25,000,000 SHARES
▇▇▇▇▇▇ COMMUNICATIONS CORPORATION
CLASS A COMMON STOCK, PAR VALUE $0.001 PER SHARE
UNDERWRITING AGREEMENT
February __, 2000
▇▇▇▇▇▇ BROTHERS INC.
BANC OF AMERICA SECURITIES LLC
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
DEUTSCHE BANK SECURITIES INC.
▇▇▇▇▇▇▇, SACHS & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED,
As Representatives of the several
Underwriters named in Schedule 1,
c/▇ ▇▇▇▇▇▇ Brothers Inc.
Three World ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
and
Banc of America Securities LLC
▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear Sirs:
▇▇▇▇▇▇ Communications Corporation, an Oklahoma corporation (the
"Company"), proposes to sell 25,000,000 shares (the "Firm Stock") of the
Company's Class A Common Stock, par value $0.001 per share (the "Class A Common
Stock"). In addition, the Company and the stockholders of the Company named in
Schedule 2 hereto (the "Selling Stockholders") propose to grant to the
Underwriters named in Schedule 1 hereto (the "Underwriters") an option to
purchase up to an aggregate additional 3,750,000 shares of the Class A Common
Stock on the terms and for the purposes set forth in Section 3 (the "Option
Stock"). ▇▇▇▇▇▇ Brothers Inc. and Banc of America Securities LLC are acting as
joint book running managers for the offering of the Stock and ▇▇▇▇▇▇▇ ▇▇▇▇▇
Barney Inc. is acting as joint lead manager for the offering of the Stock.
Deutsche Bank Securities Inc., ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. and ▇▇▇▇▇▇▇ Lynch, Pierce,
▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated are acting as co-managers for the offering of the
Stock. The Firm Stock and the Option Stock, if purchased, are hereinafter
collectively called the "Stock." This is to confirm the agreement concerning
the purchase of the Stock from the Company and, in
the case of the Option Stock, from the Company and the Selling Stockholders,
by the Underwriters.
It is understood that ___________ shares of the Firm Stock
initially will be reserved by ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. out of the Stock set
forth opposite its name on Schedule I of this Agreement, for offer and sale upon
the terms and conditions set forth in the Prospectus (as defined below) and in
accordance with the rules and regulations of the National Association of
Securities Dealers, Inc. (the "NASD") to officers, directors, employees and
persons having business relationships with the Company and its subsidiaries
(collectively, "Participants") as set forth in the Prospectus under the caption
"Underwriting--Directed Share Program" who have heretofore delivered to ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ Inc. offers or indications of interest to purchase shares of Firm
Stock in form satisfactory to ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. The Firm Stock to be
sold by ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. pursuant to the Directed Share Program (the
"Directed Shares") will be sold by ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. pursuant to this
Agreement at the public offering price. Any Directed Shares not orally
confirmed for purchase by any Participants by the end of the business day on
which this Agreement is executed will be offered to the public by ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Inc. as set forth in the Prospectus.
1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY.
The Company represents, warrants and agrees that:
(a) A registration statement on Form S-1, and amendments
thereto, with respect to the Stock has (i) been prepared by the
Company in conformity with the requirements of the United States
Securities Act of 1933, as amended (the "Securities Act"), and the
rules and regulations (the "Rules and Regulations") of the United
States Securities and Exchange Commission (the "Commission")
thereunder, (ii) been filed with the Commission under the
Securities Act and (iii) become effective under the Securities
Act. Copies of such registration statement and the amendments
thereto have been delivered by the Company to you as the
representatives (the "Representatives") of the Underwriters. As
used in this Agreement, "Effective Time" means the date and the
time as of which such registration statement, or the most recent
post-effective amendment thereto, if any, was declared effective
by the Commission; "Effective Date" means the date of the
Effective Time; "Preliminary Prospectus" means each prospectus
included in such registration statement, or amendments thereof,
before it became effective under the Securities Act and any
prospectus filed with the Commission by the Company pursuant to
Rule 424(a) of the Rules and Regulations; "Registration Statement"
means such registration statement, as amended at the Effective
Time, including all information contained in the final prospectus
filed with the Commission pursuant to Rule 424(b) of the Rules and
Regulations in accordance with Section 6(a) hereof and deemed to
be a part of the registration statement as of the Effective Time
pursuant to paragraph (b)
2
of Rule 430A of the Rules and Regulations and, in the event any
post-effective amendment thereto or any registration statement
filed with the Commission pursuant to Rule 462(b) of the Rules
and Regulations becomes effective prior to either Delivery
Date, shall also mean such registration statement as so amended
or such registration statement filed with the Commission
pursuant to Rule 462(b) of the Rules and Regulations, as the
case may be; and "Prospectus" means such final prospectus, as
first filed with the Commission pursuant to paragraph (1) or
(4) of Rule 424(b) of the Rules and Regulations. The Commission
has not issued any order preventing or suspending the use of
any Preliminary Prospectus.
(b) The Registration Statement conforms, and the
Prospectus and any further amendments or supplements to the
Registration Statement or the Prospectus will, when they become
effective or are filed with the Commission, as the case may be,
conform in all respects to the requirements of the Securities Act
and the Rules and Regulations and do not and will not, as of the
applicable effective date (as to the Registration Statement and
any amendment thereto) and as of the applicable filing date, the
date hereof and each Delivery Date (as to the Prospectus and any
amendment or supplement thereto) contain an untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein (in the
case of the Prospectus, in light of the circumstances under which
they were made) not misleading; PROVIDED that no representation or
warranty is made as to information contained in or omitted from
the Registration Statement, the Prospectus or any further
amendments or supplements to the Registration Statement or the
Prospectus in reliance upon and in conformity with written
information furnished to the Company through the Representatives
by or on behalf of any Underwriter specifically for inclusion
therein, it being understood that the only information so
furnished is specified in Section 10(g).
(c) The Company and each of its subsidiaries (as defined
in Section 17) have been duly incorporated and are validly
existing as corporations in good standing under the laws of their
respective jurisdictions of incorporation, are duly qualified to
do business and are in good standing as foreign corporations in
each jurisdiction in which their respective ownership or lease of
property or the conduct of their respective businesses requires
such qualification, except where the failure to be so qualified
would not reasonably be expected to have a material adverse effect
on the consolidated financial position, stockholders' equity,
results of operations, business or prospects of the Company and
its subsidiaries taken as a whole (a "Material Adverse Effect"),
and each have all power and authority necessary to own or hold
their respective properties and to conduct the businesses in which
they are engaged, except where the failure
3
to have such power and authority would not reasonably be
expected to have a Material Adverse Effect; and none of the
subsidiaries of the Company (other than [▇▇▇▇▇▇ Operating
Company LLC, ▇▇▇▇▇▇ Cellular Systems, Inc. and ▇▇▇▇▇▇/Sygnet
Communications, Inc.] (collectively, the "Significant
Subsidiaries")) is a "significant subsidiary," as such term is
defined in Rule 405 of the Rules and Regulations.
(d) At the First Delivery Date (as defined in Section 5),
the Company will have an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of
the Company will have been duly authorized and validly issued,
will be fully paid and non-assessable and will conform, in all
material respects, to the description thereof contained in the
Prospectus. All of the issued shares of capital stock of each
subsidiary of the Company have been duly authorized and validly
issued and are fully paid and non-assessable and (except as set
forth in the Prospectus) are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or
claims.
(e) The shares of the Stock to be issued and sold by the
Company to the Underwriters hereunder have been duly authorized
and, when issued and delivered against payment therefor as
provided herein, will be validly issued, fully paid and
non-assessable and the Stock will conform, in all material
respects, to the description thereof contained in the Prospectus.
The certificates for the Class A Common Stock (including the
shares of Stock being delivered on the date hereof) are in valid
and sufficient form.
(f) This Agreement has been duly authorized, executed and
delivered by the Company and (assuming the due authorization,
execution and delivery thereof by the other parties thereto)
constitutes the legal, valid and binding agreement of the Company
enforceable against it in accordance with its terms, subject to
the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at
law) or an implied covenant of good faith and fair dealing.
(g) The execution, delivery and performance of this
Agreement by the Company and the consummation of the transactions
contemplated hereby, by the Company's amended and restated
certificate of incorporation and by the Agreement and Plan of
Recapitalization, dated as of January [__], 2000, among the
Company, ▇▇▇▇▇▇ Operating Company, ▇▇▇▇▇▇ ▇▇ Limited Partnership,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇.▇. Childs Equity Partners II, L.P., AT&T
Wireless Services, Inc. and the holders of issued and outstanding
shares of the Company's pre-recapitalization Class A Common Stock,
par value $.001 per share, and Class D Preferred Stock, par value
$1.00 per share, listed on the signature pages therein (the
4
"Recapitalization Agreement"), providing for the recapitalization
described in the Prospectus under the captions "Capitalization,"
"The Recapitalization" and "Description of Capital Stock" (such
actions are herein collectively called the "Recapitalization"),
(i) will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject, except for such
conflicts, breaches or violations that, individually or in the
aggregate, would not have a Material Adverse Effect; (ii) nor will
such actions result in any violation of the provisions of the
charter or by-laws of the Company or any of its subsidiaries;
(iii) nor will such actions result in any violation of any statute
or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties or assets, except for such
violations that, individually or in the aggregate, would not have
a Material Adverse Effect; and (iv) except for the registration of
the Stock under the Securities Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
(a) under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), (b) by applicable state or foreign securities
laws in connection with the purchase and distribution of the Stock
by the Underwriters and (c) by the NASD, no consent, approval,
authorization or order of, or filing or registration with, any
such court or governmental agency or body is required for the
execution, delivery and performance of this Agreement by the
Company and the consummation of the transactions contemplated
hereby and by the Recapitalization.
(h) Except as described in the Registration Statement,
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 Securities
Act with respect to any securities of the Company owned or to be
owned by such person or to require the Company to include any
securities owned or to be owned by such person 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 Securities Act. The
holders of outstanding shares of the Company's capital stock are
not entitled to preemptive or other rights to subscribe for the
Stock other than preemptive or other rights set forth in the
Registration Statement which have been waived by the holders
thereof. Except as set forth in the Registration Statement, no
options, warrants or other rights to purchase, agreements or other
obligations to issue, or rights to convert any
5
obligations into or exchange any securities for, shares of capital
stock of or ownership interests in the Company are outstanding.
(i) Except as described or contemplated in the
Registration Statement, the Company has not sold or issued any
shares of Class A Common Stock (or any securities of the same
class as the Class A Common Stock) during the six-month period
preceding the date of the Prospectus, including any sales pursuant
to Rule 144A under, or Regulations D or S of, the Securities Act.
(j) Neither the Company nor any of its subsidiaries has
sustained, since the date of the latest audited financial
statements included in the Prospectus, any material loss or
interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree;
and, since such date, there has not been any change in the capital
stock of the Company or long-term debt of the Company or any of
its subsidiaries (other than as described or contemplated in the
Prospectus or pursuant to the Recapitalization Agreement as
described in the Prospectus under the captions "Capitalization,"
"The Recapitalization" and "Description of Capital Stock") or any
material adverse change, or any development involving a
prospective material adverse change, in or affecting the general
affairs, management, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries.
(k) The historical and PRO FORMA financial statements,
together with the related notes, filed as part of the Registration
Statement or included in the Prospectus comply as to form in all
material respects with the requirements of Regulation S-X under
the Securities Act applicable to registration statements on Form
S-1 under the Securities Act. The historical financial statements
(including the related notes and supporting schedules) filed as
part of the Registration Statement or included in the Prospectus
present fairly in all material respects the financial condition
and results of operations of the entities purported to be shown
thereby, at the dates and for the periods indicated, and have been
prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods
involved except as may be stated in the related notes thereto.
The unaudited PRO FORMA consolidated financial statements have
been prepared on a basis consistent with such historical
statements of the Company, except for the PRO FORMA adjustments
specified therein, and give effect to assumptions described in the
Prospectus which have been made on a reasonable basis and in good
faith. The unaudited proportionate adjusted statements of
operations, together with the related notes, included in the
Prospectus have been derived from the financial records of the
Company and American Cellular
6
Corporation and, in all material respects, have been prepared
on a basis consistent with such books and records of the
Company and American Cellular Corporation, except for the PRO
FORMA adjustments specified therein, and give effect to
assumptions described in the Prospectus which have been made on
a reasonable basis and in good faith. The other financial and
statistical information and data included in the Prospectus,
historical and PRO FORMA, have been derived from the financial
records of the Company and, in all material respects, have been
prepared on a basis consistent with such books and records of
the Company and present fairly the historical and proposed
transactions contemplated by the Prospectus and this Agreement.
The industry, customer and statistical data and estimates, and
the information relating to American Cellular Corporation
included in the Prospectus are based on or derived from sources
that the Company believes are accurate and reliable in all
material respects.
