Exhibit 10.29
6,000,000 Shares
TRITON PCS HOLDINGS, INC.
CLASS A COMMON STOCK, PAR VALUE $0.01 PER SHARE
UNDERWRITING AGREEMENT
February 22, 2001
Exhibit 10.29
February 22, 2001
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
First Union Securities, Inc.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co. Incorporated
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs and Mesdames:
Triton PCS Holdings, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell to the several Underwriters named in Schedule II
hereto (the "Underwriters"), and certain shareholders of the Company (the
"Selling Shareholders") named in Schedule I hereto severally propose to sell to
the several Underwriters, an aggregate of 6,000,000 shares of the Class A Common
Stock, par value $.01 per share, of the Company (the "Firm Shares"), of which
3,500,000 shares are to be issued and sold by the Company and 2,500,000 shares
are to be sold by the Selling Shareholders, each Selling Shareholder selling the
amount set forth opposite such Selling Shareholder's name in Schedule I hereto.
The Selling Shareholders also propose to sell to the several
Underwriters not more than an additional 900,000 shares of the Class A Common
Stock, $.01 par value per share of the Company (the "Additional Shares") owned
by such Selling Shareholders if and to the extent that you, as Representatives
of the several Underwriters, shall have determined to exercise, on behalf of the
Underwriters, the right to purchase such shares of common stock granted to the
Underwriters in Section 3 hereof. The Firm Shares and the Additional Shares are
hereinafter collectively referred to as the "Shares." The shares of Class A
Common Stock, $.01 par value per share, and Class B Common Stock, $.01 par value
per share, of the Company to be outstanding after giving effect to the sales
contemplated hereby are hereinafter referred to collectively as the "Common
Stock." The Company and the Selling Shareholders are hereinafter sometimes
collectively referred to as the "Sellers."
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement, including a prospectus, relating to the
Shares and other securities (the "Shelf Securities") of the Company and has
filed with, or transmitted for filing to, or shall promptly hereafter file with
or transmit for filing to, the Commission a prospectus supplement (the
"Prospectus Supplement") specifically relating to the Shares pursuant to Rule
424 under the Securities Act of 1933, as amended (the "Securities Act"), in the
form first used to confirm sales of the Shares. The term "Registration
Statement" means the registration statement, including the exhibits thereto, as
amended to the date of this Agreement. The term "Basic Prospectus" means the
related prospectus covering the Shelf Securities in the form first used to
confirm sales of the Shares. The term "Prospectus" means the Basic Prospectus
together with the Prospectus Supplement. The term "preliminary prospectus" means
a preliminary prospectus supplement specifically relating to the Shares,
together with the Basic Prospectus. As used herein, the terms "Basic
Prospectus," "Prospectus" and "preliminary prospectus" shall include in each
case the documents, if any, incorporated by reference therein. The terms
"supplement," "amendment" and "amend" as used herein shall include all documents
deemed to be incorporated by reference in the Prospectus that are filed
subsequent to the date of the Basic Prospectus by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
1. Representations and Warranties of the Company. The Company
represents and warrants to and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or, to the Company's
knowledge, threatened by the Commission.
(b) (i)Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or
will comply when so filed in all material respects with the Exchange Act
and the applicable rules and regulations of the Commission thereunder,
(ii)each part of the Registration Statement, when such part became
effective, did not contain, and each such part, as amended or supplemented,
if applicable, willnot contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading,(iii) the Registration Statement
and the Prospectus comply and, as amended or supplemented, if applicable,
will comply in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder and (iv) the
Prospectus does not contain and, as amended or supplemented, if applicable,
will not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that the
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representations and warranties set forth in this paragraph do not apply to
statements or omissions in the Registration Statement or the Prospectus
based upon information relating to any Underwriter furnished to the Company
in writing by such Underwriter through you expressly for use therein.
(c) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the failure
to be so qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(d) Each subsidiary of the Company has been duly organized, is validly
existing in good standing under the laws of the jurisdiction of its
organization, has the corporate or limited liability company power and
authority to own its property and to conduct its business as described in
the Prospectus and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its subsidiaries, taken
as a whole; all of the issued shares of capital stock of each subsidiary of
the Company have been duly and validly authorized and issued, are fully
paid and non-assessable and are owned directly by the Company, free and
clear of all liens, encumbrances, equities or claims, other than liens
granted to the lenders (the "Credit Facility Liens") under Triton PCS,
Inc.'s credit facility and restrictions on the Company with respect to such
shares in the First Amended and Restated Stockholders' Agreement dated as
of October 27, 1999 (the "Stockholders' Agreement"), by and among AT&T
Wireless PCS LLC, the cash equity investors, management stockholders and
independent directors party thereto and the Company, in each case as
described in the Prospectus.
(e) This Agreement has been duly authorized, executed and delivered by
the Company.
(f) The authorized capital stock of the Company conforms as to legal
matters to the description thereof contained in the Prospectus.
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(g) The shares of Common Stock (including the Shares to be sold by the
Selling Shareholders) outstanding prior to the issuance of the Shares to be
sold by the Company have been duly authorized and are validly issued, fully
paid and non-assessable.
(h) The Shares to be sold by the Company have been duly authorized
and, when issued and delivered in accordance with the terms of this
Agreement, will be validly issued, fully paid and non-assessable, and the
issuance of such Shares will not be subject to any preemptive or similar
rights.
(i) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement will not contravene
(1) any provision of applicable law or the certificate of incorporation or
by-laws of the Company or (2) in any material respect any provision of any
agreement or other instrument binding upon the Company or any of its
subsidiaries that is material to the Company and its subsidiaries, taken as
a whole, or (3) any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Company or any subsidiary, and
no consent, approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the Company
of its obligations under this Agreement, except such as may be required by
the securities or Blue Sky laws of the various states in connection with
the offer and sale of the Shares.
(j) There has not occurred any material adverse change, or any
development that could reasonably be expected to have a material adverse
change, in the condition, financial or otherwise, or in the earnings,
business or operations of the Company and its subsidiaries, taken as a
whole, from that set forth in the Prospectus (exclusive of any amendments
or supplements thereto subsequent to the date of this Agreement).
(k) There are no legal or governmental proceedings pending or, to the
Company's knowledge, threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of the Company or
any of its subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or any
statutes, regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be filed or
incorporated by reference as exhibits to the Registration Statement that
are not described, filed or incorporated as required.
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(l) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Securities Act, complied when so filed in
all material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder.
(m) The Company is not, and after giving effect to the offering and
sale of the Shares and the application of the proceeds thereof as described
in the Prospectus will not be, required to register as an "investment
company" as such term is defined in the Investment Company Act of 1940, as
amended.
