TELEPHONE AND DATA SYSTEMS, INC. (a Delaware corporation) Preferred Stock Represented by Depositary Shares UNDERWRITING AGREEMENT
Exhibit 1.1
TELEPHONE AND DATA SYSTEMS, INC.
(a Delaware corporation)
Preferred Stock Represented by Depositary Shares
February 23, 2021
BofA Securities, Inc.
Citigroup Global Markets Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC
RBC Capital Markets, LLC
UBS Securities LLC
▇▇▇▇▇ Fargo Securities, LLC
As representatives of the several underwriters referred to below
c/o Wells Fargo Securities, LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Telephone and Data Systems, Inc., a Delaware corporation (the “Company”), proposes to issue and sell from time to time shares of its Preferred Stock, par value $0.01 per share (the “Preferred Shares”) represented by depositary shares (the “Depositary Shares”) deposited against delivery of Depositary Receipts (the “Depositary Receipts”) evidencing the Depositary Shares (which amount does not include the possible issuance and sale of additional Option Underwritten Securities, as hereinafter defined, if any), in or pursuant to one or more offerings on terms to be determined at the time of sale. Each Depositary Share will represent beneficial ownership of the fraction of a Preferred Share specified in the Terms Agreement (as defined below).
The Depositary Receipts will be issued by Computershare Trust Company, N.A., as depositary (the “Depositary”) under a deposit agreement, to be dated as of the Closing Time (as defined in Section 2 hereof), among the Company, the Depositary and the holders from time to time of the Depositary Receipts issued thereunder (the “Deposit Agreement”). The terms of the Preferred Stock will be set forth in a certificate of designations (the “Certificate of Designations”) to be filed by the Company with the Secretary of State of the State of Delaware. The Preferred Shares and the Depositary Shares are herein collectively referred to as the “Securities.”
Whenever the Company determines to make an offering of Securities, the Company will enter into an agreement (each, a “Terms Agreement”) providing for the sale of such Securities to, and the purchase and offering thereof by, the underwriters named therein (the “Underwriters,” which term shall include one underwriter acting as sole Underwriter or as a member of an underwriting syndicate, as well as any Underwriter substituted pursuant to Section 10 hereof). The Terms Agreement relating to the offering of Securities shall specify the number of Securities to be initially issued (the “Initial Underwritten Securities”), the name of each Underwriter participating in such offering (subject to substitution as provided in Section 10 hereof) and the name of any Underwriter acting as manager or co-manager in connection with such offering, the number of Initial Underwritten Securities which each such Underwriter severally agrees to purchase, whether such offering is on a fixed or variable price basis and, if on a fixed price basis, the initial offering price, the price at which the Initial Underwritten Securities are to be purchased by the Underwriters, the form, time, date and place of delivery and payment of the Initial Underwritten Securities and any other material variable terms of the Initial Underwritten Securities. In addition, if applicable, such Terms Agreement shall specify whether the Company has agreed to grant to the Underwriters an option to purchase additional Securities to cover over-allotments, if any, and the number of Securities subject to such option (the “Option Underwritten Securities”). As used herein, the term “Underwritten Securities” shall include the Initial Underwritten Securities and all or any portion of any Option Underwritten Securities. The Terms Agreement, which shall be substantially in the form of Exhibit A hereto, may take the form of an exchange of any standard form of written telecommunication between the Company and an Underwriter, acting for itself and, if applicable, as representative of any other Underwriters. Each offering of Underwritten Securities through an Underwriter as sole Underwriter or through an underwriting syndicate managed by one or more Underwriters (the “Representatives”) will be governed by this Underwriting Agreement, as supplemented by the applicable Terms Agreement. To the extent only one Underwriter is named in the Terms Agreement, the terms Underwriters and Representatives as used herein shall mean such Underwriter, and the terms Underwriters and Representatives shall mean either the singular or plural as the context requires.
The Company understands that the Underwriters propose to make a public offering of the Underwritten Securities as soon as the Representatives deem advisable after this Underwriting Agreement and the Terms Agreement have been executed and delivered.
The Company has prepared and filed with the Securities and Exchange Commission (the “Commission”) an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act of 1933, as amended (the “1933 Act”), and the rules and regulations promulgated thereunder (the “1933 Act Regulations”) for the registration of its securities on Form S-3 (File No. 333-231181), as amended by post-effective amendment No. 1 thereto (“Post-Effective Amendment No. 1”), which contains a base prospectus (the “Base Prospectus”), to be used in connection with the public offering and sale of an indeterminate amount of securities, including the Securities of the Company, under the 1933 Act and the 1933 Act Regulations, and the offering thereof from time to time in accordance with Rule 415 under the 1933 Act and the 1933 Act Regulations. Such registration statement, including any amendments thereto (including Post-Effective Amendment No. 1) and the financial statements, exhibits and schedules thereto, in the form in which it became effective under the 1933 Act and the 1933 Act Regulations, including any required information deemed to be a part thereof at the time of effectiveness pursuant to Rule 430B under the 1933 Act and the 1933 Act Regulations, collectively and giving effect to Rule 412 under the 1933 Act and the 1933 Act Regulations, is called the “Registration Statement.” The term “Prospectus” shall mean, collectively and giving effect to Rule 412 under the 1933 Act and the 1933 Act Regulations, the final prospectus supplement relating to the Underwritten Securities, together with the Base Prospectus, that is filed pursuant to Rule 424(b) after the date and time that the Terms Agreement is executed (the “Execution Time”) by the parties hereto. The term “Preliminary Prospectus” shall mean, collectively and giving effect to Rule 412 under the 1933 Act and the 1933 Act Regulations, any preliminary prospectus supplement relating to the Underwritten Securities, together with the Base Prospectus, that is filed with the Commission pursuant to Rule 424(b). Any reference herein to the Registration Statement, the Preliminary Prospectus or the Prospectus shall be deemed to refer to and include, giving effect to Rule 412 under the 1933 Act and the 1933 Act Regulations, the documents that are or are deemed to be incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act and the 1933 Act Regulations prior to the time and date specified in the Terms Agreement (the “Initial Sale Time”). All references in this Underwriting Agreement to the Registration Statement, the Preliminary Prospectus, the Prospectus, 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 (“▇▇▇▇▇”).
All references in this Underwriting Agreement to financial statements and schedules and other information which is “contained,” “included” or “stated” (or other references of like import) in the Registration Statement, the Prospectus or the Preliminary Prospectus shall be deemed to mean and include all such financial statements and schedules and other information which is or is deemed to be incorporated by reference pursuant to the 1933 Act and the 1933 Act Regulations in the Registration Statement, the Prospectus or the Preliminary Prospectus, as the case may be, prior to the Initial Sale Time; and all references in this Underwriting Agreement to amendments or supplements to the Registration Statement, the Prospectus or the Preliminary Prospectus shall be deemed to include the filing of any document under the Securities Exchange Act of 1934, as amended (the “1934 Act”), and the rules and regulations promulgated thereunder (the “1934 Act Regulations”), which is or is deemed to be incorporated by reference in the Registration Statement, the Prospectus or the Preliminary Prospectus, as the case may be, after the Initial Sale Time.
SECTION 1.Representations and Warranties.
(a)Representations and Warranties by the Company. The Company represents and warrants to each Underwriter named in the applicable Terms Agreement, as of the date thereof, as of the Initial Sale Time, as of the Closing Time (as defined below) and, if applicable, as of each Date of Delivery (as defined below) (in each case, a “Representation Date”), as follows:
(1)Compliance with Registration Requirements. The Company meets the requirements for use of Form S-3 under the 1933 Act and the 1933 Act Regulations. The Registration Statement has become effective upon filing under Rule 462(e) under the 1933 Act and the 1933 Act Regulations and no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act and the 1933 Act Regulations and no proceedings for that purpose have been initiated or are pending or, to the knowledge of the Company, are contemplated or threatened by the Commission and any request on the part of the Commission for additional information has been complied with.
At the respective times the Registration Statement and any post-effective amendments thereto became effective and at each Representation Date, the Registration Statement and any post-effective amendments thereto (i) complied and will comply in all material respects with the applicable requirements of the 1933 Act and the 1933 Act Regulations and (ii) 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. At the date of the Prospectus and at the Closing Time and as of each Date of Delivery (if applicable), neither the Prospectus nor any amendments or supplements thereto included or will include an untrue statement of a material fact or omitted or will 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. Notwithstanding the foregoing, the representations and warranties in this subsection shall not apply to (i) that part of the Registration Statement which constitutes the Statement of Eligibility on Form T-1 of the trustee for any series of the Company’s outstanding debt securities under the Trust Indenture Act of 1939, as amended, (the “1939 Act”) and the rules and regulations of the Commission under the 1939 Act and (ii) statements in or omissions from the Registration Statement or any post-effective amendment or the Prospectus or any amendments or supplements thereto made in reliance upon and in conformity with information furnished to the Company in writing by any of the Underwriters through the Representatives expressly for use therein.
Each Preliminary Prospectus and the Prospectus, at the time each was filed with the Commission, complied in all material respects with the 1933 Act and the 1933 Act Regulations, and the Preliminary Prospectus and the Prospectus delivered to the Underwriters for use in connection with the offering of the Underwritten Securities will, at the time of such delivery, be identical to any electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(2)Disclosure Package. The term “Disclosure Package” shall mean (i) the Preliminary Prospectus dated February 23, 2021, (ii) the “issuer free writing prospectuses” as defined in Rule 433 of the 1933 Act and the 1933 Act Regulations (each, an “Issuer Free Writing Prospectus”), if any, identified in the Terms Agreement and (iii) any other free writing prospectus that the parties hereto shall hereafter expressly agree in writing to treat as part of the Disclosure Package. As of the Initial Sale Time, (i) the Disclosure Package and (ii) each Company Additional Written Communication (as defined herein), when taken together as a whole with the Disclosure Package, did not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Disclosure Package based upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives specifically for use therein.
(3)Incorporated Documents. The documents incorporated or deemed to be incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus (i) at the time they were or hereafter are filed with the Commission, complied or will comply in all material respects with the requirements of the 1934 Act and the 1934 Act Regulations and (ii) when read together with the other information in the Disclosure Package, at the Initial Sale Time, and when read together with the other information in the Prospectus, at the date of the Prospectus and at the Closing Time and as of each Date of Delivery (if applicable), did not or will not include an 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.