(l) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, independent public accountants,
who have audited certain financial statements of the Company,
whose report appears in the Prospectus and who have delivered the
initial letter referred to in Section 9(h) hereof, are independent
public accountants with respect to the Company as required by the
Securities Act and the Rules and Regulations; based on the initial
letter referred to in Section 9(i) hereof, Ernst & Young LLP,
independent auditors, whose reports appear in the Prospectus and
who have delivered the initial letter referred to in Section 9(i)
hereof with respect to Sygnet Wireless, Inc., were independent
accountants with respect to Sygnet Wireless, Inc. for the periods
covered by their report as required by the Securities Act and the
Rules and Regulations; and based on the initial letter referred to
in Section 9(j) hereof, Ernst & Young LLP, independent auditors,
whose reports appear in the Prospectus and who have delivered the
initial letter referred to in Section 9(j) hereof with respect to
American Cellular Corporation and its predecessor, PriCellular
Corporation, were independent accountants with respect to American
Cellular Corporation for the periods covered by their report as
required by the Securities Act and the Rules and Regulations.
(m) The Company and each of its subsidiaries have good and
marketable title to all real property and good title to all
personal property reflected as owned by them in the financial
statements referred to in Section 1(k) of this Agreement (or
elsewhere in the Prospectus), in each case free and clear of all
liens, encumbrances and defects except as are described in the
Prospectus or such as would not reasonably be expected to have a
Material Adverse Effect; and all real property and buildings held
under lease by the Company and its subsidiaries are held by them
under valid, subsisting and enforceable leases, with such
exceptions as would not reasonably be expected to have a Material
Adverse Effect.
7
(n) The Company and each of its subsidiaries carry, or are
covered by, insurance in such amounts and covering such risks as
is adequate for the conduct of their respective businesses and the
value of their respective properties and, to the Company's best
knowledge, as is customary for companies engaged in similar
businesses in similar industries and all such insurance is
outstanding and in force.
(o) The Company and each of its subsidiaries own or
possess adequate rights to use all material patents, patent
applications, trademarks, service marks, trade names, trademark
registrations, service ▇▇▇▇ registrations, copyrights and licenses
necessary for the conduct of their respective businesses and have
no reason to believe that the conduct of their respective
businesses will conflict with, and have not received any notice of
any claim of conflict with, any such rights of others.
(p) There are no legal or governmental proceedings pending
to which the Company or any of its subsidiaries is a party or of
which any property or assets of the Company or any of its
subsidiaries is the subject (i) which is required to be disclosed
in the Registration Statement which is not disclosed in the
Prospectus or (ii) which, if determined adversely to the Company
or any of its subsidiaries, might reasonably be expected to (A)
have a material adverse effect on the power or ability of the
Company to perform its obligations under this Agreement or the
consummation of any of the transactions contemplated hereby or in
the Prospectus; or (B) have a Material Adverse Effect; and to the
best of the Company's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or
threatened by others.
(q) There are no contracts or other documents which are
required to be described in the Prospectus or filed as exhibits to
the Registration Statement by the Securities Act or by the Rules
and Regulations which have not been described in the Prospectus or
filed or incorporated by reference as exhibits to the Registration
Statement as permitted by the Rules and Regulations.
(r) There are no relationships or related-party
transactions involving the Company or any other person required to
be described in the Prospectus pursuant to the Securities Act and
the Rules and Regulations which have not been so described in the
Prospectus under the caption "Certain Transactions."
(s) No labor disturbance by the employees of the Company
or any of its subsidiaries exists or, to the best knowledge of the
Company, is threatened or imminent which would have a Material
Adverse Effect and the Company is not aware of any such labor
disturbances by the
8
employees of the principal suppliers, contractors or customers
of the Company or its subsidiaries.
(t) Neither the Company nor any of its subsidiaries has
violated any safety or similar law applicable to its business, nor
any federal or state law relating to discrimination in the hiring,
promotion or pay of employees nor any applicable federal or state
wages and hours laws, except for violations that, individually or
in the aggregate, would not have a Material Adverse Effect. The
Company is in compliance in all material respects with all
presently applicable provisions of the Employee Retirement Income
Security Act of 1974, as amended, including the regulations and
published interpretations thereunder ("ERISA"); no "reportable
event" (as defined in ERISA) has occurred with respect to any
"pension plan" (as defined in ERISA) except for such events that,
individually or in the aggregate, would not have a Material
Adverse Effect; the Company has not incurred and does not expect
to incur liability under (i) Title IV of ERISA with respect to
termination of, or withdrawal from, any "pension plan" or (ii)
Sections 412 or 4971 of the Internal Revenue Code of 1986, as
amended, including the regulations and published interpretations
thereunder (the "Code"); and each "pension plan" for which the
Company would have any liability that is intended to be qualified
under Section 401(a) of the Code is so qualified in all material
respects and to the best of the Company's knowledge nothing has
occurred, whether by action or by failure to act, which would
cause the loss of such qualification.
(u) The Company has filed all federal, state and local
income and franchise tax returns required to be filed through the
date hereof and has paid all taxes reflected as due thereon, and
no tax deficiency has been determined adversely to the Company or
any of its subsidiaries which has had (nor does the Company have
any knowledge of any tax deficiency which, if determined adversely
to the Company or any of its subsidiaries, might have) a Material
Adverse Effect.
(v) Since the date as of which information is given in the
Registration Statement through the date hereof, and except as may
otherwise be disclosed in the Prospectus, the Company has not (i)
issued or granted any securities (other than issuances, if any,
pursuant to employee benefit plans described in the Prospectus or
upon the exercise of outstanding options described in the
Prospectus), (ii) incurred any liability or obligation, direct or
contingent, other than liabilities and obligations which were
incurred in the ordinary course of business, (iii) entered into
any transaction not in the ordinary course of business except as
disclosed in the Prospectus or (iv) declared or paid any dividend
on its capital stock.
(w) The Company and each of its subsidiaries (i) makes and
keeps accurate books and records and (ii) maintains internal
accounting controls
9
which provide reasonable assurance that (A) transactions are
executed in accordance with management's authorization, (B)
transactions are recorded as necessary to permit preparation of
its financial statements and to maintain accountability for its
assets, (C) access to its assets is permitted only in
accordance with management's authorization and (D) the reported
accountability for its assets is compared with existing assets
at reasonable intervals.
(x) Neither the Company nor any of its subsidiaries (i) is
in violation of its charter or by-laws, (ii) is in default in any
material respect, and no event has occurred which, with notice or
lapse of time or both, would constitute such a default, in the due
performance or observance of any term, covenant or condition
contained in any material indenture, mortgage, deed of trust, loan
agreement or other material agreement or instrument to which it is
a party or by which it is bound or to which any of its properties
or assets is subject, including, without limitation, operating
agreements or (iii) is in violation in any material respect of any
law, ordinance, governmental rule, regulation or court decree to
which it or its property or assets may be subject or has failed to
obtain any material license, permit, certificate, franchise or
other governmental authorization or permit necessary to the
ownership of its property or to the conduct of its business.
(y) Neither the Company nor any of its subsidiaries, nor
to the Company's best knowledge any director, officer, agent,
employee or other person associated with or acting on behalf of
the Company or any of its subsidiaries, has used any corporate
funds for any unlawful contribution, gift, entertainment or other
unlawful expense relating to political activity; made any direct
or indirect unlawful payment to any foreign or domestic government
official or employee from corporate funds; violated or is in
violation of any provision of the Foreign Corrupt Practices Act of
1977; or made any bribe, rebate, payoff, influence payment,
kickback or other unlawful payment.
(z) There has been no storage, disposal, generation,
manufacture, refinement, transportation, handling or treatment of
toxic wastes, medical wastes, hazardous wastes or hazardous
substances by the Company or any of its subsidiaries (or, to the
knowledge of the Company, any of their predecessors in interest)
at, upon or from any of the property now or previously owned or
leased by the Company or its subsidiaries in violation of any
applicable law, ordinance, rule, regulation, order, judgment,
decree or permit or which would require remedial action under any
applicable law, ordinance, rule, regulation, order, judgment,
decree or permit, except for any violation or remedial action
which would not have, or would not be reasonably likely to have,
singularly or in the aggregate with all such
10
violations and remedial actions, a Material Adverse Effect;
there has been no material spill, discharge, leak, emission,
injection, escape, dumping or release of any kind onto such
property or into the environment surrounding such property of
any toxic wastes, medical wastes, solid wastes, hazardous
wastes or hazardous substances due to or caused by the Company
or any of its subsidiaries or with respect to which the Company
or any of its subsidiaries have knowledge, except for any such
spill, discharge, leak, emission, injection, escape, dumping or
release which would not have or would not be reasonably likely
to have, singularly or in the aggregate with all such spills,
discharges, leaks, emissions, injections, escapes, dumpings and
releases, a Material Adverse Effect; and the terms "hazardous
wastes," "toxic wastes," "hazardous substances" and "medical
wastes" shall have the meanings specified in any applicable
local, state, federal and foreign laws or regulations with
respect to environmental protection.
(ab) Neither the Company nor any subsidiary is, or will be
after the offering of the Stock and the use of proceeds therefrom,
an "investment company" within the meaning of such term under the
Investment Company Act and the rules and regulations of the
Commission thereunder.
(ac) Except as would not have a Material Adverse Effect,
(i) the Company and its subsidiaries, have (A) such permits,
licenses, franchises and authorizations of governmental or
regulatory authorities (federal, foreign, state or local)
("Permits"), including, without limitation, under any applicable
environmental laws, as are necessary to own, lease and operate
their respective properties and to conduct their businesses as
presently conducted and as proposed to be conducted as described
in the Prospectus, and (B) fulfilled and performed all of their
respective material obligations with respect to the Permits, and
(ii) to the Company's best knowledge no event has occurred that
would allow, or after notice or lapse of time would allow,
revocation or termination of any Permit or that would result in
any other material impairment of the rights granted to the Company
or any of its subsidiaries under any Permit, and the Company has
no reason to believe that any governmental body or agency is
considering limiting, suspending or revoking any Permit.
(ad) Neither the Company nor any of its subsidiaries is a
party in interest or disqualified person (as those terms are
defined in Section 3(14) of ERISA and Section 4975 of the Code
respectively) with respect to any employee benefit plans other
than employee benefit plans sponsored by the Company or any of its
subsidiaries and covering employees of the Company or any of its
subsidiaries.
11
(ae) All licenses and authorizations issued by the
Federal Communications Commission ("FCC") and state authorities
governing telecommunications matters (the "Licenses") required for
the operation of the business of the Company and its subsidiaries
are in full force and effect and there are no pending
modifications, amendments or revocation proceedings which would
adversely affect the operation of any of the telecommunications
business currently owned by the Company and its subsidiaries (the
"Businesses"). All fees due and payable to governmental
authorities pursuant to the rules governing Licenses have been
paid. No event has occurred with respect to the Licenses held by
the Company, or its respective subsidiaries, which, with the
giving of notice or the lapse of time or both, would constitute
grounds for revocation of any Licenses. Each of the Company and
its subsidiaries is in compliance in all material respects with
the terms of the Licenses, as applicable, and there is no
condition, event or occurrence existing, nor is there any
proceeding being conducted of which the Company has received
notice, nor, to the Company's best knowledge, is there any
proceeding threatened, by any governmental authority, which would
cause the termination, suspension, cancellation or nonrenewal of
any of the Licenses, or the imposition of any penalty or fine
(that is material to the Company and its subsidiaries, taken as a
whole) by any regulatory authority. No registrations, filings,
applications, notices, transfers, consents, approvals, audits,
qualifications, waivers or other action of any kind is required by
virtue of the execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated
hereby and the Recapitalization, and the issuance and delivery of
the Stock, to avoid the loss of any such License, permit, consent,
concession or other authorization or any asset, property or right
pursuant to the terms thereof, or the violation or breach of any
applicable law thereto.
(af) Except as disclosed in the Prospectus, since January
1, 2000, all of the Company's computer applications and, to the
best knowledge of the Company, those of the Company's suppliers,
vendors and customers, that are material to its or any of its
subsidiaries' business and operations have operated in the
ordinary course of business and are Year 2000 Compliant, except
for such non-compliance that would not have a Material Adverse
Effect, and the occurrence of calendar year 2000 has not had a
Material Adverse Effect. For purposes of this subsection (af),
"Year 2000 Compliant" means (i) with respect to Date Data, that
such data is in proper format and (ii) with respect to
Date-Sensitive Systems, that each such system accurately processes
all Date Data, including for the twentieth and twenty-first
centuries, without loss of any functionality or performance,
including, without limitation, calculating, comparing, sequencing,
storing and displaying such Date Data (including all leap year
considerations), when used as a stand-alone system or in
combination with
12
other software or hardware; "Date Data" means any data of any
kind that consists of date information or which is otherwise
derived from, dependent on or related to date information; and
"Date-Sensitive System" means any software, microcode or
hardware system or component, including any electronic or
electronically controlled system or component that processes
any Date Data and that is installed, in development or on
order, for internal or external use, or the provision or
operation of which provides a benefit to customers, vendors,
suppliers or any other party.
(ag) There are no contracts, agreements or understandings
between the Company and its subsidiaries and any other person that
would give rise to a valid claim against the Company or any of its
subsidiaries or the Underwriters for a brokerage commission,
finder's fee or like payment in connection with the issuance,
purchase and sale of the Stock, except (A) pursuant to or
contemplated by this Agreement and (B) contracts, agreements or
understandings for the payment of a brokerage commission, finder's
fee or like payment to the Underwriters.