(n) The Company and its subsidiaries (i) are in compliance with any
and all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"),(ii) have received all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct
their respective businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and
conditions of such permits, licenses or approvals would not, singly or in
the aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(o) There are no costs or liabilities associated with Environmental
Laws (including, without limitation, any capital or operating expenditures
required for clean-up, closure of properties or compliance with
Environmental Laws or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to third
parties) which would, singly or in the aggregate, have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(p) There are no contracts, agreements or understandings between the
Company and any person granting such person the right to (i) require the
Company to file a registration statement under the Securities Act with
respect to any securities of the Company, except as described in the
Prospectus or (ii) require the Company to include such securities with the
Shares registered pursuant to the Registration Statement.
(q) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus,(i) the Company and
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its subsidiaries have not incurred any material liability or obligation,
direct or contingent, nor entered into any material transaction not in the
ordinary course of business;(ii) the Company has not purchased any of its
outstanding capital stock (other than the repurchase of capital stock from
former employees in an aggregate amount not in excess of $50,000), nor
declared, paid or otherwise made any dividend or distribution of any kind
on its capital stock other than ordinary and customary dividends; and there
has not been any material change in the capital stock, short-term debt or
long-term debt of the Company and its consolidated subsidiaries, except in
each case as described in the Prospectus (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement).
(r) The Company and its subsidiaries have marketable title in fee
simple to all real property and good and marketable title to all personal
property owned by them that is material to the business of the Company and
its subsidiaries, in each case free and clear of all liens, encumbrances
and defects except such as are described in the Prospectus or such as do
not materially affect the value of such property and do not interfere with
the use made and proposed to be made of such property by the Company and
its subsidiaries; and any real property and buildings held under lease by
the Company and its subsidiaries are held by them under valid, subsisting
and enforceable leases with such exceptions as are not material and do not
interfere with the use made and proposed to be made of such property and
buildings by the Company and its subsidiaries, in each case except as
described in the Prospectus.
(s) Except in each case as described in or contemplated by the
Prospectus, the Company and its subsidiaries own or possess, or can acquire
on reasonable terms, all material patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks and trade names currently
employed by them in connection with the business now operated by them, and
neither the Company nor any of its subsidiaries has received any notice of
infringement of or conflict with asserted rights of others with respect to
any of the foregoing which, singly or in the aggregate, if the subject of
an unfavorable decision, ruling or finding, would result in any material
adverse change in the condition, financial or otherwise, or in the
earnings, business or operations of the Company and its subsidiaries, taken
as a whole.
(t) No material labor dispute with the employees of the Company or any
of its subsidiaries exists, except as described in or contemplated by the
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Prospectus, or, to the knowledge of the Company, is imminent; and the
Company is not aware of any existing, threatened or imminent labor
disturbance by the employees of any of its principal suppliers,
manufacturers or contractors that could result in any material adverse
change in the condition, financial or otherwise, or in the earnings,
business or operations of the Company and its subsidiaries, taken as a
whole.
(u) The Company and each of its subsidiaries are insured by insurers
of recognized financial responsibility against such losses and risks and in
such amounts as are prudent and customary in the businesses in which they
are engaged; neither the Company nor any such subsidiary has been refused
any insurance coverage sought or applied for; and neither the Company nor
any such subsidiary has any reason to believe that it will not be able to
renew its existing insurance coverage as and when such coverage expires or
to obtain similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not materially and adversely
affect the condition, financial or otherwise, or the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, except as
described in the Prospectus.
(v) The Company and its subsidiaries possess all licenses,
certificates, authorizations and permits issued by the appropriate federal,
state or foreign regulatory authorities necessary to conduct their
respective businesses, except where the failure to possess such licenses,
certificates, authorizations and permits would not, singly or in the
aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole, and neither the Company nor any such
subsidiary has received any notice of proceedings relating to the
revocation or modification of any such license, certificate, authorization
or permit which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a material adverse
change in the condition, financial or otherwise, or in the earnings,
business or operations of the Company and its subsidiaries, taken as a
whole, except as described in the Prospectus.
(w) The Company and its subsidiaries (i) are in compliance with any
and all applicable federal, state and local laws and regulations relating
to wireless communications services ("Telecom Laws"),(ii) have received all
permits, licenses or other approvals ("Telecom Licenses") required of them
under applicable Telecom Laws to conduct their respective businesses, all
of which were validly issued and are in full force and effect, with no
material restrictions or qualifications except as described in the
Prospectus (exclusive of any amendments or supplements thereto subsequent
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to the date of this Agreement) and (iii) are in compliance with all terms
and conditions of any such Telecom License, except where such noncompliance
with Telecom Laws, failure to receive required Telecom Licenses, failure to
have such Telecom Licenses be validly issued or in full force and effect,
or failure to comply with the terms and conditions of such Telecom Licenses
would not, singly or in the aggregate, have a material adverse effect on
the Company and its subsidiaries, taken as a whole.
(x) Each of the Company and its subsidiaries has filed with the
Federal Communication Commission (the "FCC") all necessary and material
reports, documents, instruments, information and applications required to
be filed pursuant to the FCC's rules, regulations and requests.
(y) The Company has no reason to believe, and does not believe, that
the Telecom Licenses will not be renewed for a full term when they are due
for renewal.
(z) Except as described in the Prospectus (exclusive of any amendments
or supplements thereto subsequent to the date of this Agreement), each of
(A) the agreements described in the Prospectus under the captions "Certain
Relationships and Related Transactions--The Stockholders' Agreement," "--
License Agreement" and "--Roaming Agreement" and (B) Triton PCS's credit
facility dated as of February 3, 1998, as amended as of September 22, 1999,
and September 14, 2000, are in full force and effect. Neither the Company
nor any of its subsidiaries is, or with the giving of notice or lapse of
time or both would be, in violation of or in default under (i) any of those
agreements or (ii) any other 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 any of them are bound, except for
violations and defaults which individually and in the aggregate are not
material to the Company and its subsidiaries, taken as a whole.
(aa) The Company and each of its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management's general
or specific authorizations;(ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability;(iii)
access to assets is permitted only in accordance with management's general
or specific authorization; and (iv) the recorded accountability for assets
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is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(bb) Except as described in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this
Agreement), the Company has not sold, issued or distributed any shares of
Common Stock during the six-month period preceding the date hereof,
including any sales pursuant to Rule 144A under, or Regulation D or S of,
the Securities Act, other than those described in Part II of the Company's
quarterly reports on Form 10-Q (the "Form 10-Qs"), if any, filed since the
Company's most recent annual report on Form 10-K (the "Form 10-K"), under
Item 2 and shares issued pursuant to employee benefit plans, qualified
stock option plans or other employee compensation plans or pursuant to
outstanding options, rights or warrants.
(cc) The agreements (the "Filed Agreements") filed or incorporated by
reference as exhibits to the Registration Statement (or as exhibits to the
Form 10-K, Form 10-Qs or any other reports filed pursuant to the Exchange
Act and incorporated by reference thereto in the Registration Statement)
are the only agreements material to the Company and its Subsidiaries, taken
as a whole.