(4)Company is a Well-Known Seasoned Issuer. (i) At the time of filing the Registration Statement, (ii) at the time of the most recent amendment thereto, if any, for the purposes of complying with Section 10(a)(3) of the 1933 Act and the 1933 Act Regulations (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the 1934 Act and the 1934 Act Regulations or form of prospectus), (iii) at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) of the 1933 Act and the 1933 Act Regulations) made any offer relating to the Underwritten Securities in reliance on the exemption of Rule 163 of the 1933 Act and the 1933 Act Regulations, and (iv) as of the Execution Time, the Company was and is a “well-known seasoned issuer” as defined in Rule 405 of the 1933 Act and the 1933 Act Regulations. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 of the 1933 Act and the 1933 Act Regulations, that automatically became effective not more than three years prior to the Execution Time; the Company has not received from the Commission any notice pursuant to Rule 401(g)(2) of the 1933 Act and the 1933 Act Regulations objecting to the use of the automatic shelf registration statement form and the Company has not otherwise ceased to be eligible to use the automatic shelf registration form.
(5)Company is not an Ineligible Issuer. (i) At the time of filing the Registration Statement and (ii) as of the Execution Time (with such date being used as the determination date for purposes of this clause (ii)), the Company was not and is not an “ineligible issuer” (as defined in Rule 405 of the 1933 Act and the 1933 Act Regulations), without taking account of any determination by the Commission pursuant to Rule 405 of the 1933 Act and the 1933 Act Regulations that it is not necessary that the Company be considered an “ineligible issuer.”
(6)Issuer Free Writing Prospectuses. Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent times through the completion of the offering of Underwritten Securities under this Underwriting Agreement or until any earlier date that the Company notified or notifies the Representatives as described in the next sentence, did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement, the Preliminary Prospectus or the Prospectus. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement, the Preliminary Prospectus or the Prospectus, the Company has promptly notified or will promptly notify the Representatives and has promptly amended or supplemented or will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict. The foregoing two sentences do not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives specifically for use therein.
(7)Distribution of Offering Material By the Company. The Company has not distributed and will not distribute, prior to the later of the Closing Time and the completion of the Underwriters’ distribution of the Underwritten Securities, any offering material in connection with the offering and sale of the Underwritten Securities other than the Registration Statement or any Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus identified in the Terms Agreement and any electronic road show or other written communications identified in the Terms Agreement (collectively, “Company Additional Written Communication”).
(8)Independent Accountants. The accounting firm which certified the consolidated financial statements and any supporting schedules thereto included in or incorporated by reference into the Registration Statement, the Disclosure Package and the Prospectus is an independent registered public accounting firm with respect to the Company and its Subsidiaries (as defined below) as required by the 1933 Act and the 1933 Act Regulations.
(9)Financial Statements. The consolidated financial statements of the Company incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus, together with the related schedules and notes, as well as those financial statements, schedules and notes of any other entity included therein, comply as to form in all material respects with the requirements of Regulation S-X of the Commission and present fairly, in all material respects, the financial position and results of operations of the Company and its Subsidiaries on a consolidated basis, or such other entities, as the case may be, as of and at the dates indicated, and the statement of operations, stockholders’ equity and cash flows of the Company and its Subsidiaries on a consolidated basis, or such other entities, as the case may be, for the periods specified; such financial statements have been prepared in conformity with accounting principles generally accepted in the United States (“GAAP”) applied on a consistent basis throughout the periods involved except to the extent indicated in such financial statements or notes thereto; and the supporting schedules incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus present fairly, in all material respects, in accordance with GAAP the information required to be stated therein. The selected financial data and the summary financial information included or incorporated by reference in the Disclosure Package and the Prospectus present fairly, in all material respects, the information shown therein and have been compiled on a basis consistent with that of the audited financial statements incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus. In addition, any pro forma financial statements of the Company and its subsidiaries and the related notes thereto incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus present fairly, in all material respects, the information shown therein, have been prepared in accordance with the Commission’s rules and guidelines with respect to pro forma financial statements and have been properly compiled 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. The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus present fairly the information called for in all material respects and were prepared in accordance with the Commission’s rules and guidelines applicable thereto.
(10)No Material Adverse Change in Business. Since the respective dates as of which information is given in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, (A) there has been no material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its Subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, (B) there have been no transactions entered into by the Company or any of its Subsidiaries, other than those arising in the ordinary course of business, which are material with respect to the Company and its Subsidiaries considered as one enterprise and (C) except for regular quarterly dividends on the common stock of the Company in amounts per share that are consistent with past practice, there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(11)Good Standing of the Company. The Company has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Delaware and has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under, or as contemplated under, this Underwriting Agreement and the applicable Terms Agreement. The Company is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which it owns or leases substantial properties or in which the conduct of its business requires such qualification, except where the failure to be so qualified or in good standing would not reasonably be expected to result in a material adverse effect on the Company and its Subsidiaries considered as one enterprise.
(12)Good Standing of Subsidiaries. Each consolidated subsidiary of the Company (each, a “Subsidiary” and, collectively, the “Subsidiaries”), has been duly incorporated or organized and is validly existing as a corporation, limited liability company or partnership in good standing under the laws of the jurisdiction of its incorporation or organization, has the corporate, limited liability or partnership power and authority to own, lease and operate its properties and to conduct its business as described in the Disclosure Package and the Prospectus and is duly qualified as a foreign corporation, limited liability or partnership to transact business and is in good standing in each jurisdiction in which it owns or leases substantial properties or in which the conduct of its business requires such qualification, except where the failure to be so qualified or in good standing would not reasonably be expected to result in a material adverse effect on the Company and its Subsidiaries considered as one enterprise; except as otherwise disclosed in the Registration Statement, the Disclosure Package and the Prospectus, all of the issued and outstanding capital stock, limited liability membership interests or partnership interests of each Subsidiary has been duly authorized and validly issued and, with respect to outstanding capital stock, is fully paid and non-assessable, and all shares of capital stock, limited liability membership interests or partnership interests of such Subsidiaries owned by the Company, directly or through one or more Subsidiaries, are owned free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity, except as set forth or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus, and except for such security interest, mortgage, pledge, lien, encumbrance, claim or equity the enforcement of which, individually or in the aggregate, would not reasonably be expected to result in a material adverse effect on the Company and its Subsidiaries considered as one enterprise. The only subsidiaries that are “significant subsidiaries” of the Company (as such term is defined in Rule 1-02(w) of Regulation S-X promulgated under the ▇▇▇▇ ▇▇▇) are United States Cellular Corporation and TDS Telecommunications LLC (the “Significant Subsidiaries”), not including subsidiaries of such Significant Subsidiaries which would satisfy the test in Rule 1-02(w) of Regulation S-X promulgated under the 1933 Act if considered separately.
(13)Capitalization. The authorized, issued and outstanding capital stock of the Company is as set forth in or incorporated by reference into the Registration Statement, the Disclosure Package and the Prospectus (except for subsequent issuances, if any, pursuant to reservations, agreements or other arrangements referred to in the Prospectus); all of the issued and outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the capital stock of the Company conforms to the description thereof included in or incorporated by reference into the Registration Statement, the Disclosure Package and the Prospectus and, except as set forth in therein, is not subject to preemptive or other similar rights.
(14)Authorization of this Underwriting Agreement and Terms Agreement. This Underwriting Agreement has been, and the applicable Terms Agreement as of the date thereof will have been, duly authorized, executed and delivered by the Company.
(15)Authorization of the Preferred Shares and the Depositary Shares. The Preferred Shares, including the Certificate of Designations, have been duly authorized by the Company and, when the Preferred Shares are issued and delivered to and paid for by the Underwriters pursuant to this Agreement and the applicable Terms Agreement, the Preferred Shares will be duly and validly issued and fully paid and nonassessable; the Depositary Shares, and the deposit of the Preferred Shares in accordance with the provisions of the Deposit Agreement, have been duly authorized by the Company; upon due execution by the Depositary of the Deposit Agreement and when the Depositary Shares have been issued and delivered and paid for and the Depositary Receipts have been duly executed and delivered by the Depositary in accordance with this Agreement, the applicable Terms Agreement and the Deposit Agreement, the Depositary Shares will be duly and validly issued and the holders thereof will be entitled to the benefits provided in the Deposit Agreement and the Depositary Receipts; the Certificate of Designations sets forth the rights, preferences and priorities of the Preferred Stock and the holders of the Preferred Stock will have the rights set forth in the Certificate of Designations upon filing with the Secretary of State in the State of Delaware; the form of certificate representing the Preferred Stock and the Depositary Shares each complies with the requirements of Delaware law, the restated charter and restated bylaws of the Company and the rules of the New York Stock Exchange; and the Depositary Shares and the Preferred Shares will conform in all material respects to all statements relating thereto contained in the Registration Statement, Disclosure Package and Prospectus.
(16)Authorization of the Deposit Agreement. The Deposit Agreement has been duly authorized and, when validly executed and delivered by the Company and the Depositary, will constitute a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, fraudulent transfer or other similar laws relating to or affecting creditors rights generally or by general principles of equity (regardless of whether enforcement is considered in a proceeding at law or in equity), including concepts of commercial reasonableness, good faith and fair dealing and the possible unavailability of specific performance or injunctive relief; and the Deposit Agreement will conform in all material respects to all statements relating thereto contained in the Registration Statement, Disclosure Package and Prospectus.
(17)Descriptions of the Underwritten Securities. The Underwritten Securities being sold pursuant to the applicable Terms Agreement and the Deposit Agreement, as of each Representation Date, will conform in all material respects to all statements relating thereto contained in the Registration Statement, Disclosure Package and Prospectus and will be in substantially the form filed or incorporated by reference, as the case may be, as an exhibit to the Registration Statement.
(18)Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries is in violation of its charter or by-laws or other documents of organization, and none of the Company or any of its Subsidiaries is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, 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, or to which any of the property or assets of the Company or any of its Subsidiaries is subject, which default would reasonably be expected to result in a material adverse effect on the Company and its Subsidiaries considered as one enterprise; the execution, delivery and performance of this Underwriting Agreement, the applicable Terms Agreement, the Deposit Agreement and the Certificate of Designations and the consummation of the transactions contemplated herein and therein and in the Registration Statement, the Disclosure Package and the Prospectus (including the use of the proceeds from the sale of the Underwritten Securities as described under the caption “Use of Proceeds”) have been duly authorized by all necessary corporate action by the Company and will not conflict with or constitute a breach of, or default or Repayment Event (as defined below) 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 the terms of, any contract, indenture, mortgage, loan agreement, note, lease or other agreement or other instrument to which the Company or any of its Subsidiaries is a party or by which the Company or any of them may be bound, or to which any property or assets of the Company or any of its Subsidiaries is subject; nor will such action result in any violation of the provisions of the charter or by‑laws of the Company or any of its Subsidiaries or any applicable law, rule, regulation, judgment, order, or administrative or court decree; nor will such action conflict with or have an adverse effect on any of the certificates, authorities, licenses or permits of the Company or any of its Subsidiaries that enable them to carry on the business and operations now operated by them and which are material to the business of the Company and its Subsidiaries considered as one enterprise. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) issued by the Company 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.
