common Stock as
required by the (i) Investment Agreement, dated as of February 14, 2005, by and
among the Company, Fortress Investment Fund II LLC, Xxxxxx Capital Partners II,
L.P., Xxxxxx Capital Partners I, L.P. Whitecrest Partners, L.P., Xxxxxx Capital
International, LTD, Riva Capital Partners, L.P., Xxxxxxxxx Capital Partners,
L.P., Xxxxxxxxx Capital Partners (Cayman), L.P., Xxxxxxxxx Capital Partners
(Executives), L.P., Greenhill Capital, L.P., and Xxxxxxxxx Capital Partners
(Employees) II, L.P. and (ii) the Option Agreement, by and among the Company,
Fortress Investment Fund II LLC, Xxxxxx Capital Partners II, L.P., Xxxxxx
Capital Partners I, L.P., Whitecrest Partners, L.P., Xxxxxx Capital
International, LTD, Riva Capital Partners, L.P., Xxxxxxxxx Capital Partners,
L.P., Xxxxxxxxx Capital Partners (Cayman), L.P., Xxxxxxxxx Capital Partners
(Executives), L.P., Greenhill Capital, L.P., and Xxxxxxxxx Capital Partners
(Employees) II, L.P. (the form of which is filed as Exhibit 10.3 to the
Company's Current Report on Form 8-K filed on February 17, 2005). The 30-day
restricted period described above is subject to extension such that, in the
event that either (1) during the last 17 days of the 30-day restricted period,
the Company issues an earnings release or material news or a material event
relating to the Company occurs or (2) prior to the expiration of the 30-day
restricted period, the Company announces that it will release earnings results
during the 16-day period beginning on the last day of the 30-day period, the
"lock-up" restrictions described above will continue to apply until the
expiration of the 18-day period beginning on the earnings release or the
occurrence of the material news or material event.
(m) Future Reports to the Representatives. During the period of three years
hereafter the Company will furnish to the Representatives c/o Morgan Xxxxxxx &
Co. Incorporated, 0000 Xxxxxxxx, Xxx Xxxx, XX 00000, Attention: Equity Capital
Markets Syndicate Desk, and Banc
15
of America Securities LLC, 0 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000, Attention:
Xxxxxx X. Xxxxxxxx (i) as soon as practicable after the end of each fiscal year,
copies of the Annual Report of the Company containing the balance sheet of the
Company as of the close of such fiscal year and statements of income,
stockholders' equity and cash flows for the year then ended and the opinion
thereon of the Company's independent public or certified public accountants;
(ii) to the extent not otherwise available on XXXXX, as soon as practicable
after the filing thereof, copies of each proxy statement, Annual Report on Form
10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or other report
filed by the Company with the Commission, the NASD or any securities exchange;
and (iii) as soon as available, copies of any report or communication of the
Company mailed generally to holders of its capital stock.
(n) Investment Limitation. The Company shall not invest, or otherwise use
the proceeds received by the Company from its sale of the Common Shares in such
a manner as would require the Company or any of its subsidiaries to register as
an investment company under the Investment Company Act.
(o) No Manipulation of Price. The Company will not take, directly or
indirectly, any action designed to cause or result in, or that has constituted
or might reasonably be expected to constitute, the stabilization or manipulation
of the price of any securities of the Company.
(p) Offering Materials Furnished to Underwriters. The Company will deliver
to the Representatives one complete manually or facsimile signed copy of the
Registration Statement and of each consent and certificate of experts filed as a
part thereof, and conformed copies of the Registration Statement (without
exhibits) and preliminary prospectuses and the Prospectus, as amended or
supplemented, in such quantities and at such places as the Representatives have
reasonably requested for each of the Underwriters.
SECTION 4. Payment of Expenses. The Company agrees to pay all costs, fees
and expenses incurred in connection with the performance of its obligations
hereunder and in connection with the transactions contemplated hereby, including
without limitation (i) all expenses incident to the issuance and delivery of the
Common Shares (including all printing and engraving costs), (ii) all fees and
expenses of the registrar and transfer agent of the Common Stock, (iii) all
necessary issue, transfer and other stamp taxes in connection with the issuance
and sale of the Common Shares to the Underwriters, (iv) all fees and expenses of
the Company's counsel, independent public or certified public accountants and
other advisors, (v) all costs and expenses incurred in connection with the
preparation, printing, filing, shipping and distribution of the Registration
Statement (including financial statements, exhibits, schedules, consents and
certificates of experts), each preliminary prospectus and the Prospectus, and
all amendments and supplements thereto, and this Agreement, (vi) all filing
fees, attorneys' fees and expenses incurred by the Company or the Underwriters
in connection with qualifying or registering (or obtaining exemptions from the
qualification or registration of) all or any part of the Common Shares for offer
and sale under the state securities or blue sky laws or the provincial
securities laws of Canada, and, if requested by the Representatives, preparing
and printing a "Blue Sky Survey" or memorandum, and any supplements thereto,
advising the Underwriters of such qualifications, registrations and exemptions,
(vii) the filing fees incident to, and the reasonable fees and expenses of
counsel for the Underwriters in connection with, the NASD's review and approval
of the Underwriters' participation in the offering and distribution of the
Common
16
Shares, (viii) the fees and expenses associated with listing the Common Shares
on the New York Stock Exchange, and (ix) all other fees, costs and expenses
referred to in Item 31 of Part II of the Registration Statement. Except as
provided in this Section 4, Section 6, Section 8 and Section 9 hereof, the
Underwriters shall pay their own expenses, including, without limitation, the
fees and disbursements of their counsel, any advertising expenses connected with
any offers they may make and stock transfer taxes on resale of any of the Common
Shares by them.