2. Representations and Warranties of the Selling Shareholders. Each
Selling Shareholder, severally and not jointly, represents and warrants to and
agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized (except in the case of
natural persons), executed and delivered by or on behalf of such Selling
Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the
performance by such Selling Shareholder of its obligations under, this
Agreement, the Custody Agreement signed by such Selling Shareholder and
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, as Custodian, relating to the deposit of the
Shares to be sold by such Selling Shareholder (the "Custody Agreement") and
the Power of Attorney appointing certain individuals as such Selling
Shareholder's attorneys-in-fact to the extent set forth therein, relating
to the transactions contemplated hereby and by the Registration Statement
(the "Power of Attorney") will not contravene (i) any provision of
applicable law,or the certificate of incorporation or by-laws of such
Selling Shareholder (if such Selling Shareholder is a corporation), or (ii)
in any material respect any agreement or other instrument binding upon such
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Selling Shareholder that is material to such Selling Shareholder or (iii)
any judgment, order or decree of any governmental body, agency or court
having jurisdiction over such Selling Shareholder, and no consent,
approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by such Selling
Shareholder of its obligations under this Agreement or the Custody
Agreement or Power of Attorney of such Selling Shareholder, except such as
have been obtained or as may be required by the securities or Blue Sky laws
of the various states in connection with the offer and sale of the Shares.
(c) Such Selling Shareholder has, and on the Closing Date will have,
valid title to, or a valid "security entitlement" within the meaning of
Section 8-501 of the New York Uniform Commercial Code in respect of, the
Shares to be sold by such Selling Shareholder free and clear of all
security interests, claims, liens, equities or other encumbrances and the
legal right and power, and all authorization and approval required by law,
to enter into this Agreement, the Custody Agreement and the Power of
Attorney and to sell, transfer and deliver the Shares to be sold by such
Selling Shareholder or a security entitlement in respect of such Shares.
(d) The Custody Agreement and the Power of Attorney have been duly
authorized (except in the case of natural persons), executed and delivered
by such Selling Shareholder and are valid and binding agreements of such
Selling Shareholder.
(e) Upon payment for the Shares to be sold by such Selling Shareholder
pursuant to this Agreement, delivery of such Shares, as directed by the
Underwriters, to Cede & Co. ("Cede") or such other nominee as may be
designated by the Depository Trust Company ("DTC"), registration of such
Shares in the name of Cede or such other nominee and the crediting of such
Shares on the books of DTC to securities accounts of the Underwriters
(assuming that neither DTC nor any such Underwriter has notice of any
adverse claim (within the meaning of Section 8-105 of the New York Uniform
Commercial Code (the "UCC")) to such Shares), (A) DTC shall be a "protected
purchaser" of such Shares within the meaning of Section 8-303 of the UCC,
(B) under Section 8-501 of the UCC, the Underwriters will acquire a valid
security entitlement in respect of such Shares and (C) no action based on
any "adverse claim", within the meaning of Section 8-102 of the UCC, to
such Shares may be asserted against the Underwriters with respect to such
security entitlement; for purposes of this representation, such Selling
Shareholder may assume that when such payment, delivery and crediting
occur, (x) such Shares will have been registered in the name of Cede or
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another nominee designated by DTC, in each case on the Company's share
registry in accordance with its certificate of incorporation, bylaws and
applicable law, (y) DTC will be registered as a "clearing corporation"
within the meaning of Section 8-102 of the UCC and (z) appropriate entries
to the accounts of the several Underwriters on the records of DTC will have
been made pursuant to the UCC.
(f) All information relating to such Selling Shareholder furnished in
writing by or on behalf of such Selling Shareholder expressly for use in
(i) the Basic Prospectus under the caption "Principal and Selling
Stockholders" and (ii) the Prospectus Supplement under the caption "Selling
Stockholders" is, and on the Closing Date will be, true, correct and
complete, and does not, and on the Closing Date will not, contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make such information not
misleading.
3. Agreements to Sell and Purchase. Each Seller, severally and not
jointly, hereby agrees to sell to the several Underwriters, and each
Underwriter, upon the basis of the representations and warranties herein
contained, but subject to the conditions hereinafter stated, agrees, severally
and not jointly, to purchase from such Seller at $30.48 a share (the "Purchase
Price") the number of Firm Shares (subject to such adjustments to eliminate
fractional shares as you may determine) that bears the same proportion to the
number of Firm Shares to be sold by such Seller as the number of Firm Shares set
forth in Schedule II hereto opposite the name of such Underwriter bears to the
total number of Firm Shares.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Selling Shareholders,
severally and not jointly, agree to sell to the Underwriters the Additional
Shares, and the Underwriters shall have a one-time right to purchase, severally
and not jointly, up to 900,000 Additional Shares at the Purchase Price. If you,
on behalf of the Underwriters, elect to exercise such option, you shall so
notify the Selling Shareholders in writing not later than 30 days after the date
of this Agreement, which notice shall specify the number of Additional Shares to
be purchased by the Underwriters and the date on which such shares are to be
purchased. Such date may be the same as the Closing Date (as defined below) but
not earlier than the Closing Date nor later than ten business days after the
date of such notice. Additional Shares may be purchased as provided in Section
hereof solely for the purpose of covering over-allotments made in connection
with the offering of the Firm Shares. If any Additional Shares are to be
purchased, each Selling Shareholder agrees, severally and not jointly, to sell
the number of Additional Shares (subject to such adjustments to eliminate
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fractional shares as you may determine) that bears the same proportion to the
maximum number of Additional Shares that may be sold by such Selling Shareholder
set forth in Schedule I hereto as the total number of Additional Shares to be
purchased bears to 900,000, and each Underwriter agrees, severally and not
jointly, to purchase from each Selling Shareholder the number of Additional
Shares (subject to such adjustments to eliminate fractional shares as you may
determine) that bears the same proportion to the total number of Additional
Shares to be sold by such Selling Shareholder as the number of Firm Shares set
forth in Schedule II hereto opposite the name of such Underwriter bears to the
total number of Firm Shares.
Each Seller hereby agrees that, without the prior written consent of ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated on behalf of the Underwriters, it will not, during
the period ending 90 days after the date of the Prospectus, (i) offer, pledge,
sell, contract to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option, right or warrant to purchase, lend
or otherwise transfer or dispose of, directly or indirectly, any shares of
Common Stock or any securities convertible into or exercisable or exchangeable
for Common Stock or (ii) enter into any swap or other arrangement that transfers
to another, in whole or in part, any of the economic consequences of ownership
of the Common Stock, whether any such transaction described in clause (i) or
(ii) above is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise.