(ah) There are no transfer taxes or other similar fees or
charges under federal law or the laws of any state or foreign
jurisdiction, or any political subdivision thereof, required to be
paid in connection with the execution and delivery of this
Agreement or the issuance by the Company or sale by the Company of
the Stock (including Directed Shares).
(ai) The Company has not taken, directly or indirectly,
any action designed to or which has constituted or which might
reasonably be expected to cause or result, under the Exchange Act
or otherwise, in stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Stock.
(aj) At the First Delivery Date the Company's amended and
restated certificate of incorporation providing for the
Recapitalization as described in the Prospectus will have been
duly filed with the Secretary of State of the State of Oklahoma
and the Recapitalization will have become effective.
(ak) (i) The Recapitalization Agreement, the Agreement and
Plan of Merger, dated October 5, 1999, among ACC Acquisition LLC,
ACC Acquisition Co. and American Cellular Corporation (the "Merger
Agreement"), the Amended and Restated Limited Liability Company
Agreement of ACC Acquisition LLC, dated as of January [__], 2000,
between AT&T Wireless Services JV Co., ▇▇▇▇▇▇ ▇▇ Company [and ACC
Acquisition LLC] (the "LLC Agreement"), the Operating Agreement,
dated as of January [__], 2000, among AT&T Wireless Services, Inc.
and its affiliates, and ACC Acquisition LLC, on behalf of American
Cellular Corporation and its affiliates (the "Operating
13
Agreement"), and the Management Agreement, dated as of January
[__], 2000, between ▇▇▇▇▇▇ Cellular Systems, Inc. and ACC
Acquisition LLC, (the "Management Agreement" and, together with
the Merger Agreement, the Operating Agreement, the Management
Agreement and the LLC Agreement, the "American Cellular
Agreements") are in full force and effect and no party to the
Recapitalization Agreement or any of the American Cellular
Agreements has sought to modify, amend or waive any of the
provisions thereof; (ii) the representations and warranties of the
Company, and to the knowledge of the Company the representations
and warranties of the other parties to the Recapitalization
Agreement and the American Cellular Agreements, contained in the
Recapitalization Agreement and the American Cellular Agreements,
respectively, were true and correct in all respects as of the
dates of the Recapitalization Agreement and the American Cellular
Agreements, respectively, and as of the date hereof; the Company
is not, and to the knowledge of the Company, no other party to the
Recapitalization Agreement or any of the American Cellular
Agreements is in breach of any of the terms thereof; (iii) except
as disclosed in or contemplated by the Recapitalization Agreement
or any of the American Cellular Agreements, no consent, approval,
authorization or order of, or filing or registration with, any
court or governmental agency or body was required for the
execution and delivery of, or is required for the performance of,
the Recapitalization Agreement or any of the American Cellular
Agreements by any of the parties thereto and the consummation of
the transactions contemplated thereby; and (iv) other than the
American Cellular Agreements, there are no other material
agreements relating to the Company's proposed joint venture with
AT&T Wireless Services, Inc. or to acquire American Cellular
Corporation.
(al) The Company has not distributed or forwarded any
written or electronic communications relating to the offering of
the Stock or the Directed Share Program to Participants or
prospective Participants in the Directed Share Program and has not
authorized any other person to distribute or forward such
communications other than ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
(am) None of the Directed Shares has been or will be
offered or sold outside of the United States pursuant to the
Directed Share Program.
(an) The Nasdaq Stock Market has approved the Stock for
inclusion in the National Market System, subject only to official
notice of issuance.
2. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE SELLING
STOCKHOLDERS. Each Selling Stockholder severally, and not jointly, represents,
warrants and agrees that:
14
(a) The Selling Stockholder has, and immediately prior to
the Second Delivery Date (as defined in Section 5 hereof) the
Selling Stockholder will have good and valid title to the shares
of Option Stock to be sold by the Selling Stockholder hereunder on
such date, free and clear of all liens, encumbrances, equities or
claims; and upon delivery of such shares and payment therefor
pursuant hereto, and assuming each Underwriter has no notice of
any adverse claim (as used in Section 8-105 of the Uniform
Commercial Code), good and valid title to such shares, free and
clear of all liens, encumbrances, equities or claims, will pass to
the several Underwriters.
(b) The Selling Stockholder has placed in custody under an
Irrevocable Power of Attorney and Custody Agreement (the
"Irrevocable Power of Attorney and Custody Agreement" and,
together with all other similar agreements executed by the other
Selling Stockholders, the "Irrevocable Power of Attorney and
Custody Agreements") with UMB Bank, n.a., as custodian (the
"Custodian"), for delivery under this Agreement, certificates in
negotiable form (with signature guaranteed by a commercial bank or
trust company having an office or correspondent in the United
States or a member firm of the New York or American Stock
Exchanges) representing shares of the Company's common stock that
will be converted into shares of Class B Common Stock, par value
$0.001 per share, of the Company pursuant to the Recapitalization
Agreement (the "Class B Common Stock") and upon transfer and
delivery to the Underwriters hereunder will automatically convert
to shares of Class A Common Stock to be sold by the Selling
Stockholder hereunder as Option Stock.
(c) The Selling Stockholder has duly and irrevocably
executed and delivered a power of attorney contained in the
Irrevocable Power of Attorney and Custody Agreement appointing the
Custodian and one or more other persons, as attorneys-in-fact,
with full power of substitution, and with full authority
(exercisable by any one or more of them) to execute and deliver
this Agreement and to take such other action as may be necessary
or desirable to carry out the provisions hereof on behalf of the
Selling Stockholder.
(d) This Agreement and the Irrevocable Power of Attorney
and Custody Agreement have been duly authorized by the Selling
Stockholder if the Selling Stockholder is a corporation,
partnership, trust or other business entity, and have each been
duly executed and delivered by or on behalf of such Selling
Stockholder and constitute valid and binding agreements of such
Selling Stockholder, enforceable against such Selling Stockholder
in accordance with their respective terms.
15
(e) The Selling Stockholder has full right, power and
authority to enter into this Agreement and the Irrevocable Power
of Attorney and Custody Agreement; the execution, delivery and
performance of this Agreement and the Irrevocable Power of
Attorney and Custody Agreement by the Selling Stockholder and the
consummation by the Selling Stockholder of the transactions
contemplated hereby and thereby (i) will not conflict with or
result in a breach or violation of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which
the Selling Stockholder is a party or by which the Selling
Stockholder is bound or to which any of the property or assets of
the Selling Stockholder is subject, except for such conflicts,
breaches or violations that, individually or in the aggregate,
would not have a material adverse effect on the power or ability
of the Selling Stockholder to perform its obligations under this
Agreement or the consummation of any of the transactions
contemplated hereby or in the Prospectus; (ii) nor will such
actions result in any violation of the provisions of (x) the
charter or by-laws of the Selling Stockholder if the Selling
Stockholder is a corporation, (y) the partnership agreement and
articles of partnership of the Selling Stockholder if the Selling
Stockholder is a partnership or (z) the deed of trust of the
Selling Stockholder if the Selling Stockholder is a trust; (iii)
nor will such actions result in any violation of any statute or
any order, rule or regulation of any court or governmental agency
or body having jurisdiction over the Selling Stockholder or the
property or assets of the Selling Stockholder, except for such
violations as will not have a material adverse effect on the power
or ability of the Selling Stockholder to perform its obligations
under this Agreement or the consummation of any of the
transactions contemplated hereby or in the Prospectus; and (iv)
except for the registration of the Option Stock under the
Securities Act and such consents, approvals, authorizations,
registrations or qualifications as may be required (a) under the
Exchange Act, (b) by applicable state or foreign securities laws
in connection with the purchase and distribution of the Option
Stock by the Underwriters and (b) by the NASD, no consent,
approval, authorization or order of, or filing or registration
with, any such court or governmental agency or body is required
for the execution, delivery and performance of this Agreement or
the Irrevocable Power of Attorney and Custody Agreement by the
Selling Stockholder and the consummation by the Selling
Stockholder of the transactions contemplated hereby and thereby.
(f) The information furnished in writing by or on behalf
of such Selling Stockholder expressly for use in the Registration
Statement and the Prospectus and any further amendments or
supplements to the Registration Statement or the Prospectus (it
being understood that the only information so furnished is
specified in the Prospectus under the captions "Principal
16
and Selling Shareholders" and on Schedule 3 hereto) does not and
will not, as of the applicable effective date (as to the
Registration Statement and any amendment thereto) and as of the
applicable filing date, the date hereof and the Second Delivery
Date (as to the Prospectus and any amendment or supplement
thereto) contain an untrue statement of a material fact with
respect to such Selling Stockholder or omit to state a material
fact with respect to such Selling Stockholder required to be
stated therein or necessary to make the statements therein
regarding the Selling Stockholder (in the case of the
Prospectus, in light of the circumstances under with they were
made) not misleading.
(g) The Selling Stockholder has not taken and will not
take, directly or indirectly, any action which is designed to or
which has constituted or which might reasonably be expected to
cause or result in the stabilization or manipulation of the price
of any security of the Company to facilitate the sale or resale of
the shares of the Stock.
(h) Other than as disclosed in the Prospectus, within the
past five years the Selling Stockholder has held no position or
office or had any other relationship with the Company required to
be disclosed pursuant to the Securities Act and the Rules and
Regulations. The Selling Stockholder acknowledges and consents to
the inclusion of its name and address and the information under
the heading "Principal and Selling Shareholders--Selling
Shareholders" in the Prospectus.
3. PURCHASE OF THE STOCK BY THE UNDERWRITERS. On the basis of
the representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Company agrees to sell 25,000,000 shares of
the Firm Stock to the several Underwriters and each of the Underwriters,
severally and not jointly, agrees to purchase the number of shares of the Firm
Stock set opposite that Underwriter's name in Schedule 1 hereto. The respective
purchase obligations of the Underwriters with respect to the Firm Stock shall be
rounded among the Underwriters to avoid fractional shares, as the
Representatives may determine.
In addition, the Company grants to the Underwriters an option to
purchase up to _________________ shares of Option Stock and the Selling
Stockholders severally, and not jointly, grant to the Underwriters an option to
purchase up to ________________ shares of Option Stock. The Option Stock to be
sold by each such Selling Stockholder hereunder shall be equal to the number of
shares of Option Stock set forth opposite each such Selling Stockholder's name
in Schedule 2 hereto. Such option is granted for the purpose of covering
over-allotments in the sale of Firm Stock and is exercisable as provided in
Section 5 hereof. Shares of Option Stock shall be purchased severally for
the account of the Underwriters in proportion to the number of shares of Firm
Stock set opposite the name of such Underwriters in Schedule 1 hereto. The
respective purchase obligations of each Underwriter with respect to the
Option Stock shall be adjusted by the Representatives so that no Underwriter
shall be obligated to purchase Option Stock in
17
less than 100 share amounts. The price of both the Firm Stock and any Option
Stock shall be $_____ per share.
The Company shall not be obligated to deliver any of the Stock to
be delivered on any Delivery Date (as hereinafter defined), as the case may be,
except upon payment for all the Stock to be purchased from the Company on such
Delivery Date as provided herein and no Selling Stockholders shall be obligated
to deliver any of the Option Stock to be delivered on the Second Delivery Date
(as hereinafter defined), except upon payment for all the Option Stock to be
purchased by the Underwriters from such Selling Stockholder on such Second
Delivery Date.
4. OFFERING OF STOCK BY THE UNDERWRITERS.
Upon authorization by the Representatives of the release of the
Firm Stock, the several Underwriters propose to offer the Firm Stock for sale
upon the terms and conditions set forth in the Prospectus.
It is understood that the Directed Shares initially reserved by
the several Underwriters for offer and sale in connection with the Directed
Share Program shall be allocated among such persons in accordance with timely
directions received by ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. from the Company; PROVIDED,
that under no circumstances will the Representatives or any Underwriter be
liable to the Company or to any such person for any action taken or omitted in
good faith in connection with such offering to Participants in the Directed
Share Program. It is further understood that any shares of such Firm Stock
which are not purchased by such persons will be offered by the Underwriters to
the public upon the terms and conditions set forth in the Prospectus.
5. DELIVERY OF AND PAYMENT FOR THE STOCK. Delivery of and
payment for the Firm Stock shall be made at the office of Weil, Gotshal & ▇▇▇▇▇▇
LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ at 10:00 a.m., New York City
time, on the third full business day following the date of this Agreement (or
the fourth business day if this Agreement is executed after 4:30 p.m. New York
City time) or at such other date or place as shall be determined by agreement
between the Representatives and the Company. This date and time are sometimes
referred to as the "First Delivery Date." On the First Delivery Date, the
Company shall deliver or cause to be delivered certificates representing the
Firm Stock to the Representatives for the account of each Underwriter against
payment to or upon the order of the Company of the purchase price by wire
transfer in immediately available funds. Time shall be of the essence, and
delivery at the time and place specified pursuant to this Agreement is a further
condition of the obligation of each Underwriter hereunder. Upon delivery, the
Firm Stock shall be registered in such names and in such denominations as the
Representatives shall request in writing not less than two full business days
prior to the First Delivery Date. For the purpose of expediting the checking
and packaging of the certificates for the Stock, the Company shall make the
certificates representing the Firm Stock available for inspection by the
Representatives in New York, New York, not later than 2:00 P.M., New York City
time, on the business day prior to the First Delivery Date.