SECTION 5. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the Common
Shares as provided herein on the First Closing Date and, with respect to the
Optional Common Shares, the relevant Option Closing Date, shall be subject to
the accuracy of the representations and warranties on the part of the Company
set forth in Section 1 hereof as of the date hereof and as of the First Closing
Date as though then made and, with respect to the Optional Common Shares, as of
the relevant Option Closing Date as though then made, to the timely performance
by the Company of its covenants and other obligations hereunder, and to each of
the following additional conditions:
(a) Accountants' Comfort Letters.
(i) On the date hereof, the Representatives shall have received from
Ernst & Young LLP, independent registered public or independent certified
public accountants for the Company and each of the E&Y Acquisition
Entities, letters dated the date hereof addressed to the Underwriters, in
form and substance satisfactory to the Representatives, containing
statements and information of the type ordinarily included in accountant's
"comfort letters" to underwriters, delivered according to Statement of
Auditing Standards No. 72, as amended by SAS 76 and SAS 86 (or any
successor standard), with respect to the audited and unaudited financial
statements and certain financial information contained in the Registration
Statement and the Prospectus relating to (a) the Company and its
consolidated subsidiaries and (b) the E&Y Acquisition Entities (and the
Representatives shall have received an additional five (5) conformed copies
of such accountants' letters for each of the several Underwriters).
(ii) On the date hereof, the Representatives shall have received from
KPMG LLP, independent registered public or independent certified public
accountants for Sprint Sites USA, a letter dated the date hereof addressed
to the Underwriters, in form and substance satisfactory to the
Representatives, containing statements and information of the type
ordinarily included in accountant's "comfort letters" to underwriters,
delivered according to Statement of Auditing Standards No. 72, as amended
by SAS 76 and SAS 86 (or any successor standard), with respect to the
audited and unaudited financial statements and certain financial
information contained in the Registration Statement and the Prospectus
relating to Sprint Sites USA (and the Representatives shall have received
an additional five (5) conformed copies of such accountants' letters for
each of the several Underwriters).
(iii) On the date hereof, the Representatives shall have received from
PricewaterhouseCoopers LLP, an independent registered public accounting
firm who have expressed their opinion with respect to the statement of
revenue and direct operating expenses of SunCom Acquisition, a letter dated
the date hereof addressed to the
17
Underwriters, in form and substance satisfactory to the Representatives, to
the effect that: (i) they are an independent registered public accounting
firm with respect to Triton PCS Holdings, Inc and its subsidiaries within
the meaning of the Act and the applicable rules and regulations thereunder
adopted by the Commission and (ii) in their opinion, the statement of
revenue and direct operating expenses of SunCom Acquisition audited by them
and included in the Registration Statement and the Prospectus comply as to
form in all material respects with the applicable accounting requirements
of the Act and the related rules and regulations adopted by the Commission
(and the Representatives shall have received an additional five (5)
conformed copies of such accountants' letters for each of the several
Underwriters).
(iv) On the date hereof, the Representatives shall have received from
Xxxxx Xxxxxx PLLC, independent registered public or independent certified
public accountants for ForeSite 2005 Acquisition, a letter dated the date
hereof addressed to the Underwriters, in form and substance satisfactory to
the Representatives, containing statements and information of the type
ordinarily included in accountant's "comfort letters" to underwriters,
delivered according to Statement of Auditing Standards No. 72, as amended
by SAS 76 and SAS 86 (or any successor standard), with respect to the
audited and unaudited financial statements and certain financial
information contained in the Registration Statement and the Prospectus
relating to ForeSite 2005 Acquisition (and the Representatives shall have
received an additional five (5) conformed copies of such accountants'
letters for each of the several Underwriters).
(b) Compliance with Registration Requirements; No Stop Order; No Objection
from NASD. For the period from and after effectiveness of this Agreement and
prior to the First Closing Date and, with respect to the Optional Common Shares,
the relevant Option Closing Date:
(i) the Company shall have filed the Prospectus with the Commission
(including the information required by Rule 430A under the Securities Act)
in the manner and within the time period required by Rule 424(b) under the
Securities Act; or the Company shall have filed a post-effective amendment
to the Registration Statement containing the information required by such
Rule 430A, and such post-effective amendment shall have become effective;
or, if the Company elected to rely upon Rule 434 under the Securities Act
and obtained the Representatives' consent thereto, the Company shall have
filed a Term Sheet with the Commission in the manner and within the time
period required by such Rule 424(b);
(ii) no stop order suspending the effectiveness of the Registration
Statement, any Rule 462(b) Registration Statement, or any post-effective
amendment to the Registration Statement, shall be in effect and no
proceedings for such purpose shall have been instituted or threatened by
the Commission; and
(iii) the NASD shall have raised no objection to the fairness and
reasonableness of the underwriting terms and arrangements.
18
(c) No Material Adverse Change or Ratings Agency Change. For the period
from and after the date of this Agreement and prior to the First Closing Date
and, with respect to the Optional Common Shares, the relevant Option Closing
Date:
(i) in the judgment of the Representatives there shall not have
occurred any Material Adverse Change; and
(ii) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of any
review for a possible change that does not indicate the direction of the
possible change, in the rating accorded any securities of the Company, any
of its subsidiaries, Global Signal Trust I or Global Signal Trust II by any
"nationally recognized statistical rating organization" as such term is
defined for purposes of Rule 436(g)(2) under the Securities Act.