The restrictions contained in the preceding paragraph shall not apply to
(A) the Shares to be sold hereunder, (B) the issuance by the Company of shares
of Common Stock upon the exercise of an option or warrant or the conversion of a
security outstanding on the date hereof of which the Underwriters have been
advised in writing, (C) transactions by any person other than the Company
relating to shares of Common Stock or other securities acquired in open market
transactions after the completion of the offering of the Shares, (D) the grant
of options or stock under the Company's 1999 Stock and Incentive Plan or
Employee Stock Purchase Plan as in effect on the date hereof or (E) bona fide
gifts, sales or other dispositions of shares of any class of the Company's
capital stock by any Seller other than the Company, in each case that are made
exclusively between and among such Seller or members of such Seller's family, or
affiliates of such Seller, including its partners (if a partnership) or members
(if a limited liability company); provided that it shall be a condition to any
such transfer under clause (E) that (i) the transferee executes an agreement in
the form of Exhibit B hereto, and (ii) no filing by any party (donor, donee,
transferor or transferee) under Section 16(a) of the Exchange Act shall be
required or shall be voluntarily made in connection with such transfer or
distribution (other than a filing on a Form 5 made after the expiration of the
90-day period referred to above). In addition, each Selling Shareholder,
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severally and not jointly, agrees that, without the prior written consent of
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated on behalf of the Underwriters, it will not,
during the period ending 90 days after the date of the Prospectus, make any
demand for, or exercise any right with respect to, the registration of any
shares of Common Stock or any security convertible into or exercisable or
exchangeable for Common Stock.
If ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated shall release any Seller from the
restrictions set forth in the two immediately preceding paragraphs, ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated will, concurrently with such release, provide written
notice to the other Sellers.
4. Terms of Public Offering. The Sellers are advised by you that the
Underwriters propose to make a public offering of their respective portions of
the Shares as soon after this Agreement has been entered into as in your
judgment is advisable. The Sellers are further advised by you that the Shares
are to be offered to the public initially at $32.00 a share (the "Public
Offering Price") and to certain dealers selected by you at a price that
represents a concession not in excess of $0.99 a share under the Public Offering
Price.
5. Payment and Delivery. Payment for the Firm Shares to be sold by each
Seller shall be made to such Seller in Federal or other funds immediately
available in New York City against delivery of such Firm Shares for the
respective accounts of the several Underwriters at 10:00 a.m., New York City
time, on February 28, 2001, or at such other time on the same or such other
date, not later than March 7, 2001, as shall be designated in writing by you.
The time and date of such payment are hereinafter referred to as the "Closing
Date."
Payment for any Additional Shares to be sold by each Selling Shareholder
shall be made to such Selling Shareholder in Federal or other funds immediately
available in New York City against delivery of such Additional Shares for the
respective accounts of the several Underwriters at 10:00 a.m., New York City
time, on the date specified in the notice described in Section or at such other
time on the same or on such other date, in any event not later than April 6,
2001, as shall be designated in writing by you. The time and date of such
payment are hereinafter referred to as the "Option Closing Date."
The Firm Shares and Additional Shares shall be registered in such names and
in such denominations as you shall request in writing not later than one full
business day prior to the Closing Date or the Option Closing Date, as the case
may be. The Firm Shares and Additional Shares shall be delivered to you on the
Closing Date or the Option Closing Date, as the case may be, for the respective
accounts of the several Underwriters, with any transfer taxes payable in
13
connection with the transfer of the Shares to the Underwriters duly paid,
against payment of the Purchase Price therefor.
6. Conditions to the Underwriters' Obligations. The several obligations of
the Underwriters are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of
any review for a possible change that does not indicate the direction
of the possible change, in the rating accorded any of the Company's
securities by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act; and
(ii) there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations of the Company
and its subsidiaries, taken as a whole, from that set forth in the
Prospectus (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement) that, in your judgment, is
material and adverse and that makes it, in your judgment,
impracticable to market the Shares on the terms and in the manner
contemplated in the Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer of
the Company, to the effect set forth in Section 6(a)(i) above and to the
effect that the representations and warranties of the Company contained in
this Agreement are true and correct as of the Closing Date and that the
Company has complied with all of the agreements and satisfied all of the
conditions on its part to be performed or satisfied hereunder on or before
the Closing Date.
The officer signing and delivering such certificate may rely upon the
best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an
opinion of ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, outside counsel for the Company,
dated the Closing Date, to the effect that:
14
(i) the Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the State of
Delaware, has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus;
(ii) each subsidiary of the Company has been duly organized or
incorporated, is validly existing in good standing under the laws of
the jurisdiction of its organization or incorporation, has the
corporate or limited liability company power and authority to own its
property and to conduct its business as described in the Prospectus;
(iii) the authorized capital stock of the Company conforms as to
legal matters to the description thereof contained in the Prospectus;
(iv) the shares of Common Stock (including the Shares to be sold
by the Selling Shareholders) outstanding prior to the issuance of the
Shares to be sold by the Company (other than the 11.5 million shares
of Common Stock sold in the Company's initial public offering (the
"IPO Shares")) have been duly authorized and are validly issued, fully
paid and non-assessable;
(v) the issuance of the Shares to be sold by the Company will
not be subject to any preemptive or, to such counsel's knowledge,
similar rights;
(vi) all of the issued shares of capital stock of each
subsidiary of the Company have been duly and validly authorized and
issued, are fully paid and non-assessable and are, to such counsel's
knowledge, owned directly or indirectly by the Company, free and clear
of all liens, encumbrances, equities or claims, other than Credit
Facility Liens and restrictions on the Company with respect to such
shares in the Stockholders' Agreement, in each case as described in
the Prospectus;
(vii) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement
will not contravene any provision of Delaware or Pennsylvania law or
the certificate of incorporation or by-laws of the Company or any
Filed Agreement (provided that such counsel need not express any
opinion with respect to the Stockholders' Agreement) or, to the best
15
of such counsel's knowledge, any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the
Company or any subsidiary, and no consent, approval, authorization or
order of, or qualification with, any Delaware or Pennsylvania
governmental body or agency is required for the performance by the
Company of its obligations under this Agreement, except such as may be
required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Shares; provided that such
counsel need not express any opinion with respect to the
Communications Act of 1934, as amended, or any rules, regulations or
orders thereunder;
(viii) the statements relating to legal matters, documents or
proceedings included in the Prospectus under the captions "Description
of Capital Stock" and "Certain Relationships and Related Transactions"
and "Item 11--Executive Compensation and Employment Agreements--
Employment Agreements" of the Form 10-K, in each case insofar as such
statements constitute summaries of the legal matters, documents or
proceedings referred to therein, fairly present the information called
for with respect to such legal matters, documents and proceedings and
fairly summarize the matters referred to therein;
(ix) to such counsel's knowledge, such counsel does not know of
any legal or governmental proceedings pending or threatened to which
the Company or any of its subsidiaries is a party or to which any of
the properties of the Company or any of its subsidiaries is subject
that are required to be described in the Registration Statement or the
Prospectus and are not so described or of any statutes, regulations,
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to
the Registration Statement that are not described or filed as
required;
(x) nothing has come to the attention of such counsel that
causes such counsel to believe that (A) any part of the Registration
Statement (except for financial statements and schedules and other
financial and statistical data included therein as to which such
counsel need not express any belief), when such part became effective,
contained any untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading,(B) the Registration Statement, as
supplemented by the Prospectus Supplement (except for financial
statements and schedules and
16
other financial and statistical data included therein as to which such
counsel need not express any belief) on the date of this Agreement
contained any untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading (C) or the Prospectus (except for
financial statements and schedules and other financial and statistical
data included therein as to which such counsel need not express any
belief) as of its date or as of the Closing Date contained or contains
any untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading.