18
The option granted in Section 3 will expire 30 days after the date
of this Agreement and may be exercised in whole or in part from time to time by
written notice being given to the Company and the Selling Stockholders by the
Representatives. If the option is exercised in part, the Underwriters shall
purchase on a pro rata basis from the Company and each Selling Stockholder that
number of shares of Option Stock offered by the Company and each Selling
Stockholder, as the case may be, pursuant to Section 3 hereof. Such notice
shall set forth the aggregate number of shares of Option Stock as to which the
option is being exercised, the names in which the shares of Option Stock are to
be registered, the denominations in which the shares of Option Stock are to be
issued and the date and time, as determined by the Representatives, when the
shares of Option Stock are to be delivered; PROVIDED, HOWEVER, that this date
and time shall not be earlier than the First Delivery Date nor earlier than the
second business day after the date on which the option shall have been exercised
nor later than the fifth business day after the date on which the option shall
have been exercised. The date and time the shares of Option Stock are delivered
are sometimes referred to as a "Second Delivery Date" and the First Delivery
Date and any Second Delivery Date are sometimes each referred to as a "Delivery
Date".
Delivery of and payment for the Option Stock shall be made at the
place specified in the first sentence of the first paragraph of this Section 5
(or at such other place as shall be determined by agreement between the
Representatives, the Company and the Selling Stockholders) at 10:00 A.M., New
York City time, on such Second Delivery Date. On such Second Delivery Date, the
Company and each Selling Stockholder shall deliver or cause to be delivered the
certificates representing the Option Stock to be sold by them to the
Representatives for the account of each Underwriter against payment of the
purchase price by wire transfer in immediately available funds to or upon the
order of the Company, and in the case of the Selling Stockholders, to a bank
account designated by the Custodian pursuant to the Irrevocable Power of
Attorney and Custody Agreement. Time shall be of the essence, and delivery at
the time and place specified pursuant to this Agreement is a further condition
of the obligation of each Underwriter hereunder. Upon delivery, the Option
Stock shall be registered in such names and in such denominations as the
Representatives shall request in the aforesaid written notice. For the purpose
of expediting the checking and packaging of the certificates for the Option
Stock, the Company and each Selling Stockholder shall make the certificates
representing the Option Stock available for inspection by the Representatives in
New York, New York, not later than 2:00 P.M., New York City time, on the
business day prior to such Second Delivery Date.
6. FURTHER AGREEMENTS OF THE COMPANY. The Company agrees:
(a) To prepare the Prospectus in a form approved by the
Representatives and to file such Prospectus pursuant to Rule
424(b) under the Securities Act not later than the Commission's
close of business on the second business day following the
execution and delivery of this Agreement or, if applicable, such
earlier time as may be required by Rule
19
430A(a)(3) under the Securities Act; to make no further
amendment or any supplement to the Registration Statement or to
the Prospectus unless the Representatives have previously been
furnished with a copy of such amendment or supplement and have
consented to such amendment or supplement (which consent shall
not be unreasonably withheld); to advise the Representatives,
promptly after it receives notice thereof, of the time when any
amendment to the Registration Statement has been filed or
becomes effective or any supplement to the Prospectus or any
amended Prospectus has been filed and to furnish the
Representatives with copies thereof; to advise the
Representatives, promptly after it receives notice thereof, of
the issuance by the Commission of any stop order or of any
order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus, of the suspension of the
qualification of the Stock for offering or sale in any
jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the
Registration Statement or the Prospectus or for additional
information; and, in the event of the issuance of any stop
order or of any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or suspending any such
qualification, to use promptly its best efforts to obtain its
withdrawal;
(b) To furnish promptly to each of the Representatives and
to counsel for the Underwriters a signed copy of the Registration
Statement as originally filed with the Commission, and each
amendment thereto filed with the Commission, including all
consents and exhibits filed therewith;
(c) To deliver promptly to the Representatives such number
of the following documents as the Representatives shall reasonably
request: (i) conformed copies of the Registration Statement as
originally filed with the Commission and each amendment thereto
(in each case excluding exhibits other than this Agreement and the
computation of per share earnings) and (ii) each Preliminary
Prospectus, the Prospectus and any amended or supplemented
Prospectus; and, if the delivery of a prospectus is required at
any time after the Effective Time in connection with the offering
or sale of the Stock or any other securities relating thereto and
if at such time any events shall have occurred as a result of
which the Prospectus as then amended or supplemented would include
an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made when
such Prospectus is delivered, not misleading, or, if for any other
reason it shall be necessary to amend or supplement the Prospectus
in order to comply with the Securities Act, to notify the
Representatives and, upon their request, to prepare and furnish
without charge to each Underwriter and to any dealer in securities
as many copies as the Representatives may from time to time
reasonably request of an amended
20
or supplemented Prospectus which will correct such statement or
omission or effect such compliance.
(d) To file promptly with the Commission any amendment to
the Registration Statement or the Prospectus or any supplement to
the Prospectus that may, in the judgment of the Company or the
Representatives, be required by the Securities Act or requested by
the Commission;
(e) Prior to filing with the Commission any amendment to
the Registration Statement or supplement to the Prospectus or any
Prospectus pursuant to Rule 424 of the Rules and Regulations, to
furnish a copy thereof to the Representatives and counsel for the
Underwriters and obtain the consent of the Representatives to the
filing (which consent shall not be unreasonably withheld);
(f) As soon as practicable after the Effective Date, to
make generally available to the Company's security holders and to
deliver to the Representatives an earnings statement of the
Company and its subsidiaries (which need not be audited) complying
with Section 11(a) of the Securities Act and the Rules and
Regulations (including, at the option of the Company, Rule 158);
(g) For a period of three years following the Effective
Date, to furnish to the Representatives copies of all materials
furnished generally by the Company to its shareholders and all
public reports and all reports and financial statements furnished
by the Company to the principal national securities exchange upon
which the Class A Common Stock may be listed pursuant to
requirements of or agreements with such exchange or to the
Commission pursuant to the Exchange Act or any rule or regulation
of the Commission thereunder;
(h) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Stock for
offering and sale under the securities laws of such jurisdictions
as the Representatives may request (including such jurisdictions
as may be require for the offering and sale of the Directed
Shares) and to comply with such laws so as to permit the
continuance of sales and dealings therein in such jurisdictions
for as long as may be necessary to complete the distribution of
the Stock;
(i) (A) For a period of 180 days from the date of the
Prospectus, not to, directly or indirectly, (1) offer for sale,
sell, pledge or otherwise dispose of (or enter into any
transaction or device, or file any registration statement, other
than a registration statement on Form S-8, which is designed to,
or could be expected to, result in the disposition by any
21
person at any time in the future of) any shares of Class A
Common Stock, Class B Common Stock, Class C Common Stock, par
value $.001 per share, of the Company, or Class D Common Stock,
par value $.001 per share, of the Company, or any shares of the
Company's securities to be converted into the foregoing
pursuant to the Recapitalization Agreement (collectively, the
"Capital Stock") or securities convertible into or exchangeable
for Capital Stock (other than the Stock and shares issued
pursuant to employee benefit plans, stock option plans or other
employee compensation plans existing on the date hereof or
pursuant to currently outstanding options, warrants or rights),
or sell or grant options, rights or warrants with respect to
any shares of Capital Stock or securities convertible into or
exchangeable for Capital Stock (other than the grant of options
pursuant to employee benefit plans, stock option plans or other
employee compensation plans existing on the date hereof), or
(2) enter into any swap or other derivatives transaction that
transfers to another, in whole or in part, any of the economic
benefits or risks of ownership of such shares of Capital Stock,
whether any such transaction described in clause (1) or (2)
above is to be settled by delivery of Capital Stock or other
securities, in cash or otherwise or (3) publicly disclose an
intention to make any such offer, sale, pledge, hedge, swap or
other transaction, or file any registration statement, in each
case, without the prior written consent of ▇▇▇▇▇▇ Brothers Inc.
and Banc of America Securities LLC; and (B) to cause each of
the Company's executive officers listed in the Prospectus under
the caption "Management," directors and stockholders and
optionholders to furnish to the Representatives, prior to the
First Delivery Date, a letter or letters, in form and substance
satisfactory to counsel for the Underwriters, pursuant to which
each such person shall agree not to, directly or indirectly,
(1) offer for sale, sell, pledge or otherwise dispose of (or
enter into any transaction or device, including by way of
delivery of any demand for registration under the Securities
Act, that is designed to, or could be expected to, result in
the disposition by any person at any time in the future of) any
shares of Capital Stock (including, without limitation, shares
of Capital Stock that the undersigned acquires or has the right
or power to dispose of and shares of Capital Stock that may be
issued upon exercise of any option or warrant) or securities
convertible into or exchangeable for Capital Stock; PROVIDED,
HOWEVER, that this clause (1) shall not prohibit (a) the
exercise of any options outstanding on the date of this
Agreement pursuant to the Company's 1996 Stock Option Plan or
2000 Stock Incentive Plan, but will apply to the securities
issued upon the exercise of such options, (b) Capital Stock
sold pursuant to the option of the ▇▇▇▇▇▇ ▇▇ Limited
Partnership, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and certain of the Company's
existing optionholders described under the heading "The
Recapitalization" in the Preliminary Prospectus and (c)(i) the
pledge of securities issued upon the exercise of options
outstanding on the date of this Agreement pursuant to the
Company's 1996 Stock Option Plan or
22
2000 Stock Incentive Plan or (ii) pledges, existing on the date
of this Agreement, of securities held by the ▇▇▇▇▇▇ ▇▇ Limited
Partnership, provided, further that in the case of this clause
(c) the foregoing shall apply to the securities so pledged and
the pledgee of those securities shall agree to be bound by the
terms of the lock-up agreement, or (2) enter into any swap or
other derivatives transaction that transfers to another, in
whole or in part, any of the economic benefits or risks of
ownership of such shares of Capital Stock, whether any such
transaction described in clause (1) or (2) above is to be
settled by delivery of Capital Stock or other securities, in
cash or otherwise, in each case for a period of 180 days from
the date of the Prospectus, without the prior written consent
of ▇▇▇▇▇▇ Brothers Inc. and Banc of America Securities LLC;
(j) To apply the net proceeds from the sale of the Stock
being sold by the Company as set forth in the Prospectus under the
caption "Use of Proceeds" and to file a Certificate of Elimination
with the Secretary of State of the State of Oklahoma within two
business days from the First Delivery Date to eliminate all of the
Class D Preferred Stock and Class E Preferred Stock, which is
being redeemed with the net proceeds from the sale of the Stock
being sold by the Company.
(k) To take such steps as shall be necessary to ensure
that neither the Company nor any subsidiary shall become an
"investment company" within the meaning of such term under the
Investment Company Act and the rules and regulations of the
Commission thereunder;
(l) To comply with the Securities Act and the Rules and
Regulations and the Exchange Act (including the rules and
regulations thereunder) so as to permit the completion of the
distribution of the Stock as contemplated in this Agreement and
the Prospectus; and
(m) Not to take, directly or indirectly, any action
designed to cause or result in, or that constitutes or might
reasonably be expected to constitute, the stabilization or
manipulation of the price of the Class A Common Stock.
(n) In connection with the Directed Share Program, the
Company will ensure that the Directed Shares will be restricted to
the extend required by the NASD or the NASD rules from sale,
transfer, assignment, pledge or hypothecation for a period of
three months following the date of the effectiveness of the
Registration Statement. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. will notify the
Company as to which Participants will need to be so restricted.
The Company will direct the removal of such transfer restrictions
upon the expiration of such period of time.
23
7. FURTHER AGREEMENTS OF THE SELLING STOCKHOLDERS. Each Selling
Stockholder agrees:
(a) That the power of attorney and the custody arrangement
for the Option Stock to be sold by the Selling Stockholder
hereunder, which is represented by the certificates held in
custody for the Selling Stockholder, each pursuant to the
Irrevocable Power of Attorney and Custody Agreement is coupled
with an interest and is irrevocable and to the fullest extent not
prohibited by law shall not be terminated by any act of the
Selling Stockholder or by operation of law or by the occurrence of
any event whatsoever, including without limitation, the death,
incapacity, dissolution, liquidation, termination, bankruptcy or
insolvency of the undersigned or any similar event; and if, after
the execution of this Agreement, any such event shall occur before
the completion of the transactions contemplated by this Agreement,
the attorneys-in-fact and the Custodian named in the Irrevocable
Power of Attorney and Custody Agreement are nevertheless
authorized and directed to complete all of such transactions, as
if such had not occurred and regardless of notice thereof.
(b) To deliver to the Representatives prior to the Second
Delivery Date a properly completed and executed United States
Treasury Department Form W-8 (if the Selling Stockholder is a
non-United States person or Form W-9 (if the Selling Stockholder
is a United States person.)