(d) Opinions of Counsel for the Company. On each of the First Closing Date
and any Option Closing Date the Representatives shall have received from
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP (i) an opinion as counsel for the
Company, dated as of the First Closing Date or the Option Closing Date, as
applicable, substantially in the form attached as Exhibit B, (ii) the tax letter
as special tax counsel for the Company, dated as of the First Closing Date or
the Option Closing Date, as applicable, substantially in the form attached as
Exhibit C, and (iii) the negative assurance letter as counsel for the Company,
dated as of the First Closing Date or the Option Closing Date, as applicable,
substantially in the form attached as Exhibit D.
(e) Opinion of General Counsel for the Company. On each of the First
Closing Date and any Option Closing Date the Representatives shall have received
the opinion of Xxxxxxxx X. XxXxxxxx, Executive Vice President and General
Counsel for the Company, dated as of the First Closing Date or the Option
Closing Date, as applicable, substantially in the form attached as Exhibit E.
(f) Opinion of Counsel for the Underwriters. On each of the First Closing
Date and any Option Closing Date the Representatives shall have received the
opinion of Sidley Xxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, dated
as of the First Closing Date or the Option Closing Date, as applicable, with
respect to the matters set forth in paragraphs __, ___ and ___ of Exhibit B, the
fifth full paragraph of Exhibit D, and with respect to matters relating to the
lack of preemptive rights of the stockholders of the Company under the charter
or by-laws of the Company or Delaware General Corporation Law, the effectiveness
of the Registration Statement and the accuracy of the statements contained in
the Prospectus under the captions "Description of Capital Stock" and
"Underwriting".
(g) Officers' Certificate. On each of the First Closing Date and any Option
Closing Date the Representatives shall have received a written certificate
executed by the Chairman of the Board, Chief Executive Officer or President of
the Company and the Chief Financial Officer or Chief Accounting Officer of the
Company, dated as of the First Closing Date or the Option Closing Date, as
applicable, to the effect set forth in subsections (b)(ii) and (c)(ii) of this
Section 5, and further to the effect that:
19
(i) for the period from and after the date of this Agreement and prior
to the date of the Officer's Certificate, there has not occurred any
Material Adverse Change;
(ii) the representations, warranties and covenants of the Company set
forth in Section 1 of this Agreement are true and correct with the same
force and effect as though expressly made on and as of the date of such
Officer's Certificate; and
(iii) the Company has complied with all the agreements hereunder and
satisfied all the conditions on its part to be performed or satisfied
hereunder at or prior to the date of such Officer's Certificate.
(h) Bring-down Comfort Letters.
(i) On each of the First Closing Date and any Option Closing Date the
Representatives shall have received from Ernst & Young LLP, independent
registered public or independent registered certified public accountants
for the Company, letters dated such date, in form and substance
satisfactory to the Representatives, to the effect that they reaffirm the
statements made in the letters furnished by them pursuant to subsection
(a)(i) of this Section 5 relating to (i) the Company and its consolidated
subsidiaries and (ii) each of the E&Y Acquisition Entities, respectively,
except that the specified date referred to therein for the carrying out of
procedures shall be no more than three business days prior to the First
Closing Date or any Option Closing Date, as the case may be (and the
Representatives shall have received an additional five (5) conformed copies
of such accountants' letters for each of the several Underwriters).
(ii) On each of the First Closing Date and any Option Closing Date the
Representatives shall have received from KPMG LLP, independent registered
public or independent registered certified public accountants for Sprint
Sites USA, a letter dated such date, in form and substance satisfactory to
the Representatives, to the effect that they reaffirm the statements made
in the letter furnished by them pursuant to subsection (a)(ii) of this
Section 5 relating to Sprint Sites USA, except that the specified date
referred to therein for the carrying out of procedures shall be no more
than three business days prior to the First Closing Date or any Option
Closing Date, as the case may be (and the Representatives shall have
received an additional five (5) conformed copies of such accountants'
letters for each of the several Underwriters).
(iii) On each of the First Closing Date and any Option Closing Date the
Representatives shall have received from PricewaterhouseCoopers LLP, an
independent registered public accounting firm who have expressed their
opinion with respect to the statement of revenue and direct operating
expenses of SunCom Acquisition, a letter dated such date, in form and
substance satisfactory to the Representatives and PricewaterhouseCoopers
LLP, to the effect that they reaffirm the statements made in the letter
furnished by them pursuant to subsection (a)(iii) of this Section 5
relating to SunCom Acquisition, except that the specified date referred to
therein for the carrying out of procedures shall be no more than three
business days prior to the First Closing Date or any Option Closing Date,
as the case may be (and the Representatives shall have received
20
an additional five (5) conformed copies of such accountants' letters for
each of the several Underwriters).
(iv) On each of the First Closing Date and any Option Closing Date the
Representatives shall have received from Xxxxx Xxxxxx PLLC, independent
registered public or independent registered certified public accountants
for ForeSite 2005 Acquisition, a letter dated such date, in form and
substance satisfactory to the Representatives, to the effect that they
reaffirm the statements made in the letter furnished by them pursuant to
subsection (a)(iv) of this Section 5 relating to ForeSite 2005 Acquisition,
except that the specified date referred to therein for the carrying out of
procedures shall be no more than three business days prior to the First
Closing Date or any Option Closing Date, as the case may be (and the
Representatives shall have received an additional five (5) conformed copies
of such accountants' letters for each of the several Underwriters).