(d) The Underwriters shall have received on the Closing Date an
opinion of Dow ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ PLLC, outside counsel for the
company, dated the Closing Date, to the effect that:
(i) the Shares to be sold by the Company have been duly
authorized and, when issued and delivered in accordance with the
terms of this Agreement, will be validly issued, fully paid and
non-assessable;
(ii) this Agreement has been duly authorized, executed and
delivered by the Company;
(iii) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this
Agreement will not contravene any provision of United States
Federal law and will not contravene any provision of the
Stockholders' Agreement in any material respect, and no consent,
approval, authorization or order of, or qualification with, any
United States Federal governmental body or agency is required for
the performance by the Company of its obligations under this
Agreement, except such as may be required by the securities or
Blue Sky laws of the various states in connection with the offer
and sale of the Shares by the Underwriters; provided that such
counsel need not express any opinion with respect to the
Communications Act of 1934, as amended, or any rules, regulations
or orders thereunder;
(iv) the statements relating to legal matters, documents or
proceedings included in (A) the Prospectus under the captions
"Certain Material United States Tax Consequences to Non-U.S.
17
Holders", "Description of Certain Indebtedness" and
"Underwriters" (but only as to the description of this Agreement)
and the Registration Statement in Item 15, in each case insofar
as such statements constitute summaries of the legal matters,
documents or proceedings referred to therein, fairly present the
information called for with respect to such legal matters,
documents and proceedings and fairly summarize the matters
referred to therein;
(v) the Company is not and, after giving effect to the
offering and sale of the Shares and the application of the
proceeds thereof as described in the Prospectus will not be,
required to register as an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended;
(vi) the IPO Shares have been duly authorized, and are
validly issued, fully paid and non-assessable;
(vii) nothing has come to the attention of such counsel that
causes such counsel to believe that (A) any document, if any,
filed pursuant to the Exchange Act and incorporated by reference
in the Prospectus (except for financial statements and schedules
and other financial and statistical data included therein as to
which such counsel need not express any opinion) did not comply
when so filed as to form in all material respects with the
Exchange Act and the applicable rules and regulations of the
Commission thereunder, (B) the Registration Statement or the
Prospectus (except for financial statements and schedules and
other financial and statistical data included therein, as to
which such counsel need not express any belief) do not comply as
toform in all material respects with the requirements of the
Securities Act and the applicable rules and regulations of the
Commission thereunder, (C) any part of the Registration Statement
(except for financial statements and schedules and other
financial and statistical data included therein as to which such
counsel need not express any belief), when such part became
effective, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (D) the
Registration Statement, as supplemented by the Prospectus
Supplement (except for financial statements and schedules and
other financial and statistical data included therein as to which
such counsel need not express any belief) on the date of this
Agreement contained any untrue
18
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading or (E) the Prospectus (except for
financial statements and schedules and other financial and
statistical data included therein as to which such counsel need
not express any belief) as of its date or as of the Closing Date
contained or contains any untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(e) The Underwriters shall have received on the Closing Date
an opinion of Dow ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ PLLC, special regulatory
counsel for the Company, dated the Closing Date, in the form of
Exhibit A hereto.
(f) The Underwriters shall have received on the Closing
Date an opinion of ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, counsel for the Selling
Shareholders (other than Messrs. Kalogris and ▇▇▇▇▇▇▇ and First
Union Affordable Housing Community Development Corporation
("First Union")), dated the Closing Date, to the effect that:
(A) this Agreement has been duly authorized, executed
and delivered by or on behalf of each of such Selling
Shareholders;
(B) the execution and delivery by each such Selling
Shareholder of, and the performance by such Selling
Shareholder of its obligations under, this Agreement and the
Custody Agreement and Powers of Attorney of such Selling
Shareholder will not contravene any provision of applicable
law, or the certificate of incorporation or by-laws (if such
Selling Shareholder is a corporation), the partnership
agreement (if such Selling Shareholder is a partnership) or
the operating agreement (if such Selling Shareholder is a
limited liability company) of such Selling Shareholder, and
no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is
required for the performance by such Selling Shareholder of
its obligations under this Agreement or the Custody
Agreement or Power of Attorney of such Selling Shareholder,
except such as have been obtained or as may be required by
the securities or Blue Sky laws of the various states in
connection with offer and sale of the Shares;
19
(C) each of such Selling Shareholders has valid title
to, or a valid security entitlement in respect of, the
Shares to be sold by such Selling Shareholder free and clear
of all security interests, claims, liens, equities and other
encumbrances, and each of such Selling Shareholders has the
legal right and power, and all authorization and approval
required by law, to enter into this Agreement and the
Custody Agreement and Power of Attorney of such Selling
Shareholder and to sell, transfer and deliver the Shares to
be sold by such Selling Shareholder or a security
entitlement in respect of such Shares;
(D) the Custody Agreement and the Power of Attorney of
each such Selling Shareholder have been duly authorized,
executed and delivered by such Selling Shareholder and are
valid and binding agreements of such Selling Shareholder;
(E) upon delivery of the Shares to be sold by such
Selling Shareholders pursuant to the Underwriting Agreement
and payment therefor as contemplated therein, the
Underwriters will acquire good and marketable title to such
Shares free and clear of any lien, claim, security interest
or other encumbrance, restriction on transfer or other
defect in title.
(ii) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel for First Union,
dated the Closing Date, to the effect that:
(A) this Agreement has been duly authorized, executed
and delivered by or on behalf of such Selling Shareholder;
(B) the execution and delivery by such Selling
Shareholder of, and the performance by such Selling
Shareholder of its obligations under, this Agreement and the
Custody Agreement and Powers of Attorney of such Selling
Shareholder will not contravene any provision of applicable
law, or the certificate of incorporation or by-laws of such
Selling Shareholder, or, to the best of such counsel's
knowledge, any material agreement or other instrument
binding upon such Selling Shareholder or, to the best of
such counsel's knowledge, any judgment, order or decree of
any governmental body, agency or court having jurisdiction
over such Selling Shareholder, and no consent, approval,
authorization or order of, or qualification with, any
governmental body or agency is required for the performance
by such Selling Shareholder of its obligations under this
20
Agreement or the Custody Agreement or Power of Attorney of
such Selling Shareholder, except such as may be required by
the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Shares;
C) to the best of such counsel's knowledge, such
Selling Shareholder has valid title to the Shares to be sold
by such Selling Shareholder free and clear of all security
interests, claims, liens, equities and other encumbrances,
and such Selling Shareholder has the legal right and power,
and all authorization and approval required by law, to enter
into this Agreement and the Custody Agreement and Power of
Attorney of such Selling Shareholder and to sell, transfer
and deliver the Shares to be sold by such Selling
Shareholder or a security entitlement in respect of such
Shares;
(D) the Custody Agreement and the Power of Attorney of
such Selling Shareholder have been duly authorized, executed
and delivered by such Selling Shareholder and are valid and
binding agreements of such Selling Shareholder;
(E) assuming that (1) the Underwriters acquire their
interests in the Shares to be sold by such Selling
Shareholder to the Underwriters without notice of any
adverse claim (within the meaning of Article 8 of the
Uniform Commercial Code), (2) the Underwriters have paid the
full purchase price for such Shares in accordance with the
Underwriting Agreement and (3) such Shares have been
credited to the securities accounts of the Underwriters
maintained with DTC, then the Underwriters will have a
security entitlement (within the meaning of Article 8 of the
Uniform Commercial Code) to such Shares purchased by the
Underwriters, and pursuant to Article 8 of the Uniform
Commercial Code, no action based on an adverse claim to such
Shares, whether framed in conversion, replevin, constructive
trust, equitable lien or other theory, may be asserted
against the Underwriters.