(19)Absence of Labor Dispute. No labor dispute with the employees of the Company or any of its Subsidiaries exists or, to the knowledge of the Company, is imminent which would materially adversely affect the business operations of the Company and its Subsidiaries considered as one enterprise.
(20)Absence of Proceedings. There is no action, suit or proceeding before or by any court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge of the Company, threatened, against or affecting the Company or any of its Subsidiaries which is required to be disclosed in or incorporated by reference into the Registration Statement, Disclosure Package or Prospectus, other than as disclosed therein, which would reasonably be expected to (A) result in any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its Subsidiaries considered as one enterprise, (B) materially and adversely affect the properties or assets of the Company and its Subsidiaries considered as one enterprise, or (C) materially and adversely affect the consummation of the transactions contemplated by this Underwriting Agreement, the applicable Terms Agreement or the Deposit Agreement; all pending legal or governmental proceedings to which the Company or any of its Subsidiaries is a party or of which any of their respective properties or assets are the subject which are not described in or incorporated by reference into the Registration Statement, the Disclosure Package and the Prospectus, including ordinary routine litigation incidental to the business, are, considered in the aggregate, not material to the Company and its Subsidiaries considered as one enterprise; and there are no contracts or documents of the Company or any of its Subsidiaries which are required to be filed or incorporated by reference as exhibits to the Registration Statement by the 1933 Act or by the 1933 Act Regulations which have not been so filed or incorporated by reference.
(21)Accuracy of Exhibits. There are no contracts or documents which are required to be described in the Registration Statement, the Disclosure Package, the Prospectus or the documents incorporated by reference therein which have not been so described as required.
(22)Absence of Further Requirements. No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency, domestic or foreign, is necessary or required for the due authorization, execution and delivery by the Company of this Underwriting Agreement, the applicable Terms Agreement or the Deposit Agreement or for the performance by the Company of the transactions contemplated under this Underwriting Agreement or such Terms Agreement or the Deposit Agreement and the Certificate of Designations in connection with the issuance and deposit of the Preferred Shares with the Depositary against the issuance and sale of the Depositary Shares in accordance with the terms of the Certificate of Designations and the Deposit Agreement and the issuance of the Depositary Receipts in accordance with the Deposit Agreement, except for the filing of the Certificate of Designations with the Secretary of State of the State of Delaware and such as have been made or obtained under the 1933 Act, the 1933 Act Regulations, the 1934 Act, the 1934 Act Regulations, the rules of the New York Stock Exchange, the rules of FINRA (as defined below) or as may be required under applicable state securities laws.
(23)Possession of Intellectual Property. The Company and its Subsidiaries own or possess, or can acquire on reasonable terms, the patents, patent rights, licenses, inventions, copyrights, know‑how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information), systems or procedures, trademarks, service marks and trade names necessary to conduct the business now operated by them, and neither the Company nor any of its Subsidiaries has received any notice of claim of infringement of or conflict with asserted rights of others with respect to any of the foregoing which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to result in any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its Subsidiaries considered as one enterprise.
(24)Possession of Licenses and Permits. The Company and its Subsidiaries possess such certificates, authorities, licenses or permits issued by the appropriate local, state, federal or foreign regulatory agencies or bodies necessary to conduct the business now operated by them, except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus and except where the failure to so possess would not reasonably be expected to materially and adversely affect the condition, financial or otherwise, or the earnings, business affairs or business prospects of the Company and its Subsidiaries considered as one enterprise; none of the Company or any of its Subsidiaries has received any notice of proceedings relating to the revocation or modification of any such certificate, authority, license or permit which, singly or in the aggregate, if the subject of any unfavorable decision, ruling or finding, would reasonably be expected to materially and adversely affect the condition, financial or otherwise, or the earnings, business affairs or business prospects of the Company and its Subsidiaries considered as one enterprise.
(25)Title to Property. The Company and its Subsidiaries have good and marketable title to all real property owned by the Company and its Subsidiaries and good title to all other properties owned by them that are material to the business of the Company and its Subsidiaries considered as one enterprise, in each case, free and clear of all mortgages, pledges, liens, security interests, claims, restrictions or encumbrances of any kind, except (A) as otherwise stated in the Registration Statement, the Disclosure Package and the Prospectus or (B) those which do not, singly or in the aggregate, materially affect the value of such property and do not interfere with the use made and proposed to be made of such property by the Company or any of its Subsidiaries. All of the leases and subleases material to the business of the Company and its Subsidiaries considered as one enterprise, and under which the Company or any of its Subsidiaries holds properties described in the Registration Statement, the Disclosure Package and the Prospectus, are in full force and effect, and neither the Company nor any of its Subsidiaries has received any notice of any material claim of any sort that has been asserted by anyone adverse to the rights of the Company or any of its Subsidiaries under any of the leases or subleases mentioned above, or affecting or questioning the rights of the Company or such Subsidiary of the continued possession of the leased or subleased premises under any such lease or sublease.
(26)Commodity Exchange Act. The Underwritten Securities, upon issuance, will be excluded or exempted under, or beyond the purview of, the Commodity Exchange Act, as amended, and the rules and regulations of the Commodity Futures Trading Commission thereunder.
(27)Investment Company Act. The Company is not required, and upon the issuance and sale of the Underwritten Securities as herein contemplated and the application of the net proceeds therefrom as described in the Registration Statement, Disclosure Package and Prospectus will not be required, to register as an “investment company” or a company “controlled” by an investment company within the meaning of the Investment Company Act of 1940, as amended (the “1940 Act”).
(28)Environmental Laws. To the best of the Company’s knowledge and except as otherwise stated in the Registration Statement, Disclosure Package and the Prospectus and except as would not, singly or in the aggregate, materially adversely affect the business operations of the Company and its Subsidiaries considered as one enterprise, (A) neither the Company nor any of its Subsidiaries is in violation of any federal, state, local or foreign statute, law, rule, regulation, ordinance, code or rule of common law including any judicial or administrative order, consent, decree or judgment, relating to pollution, the environment, wildlife or to the use, storage, disposal, transport or handling of hazardous materials (collectively, “Environmental Laws”), (B) the Company and its Subsidiaries have all permits, authorizations and approvals required under any applicable Environmental Laws and are each in compliance with their requirements, (C) there are no pending or threatened administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of noncompliance or violation, investigation or proceedings relating to any Environmental Law against the Company or any of its Subsidiaries and (D) there are no events or circumstances that would reasonably be expected to form the basis of an order for clean-up or remediation, or an action, suit or proceeding by any private party or governmental body or agency, against or affecting the Company or any of its Subsidiaries relating to any Environmental Laws.
(29)Stabilization. The Company has not taken and will not take, directly or indirectly, any action designed to, or that would reasonably be expected to, cause or result in stabilization or manipulation of the price of the Underwritten Securities. There are no contracts, agreements or understandings between the Company and any person granting such person the right to require the Company to file a registration statement under the 1933 Act with respect to any Underwritten Securities or securities similar to the Underwritten Securities of the Company owned or to be owned by such person or to require the Company to include such securities in the securities registered pursuant to the Registration Statement or in any securities being registered pursuant to any other registration statement filed by the Company under the 1933 Act.
(30)▇▇▇▇▇▇▇▇-▇▇▇▇▇ Compliance. Except as stated in the Registration Statement, the Disclosure Package and the Prospectus, there has been no failure on the part of the Company or any of the officers and directors of the Company, in their capacities as such, to comply in all material respects with the provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and regulations thereunder, including Section 402 related to loans and Sections 302 and 906 related to certifications.
(31)Internal Control over Financial Reporting. Except as stated in the Registration Statement, the Disclosure Package and the Prospectus, the Company and each of its Subsidiaries maintain a system of internal accounting controls designed to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability; (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 the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The Company and its Subsidiaries’ “internal control over financial reporting” (as defined in Rules 13a-15 and 15d-15 under the 1934 Act and the 1934 Act Regulations) are effective and the Company and its Subsidiaries are not aware of any material weakness in their internal controls over financial reporting since the end of the Company’s most recent audited fiscal year.
(32)Disclosure Controls and Procedures. Except as stated in the Registration Statement, the Disclosure Package and the Prospectus, the Company maintains “disclosure controls and procedures” (as defined in Rule 13a-15(e) under the 1934 Act and the 1934 Act Regulations) that have been designed to provide reasonable assurance that information required to be disclosed in its reports filed or submitted under the 1934 Act and the 1934 Act Regulations is processed, recorded, summarized and reported within the time periods specified in the Commission’s rules and forms, and that such information is accumulated and communicated to the Company’s management, including its Chief Executive Officer and Chief Financial Officer, as appropriate, to allow for timely decisions regarding required disclosure; and such disclosure controls and procedures are effective.
(33)Foreign Corrupt Practices Act. Neither the Company nor any of its subsidiaries nor any director or officer of the Company or any of its subsidiaries nor, to the knowledge of the Company, any employee of the Company or any agent, affiliate or other person acting on behalf of the Company or any of its subsidiaries has (i) used any funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made an offer, promise or authorization of any direct or indirect unlawful payment or benefit to any foreign or domestic government or regulatory official or employee, including of any government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office; (iii) violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws; or (iv) made, offered, agreed to or requested any unlawful bribe or other unlawful benefit, including, without limitation, any rebate, payoff, influence payment, kickback or other unlawful or improper payment or benefit. The Company and its subsidiaries, or the Company, on behalf of itself and its subsidiaries, have instituted, maintain and enforce, and will continue to maintain and enforce, policies and procedures designed to promote and ensure compliance with all applicable anti-bribery and anti-corruption laws.
(34)Anti-Money Laundering Laws. The operations of the Company and its subsidiaries are and have been conducted at all times in compliance (i) in all material respects with applicable financial recordkeeping and reporting requirements, including those of the Currency and Foreign Transactions Reporting Act of 1970, as amended and (ii) with the applicable money laundering statutes of all jurisdictions where the Company or any of its subsidiaries conducts business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines issued, administered or enforced by any governmental or regulatory agency (collectively, the “Anti-Money Laundering Laws”), and no action, suit or proceeding by or before any court or governmental or regulatory agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(35)Compliance with OFAC. Neither the Company nor any of its subsidiaries, directors or officers, nor, to the knowledge of the Company, any employee of the Company or any agent, affiliate or other person acting on behalf of the Company or any of its subsidiaries is currently the subject or the target of any sanctions administered or enforced by the U.S. federal government (including, without limitation, the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State and including, without limitation, the designation as a “specially designated national” or “blocked person”), the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions authority (collectively, “Sanctions”), nor is the Company or any of its subsidiaries located, organized or resident in a country or territory that is the subject or the target of Sanctions, including, without limitation, Crimea, Cuba, Iran, North Korea and Syria (each, a “Sanctioned Country”); and the Company will not directly or indirectly use the proceeds of the offering of the Securities hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity (i) to fund or facilitate any activities of or business with any person that, at the time of such funding or facilitation, is the subject or the target of Sanctions, (ii) to fund or facilitate any activities of or business in any Sanctioned Country or (iii) in any other manner that will result in a violation by any person (including any person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions. For the past three years, the Company and its subsidiaries have not knowingly engaged in, and are not now knowingly engaged in, any dealings or transactions with any person that at the time of the dealing or transaction is or was the subject or the target of Sanctions or with any Sanctioned Country.