(i) Lock-Up Agreement from Certain Securityholders of the Company. On or
prior to the date hereof, the Representatives shall have been furnished with an
agreement in the form of Exhibit A hereto from each director and officer of the
Company, FRIT PINN LLC, Fortress Registered Investment Trust, Fortress Pinnacle
Investment Fund LLC, GCP SPVI, LLC, Xxxxxxxxx Capital Partners LLC, Greenhill
Capital Partners, L.P., Greenhill Capital Partners (Cayman), L.P., Greenhill
Capital Partners (Executives), L.P., Greenhill Capital, L.P., Xxxxxx Capital ,
LLC, Xxxxxx Capital Partners I, L.P., Xxxxxx Capital Partners II, L.P.,
Whitecrest Partners, L.P., 222 Partners LLC, and Great Hollow International,
L.P., and such agreements and all lock-up agreements delivered prior to the date
hereof to the Representatives shall be in full force and effect on each of the
First Closing Date and any Option Closing Date.
(j) Additional Documents. On or before each of the First Closing Date and
any Option Closing Date, the Representatives and counsel for the Underwriters
shall have received such information, documents and opinions as they may
reasonably require for the purposes of enabling them to pass upon the issuance
and sale of the Common Shares as contemplated herein, or in order to evidence
the accuracy of any of the representations and warranties, or the satisfaction
of any of the conditions or agreements, herein contained.
If any condition specified in this Section 5 is not satisfied when and as
required to be satisfied, this Agreement may be terminated by the
Representatives by notice to the Company at any time on or prior to the First
Closing Date and, with respect to the Optional Common Shares, at any time prior
to the relevant Option Closing Date, which termination shall be without
liability on the part of any party to any other party, except that Section 4,
Section 6, Section 8 and Section 9 shall at all times be effective and shall
survive such termination.
SECTION 6. Reimbursement of Underwriters' Expenses. If this Agreement is
terminated by the Representatives pursuant to Section 5, Section 11, or if the
sale to the Underwriters of the Common Shares on the First Closing Date is not
consummated because of any refusal, inability or failure on the part of the
Company to perform any agreement herein or to comply with any provision hereof,
the Company agrees to reimburse the Representatives and the other Underwriters
(or such Underwriters as have terminated this Agreement with respect to
themselves), severally, upon demand for all out-of-pocket expenses that shall
have been
21
reasonably incurred by the Representatives and the Underwriters in connection
with the proposed purchase and the offering and sale of the Common Shares,
including but not limited to reasonable fees and disbursements of counsel,
printing expenses, travel expenses, postage, facsimile and telephone charges.
SECTION 7. Effectiveness of this Agreement. This Agreement shall not become
effective until the later of (i) the execution of this Agreement by the parties
hereto and (ii) notification by the Commission to the Company and the
Representatives of the effectiveness of the Registration Statement under the
Securities Act.
Prior to such effectiveness, this Agreement may be terminated by any party
by notice to each of the other parties hereto, and any such termination shall be
without liability on the part of (a) the Company to any Underwriter, except that
the Company shall be obligated to reimburse the expenses of the Representatives
and the Underwriters pursuant to Sections 4 hereof, (b) any Underwriter to the
Company, or (c) any party hereto to any other party except that the provisions
of Section 8 and Section 9 shall at all times be effective and shall survive
such termination.
SECTION 8. Indemnification.
(a) Indemnification of the Underwriters. The Company agrees to indemnify
and hold harmless each Underwriter, its officers and employees, each person, if
any, who controls any Underwriter within the meaning of the Securities Act and
the Exchange Act and each affiliate of any Underwriter within the meaning of
Rule 405 under the Securities Act against any loss, claim, damage, liability or
expense, as incurred, to which such Underwriter or such controlling person may
become subject, under the Securities Act, the Exchange Act or other federal or
state statutory law or regulation, or at common law or otherwise (including in
settlement of any litigation, if such settlement is effected with the written
consent of the Company), insofar as such loss, claim, damage, liability or
expense (or actions in respect thereof as contemplated below) arises out of or
is based (i) upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, or any amendment thereto,
including any information deemed to be a part thereof pursuant to Rule 430A or
Rule 434 under the Securities Act, or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make the
statements therein not misleading; or (ii) upon any untrue statement or alleged
untrue statement of a material fact contained in any preliminary prospectus or
the Prospectus (or any amendment or supplement thereto), or the omission or
alleged omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; and to reimburse each Underwriter and each such
controlling person for any and all expenses (including the fees and
disbursements of counsel chosen by the Representatives) as such expenses are
reasonably incurred by such Underwriter or such controlling person in connection
with investigating, defending, settling, compromising or paying any such loss,
claim, damage, liability, expense or action; provided, however, that the
foregoing indemnity agreement shall not apply to any loss, claim, damage,
liability or expense to the extent, but only to the extent, arising out of or
based upon any untrue statement or alleged untrue statement or omission or
alleged omission made in reliance upon and in conformity with written
information furnished to the Company by the Representatives expressly for use in
the Registration Statement, any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto); and provided, further, that with respect to
any
22
preliminary prospectus, the foregoing indemnity agreement shall not inure to the
benefit of any Underwriter from whom the person asserting any loss, claim,
damage, liability or expense purchased Common Shares, or any person controlling
such Underwriter, if copies of the Prospectus were timely delivered to the
Underwriter pursuant to Section 2 and a copy of the Prospectus (as then amended
or supplemented if the Company shall have furnished any amendments or
supplements thereto) was not sent or given by or on behalf of such Underwriter
to such person, if required by law so to have been delivered, at or prior to the
written confirmation of the sale of the Common Shares to such person, and if the
Prospectus (as so amended or supplemented) would have cured the defect giving
rise to such loss, claim, damage, liability or expense. The indemnity agreement
set forth in this Section 8(a) shall be in addition to any liabilities that the
Company may otherwise have.