(iii) an opinion of ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for
Messrs. Kalogris and ▇▇▇▇▇▇▇, dated the Closing Date, to the effect
that:
(A) this Agreement has been duly executed and delivered by
or on behalf of each of such Selling Shareholders;
(B) the execution and delivery by each such Selling
Shareholder of, and the performance by such Selling Shareholder
of its obligations
21
under, this Agreement and the Custody Agreement and Powers of Attorney
of such Selling Shareholder will not contravene any provision of
applicable law, or, to such counsel's knowledge, any material
agreement or other instrument binding upon such Selling Shareholder
or, to such counsel's knowledge, any judgment, order or decree of any
governmental body, agency or court having jurisdiction over such
Selling Shareholder, and no consent, approval, authorization or order
of, or qualification with, any governmental body or agency is required
for the performance by such Selling Shareholder of his obligations
under this Agreement or the Custody Agreement or Power of Attorney of
such Selling Shareholder, except such as may be required by the
securities or Blue Sky laws of the various states in connection with
offer and sale of the Shares;
(C) each of such Selling Shareholders is the sole registered
owner of the Shares to be sold by such Selling Shareholder, and, to
such counsel's knowledge, such Shares are owned by such Selling
Shareholder free and clear of all security interests, claims, liens,
equities and other encumbrances, and each has the legal right and
power, and all authorization and approval required by law, to enter
into this Agreement and the Custody Agreement and Power of Attorney of
such Selling Shareholder and to sell, transfer and deliver the Shares
to be sold by such Selling Shareholder;
(D) the Custody Agreement and the Power of Attorney of each such
Selling Shareholder have been duly executed and delivered by such
Selling Shareholder and are valid and binding agreements of such
Selling Shareholder;
(E) upon delivery of the Shares to be sold by such Selling
Shareholders pursuant to the Underwriting Agreement and payment
therefor as contemplated therein, the Underwriters will acquire good
and marketable title to such Shares free and clear of any lien, claim,
security interest or other encumbrance, restriction on transfer or
other defect in title.
(g) The Underwriters shall have received on the Closing Date an
opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Underwriters, dated
the Closing Date, covering the matters referred to in Sections
6(d)(i), 6(d)(ii),6(d)(iv) , (but only as to the statements in the
Prospectus under "Underwriters") and6(d)(vii) (B), 6(d)(vii) (D) and
6(d)(vii)(E) above.
22
With respect to Sections 6(c)(x) and 6(d)(vii) above, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇ & ▇▇▇▇▇▇▇ LLP and Dow, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ PLLC may state that
their beliefs are based upon their participation in the preparation of
the Registration Statement and Prospectus and any amendments or
supplements thereto and documents incorporated by reference thereto
and review and discussion of the contents thereof, but are without
independent check or verification, except as specified. With respect
to Sections (B), 6(d)(vi)(D) and 6(d)(vi)(E) above, ▇▇▇▇▇ ▇▇▇▇ &
▇▇▇▇▇▇▇▇ may state that their opinion and belief are based upon their
participation in the preparation of the Registration Statement and
Prospectus and any amendments or supplements thereto (but not
including documents incorporated therein by reference) and review and
discussion of the contents thereof (including documents incorporated
therein by reference), but are without independent check or
verification, except as specified. With respect to Section 6(f) above,
▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, ▇▇▇▇▇▇ & Bird LLP and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇
LLP may rely upon an opinion or opinions of counsel for any Selling
Shareholders and, with respect to factual matters and to the extent
such counsel deems appropriate, upon the representations of each
Selling Shareholder contained herein and in the Custody Agreement and
Power of Attorney of such Selling Shareholder and in other documents
and instruments; provided that (A) each such counsel for the Selling
Shareholders is satisfactory to your counsel, (B) a copy of each
opinion so relied upon is delivered to you and is in form and
substance satisfactory to your counsel, (C) copies of such Custody
Agreements and Powers of Attorney and of any such other documents and
instruments shall be delivered to you and shall be in form and
substance satisfactory to your counsel and (D) ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇,
▇▇▇▇▇▇ & Bird LLP or ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, as the case may
be, shall state in their opinion that they are justified in relying on
each such other opinion.
The opinions of ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Dow, ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇▇ PLLC, ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇ and ▇▇▇▇▇▇ & Bird LLP described
in Sections 6(c) ,6(d) ,6(e) and 6(f) above and any opinions ofcounsel
for any Selling Shareholder referred to in the immediately preceding
paragraph shall be rendered to the Underwriters at the request of the
Company or one or more of the Selling Shareholders, as the case may
be, and shall so state therein.
(h) The Underwriters shall have received, on each of the date
hereof and the Closing Date, letters dated the date hereof or the
Closing Date, as the case may be, in form and substance satisfactory
to the Underwriters, from (i) PricewaterhouseCoopers LLP, independent
public accountants, and (ii) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, independent public
23
accountants, in each case containing statements and information of the
type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain
financial information contained in or incorporated by reference into
the Prospectus; provided that the letters delivered on the Closing
Date shall use a "cut-off date" not earlier than the date hereof.
(i) The "lock-up" agreements, each substantially in the form of
Exhibit B hereto, between you and certain shareholders, officers and
directors of the Company relating to sales and certain other
dispositions of shares of Common Stock or certain other securities,
delivered to you on or before the date hereof, shall be in full force
and effect on the Closing Date.
The several obligations of the Underwriters to purchase Additional
Shares hereunder are subject to the delivery to you on the Option Closing
Date of such documents as you may reasonably request with respect to the
good standing of the Company, the due authorization and issuance of the
Additional Shares, other matters related to the issuance of the Additional
Shares and the transfer of title to the Additional Shares to the
Underwriters.
7. Covenants of the Company. In further consideration of the
agreements of the Underwriters herein contained, the Company covenants with
each Underwriter as follows:
(a) To furnish to you, without charge, five copies of the
Registration Statement (including exhibits thereto) and for delivery
to each other Underwriter a conformed copy of the Registration
Statement (without exhibits thereto) and to furnish to you in New York
City, without charge, prior to 10:00 a.m. New York City time on the
business day next succeeding the date of this Agreement and during the
period mentioned in Section 7(c) below, as many copies of the
Prospectus, any documents incorporated by reference therein and any
supplements and amendments thereto or to the Registration Statement as
you may reasonably request.