(36)Cybersecurity. The Company’s and its subsidiaries’ information technology assets and equipment, computers, systems, networks, hardware, software, websites, applications, and databases (collectively, “IT Systems”) are adequate for, and operate and perform in all material respects as required in connection with the operation of the businesses of the Company and its subsidiaries as currently conducted. The Company and its subsidiaries have implemented and maintained commercially reasonable controls, policies, procedures, and safeguards to maintain and protect its material confidential information and the integrity, continuous operation, redundancy and security of all IT Systems and data (including all personal, personally identifiable, sensitive, confidential or regulated data) (“Personal Data”) used in connection with its business, and there have been no breaches, violations, outages or unauthorized uses of or accesses to same, except for those that would not, singly or in the aggregate, reasonably be expected to have a material and adverse effect on the Company and its subsidiaries. The Company and its subsidiaries are presently in material compliance with all applicable laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations relating to the privacy and security of IT Systems and Personal Data and to the protection of such IT Systems and Personal Data from unauthorized use, access, misappropriation or modification.
(b)Officers’ Certificates. Any certificate signed by any officer of the Company or any of its subsidiaries and delivered to any Underwriter or to counsel for the Underwriters in connection with the offering of the Underwritten Securities shall be deemed to be a representation and warranty by the Company or such subsidiary, as the case may be, to each Underwriter as to the matters covered thereby on the date of such certificate and, unless subsequently amended or supplemented, at each Representation Date subsequent thereto.
SECTION 2.Sale and Delivery to Underwriters; Closing.
(a)Underwritten Securities. The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations, warranties and agreements herein contained and shall be subject to the terms and conditions herein set forth.
(b)Option Underwritten Securities. Subject to the terms and conditions herein set forth, the Company may grant, if so provided in the applicable Terms Agreement, an option to the Underwriters, severally and not jointly, to purchase up to the number of the Option Underwritten Securities set forth therein at a price per Option Underwritten Security equal to the price per Initial Underwritten Security, less an amount equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Underwritten Securities. Such option, if granted, will expire 30 days after the date of such Terms Agreement, and may be exercised in whole or in part from time to time only for the purpose of covering over-allotments which may be made in connection with the offering and distribution of the Initial Underwritten Securities upon notice by the Representatives to the Company setting forth the number of Option Underwritten Securities as to which the several Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option Underwritten Securities. Any such time and date of payment and delivery (each, a “Date of Delivery”) shall be determined by the Representatives; provided that, unless otherwise agreed upon by the Representatives and the Company, (i) in the event that the exercise of said option occurs prior to the Closing Time, the Date of Delivery shall be the Closing Time and (ii) in the event that the exercise of said option occurs on or after the Closing Time, the Date of Delivery shall not be earlier than three full business days and shall not be later than seven full business days after the exercise of said option. If the option is exercised as to all or any portion of the Option Underwritten Securities, each of the Underwriters, severally and not jointly, will purchase that proportion of the total number of Option Underwritten Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed to purchase as set forth in such Terms Agreement bears to the total number of Initial Underwritten Securities, subject to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of a fractional number of Option Underwritten Securities.
(c)Payment. Payment of the purchase price for, and delivery of, the Initial Underwritten Securities shall be made at the offices of Sidley Austin LLP, ▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other place as shall be agreed upon by the Representatives and the Company, at 10:00 A.M. (New York City time) on the fifth business day after the date of the applicable Terms Agreement (unless postponed in accordance with the provisions of Section 10 hereof), or such other time not later than ten business days after such date as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called the “Closing Time”). In addition, in the event that the Underwriters have exercised their option, if any, to purchase any or all of the Option Underwritten Securities, payment of the purchase price for, and delivery of such Option Underwritten Securities, shall be made at the above-mentioned offices of Sidley Austin LLP, or at such other place as shall be agreed upon by the Representatives and the Company, on the relevant Date of Delivery as specified in the notice from the Representatives to the Company.
Payment shall be made to the Company by wire transfer of immediately available funds to a bank account designated by the Company, against delivery to the Representatives for the respective accounts of the Underwriters of the Underwritten Securities to be purchased by them. It is understood that each Underwriter has authorized the Representatives for their account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Securities which it has severally agreed to purchase. The Representatives, individually and not as representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities to be purchased by any Underwriter whose funds have not been received by the Closing Time or the relevant Date of Delivery, as the case may be, but such payment shall not relieve such Underwriter from any of its obligations hereunder.
(d)Denominations; Registration. Certificates for the Underwritten Securities shall be in such denominations and registered in such names as the Representatives may request in writing at least one full business day prior to the Closing Time or the relevant Date of Delivery, as the case may be. The certificates for the Underwritten Securities will be made available for examination by the Representatives not later than 10:00 A.M. (New York City time) on the last business day prior to the Closing Time or the relevant Date of Delivery, as the case may be.
SECTION 3.Covenants of the Company. The Company covenants with each of the Underwriters participating in the offering of Underwritten Securities, as follows:
(a)Compliance with Securities Regulations and Commission Requests. The Company, subject to Section 3(b), will comply with the requirements of Rule 430B of the 1933 Act Regulations, if and as applicable, and will notify the Representatives promptly during the Prospectus Delivery Period (as defined below), and confirm the notice in writing, of (i) the effectiveness of any post-effective amendment to the Registration Statement or the filing of any supplement or amendment to any Preliminary Prospectus or the Prospectus, (ii) the receipt of any comments from the Commission related to the Registration Statement, (iii) any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to each Preliminary Prospectus or the Prospectus or for additional information, and (iv) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus, or of the suspension of the qualification of the Underwritten Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424 and will take such steps as it deems necessary to ascertain promptly whether each Preliminary Prospectus and the Prospectus transmitted for filing under Rule 424 was received for filing by the Commission and, in the event that it was not, it will promptly file such Preliminary Prospectus or the Prospectus, as applicable. The Company will use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(b)Filing of Amendments. During such period beginning on the date of this Underwriting Agreement and ending on the later of the Closing Time or such date as, in the reasonable opinion of counsel for the Underwriters, the Prospectus is no longer required by law to be delivered in connection with sales of the Underwritten Securities by an Underwriter or dealer, including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the 1933 Act (the “Prospectus Delivery Period”), the Company will give the Representatives notice of its intention to file or prepare any amendment to the Registration Statement, any amendment, supplement or revision to the Disclosure Package or to the Prospectus, whether pursuant to the 1933 Act, the 1934 Act or otherwise, will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file or use any such document to which the Representatives or counsel for the Underwriters shall reasonably object.
(c)Delivery of Registration Statements. The Company has furnished or will deliver to the Representatives and counsel for the Underwriters, without charge and upon request, signed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and as many signed copies of all consents and certificates of experts as the Representatives have reasonably requested or shall reasonably request, and will also deliver to the Representatives without charge, a conformed copy of the Registration Statement as originally filed and of each amendment thereto (without exhibits) for each of the Underwriters. The Registration Statement and each amendment thereto furnished to the Underwriters will be identical to any electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S‑T.
(d)Delivery of Prospectuses. The Company will deliver to each Underwriter, without charge, as many copies of each Preliminary Prospectus as such Underwriter may reasonably request, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will furnish to each Underwriter, without charge, during the Prospectus Delivery Period, such number of copies of the Prospectus as such Underwriter may reasonably request. Each Preliminary Prospectus and the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to any electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S‑T.
(e)Continued Compliance with Securities Laws. The Company will comply with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the completion of the distribution of the Underwritten Securities as contemplated in this Underwriting Agreement and the applicable Terms Agreement and in the Registration Statement, the Disclosure Package and the Prospectus. If at any time during the Prospectus Delivery Period, any event shall occur or condition shall exist as a result of which it is necessary, in the opinion of counsel for the Underwriters or for the Company, to amend the Registration Statement, the Disclosure Package or the Prospectus, in order that the Registration Statement, Disclosure Package or Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or to amend or supplement the Disclosure Package or the Prospectus in order that the Disclosure Package or the Prospectus, as the case may be, will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Disclosure Package or the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b), such amendment or supplement as may be necessary to correct such statement or omission or to make the Registration Statement, the Disclosure Package or the Prospectus comply with such requirements, and the Company will furnish to the Underwriters, without charge, such number of copies of such amendment or supplement as the Underwriters may reasonably request.
(f)Blue Sky Qualifications. The Company will use its best efforts, in cooperation with the Underwriters, to qualify the Underwritten Securities for offering and sale under the applicable securities laws of such states and other jurisdictions (domestic or foreign) as the Representatives may designate and to maintain such qualifications in effect for so long as required for the distribution of the Underwritten Securities; provided, however, that the Company shall not be obligated to file any general consent to service of process, qualify as a foreign corporation or as a dealer in securities, or take any other action in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. In each jurisdiction in which the Underwritten Securities have been so qualified, the Company will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification in effect for so long as required for the distribution of the Underwritten Securities.
(g)Earnings Statement. The Company will timely file such reports pursuant to the 1934 Act as are necessary in order to make generally available to its securityholders as soon as practicable, but in any event not later than 16 months after the date hereof, an earnings statement covering a period of at least 12 months beginning after the date of the Terms Agreement, for the purposes of, and to provide the benefits contemplated by, the last paragraph of Section 11(a) of the 1933 Act and Rule 158(c) under the 1933 Act Regulations.
(h)Use of Proceeds. The Company will use the net proceeds received by it from the sale of the Underwritten Securities in the manner specified in the Prospectus under “Use of Proceeds.”
(i)Listing. The Company will use its best efforts to effect the listing of the Underwritten Securities, within 30 days after the Closing Time, on any national securities exchange or quotation system if and as specified in the applicable Terms Agreement.
(j)Restriction on Sale of Securities. Between the date of the applicable Terms Agreement and the Closing Time or such other date specified in such Terms Agreement, the Company and its Subsidiaries will not, without the prior written consent of the Representatives directly or indirectly, issue, sell, offer or contract to sell, grant any option for the sale or purchase of, or otherwise dispose of, any securities that are substantially similar to the Depositary Shares or the Preferred Shares or any securities convertible into or exercisable or exchangeable for the Depositary Shares or the Preferred Shares.