(b) Indemnification of the Company, its Directors and Officers. Each
Underwriter agrees, severally and not jointly, to indemnify and hold harmless
the Company, each of its directors, each of its officers who signed the
Registration Statement and each person, if any, who controls the Company within
the meaning of the Securities Act or the Exchange Act, against any loss, claim,
damage, liability or expense, as incurred, to which the Company, or any such
director, officer or controlling person may become subject, under the Securities
Act, the Exchange Act, or other federal or state statutory law or regulation, or
at common law or otherwise (including in settlement of any litigation, if such
settlement is effected with the written consent of such Underwriter), insofar as
such loss, claim, damage, liability or expense (or actions in respect thereof as
contemplated below) arises out of or is based upon any untrue or alleged untrue
statement of a material fact contained in the Registration Statement, any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto), or arises out of or is 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 the Registration Statement, any preliminary
prospectus, the Prospectus (or any amendment or supplement thereto), in reliance
upon and in conformity with written information furnished to the Company by the
Representatives expressly for use therein; and to reimburse the Company, or any
such director, officer or controlling person for any legal and other expense
reasonably incurred by the Company, or any such director, officer or controlling
person in connection with investigating, defending, settling, compromising or
paying any such loss, claim, damage, liability, expense or action. The Company
hereby acknowledges that the only information that the Underwriters have
furnished to the Company expressly for use in the Registration Statement, any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) are the statements set forth in the table in the first paragraph, the
first paragraph within the subsection entitled "Commissions and Discounts", and
the statements set forth within the subsection entitled "Price Stabilization,
Short Positions and Penalty Bids", in each case under the caption "Underwriting"
in the Prospectus; and the Underwriters confirm that such statements are
correct. The indemnity agreement set forth in this Section 8(b) shall be in
addition to any liabilities that each Underwriter may otherwise have.
(c) Notifications and Other Indemnification Procedures. Promptly after
receipt by an indemnified party under this Section 8 of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against an indemnifying party under this Section 8, notify
the indemnifying party in writing of the commencement thereof, but
23
the omission so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party for contribution or
otherwise than under the indemnity agreement contained in this Section 8 or to
the extent it is not prejudiced as a proximate result of such failure. In case
any such action is brought against any indemnified party and such indemnified
party seeks or intends to seek indemnity from an indemnifying party, the
indemnifying party will be entitled to participate in, and, to the extent that
it shall elect, jointly with all other indemnifying parties similarly notified,
by written notice delivered to the indemnified party promptly after receiving
the aforesaid notice from such indemnified party, to assume the defense thereof
with counsel reasonably satisfactory to such indemnified party; provided,
however, if the defendants in any such action include both the indemnified party
and the indemnifying party and the indemnified party shall have reasonably
concluded that a conflict may arise between the positions of the indemnifying
party and the indemnified party in conducting the defense of any such action or
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assume such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of such indemnifying party's election so to assume the defense of such
action and approval by the indemnified party of counsel, the indemnifying party
will not be liable to such indemnified party under this Section 8 for any legal
or other expenses subsequently incurred by such indemnified party in connection
with the defense thereof unless (i) the indemnified party shall have employed
separate counsel in accordance with the proviso to the next preceding sentence
(it being understood, however, that the indemnifying party shall not be liable
for the expenses of more than one separate counsel (together with local
counsel), approved by the indemnifying party (the Representatives in the case of
Section 8(b) and Section 9), representing the indemnified parties who are
parties to such action) or (ii) the indemnifying party shall not have employed
counsel satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of commencement of the action, in each of
which cases the fees and expenses of counsel shall be at the expense of the
indemnifying party.
(d) Settlements. The indemnifying party under this Section 8 shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
against any loss, claim, damage, liability or expense by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by Section
8(c) hereof, the indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 30 days after receipt by such indemnifying
party of the aforesaid request and (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request prior to the
date of such settlement. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement, compromise or consent
to the entry of judgment in any pending or threatened action, suit or proceeding
in respect of which any indemnified party is or could have been a party and
indemnity was or could have been sought hereunder by such indemnified party,
unless such settlement, compromise or consent includes an unconditional release
of such
24
indemnified party from all liability on claims that are the subject matter of
such action, suit or proceeding.