8. EXPENSES. The Company agrees to pay (a) the costs incident to
the authorization, issuance, sale and delivery of the Stock and any taxes
payable in that connection; (b) the costs incident to the preparation, printing
and filing under the Securities Act of the Registration Statement and any
amendments and exhibits thereto; (c) the costs of distributing the Registration
Statement as originally filed and each amendment thereto and any post-effective
amendments thereof (including, in each case, exhibits), any Preliminary
Prospectus, the Prospectus and any amendment or supplement to the Prospectus,
all as provided in this Agreement; (d) the costs of producing and distributing
this Agreement and any other related documents in connection with the offering,
purchase, sale and delivery of the Stock; (e) the costs of delivering and
distributing the Irrevocable Power of Attorney and Custody Agreements; (f) the
filing fees incident to securing any required review by the NASD of the terms of
sale of the Stock (including the reasonable fees and expenses of counsel for the
Underwriters in connection therewith); (g) any applicable listing or other fees;
(h) all costs and expenses incident to the offer and sale of the Directed Shares
(including the reasonable fees and expenses of counsel for the Underwriters in
connection therewith); (i) the fees and expenses of qualifying the Stock under
the securities laws of the several jurisdictions as provided in Section 6(h)
(including filing fees and the reasonable fees and expenses of counsel for the
Underwriters relating to such registration and qualification) and of preparing,
printing and distributing any materials in connection therewith; (j) all
expenses
24
incident to the performance of the Selling Stockholders' obligations under,
and the consummation of the transactions contemplated by, this Agreement
(other than any underwriting discount), including (1) any stamp duties,
capital duties and stock transfer taxes, if any, payable upon the sale of the
Option Stock by the Selling Stockholders to the Underwriters, and their
transfer between the Underwriters pursuant to an agreement between such
Underwriters, (2) the fees and disbursements of the Selling Stockholders'
counsel and (3) the fees and expenses of the Custodian thereunder; and (k)
all other costs and expenses incident to the performance of the obligations
of the Company under this Agreement; PROVIDED that, except as provided in
this Section 8 and in Section 11 and Section 13 the Underwriters shall pay
their own costs and expenses, including the costs and expenses of their
counsel.
9. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The respective
obligations of the Underwriters hereunder are subject to the accuracy, when made
and on each Delivery Date, of the representations and warranties of the Company
contained herein, to the accuracy, when made and on the Second Delivery Date, of
the representations and warranties of the Selling Stockholders contained herein,
to the performance by the Company and the Selling Stockholders of their
respective obligations hereunder, and to each of the following additional terms
and conditions:
(a) The Prospectus shall have been timely filed with the
Commission in accordance with Section 6(a); no stop order
suspending the effectiveness of the Registration Statement or any
part thereof shall have been issued and no proceeding for that
purpose shall have been initiated or threatened by the Commission;
and any request of the Commission for inclusion of additional
information in the Registration Statement or the Prospectus or
otherwise shall have been complied with.
(b) No Underwriter shall have discovered and disclosed to
the Company on or prior to such Delivery Date that the
Registration Statement or the Prospectus or any amendment or
supplement thereto contains an untrue statement of a fact which,
in the opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the
Underwriters, is material or omits to state a fact which, in the
opinion of such counsel, is material and is required to be stated
therein or is necessary to make the statements therein not
misleading.
(c) All corporate proceedings and other legal matters
incident to the authorization, form and validity of this
Agreement, the Irrevocable Power of Attorney and Custody
Agreements, the Stock, the Registration Statement and the
Prospectus, and all other legal matters relating to this Agreement
and the transactions contemplated hereby shall be reasonably
satisfactory in all material respects to counsel for the
Underwriters, and the Company and the Selling Stockholders shall
have furnished to such counsel all documents and information that
they may reasonably request to enable them to pass upon such
matters.
25
(d) McAfee & ▇▇▇▇ A Professional Corporation shall have
furnished to the Representatives their written opinion, as counsel
to the Company, addressed to the Underwriters and dated such
Delivery Date, in form and substance reasonably satisfactory to
the Representatives, to the effect set forth in Exhibit 9(d) to
this Agreement.
(e) ▇▇▇▇▇▇▇▇ & Worcester LLP shall have furnished to the
Representatives their written opinion, as counsel to each of the
Selling Stockholders, addressed to the Underwriters and dated the
Second Delivery Date, in form and substance reasonably
satisfactory to the Representatives, to the effect set forth in
Exhibit 9(e) to this Agreement.
(f) ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, LLP shall have furnished to
the Representatives their written opinion, as regulatory counsel
to the Company, addressed to the Underwriters and dated such
Delivery Date, in form and substance reasonably satisfactory to
the Representatives, to the effect set forth in Exhibit 9(f) to
this Agreement.
(g) The Representatives shall have received from Weil,
Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion
or opinions, dated such Delivery Date, with respect to the
issuance and sale of the Stock, the Registration Statement, the
Prospectus and other related matters as the Representatives may
reasonably require, and the Company shall have furnished to such
counsel such documents as they reasonably request for the purpose
of enabling them to pass upon such matters.
(h) At the time of execution of this Agreement, the
Representatives shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP,
independent public accountants, a letter, in form and substance
satisfactory to the Representatives, addressed to the Underwriters
and dated the date hereof (i) confirming that they are independent
public accountants within the meaning of the Securities Act with
respect to the Company and are in compliance with the applicable
requirements relating to the qualification of accountants under
Rule 2-01 of Regulation S-X of the Commission and (ii) stating, as
of the date hereof (or, with respect to matters involving changes
or developments since the respective dates as of which specified
financial information is given in the Prospectus, as of a date not
more than five days prior to the date hereof), the conclusions and
findings of such firm with respect to the financial information
and other matters ordinarily covered by accountants' "comfort
letters" to underwriters in connection with registered public
offerings.
(i) At the time of execution of this Agreement, the
Representatives shall have received from Ernst & Young LLP,
independent auditors, a letter, in form and substance satisfactory
to the Representatives, addressed to the Underwriters and dated
the date hereof (i) confirming that, the
26
periods covered by their report, they were independent public
accountants within the meaning of the Securities Act with
respect to Sygnet Wireless, Inc. and were in compliance with
the applicable requirements relating to the qualification of
accountants under Rule 2-01 of Regulation S-X of the Commission
throughout such periods and (ii) stating, as of the date hereof
(or, with respect to matters involving changes or developments
since the respective dates as of which specified financial
information is given in the Prospectus, as of a date not more
than five days prior to the date hereof), the conclusions and
findings of such firm with respect to the financial information
and other matters ordinarily covered by accountants' "comfort
letters" to underwriters in connection with registered public
offerings.
(j) At the time of execution of this Agreement, the
Representatives shall have received from Ernst & Young LLP,
independent auditors, a letter, in form and substance satisfactory
to the Representatives, addressed to the Underwriters and dated
the date hereof (i) confirming that, for the periods covered by
their report, they were independent public accountants within the
meaning of the Securities Act with respect to American Cellular
Corporation and its predecessor, PriCellular Corporation, and were
in compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X of
the Commission throughout such periods and (ii) stating, as of the
date hereof (or, with respect to matters involving changes or
developments since the respective dates as of which specified
financial information is given in the Prospectus, as of a date not
more than five days prior to the date hereof), the conclusions and
findings of such firm with respect to the financial information
and other matters ordinarily covered by accountants' "comfort
letters" to underwriters in connection with registered public
offerings.
(k) With respect to the letters of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP and
Ernst & Young LLP referred to in the preceding three paragraphs
and delivered to the Representatives concurrently with the
execution of this Agreement (the "initial letters"), the Company
shall have furnished to the Representatives letters (the
"bring-down letters") of such accountants, addressed to the
Underwriters and dated such Delivery Date (i) confirming that,
for the periods covered by their reports, they were independent
public accountants within the meaning of the Securities Act and
are in compliance with the applicable requirements relating to
the qualification of accountants under Rule 2-01 of Regulation
S-X of the Commission throughout such periods, (ii) stating, as
of the dates of their respective bring-down letters (or, with
respect to matters involving changes or developments since the
respective dates as of which specified financial information is
given in the Prospectus, as of a date not more than five days
prior to the date of the respective bring-down letters), the
conclusions and findings of such firms with respect to the
financial information and other
27
matters covered by their respective initial letters and
(iii) confirming in all material respects the conclusions and
findings set forth in their respective initial letters.
(l) The Company shall have furnished to the
Representatives a certificate, dated such Delivery Date, of its
Chairman of the Board, its President or a Vice President and its
Chief Financial Officer stating that:
(i) the representations, warranties and
agreements of the Company in Section 1 are true and correct
as of such Delivery Date; the Company has complied with all
its agreements contained herein; and the conditions set
forth in Sections 9(a) and 9(n) have been fulfilled;
(ii) they have carefully examined the Registration
Statement and any amendment thereto and the Prospectus and
any amendment or supplement thereto and, in their opinion
(A) as of the Effective Date (as to the Registration
Statement and any amendment thereto) and as of the
applicable filing date, the date hereof and each Delivery
Date (as to the Prospectus and any amendment or supplement
thereto) did not include any untrue statement of a material
fact and did not omit to state a material fact required to
be stated therein or necessary to make the statements
therein (in the case of the Prospectus, in light of the
circumstances under which they were made) not misleading,
and (B) since the Effective Date no event has occurred
which should have been set forth in a supplement or
amendment to the Registration Statement or the Prospectus;
(iii) to the Company's best knowledge, based on due
inquiry, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings
for that purpose have been instituted or threatened; and
(iv) since the date of the most recent financial
statements included in the Prospectus (exclusive of any
supplement thereto), there has been no Material Adverse
Effect, whether or not arising from transactions in the
ordinary course of business, except as set forth in or
contemplated in the Prospectus (exclusive of any supplement
thereto).
(m) Each Selling Stockholder (or the Custodian or one or
more attorneys-in-fact on behalf of the Selling Stockholders)
shall have furnished to the Representatives on the Second Delivery
Date a certificate, dated the Second Delivery Date, signed by, or
on behalf of, the Selling Stockholder (or the Custodian or one or
more attorneys-in-fact) stating
28
that the representations, warranties and agreements of the
Selling Stockholder contained herein are true and correct as of
the Second Delivery Date and that the Selling Stockholder has
complied with all agreements contained herein to be performed
by the Selling Stockholder at or prior to the Second Delivery
Date.
(n) (i) Neither the Company nor any of its subsidiaries
shall have sustained since the date of the latest audited
financial statements included in the Prospectus any loss or
interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus or
(ii) since such date there shall not have been any change in the
capital stock or long-term debt of the Company or any of its
subsidiaries or any change, or any development involving a
prospective change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, otherwise than as
set forth or contemplated in the Prospectus, the effect of which,
in any such case described in clause (i) or (ii), is, in the
judgment of the Representatives, so material and adverse as to
make it impracticable or inadvisable to proceed with the public
offering or the delivery of the Stock being delivered on such
Delivery Date on the terms and in the manner contemplated in the
Prospectus.
(o) Subsequent to the execution and delivery of this
Agreement there shall not have occurred any of the following: (i)
trading in securities generally on the New York Stock Exchange or
the American Stock Exchange or in the over-the-counter market, or
trading in any securities of the Company on any exchange or in the
over-the-counter market, shall have been suspended or minimum
prices shall have been established on any such exchange or such
market by the Commission, by such exchange or by any other
regulatory body or governmental authority having jurisdiction,
(ii) a banking moratorium shall have been declared by Federal or
state authorities, (iii) the United States shall have become
engaged in hostilities, there shall have been an escalation in
hostilities involving the United States or there shall have been a
declaration of a national emergency or war by the United States or
(iv) there shall have occurred such a material adverse change in
general economic, political or financial conditions (or the effect
of international conditions on the financial markets in the United
States shall be such) as to make it, in the judgment of a majority
in interest of the several Underwriters, impracticable or
inadvisable to proceed with the public offering or delivery of the
Stock being delivered on such Delivery Date on the terms and in
the manner contemplated in the Prospectus.
29
(p) The Nasdaq Stock Market shall have approved the Stock
for inclusion in the National Market System, subject only to
official notice of issuance.
(q) The Company shall have furnished to the
Representatives a letter addressed to the Representatives
substantially in the form set forth in Section 6(i) from each of
the Company's officers, directors, stockholders and option
holders.
(r) The Company's amended and restated certificate of
incorporation creating the Class A Common Stock and redesignating
the 12 1/4% Senior Exchangeable Preferred Stock due 2008 issued in
December 1998, the 12 1/4% Senior Exchangeable Preferred Stock due
2008 issued in December 1998 and the 13% Senior Exchangeable
Preferred Stock due 2008 issued in May 1999 shall have been filed
with the Secretary of State of the Sate of Oklahoma and shall have
become effective, the Company's Certificate of Elimination
eliminating the Class D Preferred Stock shall have been filed with
the Secretary of State of Oklahoma and shall have become
effective, the Recapitalization Agreement shall have been executed
by the parties thereto and the Recapitalization shall have become
effective.