(k)Reporting Requirements. The Company, during the Prospectus Delivery Period, will file all documents required to be filed with the Commission pursuant to the 1934 Act within the time periods required by the 1934 Act and the 1934 Act Regulations.
(l)Final Term Sheet. The Company will prepare a final term sheet containing only a description of the Underwritten Securities and will file such term sheet pursuant to Rule 433(d) under the 1933 Act within the time required by such rule (such term sheet, the “Final Term Sheet”). Any such Final Term Sheet is an Issuer Free Writing Prospectus for purposes of this Underwriting Agreement. A form of the Final Term Sheet for the Underwritten Securities is attached hereto as Annex I to the form of the Terms Agreement attached hereto as Exhibit A.
(m) Permitted Free Writing Prospectuses. The Company represents that it has not made, and agrees that, unless it obtains the prior written consent of the Representatives, it will not make, any offer relating to the Underwritten Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 of the ▇▇▇▇ ▇▇▇) required to be filed by the Company with the Commission or retained by the Company under Rule 433 of the 1933 Act; provided that the prior written consent of the Representatives shall be deemed to have been given in respect of any Issuer Free Writing Prospectuses included in Annex I to the Terms Agreement. Any such free writing prospectus consented to or deemed to be consented to by the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that it (i) has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, and (ii) has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 of the 1933 Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping. The Company consents to the use by any Underwriter of a free writing prospectus that (a) is not an “issuer free writing prospectus” as defined in Rule 433, and (b) contains only (i) information describing the preliminary terms of the Underwritten Securities or their offering, (ii) information permitted by Rule 134 under the 1933 Act or (iii) information that describes the final terms of the Underwritten Securities or their offering and that is included in the Final Term Sheet of the Company contemplated in Section 3(l) or (iv) comparable bond price information; provided that each Underwriter severally covenants with the Company not to take any action without the Company’s consent that would result in a free writing prospectus being required to be filed with the Commission under Rule 433 under the 1933 Act that otherwise would not be required to be filed by the Company thereunder, but for the action of the Underwriter.
(n)Registration Statement Renewal Deadline. If immediately prior to the third anniversary (the “Renewal Deadline”) of the initial effective date of the Registration Statement, any of the Underwritten Securities remain unsold by the Underwriters, the Company will prior to the Renewal Deadline file, if it has not already done so and is eligible to do so, a new automatic shelf registration statement relating to the Underwritten Securities, in a form reasonably satisfactory to the Representatives. If the Company is no longer eligible to file an automatic shelf registration statement, the Company will prior to the Renewal Deadline, if it has not already done so, file a new shelf registration statement relating to the Underwritten Securities, in a form reasonably satisfactory to the Representatives, and will use its reasonable best efforts to cause such registration statement to be declared effective within 60 days after the Renewal Deadline. The Company will take all other action reasonably necessary or appropriate to permit the public offering and sale of the Underwritten Securities to continue as contemplated in the expired registration statement relating to the Underwritten Securities. References herein to the Registration Statement shall include such new automatic shelf registration statement or such new shelf registration statement, as the case may be.
(o)Notice of Inability to Use Automatic Shelf Registration Statement Form. If at any time during the Prospectus Delivery Period, the Company receives from the Commission a notice pursuant to Rule 401(g)(2) under the 1933 Act or otherwise ceases to be eligible to use the automatic shelf registration statement form, the Company will (i) promptly notify the Representatives, (ii) promptly file a new registration statement or post-effective amendment on the proper form relating to the Underwritten Securities, in a form satisfactory to the Representatives, (iii) use its commercially reasonable efforts to cause such registration statement or post-effective amendment to be declared effective and (iv) promptly notify the Representatives of such effectiveness. The Company will take all other action necessary or appropriate to permit the public offering and sale of the Underwritten Securities to continue as contemplated in the registration statement that was the subject of the Rule 401(g)(2) notice or for which the Company has otherwise become ineligible. References herein to the Registration Statement shall include such new registration statement or post-effective amendment, as the case may be.
(p)Filing Fees. The Company agrees to pay the required Commission filing fees relating to the Securities within the time required by and in accordance with Rules 456(b)(1) and 457(r) under the 1933 Act.
(q)Deposit of Preferred Stock. The Company will, prior to each Date of Delivery, deposit the Preferred Stock with the Depositary in accordance with the provisions of the Deposit Agreement and otherwise comply with the Deposit Agreement so that Depositary Shares will be issued by the Depositary against receipt of such Preferred Stock and delivered to the Underwriters against payment therefor at each Date of Delivery.
SECTION 4.Payment of Expenses. (a) Expenses. The Company will pay or cause to be paid all expenses incident to the performance of its obligations under this Underwriting Agreement and the applicable Terms Agreement, including (i) the printing and filing of the Registration Statement as originally filed and of each amendment thereto; (ii) the printing of this Underwriting Agreement, any Terms Agreement, any Agreement among Underwriters, the Deposit Agreement and such other documents as may be required in connection with the offering, purchase, sale, issuance or delivery of the Underwritten Securities and the Depositary Receipts; (iii) the preparation, issuance and delivery of the certificates for the Underwritten Securities to the Underwriters and any Depositary Receipts, including any transfer taxes and any stamp or other duties payable upon the sale, issuance or delivery of such securities to the Underwriters; (iv) the fees and disbursements of the Company’s counsel and accountants; (v) the cost of preparing and filing the Certificate of Designations with the Secretary of State of the State of Delaware; (vi) the qualification of the Underwritten Securities under applicable state securities laws in accordance with the provisions of Section 3(f) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Underwriters in connection therewith and in connection with the preparation of the “blue sky surveys” and any legal investment survey; (vii) the fees and expenses of the Depositary and the fees and disbursements of counsel for the Depositary; (viii) the printing and delivery to the Underwriters of copies of the Registration Statement as originally filed and of each amendment thereto, of each Preliminary Prospectus, any Issuer Free Writing Prospectus, and the Prospectus and any amendments or supplements thereto; (ix) all expenses incurred by the Underwriters in connection with any electronic road show, including, but not limited to, the printing of slides; (x) the fees charged by nationally recognized statistical rating organizations for the rating of the Underwritten Securities; (xi) the fees and expenses incurred with respect to any listing of the Underwritten Securities; (xii) the filing fees incident to, and the reasonable fees and disbursements of counsel to the Underwriters in connection with, the review, if any, by the Financial Industry Regulatory Authority, Inc. (“FINRA”) of the terms of the sale of the Underwritten Securities; and (xiii) the fees and expenses of any Underwriter acting in the capacity of a “qualified independent underwriter” (as defined in Rule 5121(f)(12) of the FINRA Rules), if applicable.
(b)Termination of Agreement. If the applicable Terms Agreement is terminated by the Representatives in accordance with the provisions of Section 5, Section 9(b)(i), Section 9(b)(iii)(a) or Section 9(b)(v) hereof, the Company shall reimburse the Underwriters for all of their out-of-pocket expenses, including the reasonable fees and disbursements of counsel for the Underwriters.
SECTION 5.Conditions of Underwriters’ Obligations. The obligations of the several Underwriters to purchase and pay for the Underwritten Securities pursuant to the applicable Terms Agreement are subject to the accuracy of the representations and warranties of the Company contained in Section 1 hereof or in certificates of any officer of the Company or any of its subsidiaries delivered pursuant to the provisions hereof, to the performance by the Company of its covenants and other obligations hereunder, and to the following further conditions:
(a)Effectiveness of Registration Statement. The Registration Statement has become effective under the 1933 Act and no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act and no proceedings for that purpose shall have been instituted or be pending or threatened by the Commission, and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of counsel to the Underwriters, and the Company shall not have received from the Commission any notice pursuant to Rule 401(g)(2) under the 1933 Act objecting to the use of the automatic shelf registration statement form. Each Preliminary Prospectus and the Prospectus containing information relating to the description of the Underwritten Securities, the specific method of distribution and similar matters shall have been filed with the Commission in accordance with Rule 424(b)(1), (2), (3), (4) or (5), as applicable (or any required post-effective amendment providing such information shall have been filed and declared effective in accordance with the requirements of Rule 430B).
(b)Opinion of Counsel for Company. At Closing Time, the Underwriters shall have received the opinion, dated as of Closing Time, of each of Sidley Austin LLP, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel of the Company and United States Cellular Corporation, Holland & Knight LLP and ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, each counsel for the Company, in form and substance satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters, to the effect set forth in Exhibits B, C, D, E and F hereto, respectively, and to such further effect as counsel to the Underwriters may reasonably request.
(c)Opinion of Counsel for Underwriters. At Closing Time, the Representatives shall have received the opinion, dated as of Closing Time, of ▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters, with respect to certain matters set forth in (1) (as to the Company’s existence and good standing), (6) to (10) and (18) and the paragraph immediately following (19) of Exhibit B hereto. In giving such opinion, such counsel may rely, as to all matters governed by the laws of jurisdictions other than the law of the State of New York, the federal law of the United States, the Limited Liability Company Act of the State of Delaware and the General Corporation Law of the State of Delaware, upon the opinions of counsel satisfactory to the Representatives. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and its subsidiaries and certificates of public officials.
(d)Absence of Material Adverse Changes; Officers’ Certificate. At Closing Time and as of each Date of Delivery (if applicable), there shall not have been, since the date of the applicable Terms Agreement or since the respective dates as of which information is given in the Prospectus, any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, and the Representatives shall have received a certificate of the President and Chief Executive Officer, the Executive Vice President and Chief Financial Officer, the Vice President and Treasurer or Vice President–Controller and Chief Accounting Officer of the Company or of any other authorized representative of the Company, dated as of Closing Time, to the effect that (i) there has been no such material adverse change with respect to the Company and its Subsidiaries considered as one enterprise, (ii) the representations and warranties in Section 1(a) are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (iii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Time, (iv) no stop order suspending the effectiveness of the Registration Statement has been received by the Company or, to the Company’s knowledge, issued and, to the Company’s knowledge, no proceedings for that purpose have been initiated or threatened by the Commission and (v) the Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under the 1933 Act objecting to the use of the automatic shelf registration form.
(e)Accountant’s Comfort Letter. At the time of the execution of the applicable Terms Agreement, the Representatives shall have received from PricewaterhouseCoopers LLP, the Company’s principal independent registered public accounting firm, a letter dated such date, in form and substance satisfactory to the Representatives together with signed or reproduced copies of such letter for each of the other Underwriters, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Preliminary Prospectus and the Prospectus.