(b) Before amending or supplementing the Registration Statement
or the Prospectus with respect to the Shares, to furnish to you a copy
of each such proposed amendment or supplement and not to file any such
proposed amendment or supplement to which you reasonably object, and
to file with the Commission within the applicable period specified in
Rule 424(b) under the Securities Act any prospectus required to be
filed pursuant to such Rule.
24
(c) If, during such period after the first date of the public
offering of the Shares as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall
occur or condition exist as a result of which it is necessary to amend
or supplement the Prospectus in order to make the statements therein,
in the light of the circumstances when the Prospectus is delivered to
a purchaser, not misleading, or if, in the opinion of counsel for the
Underwriters, it is necessary to amend or supplement the Prospectus to
comply with applicable law, forthwith to prepare, file with the
Commission and furnish, at its own expense, to the Underwriters and to
the dealers (whose names and addresses you will furnish to the
Company) to which Shares may have been sold by you on behalf of the
Underwriters and to any other dealers upon request, either amendments
or supplements to the Prospectus so that the statements in the
Prospectus as so amended or supplemented will not, in the light of the
circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus, as amended or supplemented, will
comply with law.
(d) To endeavor to qualify the Shares for offer and sale under
the securities or Blue Sky laws of such states as you shall reasonably
request.
(e) To make generally available to the Company's security holders
and to you as soon as practicable an earning statement covering the
twelve-month period ending March 31, 2002 that satisfies the
provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder.
8. Expenses. Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, the Company
agrees to pay or cause to be paid all expenses incident to the performance
of their obligations under this Agreement, including: (i) the fees,
disbursements and expenses of the Company's counsel, the Company's
accountants in connection with the registration and delivery of the Shares
under the Securities Act and all other fees or expenses in connection with
the preparation and filing of the Registration Statement, any preliminary
prospectus, the Prospectus and amendments and supplements to any of the
foregoing, including all printing costs associated therewith, and the
mailing and delivering of copies thereof to the Underwriters and dealers,
in the quantities hereinabove specified,(ii) all costs and expenses related
to the transfer and delivery of the Shares to the Underwriters, including
any transfer or other taxes payable thereon, the (iii) cost of printing or
producing any Blue Sky or Legal Investment memorandum in connection with
the offer and sale of the Shares under state securities laws and all
expenses in
25
connection with the qualification of the Shares for offer and sale under
state securities laws as provided in Section 7(d) hereof, including filing
fees and the reasonable fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with
the Blue Sky or Legal Investment memorandum, (iv) all filing fees and the
reasonable fees and disbursements of counsel to the Underwriters incurred
in connection with the review and qualification of the offering of the
Shares by the National Association of Securities Dealers, Inc.,(v) all fees
and expenses in connection with the preparation and filing of the
registration statement on Form 8-A relating to the Common Stock and all
costs and expenses incident to listing the Shares on the Nasdaq National
Market,(vi) the cost of printing certificates representing the Shares, the
costs and charges of any transfer agent, registrar or depositary, (viii)
the costs and expenses of the Company relating to investor presentations on
any "road show" undertaken in connection with the marketing of the offering
of the Shares, including, without limitation, expenses associated with the
production of road show slides and graphics, fees and expenses of any
consultants engaged in connection with the road show presentations with the
prior approval of the Company, travel and lodging expenses of the
representatives and officers of the Company and any such consultants, and
the cost of any aircraft chartered in connection with the road show and
(ix) all other costs and expenses incident to the performance of the
obligations of the Company hereunder for which provision is not otherwise
made in this Section; provided that the Selling Shareholders agree to pay
the fees, disbursements and expenses of the counsel for the Selling
Shareholders. It is understood, however, that except as provided in this
Section, Section 9 entitled "Indemnity and Contribution," and the last
paragraph of Section 11 below, the Underwriters will pay all of their costs
and expenses, including fees and disbursements of their counsel, stock
transfer taxes payable on resale of any of the Shares by them and any
advertising expenses connected with any offers they may make.
The provisions of this Section shall not supersede or otherwise affect
any agreement that the Sellers may otherwise have for the allocation of
such expenses among themselves.
9. Indemnity and Contribution. (a)The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act
or Section 20 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") and each affiliate of any Underwriter within the meaning of
Rule 405 under the Securities Act, from and against any and all losses,
claims, damages and liabilities (including, without limitation, any legal
or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or any amendment thereof, any preliminary prospectus or the
Prospectus (as amended or supplemented if the Company shall have furnished
any amendments or supplements thereto), or caused by any omission or
alleged omission to state therein a material fact required to be stated
26
therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue statement or omission
based upon information relating to any Underwriter furnished to the Company
in writing by such Underwriter through you expressly for use therein;
provided that the foregoing indemnity agreement with respect to any
preliminary prospectus shall not inure to the benefit of any Underwriter
from whom the person asserting any such losses, claims, damages or
liabilities purchased Shares, or any person controlling such Underwriter,
if a copy of the Prospectus (as then amended or supplemented if the Company
shall have furnished any amendments or supplements thereto) was not sent or
given by or on behalf of such Und(a)aberwriter to such person, if required
by law so to have been delivered, at or prior to the written confirmation
of the sale of the Shares to such person, and if the Prospectus (as so
amended or supplemented) would have cured the defect giving rise to such
losses, claims, damages or liabilities, unless such failure is the result
of noncompliance by the Company with Section 7(a) hereof.
(b) Each Selling Shareholder agrees, severally and not jointly, to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act") and each affiliate of any Underwriter within
the meaning of Rule 405 under the Securities Act, from and against any and
all losses, claims, damages and liabilities (including, without limitation,
any legal or other expenses reasonably incurred in connection with
defending or investigating any such action or claim) caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereof, any preliminary prospectus
or the Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto), or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, but
only with reference to information relating to such Selling Shareholder
furnished in writing by or on behalf of such Selling Shareholder expressly
for use in (i) the Basic Prospectus under the caption "Principal and
Selling Stockholders" or (ii) the Prospectus Supplement under the caption
"Selling Stockholders"; provided that the foregoing indemnity agreement
with respect to any preliminary prospectus shall not inure to the benefit
of any Underwriter from whom the person asserting any such losses, claims,
damages or liabilities purchased Shares, or any person controlling such
Underwriter, if a copy of the Prospectus (as then amended or supplemented
27
if the Company shall have furnished any amendments or supplements
thereto) was not sent or given by or on behalf of such Underwriter to such
person, if required by law so to have been delivered, at or prior to the
written confirmation of the sale of the Shares to such person, and if the
Prospectus (as so amended or supplemented) would have cured the defect
giving rise to such losses, claims, damages or liabilities, unless such
failure is the result of noncompliance by the Company with Section 7(a)
hereof. The liability of each Selling Shareholder under the indemnity
agreement contained in this paragraph shall be limited to an amount equal
to the aggregate Public Offering Price of the Shares sold by such Selling
Shareholder under this Agreement, less applicable underwriting discounts
and commissions.