(s) The distribution of the stock of the Company's
wireline telephone subsidiary, Logix Communications Enterprises
Inc., to the holders of the Company's Class A Common Stock and
Class D Preferred Stock existing prior to the Recapitalization
shall have occurred; ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP shall have delivered to
the Company their written opinion, as tax counsel to the Company,
addressed to the Company, that the distribution of the stock of
Logix Communications Enterprises will not cause the Company to
realize taxable income in form and substance reasonably
satisfactory to the Representatives; and the Representatives shall
have received all certificates referred to in the opinion of
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP addressed to the Underwriters and dated such
Delivery Date in form and substance reasonably satisfactory to the
Representatives.
All opinions, letters, evidence and certificates mentioned above
or elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably
satisfactory to counsel for the Underwriters.
10. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company shall indemnify and hold harmless each
Underwriter, its officers and employees and each person, if any, who controls
any Underwriter within the meaning of the Securities Act, from and against any
loss, claim, damage or liability, joint or several, or any action in respect
thereof (including, but not
30
limited to, any loss, claim, damage, liability or action relating to
purchases and sales of Stock), to which that Underwriter, officer, employee
or controlling person may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action arises
out of, or is based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained in (A) any Preliminary Prospectus, the
Registration Statement or the Prospectus or in any amendment or supplement
thereto, (B) any materials or information provided to investors by, or with
the approval of, the Company in connection with the marketing of the offering
of the Stock, including any roadshow or investor presentations made to
investors by the Company (whether in person or electronically) ("Roadshow
Materials") or (C) any application, filing or other material filed,
registered, distributed or otherwise furnished by the Company or with the
consent of the Company in connection with the securities laws of any state or
political subdivision thereof, including any Blue Sky Application, or any
material prepared by or with the consent of the Company for distribution in
connection with the Directed Share Program (collectively, the "Other Offering
Materials"), (ii) the omission or alleged omission to state in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or in
any amendment or supplement thereto, or in any Blue Sky Application, Roadshow
Materials or Other Offering Materials, any material fact required to be
stated therein or necessary to make the statements therein (in the case of
the Preliminary Prospectus, the Prospectus or any amendment or supplement
thereto or any Blue Sky Application or Other Offering Materials, in light of
the circumstances under which they were made) not misleading, (iii) any act
or failure to act or any alleged act or failure to act by any Underwriter in
connection with, or relating in any manner to, the Stock or the offering
contemplated hereby, and which is included as part of or referred to in any
loss, claim, damage, liability or action arising out of or based upon matters
covered by clause (i) or (ii) above, (iv) the failure of any Participant to
pay for and accept delivery of the Stock which immediately following the
Effective Time was subject to a properly confirmed agreement to purchase or
(v) the Directed Share Program (provided that the Company shall not be liable
under clause (iii) above to the extent that it is determined in a final
judgment by a court of competent jurisdiction that such covered loss, claim,
damage, liability or action resulted directly from any such acts or failures
to act undertaken or omitted to be taken by such Underwriter through its
gross negligence or willful misconduct), and shall reimburse each Underwriter
and each such officer, employee or controlling person promptly upon demand
for any legal or other expenses reasonably incurred by that Underwriter,
officer, employee or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that
the Company shall not be liable in any such case to the extent that any such
loss, claim, damage, liability or action arises out of, or is based upon, any
untrue statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or in any such amendment or supplement, in reliance upon and in
conformity with written information concerning such Underwriter furnished to
the Company through the Representatives by or on behalf of any Underwriter
specifically for inclusion therein which information consists solely of the
information specified in Section 10(g); PROVIDED, FURTHER, that this
indemnity shall not
31
apply to any Preliminary Prospectus to the extent that any such loss, claim,
damage, liability or expense of such Underwriter results from the fact that
such Underwriter sold Stock to a person as to whom it shall be established
that there was not sent or given, at or prior to the written confirmation of
such sale, a copy of the Prospectus in any case where such delivery is
required by the Securities Act if the Company shall have previously furnished
copies thereof in sufficient quantity to such Underwriter and the loss,
claim, damage, liability or expense of such Underwriter results from an
untrue statement or omission of a material fact contained in the Preliminary
Prospectus which was corrected in the Prospectus or in the Prospectus as then
amended or supplemented and such correction would have cured the defect
giving rise to such loss, claim, damage, liability or expense and the Company
shall have previously notified the Underwriter in writing of such untrue
statement or omission prior to the delivery of the Prospectus to the
Underwriter. The foregoing indemnity agreement is in addition to any
liability which the Company may otherwise have to any Underwriter or to any
officer, employee or controlling person of that Underwriter.
(b) The Selling Stockholders, severally and not jointly, shall
indemnify and hold harmless each Underwriter, its officers and employees and
each person, if any, who controls any Underwriter within the meaning of the
Securities Act, from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof (including, but not limited to, any
loss, claim, damage, liability or action relating to purchases and sales of
Option Stock), to which that Underwriter, officer, employee or controlling
person may become subject, under the Securities Act or otherwise, insofar as
such loss, claim, damage, liability or action arises out of, or is based upon,
(i) any untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement or the
Prospectus or in any amendment or supplement thereto or (ii) the omission or
alleged omission to state in any Preliminary Prospectus, Registration Statement
or the Prospectus, or in any amendment or supplement thereto, any material fact
required to be stated therein or necessary to make the statements therein (in
the case of the Preliminary Prospectus, the Prospectus or any amendment or
supplement thereto, in light of the circumstances under which they were made)
not misleading, and shall reimburse each Underwriter, its officers and employees
and each such controlling person for any legal or other expenses reasonably
incurred by that Underwriter, its officers and employees or controlling person
in connection with investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Selling Stockholders shall not be liable in any such
case to the extent that any such loss, claim, damage, liability or action arises
out of, or is based upon, any untrue statement or alleged untrue statement or
omission or alleged omission made in any Preliminary Prospectus, the
Registration Statement or the Prospectus or in any suh amendment or supplement
in reliance upon and in conformity with written information concerning such
Underwriter furnished to the Company through the Representatives by or on behalf
of any Underwriter specifically for inclusion therein which information consists
solely of the information specified in Section 10(g); PROVIDED, FURTHER, that
this indemnity shall not apply to any Preliminary Prospectus to the extent that
any such loss,
32
claim, damage, liability or expense of such Underwriter results from the fact
that such Underwriter sold Stock to a person as to whom it shall be
established that there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the Prospectus in any case where such
delivery is required by the Securities Act if the Company shall have
previously furnished copies thereof in sufficient quantity to such
Underwriter and the loss, claim, damage, liability or expense of such
Underwriter results from an untrue statement or omission of a material fact
contained in the Preliminary Prospectus which was corrected in the Prospectus
or in the Prospectus as then amended or supplemented and such correction
would have cured the defect giving rise to such loss, claim, damage,
liability or expense and the Selling Stockholders shall have previously
notified the Underwriter in writing of such untrue statement or omission
prior to the delivery of the Prospectus to the Underwriter; PROVIDED, FURTHER,
that with respect to each Selling Stockholder, (i) the indemnification
provision in this paragraph (b) shall only 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 the information furnished in writing by or on behalf of
such Selling Stockholder pursuant to Section 2(f) of this Agreement and (ii)
each Selling Stockholder's aggregate liability under this Section 10(b) shall
be limited to an amount equal to the net proceeds (after deducting the
underwriting discount but before deducting expenses) received by such Selling
Stockholder from the sale of Option Stock pursuant to this Agreement. The
foregoing indemnity agreement is in addition to any liability which the
Selling Stockholders may otherwise have to any Underwriter or any officer,
employee or controlling person of that Underwriter.
(c) Each Underwriter, severally and not jointly, shall
indemnify and hold harmless the Company, each Selling Stockholder, the officers,
employees and directors of the Company and each such Selling Stockholder, and
each person, if any, who controls the Company or each such Selling Stockholder,
respectively, within the meaning of the Securities Act, from and against any
loss, claim, damage or liability, joint or several, or any action in respect
thereof, to which the Company, any Selling Stockholder, or any such director,
officer or controlling person may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained (A) in any Preliminary Prospectus, the Registration
Statement or the Prospectus or in any amendment or supplement thereto, or (B) in
any Blue Sky Application or Other Offering Materials or (ii) the omission or
alleged omission to state in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or in any amendment or supplement thereto, or in
any Blue Sky Application or Other Offering Materials, any material fact required
to be stated therein or necessary to make the statements therein (in the case of
the Preliminary Prospectus, the Prospectus or any amendment or supplement
thereto or any Blue Sky Application or Other Offering Materials, in light of the
circumstances under which they were made) not misleading, but in each case only
to the extent that the untrue statement or alleged untrue statement or omission
or alleged omission was made in reliance upon and in conformity with written
information concerning such Underwriter furnished to the Company through the
33
Representatives by or on behalf of that Underwriter specifically for inclusion
therein, which information consists solely of the information specified in
Section 10(g), and shall reimburse the Company, such Selling Stockholder, and
any such director, officer or controllin person for any legal or other expenses
reasonably incurred by the Company, such Selling Stockholder, or any such
director, officer or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage, liability
or action as such expenses are incurred. The foregoing indemnity agreement is
in addition to any liability which any Underwriter may otherwise have to the
Company, such Selling Stockholders, or any such director, officer, employee or
controlling person.
(d) Promptly after receipt by an indemnified party under this
Section 10 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 10, notify the indemnifying party in
writing of the claim or the commencement of that action; PROVIDED, HOWEVER, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 10 except to the extent it has
been materially prejudiced by such failure and, PROVIDED FURTHER, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 10.
If any such claim or action shall be brought against an indemnified party, and
it shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel reasonably satisfactory to the indemnified party. After notice
from the indemnifying party to the indemnified party of its election to assume
the defense of such claim or action, the indemnifying party shall not be liable
to the indemnified party under this Section 10 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; PROVIDED, HOWEVER, that
(i) the Representatives shall have the right to employ counsel to represent
jointly the Representatives and those other Underwriters and their respective
officers, employees and controlling persons who may be subject to liability
arising out of any claim in respect of which indemnity may be sought by the
Underwriters against the Company or Selling Stockholders under this Section 10
if, in the reasonable judgment of the Representatives, it is advisable for the
Representatives and those Underwriters, officers, employees and controlling
persons to be jointly represented by separate counsel, and in that event the
Company or the Selling Stockholders shall not have the right to direct the
defense of such action on behalf of those persons and the fees and expenses of
such separate counsel shall be paid by the Company or the Selling Stockholders
and (ii) the Representatives shall have the right to employ one separate counsel
(in addition to any local counsel) to represent the Representatives and those
other Underwriters and their respective officers, employees and controlling
persons for the defense of any losses, claims, damages and liabilities arising
out of the Directed Share Program. No indemnifying party shall (i) without the
prior written consent of the indemnified parties (which consent shall not be
unreasonably withheld), settle or compromise or consent to the entry of any
judgment with respect to
34
any pending or threatened claim, action, suit or proceeding in respect of
which indemnification or contribution may be sought hereunder (whether or not
the indemnified parties are actual or potential parties to such claim or
action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising
out of such claim, action, suit or proceeding, or (ii) be liable for any
settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with the consent
of the indemnifying party or if there be a final judgment of the plaintiff in
any such action, the indemnifying party agrees to indemnify and hold harmless
any indemnified party from and against any loss or liability by reason of
such settlement or judgment.
(e) If the indemnification provided for in this Section 10
shall for any reason be unavailable to or insufficient to hold harmless an
indemnified party under Section 10(a), 10(b) or 10(c) in respect of any loss,
claim, damage or liability, or any action in respect thereof, referred to
therein, then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such indemnified
party as a result of such loss, claim, damage or liability, or action in respect
thereof, (i) in such proportion as shall be appropriate to reflect the relative
benefits received by the Company and the Selling Stockholders, on the one hand,
and the Underwriters, on the other, from the offering of the Stock or (ii) if
the allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and
the Selling Stockholders, on the one hand, and the Underwriters, on the other,
with respect to the statements or omissions which resulted in such loss, claim,
damage or liability, or action in respect thereof, as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
Selling Stockholders, on the one hand, and the Underwriters, on the other, with
respect to the offering of the Stock shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Stock purchased
under this Agreement (before deducting expenses) received by the Company and the
Selling Stockholders, on the one hand, and the total underwriting discounts and
commissions received by the Underwriters with respect to the shares of the Stock
purchased under this Agreement, on the other hand, bear to the total gross
proceeds from the offering of the shares of the Stock under this Agreement, in
each case as set forth in the table on the cover page of the Prospectus. The
relative fault shall be determned by reference to whether the 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, the Selling
Stockholders or the Underwriters, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company, the Selling Stockholders and the
Underwriters agree that it would not be just and equitable if contributions
pursuant to this Section 10(e) were to be 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 into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, damage or liability, or action in respect
thereof, referred to above in this
35
Section 10(e) shall be deemed to include, for purposes of this Section 10(e),
any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 10(e), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Stock underwritten by it and distributed to the public was
offered to the public exceeds the amount of any damages which such
Underwriter has otherwise paid or become liable to pay by reason of any
untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute as provided in this Section 10(e) are
several in proportion to their respective underwriting obligations and not
joint.
(f) Any losses, claims, damages, liabilities or expenses for
which an indemnified party is entitled to indemnification or contribution under
this Section 10 shall be paid by the indemnifying party to the indemnified party
as such losses, claims, damages, liabilities or expenses are incurred, but in
all cases no later than thirty (30) days of invoice to the indemnifying party.