(f)Bring-down Comfort Letter. At Closing Time, the Representatives shall have received from PricewaterhouseCoopers LLP a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (e) of this Section 5, except that the specified date referred to shall be a date not more than five business days prior to the Closing Time.
(g)Ratings. At Closing Time and at any relevant Date of Delivery, the Underwritten Securities shall have the ratings accorded by any “nationally recognized statistical rating organization,” as defined in Section 3(a)(62) of the 1934 Act (an “NRSRO”), if and as specified in the applicable Terms Agreement, or shall have ratings higher than those specified in the applicable Terms Agreement.
(h)Approval of Listing. At Closing Time, the Underwritten Securities shall have been approved for listing on any national securities exchange or quotation system, subject only to official notice of issuance, if and as specified in the applicable Terms Agreement.
(i)No Objection. If the Registration Statement or an offering of Underwritten Securities has been filed with FINRA for review, FINRA shall not have raised any objection that remains unresolved at Closing Time with respect to the fairness and reasonableness of the underwriting terms and arrangements relating to the offering of the Underwritten Securities.
(j)Lock-up Agreements. On the date of the applicable Terms Agreement, the Representatives shall have received, in form and substance satisfactory to it, each lock-up agreement, if any, specified in such Terms Agreement as being required to be delivered by the persons listed therein.
(k)Over-Allotment Option. In the event that the Underwriters are granted an over-allotment option by the Company in the applicable Terms Agreement and any Underwriters exercise their option to purchase all or any portion of the Option Underwritten Securities, the representations and warranties of the Company contained herein and the statements in any certificates furnished by the Company or any of its subsidiaries hereunder shall be true and correct as of each Date of Delivery, and, at the relevant Date of Delivery, the Representatives shall have received:
(1)A certificate, dated such Date of Delivery, of the (i) President and Chief Executive Officer, (ii) the Executive Vice President and Chief Financial Officer, (iii) Vice President and Treasurer or (iv) Vice President–Controller and Chief Accounting Officer of the Company or of any other authorized representative of the Company, confirming that the certificate delivered at the Closing Time pursuant to Section 5(d) hereof remains true and correct as of such Date of Delivery.
(2)The opinion of each of Sidley Austin LLP, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel of the Company and United States Cellular Corporation, Holland & Knight LLP and ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, each counsel for the Company, in form and substance satisfactory to counsel for the Underwriters, dated such Date of Delivery, relating to the Option Underwritten Securities and otherwise to the same effect as the opinions required by Section 5(b) hereof.
(3)The favorable opinion of ▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Underwriters, dated such Date of Delivery, relating to the Option Underwritten Securities and otherwise to the same effect as the opinion required by Section 5(c) hereof.
(4)A letter from PricewaterhouseCoopers LLP, in form and substance satisfactory to the Representatives and dated such Date of Delivery, substantially in the same form and substance as the letter furnished to the Representatives pursuant to Section 5(f) hereof, except that the “specified date” on the letter furnished pursuant to this paragraph shall be a date not more than five business days prior to such Date of Delivery.
(5)Since the time of execution of such Terms Agreement, there shall not have occurred a downgrading in, or withdrawal of, the rating assigned to the Underwritten Securities or any of the Company’s other securities by any such rating organization, and no such rating organization shall have publicly announced that it has under surveillance or review with possible negative implications its rating of the Underwritten Securities or any of the Company’s other securities.
(l)Deposit Agreement. The Representatives shall have received a counterpart of the Deposit Agreement that shall have been executed and delivered by a duly authorized officer of the Company.
(m)Certificate of Designations. At or prior to Closing Time, the Certificate of Designations shall have been duly filed with the Secretary of State of the State of Delaware.
(n)Certificate Evidencing Deposit of Preferred Shares. The Representatives shall have received from the Depositary a copy of the certificate evidencing the deposit of the Preferred Shares delivered at Closing Time and at each Date of Delivery.
(o)Additional Documents. At Closing Time and at each Date of Delivery, counsel for the Underwriters shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Underwritten Securities as herein contemplated, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Underwritten Securities as herein contemplated shall be satisfactory in form and substance to the Representatives and counsel for the Underwriters.
(p)Termination of Terms Agreement. If any condition specified in this Section 5 shall not have been fulfilled when and as required to be fulfilled, the applicable Terms Agreement (or, with respect to the Underwriters’ exercise of any applicable over-allotment option for the purchase of Option Underwritten Securities on a Date of Delivery after the Closing Time, the obligations of the Underwriters to purchase the Option Underwritten Securities on such Date of Delivery) may be terminated by the Representatives by notice to the Company at any time at or prior to the Closing Time (or such Date of Delivery, as applicable), and such termination shall be without liability of any party to any other party except as provided in Section 4 and except that Sections 1, 6, 7, 8 and 14 shall survive any such termination and remain in full force and effect. The Representatives, on behalf of the several Underwriters, may, in their sole discretion, waive in writing the performance by the Company of any one or more of the foregoing conditions or extend the time for their performance.
SECTION 6Indemnification.
(a)Indemnification of Underwriters. The Company agrees to indemnify and hold harmless each Underwriter, the agents and affiliates of each Underwriter and each person, if any, who controls any Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(1)against any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), 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 arising out of any untrue statement or alleged untrue statement of a material fact contained in any Issuer Free Writing Prospectus, Company Additional Written Communication or 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;
(2)against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that (subject to Section 6(d) below) any such settlement is effected with the written consent of the Company; and
(3)against any and all expense whatsoever, as incurred (including, subject to Section 6(c) hereof, the fees and disbursements of counsel chosen by the Representatives), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (1) or (2) above;
provided, however, that this indemnity agreement does not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives expressly for use in the Registration Statement (or any amendment thereto), any Issuer Free Writing Prospectus, any Company Additional Written Communication or any Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto).
(b)Indemnification of Company, Directors and Officers. Each Underwriter severally agrees to indemnify and hold harmless the Company, its directors, each of its officers who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions of a material fact, or alleged untrue statements or omissions of a material fact, made in the Registration Statement (or any amendment thereto), any Issuer Free Writing Prospectus, any Company Additional Written Communication or any Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Company by such Underwriter through the Representatives expressly for use in the Registration Statement (or any amendment thereto), any Issuer Free Writing Prospectus, any Company Additional Written Communication or such Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto).
(c)Actions against Parties; Notification. Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity agreement. In case any such action is brought against any indemnified party, and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein, and to the extent that it may elect 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, that if the defendants (including any impleaded party) in any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded 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. Upon receipt of notice from the indemnifying party to such indemnified party of its 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 6 for any legal fees or other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation 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, in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate counsel (plus any local counsel) representing the indemnified parties under Section 6(a) who are parties to such action); (ii) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of commencement of the action; or (iii) the indemnifying party has authorized the employment of counsel for the indemnified party at the expense of the indemnifying party; and except that, if clause (i) or (iii) is applicable, such liability shall be only in respect of the counsel referred to in such clause (i) or (iii). No indemnifying party shall, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 6 or Section 7 hereof (whether or not the indemnified parties are actual or potential parties thereto), unless such settlement, compromise or consent (i) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d)Settlement without Consent if Failure to Reimburse. If at any time an indemnified party shall have requested in writing an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 6(a)(2) effected without its written consent if (i) such settlement is entered into after the later of (A) 45 days after such indemnified party has mailed (by registered or certified mail, postage prepaid) the aforesaid request to each of the Notice Recipients (as defined below) and (B) if the indemnifying party has not given written notice to such indemnified party of the receipt by such indemnifying party of the aforesaid request, 30 days after such indemnified party has mailed (by registered or certified mail, postage prepaid) a second such request to each of the Notice Recipients, provided that such second request is not mailed prior to the 46th day after the request referred to in subclause (i)(A) above is mailed, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement. Notwithstanding the immediately preceding 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, an indemnifying party shall not be liable for any settlement of the nature contemplated by Section 6(a)(2) effected without its consent if such indemnifying party (i) reimburses such indemnified party in accordance with such request to the extent it considers such request to be reasonable and (ii) provides written notice to the indemnified party substantiating the unpaid balance as unreasonable, in each case prior to the date of such settlement. The “Notice Recipients” are the Chairman and the General Counsel of the Company. Requests mailed pursuant to this Section 6(d) shall be mailed to ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., President and Chief Executive Officer, Telephone and Data Systems, Inc., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, with a copy to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., General Counsel, Telephone and Data Systems, Inc., c/o Sidley Austin LLP, ▇▇▇ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
SECTION 7.Contribution. If the indemnification provided for in Section 6 hereof is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, (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 Underwritten Securities pursuant to the applicable Terms Agreement or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) 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 which resulted in such losses, liabilities, claims, damages 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 Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to be in the same respective proportions as the total net proceeds from the offering of such Underwritten Securities (before deducting expenses) received by the Company and the total underwriting discount received by the Underwriters, in each case as set forth on the cover of the Prospectus.
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 relates to information supplied by the Company or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 7. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Underwritten Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each agent and affiliate of each Underwriter and each person, if any, who controls an Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 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 within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as the Company. The Underwriters’ respective obligations to contribute pursuant to this Section 7 are several in proportion to the number of Initial Underwritten Securities set forth opposite their respective names in the applicable Terms Agreement, and not joint.
SECTION 8.Representations, Warranties and Agreements to Survive Delivery. All representations, warranties and agreements contained in this Underwriting Agreement or the applicable Terms Agreement, or contained in certificates of officers of the Company or any of its subsidiaries submitted pursuant hereto or thereto shall remain operative and in full force and effect, regardless of any investigation made by or on behalf of any Underwriter or controlling person, or by or on behalf of the Company, and shall survive delivery of and payment for the Underwritten Securities.
SECTION 9.Termination.
(a)Underwriting Agreement. This Underwriting Agreement (excluding the applicable Terms Agreement) may be terminated for any reason at any time by the Company or by the Representatives upon the giving of 30 days’ prior written notice of such termination to the other party hereto.