SECTION 9. Contribution. If the indemnification provided for in Section 8
is for any reason held to be unavailable to or otherwise insufficient to hold
harmless an indemnified party in respect of any losses, claims, damages,
liabilities or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount paid or payable by such indemnified party, as
incurred, as a result of any losses, claims, damages, liabilities or expenses
referred to therein (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company, on the one hand, and the
Underwriters, on the other hand, from the offering of the Common Shares pursuant
to this Agreement or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company, on the one hand, and the Underwriters, on the other hand,
in connection with the statements or omissions or inaccuracies in the
representations and warranties herein which resulted in such losses, claims,
damages, liabilities or expenses, as well as any other relevant equitable
considerations. The relative benefits received by the Company, on the one hand,
and the Underwriters, on the other hand, in connection with the offering of the
Common Shares pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the Common
Shares pursuant to this Agreement (before deducting expenses) received by the
Company, and the total underwriting discount received by the Underwriters, in
each case as set forth on the front cover page of the Prospectus (or, if Rule
434 under the Securities Act is used, the corresponding location on the Term
Sheet) bear to the aggregate initial public offering price of the Common Shares
as set forth on such cover. The relative fault of the Company, on the one hand,
and the Underwriters, on the other hand, shall be determined by reference to,
among other things, whether any such untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact or any
such inaccurate or alleged inaccurate representation or warranty relates to
information supplied by the Company, on the one hand, or the Underwriters, on
the other hand, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, claims,
damages, liabilities and expenses referred to above shall be deemed to include,
subject to the limitations set forth in Section 8(c), any legal or other fees or
expenses reasonably incurred by such party in connection with investigating or
defending any action or claim. The provisions set forth in Section 8(c) with
respect to notice of commencement of any action shall apply if a claim for
contribution is to be made under this Section 9; provided, however, that no
additional notice shall be required with respect to any action for which notice
has been given under Section 8(c) for purposes of indemnification.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 9 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in this Section 9.
25
Notwithstanding the provisions of this Section 9, no Underwriter shall be
required to contribute any amount in excess of the underwriting commissions
received by such Underwriter in connection with the Common Shares underwritten
by it and distributed to the public. 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 9 are several, and not joint, in proportion to their
respective underwriting commitments as set forth opposite their names in
Schedule A. For purposes of this Section 9, each officer and employee of an
Underwriter and each person, if any, who controls an Underwriter within the
meaning of the Securities Act and the Exchange Act shall have the same rights to
contribution as such Underwriter, and each director of the Company, each officer
of the Company who signed the Registration Statement, and each person, if any,
who controls the Company with the meaning of the Securities Act and the Exchange
Act shall have the same rights to contribution as the Company.
SECTION 10. Default of One or More of the Several Underwriters. If, on the
First Closing Date or any Option Closing Date, as the case may be, any one or
more of the several Underwriters shall fail or refuse to purchase Common Shares
that it or they have agreed to purchase hereunder on such date, and the
aggregate number of Common Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase does not exceed 10% of the
aggregate number of the Common Shares to be purchased on such date, the other
Underwriters shall be obligated, severally, in the proportions that the number
of Firm Common Shares set forth opposite their respective names on Schedule A
bears to the aggregate number of Firm Common Shares set forth opposite the names
of all such non-defaulting Underwriters, or in such other proportions as may be
specified by the Representatives with the consent of the non-defaulting
Underwriters, to purchase the Common Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date. If, on the
First Closing Date or any Option Closing Date, as the case may be, any one or
more of the Underwriters shall fail or refuse to purchase Common Shares and the
aggregate number of Common Shares with respect to which such default occurs
exceeds 10% of the aggregate number of Common Shares to be purchased on such
date, and arrangements satisfactory to the Representatives and the Company for
the purchase of such Common Shares are not made within 48 hours after such
default, this Agreement shall terminate without liability of any party to any
other party except that the provisions of Section 4, Section 6, Section 8 and
Section 9 shall at all times be effective and shall survive such termination. In
any such case either the Representatives or the Company shall have the right to
postpone the First Closing Date or the Option Closing Date, as the case may be,
but in no event for longer than seven days in order that the required changes,
if any, to the Registration Statement and the Prospectus or any other documents
or arrangements may be effected.
As used in this Agreement, the term "Underwriter" shall be deemed to
include any person substituted for a defaulting Underwriter under this Section
10. Any action taken under this Section 10 shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
SECTION 11. Termination of this Agreement. Prior to the First Closing Date
this Agreement may be terminated by the Representatives by notice given to the
Company if at any
26
time (i) trading or quotation in any of the Company's securities shall have been
suspended or limited by the Commission or by the New York Stock Exchange, or
trading in securities generally on either the Nasdaq Stock Market or the New
York Stock Exchange shall have been suspended or limited; or minimum or maximum
prices shall have been generally established on any of such stock exchanges by
the Commission or the NASD; (ii) a general banking moratorium shall have been
declared by any of federal, New York or Delaware authorities; (iii) there shall
have occurred any outbreak or escalation of national or international
hostilities or any crisis or calamity, or any change in the United States or
international financial markets, or any substantial change or development
involving a prospective substantial change in United States' or international
political, financial or economic conditions, as in the judgment of the
Representatives is material and adverse and makes it impracticable to market the
Common Shares in the manner and on the terms described in the Prospectus or to
enforce contracts for the sale of securities; (iv) in the judgment of the
Representatives there shall have occurred any Material Adverse Change; or (v)
the Company shall have sustained a loss by strike, fire, flood, earthquake,
accident or other calamity of such character as in the judgment of the
Representatives may interfere materially with the conduct of the business and
operations of the Company regardless of whether or not such loss shall have been
insured. Any termination pursuant to this Section 11 shall be without liability
on the part of (a) the Company to any Underwriter, except that the Company shall
be obligated to reimburse the expenses of the Representatives and the
Underwriters pursuant to Section 6 hereof, (b) any Underwriter to the Company,
or (c) of any party hereto to any other party except that the provisions of
Section 8 and Section 9 shall at all times be effective and shall survive such
termination.
SECTION 12. Representations and Indemnities to Survive Delivery. The
respective indemnities, agreements, representations, warranties and other
statements of the Company, of its officers and of the several Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of any Underwriter,
the officers or employees of any Underwriter, any person controlling any
Underwriter, or the Company or any of its or their partners, officers or
directors or any controlling person, as the case may be, and will survive
delivery of and payment for the Common Shares sold hereunder and any termination
of this Agreement.