If at any time an indemnified party shall have requested an indemnifying party
to reimburse the indemnified party for fees and expenses of counsel for which
the indemnifying party is responsible pursuant to the terms hereof, such
indemnifying party agrees that it shall be liable for any settlement effected
without its written consent if (i) such settlement is entered into more than
sixty (60) days after receipt by such indemnifying party of the aforesaid
request, (ii) such indemnifying party shall have received notice of the terms of
such settlement at least sixty (60) 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.
(g) The Underwriters severally confirm and the Company
acknowledges that the statements with respect to the public offering of the
Stock by the Underwriters set forth in the last paragraph on the cover page of,
the names of the Underwriters in the table under "Underwriting--General," the
first paragraph under "Underwriting--Commissions and Expenses," the first five
paragraphs under "Underwriting--Stabilization, Short Positions and Penalty Bids"
and the second paragraph under "Underwriting--Offers and Sales Outside the
United States" in the Prospectus are correct and constitute the only information
concerning such Underwriters furnished in writing to the Company by or on behalf
of the Underwriters specifically for inclusion in the Registration Statement and
the Prospectus.
11. DEFAULTING UNDERWRITERS.
If, on any Delivery Date, any Underwriter defaults in the
performance of its obligations under this Agreement, the remaining
non-defaulting Underwriters shall be obligated to purchase the Stock which
the defaulting Underwriter agreed but failed to purchase on such Delivery
Date in the respective proportions which the number of shares
36
of the Firm Stock set forth opposite the name of each remaining
non-defaulting Underwriter in Schedule 1 hereto bears to the total number of
shares of the Firm Stock set forth opposite the names of all the remaining
non-defaulting Underwriters in Schedule 1 hereto; PROVIDED, HOWEVER, that the
remaining non-defaulting Underwriters shall not be obligated to purchase any
of the Stock on such Delivery Date if the total number of shares of the Stock
which the defaulting Underwriter or Underwriters agreed but failed to
purchase on such date exceeds 9.09% of the total number of shares of the
Stock to be purchased on such Delivery Date, and any remaining non-defaulting
Underwriter shall not be obligated to purchase more than 110% of the number
of shares of the Stock which it agreed to purchase on such Delivery Date
pursuant to Section 3. If the foregoing maximums are exceeded, the remaining
non-defaulting Underwriters, or those other underwriters satisfactory to the
Representatives who so agree, shall have the right, but shall not be
obligated, to purchase, in such proportion as may be agreed upon among them,
all the Stock to be purchased on such Delivery Date. If the remaining
Underwriters or other underwriters satisfactory to the Representatives do not
elect to purchase the shares which the defaulting Underwriter or Underwriters
agreed but failed to purchase on such Delivery Date, this Agreement (or, with
respect to the Second Delivery Date, the obligation of the Underwriters to
purchase, and of the Company and the Selling Stockholders to sell, the Option
Stock) shall terminate without liability on the part of any non-defaulting
Underwriter or the Company or the Selling Stockholders, except that the
Company and the Selling Stockholders will continue to be liable for the
payment of expenses to the extent set forth in Sections 8 and 13. As used in
this Agreement, the term "Underwriter" includes, for all purposes of this
Agreement unless the context requires otherwise, any party not listed in
Schedule 1 hereto who, pursuant to this Section 11, purchases Stock which a
defaulting Underwriter agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting Underwriter of
any liability it may have to the Company and the Selling Stockholders for
damages caused by its default. If other underwriters are obligated or agree to
purchase the Stock of a defaulting or withdrawing Underwriter, either the
Representatives or the Company may postpone the Delivery Date for up to seven
full business days in order to effect any changes that in the opinion of counsel
for the Company or counsel for the Underwriters may be necessary in the
Registration Statement, the Prospectus or in any other document or arrangement.
12. TERMINATION. The obligations of the Underwriters hereunder
may be terminated by the Representatives by notice given to and received by the
Company prior to delivery of and payment for the Firm Stock if, prior to that
time, any of the events described in Sections 9(n) or 9(o), shall have occurred.
13. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the Company or
any Selling Stockholder shall fail to tender the Stock for delivery to the
Underwriters by reason of any failure, refusal or inability on the part of the
Company or the Selling Stockholders to perform any agreement on its part to be
performed, or because any other condition of the Underwriters' obligations
hereunder required to be fulfilled by the
37
Company or the Selling Stockholders is not fulfilled, the Company and the
Selling Stockholders will reimburse the Underwriters for all reasonable
out-of-pocket expenses (including fees and disbursements of counsel) incurred
by the Underwriters in connection with this Agreement and the proposed
purchase of the Stock, and upon demand the Company and the Selling
Stockholders shall pay the full amount thereof to the Representatives. If
this Agreement is terminated pursuant to Section 11 by reason of the default
of one or more Underwriters, neither the Company nor any Selling Stockholder
shall be obligated to reimburse any defaulting Underwriter on account of
those expenses.
14. NOTICES, ETC. All statements, requests, notices and
agreements hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by
mail, telex or facsimile transmission to:
(i) ▇▇▇▇▇▇ Brothers Inc., Three World Financial
Center, New York, New York 10285, Attention: Syndicate
Department (Fax: ▇▇▇-▇▇▇-▇▇▇▇), with a copy, in the case of
any notice pursuant to Section 10(d), to the Director of
Litigation, Office of the General Counsel, ▇▇▇▇▇▇ Brothers
Inc., ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇; and
(ii) Banc of America Securities LLC, ▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: [ ]
(Fax: 212-[ ]), with a copy, in the case of
any notice pursuant to Section 10(d), to ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, Managing Director, Bank of America, N.A.,
Legal Department, NC1-007-20-01, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇.
with a copy to Weil, Gotshal & ▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq. (Fax:
▇▇▇-▇▇▇-▇▇▇▇); and
(b) if to the Company, shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set
forth in the Registration Statement, Attention: ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇▇, Vice President - Chief Financial Officer / ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, Vice President Senior Corporate Counsel (Fax:
▇▇▇-▇▇▇-▇▇▇▇),
with a copy to McAfee & ▇▇▇▇, A Professional Corporation, ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq. (Fax: ▇▇▇-▇▇▇-▇▇▇▇);
(c) if to the Selling Stockholders, shall be delivered or
sent by mail, telex or facsimile transmission to [▇. ▇. Childs
Equity Partners II,
38
L.P., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Vice President (Fax: ▇▇▇-▇▇▇-▇▇▇▇)],
with a copy to Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: [ ],
Esq. (Fax: ▇▇▇-▇▇▇-▇▇▇▇);
PROVIDED, HOWEVER, that any notice to an Underwriter pursuant to Section 10(d)
shall be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its acceptance telex to the
Representatives, which address will be supplied to any other party hereto by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof. The Company and
the Selling Stockholders shall be entitled to act and rely upon any request,
consent, notice or agreement given or made on behalf of the Underwriters by
▇▇▇▇▇▇ Brothers Inc. and Banc of America Securities LLC on behalf of the
Representatives and the Company and the Underwriters shall be entitled to act
and rely upon any request, consent, notice or agreement given or made on behalf
of the Selling Stockholders by the Custodian.
15. Persons Entitled to Benefit of Agreement. This Agreement
shall inure to the benefit of and be binding upon the Underwriters, the Company,
the Selling Stockholders and their respective personal representatives and
successors. This Agreement and the terms and provisions hereof are for the sole
benefit of only those persons, except that (A) the representations, warranties,
indemnities and agreements of the Company and the Selling Stockholders contained
in this Agreement shall also be deemed to be for the benefit of the person or
persons, if any, who control any Underwriter within the meaning of Section 15 of
the Securities Act and (B) the indemnity agreement of the Underwriters contained
in Section 10(c) of this Agreement shall be deemed to be for the benefit of (i)
directors of the Company, officers of the Company who have signed the
Registration Statement and any person controlling the Company within the meaning
of Section 15 of the Securities Act and (ii) any person controlling a Selling
Stockholder within the meaning of Section 15 of the Securities Act. Nothing in
this Agreement is intended or shall be construed to give any person, other than
the persons referred to in this Section 15, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision contained
herein.
16. SURVIVAL. The respective indemnities, representations,
warranties and agreements of the Company, the Selling Stockholders and the
Underwriters contained in this Agreement or made by or on behalf on them,
respectively, pursuant to this Agreement, shall survive the delivery of and
payment for the Stock and shall remain in full force and effect, regardless of
any investigation made by or on behalf of any of them or any person controlling
any of them.
17. DEFINITION OF THE TERMS "BUSINESS DAY" AND "SUBSIDIARY".
For purposes of this Agreement, (a) "business day" means each Monday, Tuesday,
Wednesday, Thursday or Friday which is not a day on which banking institutions
in New
39
York are generally authorized or obligated by law or executive order to close
and (b) "subsidiary" has the meaning set forth in Rule 405 of the Rules and
Regulations.
18. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of New York.
19. COUNTERPARTS. This Agreement may be executed in one or
more counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
20. HEADINGS. The headings herein are inserted for convenience
of reference only and are not intended to be part of, or to affect the meaning
or interpretation of, this Agreement.
40
If the foregoing correctly sets forth the agreement among the
Company, the Selling Stockholders and the Underwriters, please indicate your
acceptance in the space provided for that purpose below.
Very truly yours,
▇▇▇▇▇▇ COMMUNICATIONS CORPORATION
By:
---------------------------------
Name:
Title:
The Selling Stockholders named in Schedule 2
to this Agreement
By:
---------------------------------
ATTORNEY-IN-FACT
41
Accepted:
▇▇▇▇▇▇ BROTHERS INC.
BANC OF AMERICA SECURITIES LLC
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
DEUTSCHE BANK SECURITIES INC.
▇▇▇▇▇▇▇, SACHS & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED,
For themselves and as Representatives
of the several Underwriters named
in Schedule 1 hereto
By ▇▇▇▇▇▇ BROTHERS INC.
By:
------------------------------------
Name:
AUTHORIZED REPRESENTATIVE
By BANC OF AMERICA SECURITIES LLC
By:
------------------------------------
Name:
AUTHORIZED REPRESENTATIVE
By ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
By:
------------------------------------
Name:
AUTHORIZED REPRESENTATIVE
42
By DEUTSCHE Bank SECURITIES INC.
By:
------------------------------------
Name:
AUTHORIZED REPRESENTATIVE
By ▇▇▇▇▇▇▇, SACHS & CO.
By:
------------------------------------
Name:
AUTHORIZED REPRESENTATIVE
By ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
By:
------------------------------------
Name:
AUTHORIZED REPRESENTATIVE
43
SCHEDULE 1
Number of
Underwriters Shares
------------ ---------
▇▇▇▇▇▇ Brothers Inc.........................................
Banc of America Securities..................................
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc....................................
Deutsche Bank Securities Inc................................
▇▇▇▇▇▇▇, Sachs & Co.........................................
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated..........
---------
Total.......................................................
=========
44
SCHEDULE 2
Number of Shares
Name and address of Selling Stockholders of Option Stock
---------------------------------------- ----------------
[To be supplied by Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP]
------------
Total
============
45
EXHIBIT 9(D)
[Form of opinion of McAfee & ▇▇▇▇]
(i) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Oklahoma. The
Company is duly qualified to do business and is in good standing as a foreign
corporation in each jurisdiction listed on Schedule I hereto and has all power
and authority necessary to own or hold its properties and conduct the businesses
in which it is engaged.
(ii) The Company has represented to us that the subsidiaries listed on
Schedule II hereto are the only material subsidiaries of the Company. Each
subsidiary of the Company listed on Schedule II hereto (the "Significant
Subsidiaries") has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its jurisdiction of incorporation
(or in the case of each subsidiary that is a partnership, is duly organized and
is validly existing as a partnership in good standing under the laws of its
jurisdiction of organization), is duly qualified to do business and is in good
standing as a foreign corporation or partnership in each jurisdiction listed on
Schedule II hereto and has all power and authority necessary to own or hold its
properties and conduct the businesses in which it is engaged.
(iii) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock and preferred stock of
the Company (including the shares of Class A Common Stock, par value $0.001 per
share, being delivered on the date hereof (the "Class A Common Stock")) have
been duly and validly authorized and issued, are fully paid and non-assessable
and conform to the description thereof contained in the Prospectus; and all of
the issued shares of capital stock of each Significant Subsidiary of the Company
have been duly and validly authorized and issued and are fully paid,
non-assessable and (except as set forth in the Prospectus) are owned directly
or indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims. The certificates for the Class A Common Stock (including
the shares of Class A Common Stock being delivered on the date hereof) are in
valid form.
(iv) There are no preemptive or other rights to subscribe for or to
purchase, nor any restriction upon the voting or transfer of, any shares of the
Class A Common Stock pursuant to the Company's charter or by-laws or any
agreement or other instrument known to such counsel other than preemptive or
other rights set forth in the Prospectus which have been waived by the holders
thereof; and, except as set forth in the Prospectus, no options, warrants or
other rights to purchase, agreements or other obligations to issue, or rights to
convert any obligations into or exchange any securities for, shares of capital
stock of or ownership interests in the Company are outstanding.