(b)Terms Agreement. The Representatives may terminate the applicable Terms Agreement, by notice to the Company, at any time at or prior to the Closing Time or any relevant Date of Delivery, if (i) there has been, since the time of execution of such Terms Agreement or since the respective dates as of which information is given in the Prospectus (exclusive of any supplement thereto, after the date of the applicable Terms Agreement), any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its Subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, or (ii) there has occurred any material adverse change in the financial markets in the United States or, if the Underwritten Securities include securities denominated or payable in, or indexed to, one or more foreign or composite currencies, in the international financial markets, or any outbreak of hostilities or escalation thereof or other calamity or crisis or any change or development involving a prospective change in national or international political, financial or economic conditions, in each case the effect of which is such as to make it, in the reasonable judgment of the Representatives impracticable or inadvisable to market the Underwritten Securities or to enforce contracts for the sale of the Underwritten Securities, or (iii) (a) trading in any securities of the Company has been suspended or materially limited by the Commission or the New York Stock Exchange (or any successor thereto), or (b) if trading generally on the New York Stock Exchange or in the Nasdaq Stock Market has been suspended or materially limited, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices have been required, by either of said exchanges or by such system or by order of the Commission, FINRA or any other governmental authority, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, or (iv) a banking moratorium has been declared by either Federal or New York authorities or, if the Underwritten Securities include securities denominated or payable in, or indexed to, one or more foreign or composite currencies, by the relevant authorities in the related foreign country or countries, or (v) there has occurred, since the time of execution of such Terms Agreement, a downgrading in, or withdrawal of, the rating assigned to the Underwritten Securities or any of the Company’s other securities by a NRSRO, or since the time of execution of such Terms Agreement, any such NRSRO shall have publicly announced that it has under surveillance or review with possible negative implications its rating of the Underwritten Securities or any of the Company’s other securities.
(c)Liabilities. If this Underwriting Agreement or the applicable Terms Agreement is terminated pursuant to this Section 9, such termination shall be without liability of any party to any other party except as provided in Section 4 hereof, and provided further that Sections 1, 6, 7, 8 and 14 shall survive such termination and remain in full force and effect.
SECTION 10.Default by One or More of the Underwriters. If one or more of the Underwriters shall fail at the Closing Time or the relevant Date of Delivery, as the case may be, to purchase the Underwritten Securities which it or they are obligated to purchase under the applicable Terms Agreement (the “Defaulted Securities”), then the Representatives and the Company shall have the right, within 24 hours thereafter, to make arrangements for one or more of the non‑defaulting Underwriters, or any other underwriters reasonably acceptable to the Representatives, to purchase all, but not less than all, of the Defaulted Securities in such amounts as may be agreed upon and upon the terms herein set forth; if, however, the Representatives shall not have completed such arrangements within such 24‑hour period, then:
(a)if the number of Defaulted Securities does not exceed 10% of the number of Underwritten Securities to be purchased on such date pursuant to such Terms Agreement, the non‑defaulting Underwriters shall be obligated, severally and not jointly, to purchase the full amount thereof in the proportions that their respective underwriting obligations under such Terms Agreement bear to the underwriting obligations of all non‑defaulting Underwriters, or
(b)if the number of Defaulted Securities exceeds 10% of the number of Underwritten Securities to be purchased on such date pursuant to such Terms Agreement, such Terms Agreement (or, with respect to the Underwriters’ exercise of any applicable over-allotment option for the purchase of Option Underwritten Securities on a Date of Delivery after the Closing Time, the obligations of the Underwriters to purchase, and the Company to sell, such Option Underwritten Securities on such Date of Delivery) shall terminate without liability on the part of any non‑defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in (i) a termination of the applicable Terms Agreement or (ii) in the case of a Date of Delivery after the Closing Time, a termination of the obligations of the Underwriters and the Company with respect to the related Option Underwritten Securities, as the case may be, either the Representatives or the Company shall have the right to postpone the Closing Time or the relevant Date of Delivery, as the case may be, for a period not exceeding seven days in order to effect any required changes in the Registration Statement or the Prospectus or in any other documents or arrangements.
SECTION 11.Notices. Except as otherwise provided in Section 6(d), all notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted by any standard form of telecommunication. Notices to the Underwriters shall be directed to the Representatives as follows: to BofA Securities, Inc., ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇-▇▇▇-▇▇-▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: High Grade Transaction Management/Legal (fax: (▇▇▇) ▇▇▇-▇▇▇▇) (Email: ▇▇.▇▇_▇▇_▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇); to Citigroup Global Markets Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇, Attention: General Counsel; to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Investment Banking Division, (fax: (▇▇▇) ▇▇▇-▇▇▇▇); to RBC Capital Markets, LLC, Three World Financial Center, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ Attention: DCM Transaction Management, (fax: (▇▇▇) ▇▇▇-▇▇▇▇); to UBS Securities LLC, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Fixed Income Syndicate (fax: (▇▇▇) ▇▇▇-▇▇▇▇); to ▇▇▇▇▇ Fargo Securities, LLC, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Transaction Management (email: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇), with a copy to ▇▇▇▇▇ ▇▇▇▇▇ LLP, Attention: ▇▇▇▇▇▇ ▇. Best, ▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇; notices to the Company shall be directed to ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., President and Chief Executive Officer, Telephone and Data Systems, Inc., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, with a copy to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., General Counsel, Telephone and Data Systems, Inc., c/o Sidley Austin LLP, ▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
SECTION 12.Parties. This Underwriting Agreement and the applicable Terms Agreement shall each inure to the benefit of and be binding upon the Company, the Representatives and, upon execution of such Terms Agreement, any other Underwriters and their respective successors. Nothing expressed or mentioned in this Underwriting Agreement or such Terms Agreement is intended or shall be construed to give any person, firm or corporation, other than the Underwriters and the Company and their respective successors and the controlling persons and officers and directors referred to in Sections 6 and 7 and their heirs and legal representatives, any legal or equitable right, remedy or claim under or in respect of this Underwriting Agreement or such Terms Agreement or any provision herein or therein contained. This Underwriting Agreement and such Terms Agreement and all conditions and provisions hereof and thereof are intended to be for the sole and exclusive benefit of the parties hereto and thereto and their respective successors, and said controlling persons and officers and directors and their heirs and legal representatives, and for the benefit of no other person, firm or corporation. No purchaser of Underwritten Securities from any Underwriter shall be deemed to be a successor by reason merely of such purchase.
SECTION 13.No Advisory or Fiduciary Relationship. The Company acknowledges and agrees that (a) the purchase and sale of the Underwritten Securities pursuant to this Underwriting Agreement and the applicable Terms Agreement, including the determination of the public offering price of the Underwritten Securities and any related discounts and commissions, is an arm’s-length commercial transaction between the Company, on the one hand, and the several Underwriters, on the other hand, (b) in connection with the offering of the Underwritten Securities and the process leading thereto, each Underwriter is and has been acting solely as a principal and is not the agent or fiduciary of the Company, any of its subsidiaries or their respective stockholders, creditors, employees or any other party, (c) no Underwriter has assumed or will assume an advisory or fiduciary responsibility in favor of the Company with respect to the offering of the Underwritten Securities or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company or any of its subsidiaries on other matters) and no Underwriter has any obligation to the Company with respect to the offering of the Underwritten Securities except the obligations expressly set forth in this Underwriting Agreement, (d) the Underwriters and their respective affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Company and (e) the Underwriters have not provided any legal, accounting, regulatory or tax advice with respect to the offering of the Underwritten Securities and the Company has consulted its own respective legal, accounting, regulatory and tax advisors to the extent it deemed appropriate.
SECTION 14.GOVERNING LAW, WAIVER OF JURY TRIAL AND TIME. THIS UNDERWRITING AGREEMENT AND ANY APPLICABLE TERMS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY ACTION OR PROCEEDING ARISING IN CONNECTION WITH OR AS A RESULT OF ANY MATTER REFERRED TO IN THIS AGREEMENT IS HEREBY WAIVED BY THE PARTIES HERETO. EXCEPT AS OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 15.Patriot Act. In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Company, which information may include the name and address of their respective clients, as well as other information that will allow the Underwriters to properly identify their respective clients.
SECTION 16.General Provisions. This Underwriting Agreement and any applicable Terms 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. Counterparts may be delivered via facsimile, electronic mail (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g., ▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes. The Article and Section headings herein are for convenience only and shall not affect the construction hereof.
SECTION 17.Recognition of the U.S. Special Resolution Regimes.
(a)In the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
(b)In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.
“BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).
“Covered Entity” means any of the following:
(i)a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(ii)a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(iii)a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇ Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this Underwriting Agreement, along with all counterparts, will become a binding agreement between the Representatives and the Company in accordance with its terms.
| Very truly yours, | ||||||||
| TELEPHONE AND DATA SYSTEMS, INC. | ||||||||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||||
| Title: | Executive Vice President and Chief Financial Officer | |||||||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. | |||||||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. | |||||||
| Title: | President and Chief Executive Officer | |||||||
| CONFIRMED AND ACCEPTED | ||||||||
| as of the date first above written: | ||||||||
| BOFA SECURITIES, INC. | ||||||||
| CITIGROUP GLOBAL MARKETS INC. | ||||||||
| ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. LLC | ||||||||
| RBC CAPITAL MARKETS, LLC | ||||||||
| UBS SECURITIES LLC | ||||||||
| ▇▇▇▇▇ FARGO SECURITIES, LLC | ||||||||
| As Representatives of the Several Underwriters Referred to Below | ||||||||
| BY: ▇▇▇▇▇ FARGO SECURITIES, LLC | ||||||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | |||||||
| Name: | ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | |||||||
| Title: | Managing Director | |||||||
| Acting on behalf of itself and the other named Underwriters | ||||||||
Exhibit A
TELEPHONE AND DATA SYSTEMS, INC.
(a Delaware corporation)
Preferred Stock Represented by Depositary Shares
TERMS AGREEMENT
February 23, 2021
To: Telephone and Data Systems, Inc.
▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
We understand that Telephone and Data Systems, Inc., a Delaware corporation (the “Company”), proposes to issue and sell an aggregate of 16,000,000 depositary shares (the “Depositary Shares”), each representing a 1/1,000th ownership interest in a share of the Company’s 6.625% Series UU Cumulative Redeemable Perpetual Preferred Stock, with a liquidation preference of $25,000 per share (equivalent to $25.00 per Depositary Share) (the “Preferred Stock” and, together with the Depositary Shares, the “Securities”) (such securities also being hereinafter referred to as the “Initial Underwritten Securities”). Subject to the terms and conditions set forth or incorporated by reference herein, we the underwriters named below (the “Underwriters”) offer to purchase, severally and not jointly, the number of Initial Underwritten Securities opposite our respective names set forth below at the purchase price set forth below, and a proportionate share of Option Underwritten Securities set forth below, to the extent any are purchased.
| Underwriter | Number of Initial Underwritten Securities | |||||||
| BofA Securities, Inc. | 2,624,000 | |||||||
| ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC | 2,624,000 | |||||||
| RBC Capital Markets, LLC | 2,624,000 | |||||||
| UBS Securities LLC | 2,624,000 | |||||||
| ▇▇▇▇▇ Fargo Securities, LLC | 2,624,000 | |||||||
| Citigroup Global Markets Inc. | 1,600,000 | |||||||
| BNY Mellon Capital Markets, LLC | 320,000 | |||||||
| CIBC World Markets Corp. | 320,000 | |||||||
| TD Securities (USA) LLC | 320,000 | |||||||
| U.S. Bancorp Investments, Inc. | 320,000 | |||||||
| Total | 16,000,000 | |||||||
The Underwritten Securities shall have the following terms:
Preferred Stock Represented by Depositary Shares
| Title: | Depositary Shares each representing a 1/1,000 interest in a share of Telephone and Data Systems, Inc.’s 6.625% Series UU Cumulative Redeemable Perpetual Preferred Stock. | |||||||
| Liquidation Preference: | $25,000 per share of Preferred Stock (equivalent to $25.00 per Depositary Share) | |||||||
| Size: | $400,000,000 (16,000,000 Depositary Shares) | |||||||
| Over-Allotment Option: | $60,000,000 (2,400,000 Depositary Shares) | |||||||
| Term: | Perpetual | |||||||
| Currency of payment: | U.S. Dollars | |||||||
| Dividend Rate: | 6.625% | |||||||
| Dividend payment dates: | March 31, June 30, September 30 and December 31, commencing June 30, 2021 | |||||||
| Redemption provisions: | The Company may, at its option, redeem the Preferred Stock: •in whole, at any time, or in part, from time to time, on or after March 31, 2026, at a redemption price in cash equal to $25,000 per share of Preferred Stock (equivalent to $25.00 per Depositary Share); •in whole but not in part, at any time prior to March 31, 2026, within 120 days after the conclusion of any review or appeal process instituted by us following the occurrence of a “Ratings Event” (as defined in the Preliminary Prospectus Supplement) or, if no review or appeal process is available or sought with respect to such Ratings Event, at any time within 120 days after the occurrence of such Ratings Event, at a redemption price in cash equal to $25,500 per share of Preferred Stock (equivalent to $25.50 per Depositary Share); or •in whole or in part, upon the occurrence of a Change of Control Triggering Event (as defined in the Preliminary Prospectus Supplement), within 120 days after the first date on which such Change of Control Triggering Event occurred, at a redemption price in cash equal to $25,000 per share of Preferred Stock (equivalent to $25.00 per Depositary Share), plus, in each case, all accumulated and unpaid dividends (whether or not declared) to, but excluding, such redemption date. | |||||||
| Listing requirements: | The Company intends to apply to list the Depositary Shares on the New York Stock Exchange under the symbol “TDSPrU” and, if the application is approved, expects trading in the Depositary Shares on the New York Stock Exchange to begin within 30 days after the Settlement Date. | |||||||
| CUSIP / ISIN of Depositary Shares: | 879433 787 / US8794337878 | |||||||
| Price to Public: | $25.00 per Depositary Share | |||||||
| Underwriting Discounts: | $0.7875 per Depositary Share for retail investors ($10,716,772.50) and $0.500 per Depositary Share for institutional investors ($1,195,700) / $11,912,472.50 total. | |||||||
| Form: | Book-entry only | |||||||
| Other terms and conditions: | None | |||||||
| Initial Sale Time: | 4:30 P.M., New York City time, on February 23, 2021 | |||||||
| Free writing prospectus included in Disclosure Package (See Section 1(a)(2)): | Free Writing Prospectus, dated February 23, ▇▇▇▇ | |||||||
| ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ show or other written communications included in Company Additional Written Communication (See Section 1(a)(6)): | Investor Presentation dated February 22, 2021 | |||||||
| Restriction on Sale of Securities: | February 23, 2021 and continuing to and including 30 days thereafter, except with prior written consent from the Representatives | |||||||
| Closing date and location: | March 2, 2021 at the offices of Sidley Austin LLP, ▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ | |||||||
All of the provisions contained in the document attached as Annex I hereto entitled “TELEPHONE AND DATA SYSTEMS, INC. — Preferred Stock Represented by Depositary Shares— Final Term Sheet” and the document attached as Annex II hereto entitled “TELEPHONE AND DATA SYSTEMS, INC. — Preferred Stock Represented by Depositary Shares— Underwriting Agreement” are hereby incorporated by reference in their entirety herein and shall be deemed to be a part of this Terms Agreement to the same extent as if such provisions had been set forth in full herein. Terms defined in such document are used herein as therein defined.
Please accept this offer no later than five o’clock P.M. (New York City time) on February 23, 2021 by signing a copy of this Terms Agreement in the space set forth below and returning the signed copy to us.
| Very truly yours, | ||||||||
| BOFA SECURITIES, INC. | ||||||||
| CITIGROUP GLOBAL MARKETS INC. | ||||||||
| ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. LLC | ||||||||
| RBC CAPITAL MARKETS, LLC | ||||||||
| UBS SECURITIES LLC | ||||||||
| ▇▇▇▇▇ FARGO SECURITIES, LLC | ||||||||
| As Representatives of the Several Underwriters Referred to Below | ||||||||
| BY: ▇▇▇▇▇ FARGO SECURITIES, LLC | ||||||||
| By: | ||||||||
| Authorized Signatory | ||||||||
| Acting on behalf of itself and the other named Underwriters. | ||||||||
| Accepted: | ||||||||
| TELEPHONE AND DATA SYSTEMS, INC. | ||||||||
| By | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| By | ||||||||
| Name: | ||||||||
| Title: | ||||||||
[Signature Page to the Terms Agreement]
Free Writing Prospectus
(To Prospectus dated February 23, 2021 and
Preliminary Prospectus Supplement Dated February 23, 2021)
Annex I to Terms Agreement
Form of Pricing Term Sheet
TELEPHONE AND DATA SYSTEMS, INC.
16,000,000 Depositary Shares
Each representing a 1/1,000th Interest in a Share of
6.625% Series UU Cumulative Redeemable Perpetual Preferred Stock
(Liquidation Preference Equivalent to $25.00 Per Depositary Share)
Pricing Term Sheet
| Issuer: | Telephone Data Systems, Inc. | |||||||
| Security: | Depositary shares (the “Depositary Shares”) each representing a 1/1,000 interest in a share of Telephone and Data Systems, Inc.’s 6.625% Series UU Cumulative Redeemable Perpetual Preferred Stock (the “Preferred Stock”). | |||||||
| Size: | $400,000,000 (16,000,000 Depositary Shares) | |||||||
| Over-Allotment Option: | $60,000,000 (2,400,000 Depositary Shares) | |||||||
| Liquidation Preference: | $25,000 per share of Preferred Stock (equivalent to $25.00 per Depositary Share) | |||||||
| Trade Date: | February 23, 2021 | |||||||
| Settlement Date: | March 2, 2021 (T+5) | |||||||
| Price to Public: | $25.00 per Depositary Share | |||||||
| Preferred Stock: | ||||||||
| Term: | Perpetual | |||||||
| Dividend Rate: | 6.625% | |||||||
| Dividend Payment Dates: | March 31, June 30, September 30 and December 31, commencing June 30, 2021 | |||||||
| Optional Redemption: | The Issuer may, at its option, redeem the Preferred Stock: •in whole, at any time, or in part, from time to time, on or after March 31, 2026, at a redemption price in cash equal to $25,000 per share of Preferred Stock (equivalent to $25.00 per Depositary Share); •in whole but not in part, at any time prior to March 31, 2026, within 120 days after the conclusion of any review or appeal process instituted by us following the occurrence of a “Ratings Event” (as defined in the Preliminary Prospectus Supplement) or, if no review or appeal process is available or sought with respect to such Ratings Event, at any time within 120 days after the occurrence of such Ratings Event, at a redemption price in cash equal to $25,500 per share of Preferred Stock (equivalent to $25.50 per Depositary Share); or •in whole or in part, upon the occurrence of a Change of Control Triggering Event (as defined in the Preliminary Prospectus Supplement), within 120 days after the first date on which such Change of Control Triggering Event occurred, at a redemption price in cash equal to $25,000 per share of Preferred Stock (equivalent to $25.00 per Depositary Share), plus, in each case, all accumulated and unpaid dividends (whether or not declared) to, but excluding, such redemption date. | |||||||
| Change of Control Conversion Share Cap: | 2.773200 | |||||||
| Listing: | The Issuer intends to apply to list the Depositary Shares on the New York Stock Exchange under the symbol “TDSPrU” and, if the application is approved, expects trading in the Depositary Shares on the New York Stock Exchange to begin within 30 days after the Settlement Date. | |||||||
| CUSIP/ISIN of the Depositary Shares: | 879433 787 / US8794337878 | |||||||
| Joint Book-Running Managers: | BofA Securities, Inc. Citigroup Global Markets Inc. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC RBC Capital Markets, LLC UBS Securities LLC ▇▇▇▇▇ Fargo Securities, LLC | |||||||
| Co-Managers: | BNY Mellon Capital Markets, LLC CIBC World Markets Corp. TD Securities (USA) LLC U.S. Bancorp Investments, Inc. | |||||||
The issuer has filed a registration statement (including a prospectus) with the SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in that registration statement and other documents the issuer has filed with the SEC for more complete information about the issuer and this offering.
You may get these documents for free by visiting ▇▇▇▇▇ on the SEC Web site at ▇▇▇.▇▇▇.▇▇▇. Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange to send you the prospectus if you request it by contacting BofA Securities, Inc., toll-free at 1-800-294-1322 or email ▇▇.▇▇▇▇▇▇▇▇▇▇_▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇; or Citigroup Global Markets Inc. toll-free at 1-800-831-9146 or ▇▇▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇; or ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC, toll-free at ▇-▇▇▇-▇▇▇-▇▇▇▇; RBC Capital Markets, LLC toll-free at ▇-▇▇▇-▇▇▇-▇▇▇▇ or email ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇; UBS Securities LLC, toll-free at 1-888-827-7275; or ▇▇▇▇▇ Fargo Securities, LLC, toll-free at ▇-▇▇▇-▇▇▇-▇▇▇▇ or email ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇.
Annex II to Terms Agreement
TELEPHONE AND DATA SYSTEMS, INC.
Underwriting Agreement
[see attached]
Exhibit B
FORM OF OPINION OF SIDLEY AUSTIN LLP
TO BE DELIVERED PURSUANT TO
SECTION 5(B)
Exhibit C
FORM OF OPINION OF ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
GENERAL COUNSEL OF THE COMPANY
TO BE DELIVERED PURSUANT TO
SECTION 5(B)
Exhibit D
FORM OF OPINION OF ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
GENERAL COUNSEL OF UNITED STATES CELLULAR CORPORATION
TO BE DELIVERED PURSUANT TO
SECTION 5(B)
Exhibit E
FORM OF OPINION OF HOLLAND & KNIGHT LLP
TO BE DELIVERED PURSUANT TO
SECTION 5(B)
Exhibit F
FORM OF OPINION OF ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP TO BE DELIVERED
PURSUANT TO SECTION 5(B)