SECTION 13. Notices. All communications hereunder shall be in writing and
shall be mailed, hand delivered or telecopied and confirmed to the parties
hereto as follows:
If to the Representatives:
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Equity Capital Markets Syndicate Desk
Banc of America Securities LLC
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
27
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx
With a copy to:
Banc of America Securities LLC
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Legal Department
With a copy to:
Sidley Xxxxxx Xxxxx & Xxxx LLP
Bank One Plaza
00 X. Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxx
Xxxxxx Xxxxxx Xxxxx & Xxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: J. Xxxxxx Xxxxxxx
If to the Company:
Global Signal Inc.
000 Xxxxx Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxxx X. XxXxxxxx, Esq. - Executive Vice President,
General Counsel and Secretary
With a copy to:
Fortress Investment Group LLC
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxx Xxxxxxx - General Counsel
And a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
0 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
28
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Coco, Esq.
Any party hereto may change the address for receipt of communications by
giving written notice to the others.
SECTION 14. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto, including any substitute Underwriters pursuant
to Section 10 hereof, and to the benefit of the employees, officers and
directors and controlling persons referred to in Section 8 and Section 9, and in
each case their respective successors, and no other person will have any right
or obligation hereunder. The term "successors" shall not include any purchaser
of the Common Shares as such from any of the Underwriters merely by reason of
such purchase.
SECTION 15. Partial Unenforceability. The invalidity or unenforceability of
any Section, paragraph or provision of this Agreement shall not affect the
validity or enforceability of any other Section, paragraph or provision hereof.
If any Section, paragraph or provision of this Agreement is for any reason
determined to be invalid or unenforceable, there shall be deemed to be made such
minor changes (and only such minor changes) as are necessary to make it valid
and enforceable.
SECTION 16. Governing Law Provisions. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SUCH STATE.
SECTION 17. General Provisions. This Agreement constitutes the entire
agreement of the parties to this Agreement and supersedes all prior written or
oral and all contemporaneous oral agreements, understandings and negotiations
with respect to the subject matter hereof. This Agreement may be executed in two
or more counterparts, each one of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement may not be amended or modified unless in writing by all of the
parties hereto, and no condition herein (express or implied) may be waived
unless waived in writing by each party whom the condition is meant to benefit.
The Section headings herein are for the convenience of the parties only and
shall not affect the construction or interpretation of this Agreement.
Each of the parties hereto acknowledges that it is a sophisticated business
person who was adequately represented by counsel during negotiations regarding
the provisions hereof, including, without limitation, the indemnification
provisions of Section 8 and the contribution provisions of Section 9, and is
fully informed regarding said provisions.
Except as otherwise provided, this Agreement has been and is made solely
for the benefit of and shall be binding upon the Company, the Underwriters, the
Underwriters' officers and employees, any controlling persons referred to
herein, the Company's directors and the Company's officers who signed the
Registration Statement and their respective successors and assigns, all as and
to the extent provided in this Agreement, and no other person shall acquire or
have any right under or by virtue of this Agreement. The term "successors and
assigns" shall not
29
include a purchaser of any of the Common Shares from any of the several
Underwriters merely because of such purchase.
30
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to the Company the enclosed copies hereof, whereupon this
instrument, along with all counterparts hereof, shall become a binding agreement
in accordance with its terms.
Very truly yours,
GLOBAL SIGNAL INC.
By:
---------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chief Executive Officer and
Chairman of the Board of Directors
The foregoing Underwriting Agreement is hereby confirmed and accepted by
the Representatives in New York, New York as of the date first above written.
XXXXXX XXXXXXX & CO. INCORPORATED
BANC OF AMERICA SECURITIES LLC
Acting as Representatives of the
several Underwriters named in
the attached Schedule A.
By: Xxxxxx Xxxxxxx & Co. Incorporated
By:
------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Executive Director
By: Banc of America Securities LLC
By:
------------------------------------
Managing Director
SCHEDULE A
NUMBER OF FIRM
COMMON SHARES
UNDERWRITERS TO BE PURCHASED
------------------------------------------------------------ ---------------
Xxxxxx Xxxxxxx & Co. Incorporated .......................... [ ]
Banc of America Securities LLC ............................. [ ]
Citigroup Global Markets Inc. .............................. [ ]
Xxxxxxx Xxxxx & Associates, Inc. ........................... [ ]
Xxxxxxxx & Company, Inc..................................... [ ]
Total ............................................. 5,575,000
SCHEDULE B
NON-INVESTMENT GRADE INSURERS
Excess D&O insurance policy held by the Company with a limit of liability of
$5.0 million in excess of $25.0 million has been issued by Arch Insurance, which
insurer carries a rating of BBB-.
EXHIBIT A
May , 2005
XXXXXX XXXXXXX & CO. INCORPORATED
BANC OF AMERICA SECURITIES LLC
CITIGROUP GLOBAL MARKETS INC.
XXXXXXX XXXXX & ASSOCIATES INC.