(v) The Company and each of its Significant Subsidiaries have good and
marketable title in fee simple to all real property owned by them, in each case
free and clear of all liens, encumbrances and defects except such as are
described in the
46
Prospectus or such as do not materially affect the value of such property and
do not materially interfere with the use made and proposed to be made of such
property by the Company and its Significant Subsidiaries; and all real
property and buildings held under lease by the Company and its Significant
Subsidiaries are held by them under valid, subsisting and enforceable leases,
with such exceptions as are not material and do not interfere with the use
made and proposed to be made of such property and buildings by the Company
and its Significant Subsidiaries.
(vi) To the best of our knowledge, there are no legal or governmental
proceedings pending to which the Company or any of its Significant Subsidiaries
is a party or of which any property or assets of the Company or any of its
Significant Subsidiaries is the subject (i) which is required to be disclosed in
the Registration Statement which is not adequately disclosed in the Prospectus
or (ii) which, if determined adversely to the Company or any of its Significant
Subsidiaries, might have a material adverse effect (A) on the consolidated
financial position, stockholders' equity, results of operations, business or
prospects of the Company and its Significant Subsidiaries or (B) on the power or
ability of the Company to perform its obligations under the Underwriting
Agreement or the consummation of any of the transactions contemplated thereby or
in the Prospectus; and, to the best of our knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by others.
(vii) The Registration Statement was declared effective under the
Securities Act of 1933, as amended (the "Securities Act") as of [date and time],
the Prospectus was filed with the United States Securities and Exchange
Commission (the "Commission") pursuant to subparagraph [( )] of Rule 424(b)
under the Securities Act, on [date] and no stop order suspending the
effectiveness of the Registration Statement has been issued and, to the best
knowledge of such counsel, no proceeding for that purpose is pending or
threatened by the Commission.
(viii) The Registration Statement and the Prospectus and any further
amendments or supplements thereto made by the Company prior to the date hereof
(other than the financial statements and related schedules therein, as to which
such counsel need express no opinion) comply as to form in all material respects
with the requirements of the Securities Act and the rules and regulations (the
"Rules and Regulations") of the Commission thereunder.
(ix) The statements contained in the Prospectus under the captions
"Risk Factors--Risks Related to This Offering--There may not be an active market
for our Class A common stock and any future trading price of our common stock
may decline, making it difficult for you to sell your stock.," "The American
Cellular Acquisition," "Description of Capital Stock" and "Underwriting,"
insofar as such statements constitute a summary of the legal matters or
documents referred to therein, are accurate and constitute a fair summary
thereof.
47
(x) The statements contained in the Prospectus under the caption
"Federal Income Tax Considerations," insofar as they describe federal statutes,
rules and regulations, are accurate and constitute a fair summary thereof.
(xi) There are no contracts or other documents which are required to be
described in the Prospectus or filed as exhibits to the Registration Statement
by the Securities Act or by the Rules and Regulations which have not been
described or filed as exhibits to the Registration Statement or incorporated
therein by reference as permitted by the Rules and Regulations.
(xii) The Underwriting Agreement has been duly authorized, executed and
delivered by the Company and (assuming the due authorization, execution and
delivery thereof by the other parties thereto) constitutes the legal, valid and
binding agreement of the Company enforceable against it in accordance with its
terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether considered in
a proceeding in equity or at law) or an implied covenant of good faith and fair
dealing.
(xiii) The issue and sale of the shares of Class A Common Stock being
delivered on the date hereof by the Company and the compliance by the Company
with all of the provisions of the Underwriting Agreement and the consummation of
the transactions contemplated thereby and by the Company's Amended and Restated
Certificate of Incorporation and by the Agreement and Plan of Recapitalization,
dated as of January [ ], 2000, among the Company, ▇▇▇▇▇▇ Operating Company,
▇▇▇▇▇▇ ▇▇ Limited Partnership, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇.▇. Childs Equity Partners
II, L.P., AT&T Wireless Services, Inc. and the holders of the Company's
pre-recapitalization Class A Common Stock, par value $.001 per share, and
Class D Preferred Stock, par value $1.00 per share, listed on the signature
pages therein, providing for the recapitalization described in the Prospectus
under the captions "Capitalization," "The Recacpitalization" and "Description
of Capital Stock" (such actions are herein collectively called the
"Recapitalization"), do not and will not conflict with or result in a breach
or violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to us to which the Company or any of the
Significant Subsidiaries is a party or by which the Company or any of the
Significant Subsidiaries is bound or to which any of the property or assets
of the Company or any of the Significant Subsidiaries is subject, nor will
such actions result in any violation of the provisions of the charter or
by-laws of the Company or any of the Significant Subsidiaries or any statute
or any order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any of its Significant Subsidiaries
or any of their properties or assets; and, except for the registration of the
Class A Common Stock under the Securities Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under the
Exchange Act, and applicable state or foreign securities laws in connection
with the purchase and distribution of the Class A Common Stock by the
Underwriters and the
48
filing of the Company's Amended and Restated Certificate of Incorporation
with the Secretary of State of Oklahoma, no consent, approval, authorization
or order of, or filing or registration with, any such court or governmental
agency or body is required for the execution, delivery and performance of
this Agreement by the Company and the consummation of the transactions
contemplated thereby and by the Recapitalization.
(xiv) To the best of our knowledge, 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
Securities Act with respect to any 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 Securities Act, other than such rights set forth in the
Prospectus which have been waived by the holders thereof.
(xv) The Amended and Restated Certificate of Incorporation providing
for the Recapitalization, creating the Class A Common Stock, the Class B Common
Stock, par value $.001 per share, of the Company, the Class D Common Stock, par
value $.001 per share, of the Company, amending the terms of the Class C Common
Stock, par value $.001 per share, of the Company, and redesignating the 12 1/4%
Senior Exchangeable Preferred Stock due 2008 issued in January 1998, the 12 1/4%
Senior Exchangeable Preferred Stock due 2008 issued in December 1998 and the 13%
Senior Exchangeable Preferred Stock due 2008 issued in May 1999 has been filed
with the Secretary of State of Oklahoma.
(xvi) Neither the Company nor any subsidiary of the Company are, or will
be after the offering of the Class A Common Stock and the use of proceeds
therefrom, an "investment company" within the meaning of such term under the
Investment Company Act of 1940, as amended, and the rules and regulations of the
Commission thereunder.
(xvii) The Nasdaq Stock Market has approved the Class A Common Stock for
inclusion in the National Market System, subject only to official notice of
issuance and evidence of satisfactory distribution.
(xviii) The Company and each of its Significant Subsidiaries have such
material permits, licenses, franchises and authorizations of governmental or
regulatory authorities, other than permits, licenses, franchises and
authorizations issued by the Federal Communications Commission as to which we
express no opinion ("Permits"), including, without limitation, under any
applicable environmental laws, as are necessary to own, lease and operate their
respective properties and to conduct their respective businesses as currently
being conducted and as proposed to be conducted as described in the Prospectus;
we have no reason to believe that the Company and each of the Significant
Subsidiaries have not fulfilled and performed all of their respective material
obligations with respect to such Permits; and to our best knowledge no event has
occurred that would allow, or after notice or lapse of time would allow,
revocation or termination of any Permit or that would result in any other
material impairment of the rights granted to the
49
Company or any of its Significant Subsidiaries under any Permit, and such
counsel has no reason to believe that any government body or agency is
considering limiting, suspending or revoking any Permit.
(xix) The Company and each of its Significant Subsidiaries own or
possess adequate rights to use all material patents, patent applications,
trademarks, service marks, trade names, trademark registrations, service ▇▇▇▇
registrations, copyrights and licenses necessary for the conduct of their
respective businesses and such counsel has no reason to believe that the conduct
of their respective businesses will conflict with any such rights of others.
In rendering such opinion, such counsel may (i) state that its opinion is
limited to matters governed by the Federal laws of the United States of America
and the laws of the State of Oklahoma and (ii) in giving the opinion referred to
in paragraph (v) above, state that no examination of record titles for the
purpose of such opinion has been made, and that it is relying upon a general
review of the titles of the Company and its subsidiaries, upon opinions of local
counsel and abstracts, reports and policies of title companies rendered or
issued at or subsequent to the time of acquisition of such property by the
Company or its subsidiaries, upon opinions of counsel to the lessors of such
property and, in respect of matters of fact, upon certificates of officers of
the Company or its subsidiaries, PROVIDED that such counsel shall state that it
believes that both the Underwriters and it are justified in relying upon such
opinions, abstracts, reports, policies and certificates. Such counsel shall
also have furnished to the Representatives a written statement, addressed to the
Underwriters and dated the date hereof, in form and substance satisfactory to
the Representatives, to the effect that (x) such counsel has acted as counsel to
the Company in connection with previous financing transactions and has acted as
counsel to the Company in connection with the preparation of the Registration
Statement, and (y) based on the foregoing, no facts have come to the attention
of such counsel which lead it to believe that the Registration Statement, as of
the date and the time the Registration Statement, or the most recent
post-effective amendment thereto, if any, was declared effective by the
Commission, contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary in order to
make the statements therein not misleading, or that the Prospectus contains
any untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. The foregoing opinion and statement may be qualified by a
statement to the effect that such counsel does not assume any responsibility
for the accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus except for the statements made in
the Prospectus under the captions referred to in paragraphs (ix) and (x)
above, insofar as such statements relate to the Stock and concern legal
matters.
50
Exhibit 9(E)
[Form of Selling Stockholders' Opinion]
[To be supplied.]
51
EXHIBIT 9(F)
[Form of opinion of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, LLP]
(i) (1) The issue and sale of the shares of Class A Common Stock being
delivered on the date hereof by the Company and the compliance by the Company
with all of the provisions of the Underwriting Agreement and the consummation of
the transactions contemplated thereby, by the Company's amended and restated
certificate of incorporation and by the Agreement and Plan of Recapitalization,
dated as of January [ ], 2000, among the Company, ▇▇▇▇▇▇ Operating Company,
▇▇▇▇▇▇ ▇▇ Limited Partnership, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇.▇. Childs Equity Partners
II, L.P., AT&T Wireless Services, Inc. and the holders of the Company's
pre-recapitalization Class A Common Stock, par value $.001 per share, and
Class D Preferred Stock, par value $1.00 per share, listed on the signature
pages therein, providing for the recapitalization described in the Prospectus
under the captions "Capitalization," "The Recapitalization" and "Description
of Capital Stock" (such actions are herein collectively called the
"Recapitalization"), do not and will not result in any violation of the
provisions of (a) the Communications Act of 1934, as amended, and the rules
and regulations promulgated thereunder (the "Act") or (b) to the best of our
knowledge, any order or decree of the Federal Communications Commission (the
"FCC") or any state authority governing telecommunications matters; and (2)
no registration, filing, application, notice, transfer, consent, approval,
audit, qualification, waiver or other action of any kind is required by the
FCC by virtue of the execution, delivery and performance of the Underwriting
Agreement and the consummation of the transactions contemplated thereby and
by the Recapitalization, and the issuance and delivery of the Class A Common
Stock, or to avoid the loss of any license or authorization issued by the FCC
or any state authority governing telecommunications matters (the "Licenses"),
or the violation or breach of any applicable law thereto.
(ii) The statements contained in the Prospectus in the second paragraph
under the caption "Risk Factors--Risks Related to Our Business--Our roaming
partners, including AT&T Wireless, are not prohibited from competing with us in
many of our markets. Our licenses do not preclude other operators from offering
competing cellular or wireless services in our markets.," under the caption
"Risk Factors--Risks Related to Our Business--Our business is regulated and
there is potential for adverse regulatory change. We may be unable to obtain
regulatory approvals which could have a material adverse effect on our
operations and the trading price of our common stock.," in the last four
paragraphs under the caption "Business--Competitive Strengths/Competition" and
under the caption "Business--Regulation," insofar as such statements constitute
a summary of the legal matters, documents or proceedings referred to therein,
are accurate and constitute a fair summary thereof.
(iii) All Licenses required for the operation of the business of the
Company and its subsidiaries as, to the best of our knowledge, it is being
operated, are in full force
52
and effect. There are no pending modifications, amendments or revocation
proceedings which would adversely affect the operation of any of the
telecommunications business currently owned by the Company and its
subsidiaries (the "Businesses"). All fees due and payable to governmental
authorities pursuant to the rules governing Licenses have been paid. To the
best of our knowledge, no event has occurred with respect to the Licenses
held by the Company, or its respective subsidiaries, which, with the giving
of notice or the lapse of time or both, would constitute grounds for
revocation of any Licenses. To the best of our knowledge, each of the
Company and its subsidiaries is in compliance in all material respects with
the terms of the Licenses, as applicable, and to the best of our knowledge
there is no condition, event or occurrence existing, nor is there any
proceeding being conducted of which the Company has received notice, nor, is
there any proceeding threatened, by any governmental authority, which would
cause the termination, suspension, cancellation or nonrenewal of any of the
Licenses, or the imposition of any penalty or fine (that is material to the
Company and its subsidiaries, taken as a whole) by any regulatory authority.
53