XXXXXXXX & COMPANY, INC.
c/o MORGAN XXXXXXX & CO. INCORPORATED
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
and
BANC OF AMERICA SECURITIES LLC
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
as Representatives of the several Underwriters
Re: Global Signal Inc. (the "Company") Public Offering of Common Stock
Ladies and Gentlemen:
The undersigned is an owner of record or beneficially of certain shares of
common stock of the Company, par value $0.01 per share ("Common Stock"), or
securities convertible into or exchangeable or exercisable for Common Stock. The
Company proposes to carry out a public offering of Common Stock (the "Offering")
for which you will act as the representatives of the underwriters. The
undersigned recognizes that the Offering will be of benefit to the undersigned
and will benefit the Company by, among other things, raising additional capital
for acquisitions and its operations. The undersigned acknowledges that you and
the other underwriters are relying on the representations and agreements of the
undersigned contained in this letter in carrying out the Offering and in
entering into underwriting arrangements with the Company with respect to the
Offering. Terms not defined herein shall have the meaning assigned to them in
the Underwriting Agreement, dated May ___, 2005, by and among the Company,
Xxxxxx Xxxxxxx & Co. Incorporated and Banc of America Securities LLC, as
Representatives of the several Underwriters.
In consideration of the foregoing, the undersigned agrees with the
underwriters that, prior to 30 days after the date of the Prospectus relating to
the Offering, the undersigned will not directly or indirectly offer, pledge,
sell, contract to sell, sell any option or contract to purchase or otherwise
dispose of any shares of Common Stock or any securities convertible into or
exercisable or exchangeable for shares of Common Stock, or in any manner
transfer all or a portion of the economic consequences associated with the
ownership of shares of Common Stock, or cause a registration statement covering
any shares of Common Stock to be filed,
without the prior written consent of the Representative [ADD THE FOLLOWING
LANGUAGE TO THE LETTER FOR FRIT PINN LLC, AND ITS AFFILIATES THAT HAVE PLEDGED
SECURITIES UNDER A CREDIT AGREEMENT: ; provided, however, that the foregoing
shall not limit or otherwise affect in any respect the rights of the Lenders (as
defined below) (i) under a certain Credit Agreement, dated as of December 21,
2004 and amended as of March 1, 2005 (the "Fortress Credit Agreement"), by and
among the undersigned, Bank of America, N.A., as Administrative Agent, each
lender from time to time party thereto, and Banc of America Securities LLC and
Xxxxxx Xxxxxxx Asset Funding Inc., as Joint Lead Arrangers and Joint Book
Managers (collectively, the "Lenders"), and (ii) under the Security Agreements
(as such term is defined in the Fortress Credit Agreement), to dispose of,
seize, or take any other action with respect to the 19,162,248 shares of Common
Stock pledged to the Lenders, including, without limitation, the filing of a
shelf registration statement with respect to the shares of Common Stock pledged
to the Lenders.] [ADD THE FOLLOWING LANGUAGE TO THE LETTER FOR XXXXXXXXX AND ITS
AFFILIATES: ; provided, however, that the foregoing shall not limit or otherwise
affect in any respect the rights of the Lenders (as defined below) (i) under a
certain Credit Agreement, dated as of February 16, 2005 (the "Xxxxxxxxx Credit
Agreement"), by and among the undersigned, Xxxxxx Xxxxxxx Asset Funding Inc.,
and certain lenders (collectively, the "Lenders"), and (ii) the security
agreements entered into in connection with the Xxxxxxxxx Credit Agreement, to
dispose of, seize, or take any other action with respect to the 8,383,234 shares
of Common Stock pledged to the Lenders, including, without limitation, the
filing of a shelf registration statement with respect to the shares of Common
Stock pledged to the Lenders.] [ADD THE FOLLOWING LANGUAGE TO THE LETTER FOR
EACH OFFICER: ; provided, however, that the foregoing shall not limit or
otherwise affect in any respect the ability of the undersigned (i) to sell
shares of Common Stock beneficially owned by the undersigned pursuant to, and in
accordance with, the undersigned's trading plan established prior to the date
hereof pursuant to Rule 10b5-1(c)(1) of the Exchange Act or (ii) to enter into a
new Rule 10b5-1(c)(1) trading plan with respect to shares of Common Stock
beneficially owned by the undersigned; so long as no sales of shares of Common
Stock are made pursuant to such new plan prior to the expiration of the
restricted period described herein.]
The 30-day restricted period described above is subject to extension such
that, in the event that either (1) during the last 17 days of the 30-day
restricted period, the Company issues an earnings release or material news or a
material event relating to us occurs or (2) prior to the expiration of the
30-day restricted period, the Company announces that it will release earnings
results during the 16-day period beginning on the last day of the 30-day period,
the "lock-up" restrictions described above will continue to apply until the
expiration of the 18-day period beginning on the earnings release or the
occurrence of the material news or material event.
With respect to the Offering only, the undersigned waives any registration
rights relating to registration under the Securities Act of any Common Stock
owned either of record or beneficially by the undersigned, including any rights
to receive notice of the Offering.
This agreement is irrevocable and will be binding on the undersigned and
the respective successors, heirs, personal representatives, and assigns of the
undersigned.
[Signature page follows]
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Printed Name of Holder
By:
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Signature
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Printed Name of Person Signing (and indicate
capacity of person signing if signing as custodian,
trustee, or on behalf of an entity)
EXHIBIT B
[Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP opinion as counsel for the Company]
EXHIBIT C
[Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP tax letter as special tax counsel for
the Company]
EXHIBIT D
[SKADDEN, ARPS, SLATE, XXXXXXX & XXXX LLP NEGATIVE ASSURANCE LETTER AS COUNSEL
FOR THE COMPANY]
EXHIBIT E
[OPINION OF XXXXXXXX X. XXXXXXXX, EXECUTIVE VICE PRESIDENT AND GENERAL COUNSEL
FOR THE COMPANY]