(c) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, the Selling Shareholders, the directors of
the Company, the officers of the Company who sign the Registration
Statement and each person, if any, who controls the Company or any Selling
Shareholder within the meaning of either Section 15 of the Securities Act
or Section 20 of the Exchange Act, from and against any and all losses,
claims, damages and liabilities (including, without limitation, any legal
or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or any amendment thereof, any preliminary prospectus or the
Prospectus (as amended or supplemented if the Company shall have furnished
any amendments or supplements thereto), or caused by any omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, but
only with reference to information relating to such Underwriter furnished
to the Company in writing by such Underwriter through you expressly for use
in the Registration Statement, any preliminary prospectus, the Prospectus
or any amendments or supplements thereto.
(d) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may
be sought pursuant to Section 9(a),(b),or 9(c)such person (the "indemnified
party") shall promptly notify the person against whom such indemnity may be
sought (the "indemnifying party") in writing and the indemnifying party,
upon request of the indemnified party, shall retain counsel reasonably
satisfactory to the indemnified party to represent the indemnified party
and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to
28
the retention of such counsel or (ii) the named parties to any such
proceeding (including any impleaded parties) include both the indemnifying
party and the indemnified party and representation of both parties by the
same counsel would be inappropriate due to actual or potential differing
interests between them. It is understood that the indemnifying party shall
not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same
jurisdiction, be liable for (i) the fees and expenses of more than one
separate firm (in addition to any local counsel) for all Underwriters and
all persons, if any, who control any Underwriter within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act
or who are affiliates of any Underwriter within the meaning of Rule 405
under the Securities Act, (ii) the fees and expenses of more than one
separate firm (in addition to any local counsel) for the Company, its
directors, its officers who sign the Registration Statement and each
person, if any, who controls the Company within the meaning of either such
Section and (iii) the fees and expenses of more than one separate firm (in
addition to any local counsel) for all Selling Shareholders and all
persons, if any, who control any Selling Shareholder within the meaning of
either such Section, and that all such fees and expenses shall be
reimbursed as they are incurred. In the case of any such separate firm for
the Underwriters and such control persons and affiliates of any
Underwriters, such firm shall be designated in writing by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
Co. Incorporated. In the case of any such separate firm for the Company,
and such directors, officers and control persons of the Company, such firm
shall be designated in writing by the Company. In the case of any such
separate firm for the Selling Shareholders and such control persons of any
Selling Shareholders, such firm shall be designated in writing by the
persons named as attorneys-in-fact for the Selling Shareholders under the
Powers of Attorney. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse
the indemnified party for fees and expenses of counsel as contemplated by
the second and third sentences of this paragraph, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding
effected without its written consent if (i) such settlement is entered into
more than 120 days after receipt by such indemnifying party of the
aforesaid re(d)abquest; (ii) such indemnifying party shall have received
notice of the terms of such settlement at least 90 days prior to such
settlement being entered into and (iii) such indemnifying party shall not
have reimbursed the indemnified party in accordance with such request prior
to the date of such settlement. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of
any pending or threatened proceeding in respect of which any indemnified
29
party is or could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on
claims that are the subject matter of such proceeding.
(e) To the extent the indemnification provided for in Section 9(a)
,9(b) or 9(c) is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein,
then each indemnifying party under such paragraph, in lieu of indemnifying
such indemnified party thereunder, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect
the relative benefits received by the indemnifying party or parties on the
one hand and the indemnified party or parties on the other hand from the
offering of the Shares or (ii)if the allocation provided by clause 9(e)(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
9(e)(i) above but also the relative fault of the indemnifying party or
parties on the one hand and of the indemnified party or parties on the
other hand in connection with the statements or omissions that resulted in
such losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Sellers on
the one hand and the Underwriters on the other hand in connection with the
offering of the Shares shall be deemed to be in the same respective
proportions as the net proceeds from the offering of the Shares (before
deducting expenses) received by the Sellers and the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover of the Prospectus, bear to the aggregate
Public Offering Price of the Shares. The relative fault of the Sellers on
the one hand and the Underwriters on the other hand shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Sellers or by the
Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The Underwriters' respective obligations to contribute pursuant
to this Section 9 are several in proportion to the respective number of
Shares they have purchased hereunder, and not joint. The liability of each
Selling Shareholder under the contribution agreement contained in this
paragraph shall be limited to an amount equal to the aggregate Public
Offering Price of the Shares sold by such Selling Shareholder under this
Agreement, less applicable underwriting discounts and commissions.
(f) The Sellers and the Underwriters agree that it would not be just
or equitable if contribution pursuant to this Section 9 were determined by
pro rata allocation (even if the Underwriters were treated as one entity
for such purpose) or by any other method of allocation that does not take
30
account of the equitable considerations referred to in Section9(e) . The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, 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 , no Underwriter
shall be required to contribute any amount in excess of the amount by which
the total price at which the Shares underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages
that such Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
remedies provided for in this Section are not exclusive and shall not limit
any rights or remedies which may otherwise be available to any indemnified
party at law or in equity.
(g) The indemnity and contribution provisions contained in this
Section and the representations, warranties and other statements of the
Company and the Selling Shareholders contained in this Agreement shall
remain operative and in full force and effect regardless of(i) any
termination of this Agreement, (ii) any investigation made by or on behalf
of any Underwriter, any person controlling any Underwriter or any affiliate
of any Underwriter, any Selling Shareholder or any person control any
Selling Shareholder, or the Company, its officers or directors or any
person controlling the Company and (iii) acceptance of and payment for any
of the Shares.
10. Termination. This Agreement shall be subject to termination by
notice given by you to the Sellers, if(a) after the execution and delivery
of this Agreement and prior to the Closing Date(i) trading generally shall
have been suspended or materially limited on or by, as the case may be, any
of the New York Stock Exchange, the American Stock Exchange, or the
National Association of Securities Dealers, Inc.,(ii) trading of any
securities of the Company shall have been suspended on any exchange or in
any over-the-counter market,(iii) a general moratorium on commercial
banking activities in New York shall have been declared by either Federal
or New York State authorities or(iv) there shall have occurred any outbreak
or escalation of hostilities or any change in financial markets or any
calamity or crisis that, in your judgment, is material and adverse and(b)
in the case of any of the events specified in clauses 10(a)(i) through ,
10(a)(iv) such event, singly or together with any other such event, makes
it, in your judgment, impracticable to market the Shares on the terms and
in the manner contemplated in the Prospectus.
31
11. Effectiveness; Defaulting Underwriters. This Agreement shall
become effective upon the execution and delivery hereof by the parties
hereto.
If, on the Closing Date or the Option Closing Date, as the case may
be, any one or more of the Underwriters shall fail or refuse to purchase
Shares that it has or they have agreed to purchase hereunder on such date,
and the aggregate number of Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than one-
tenth of the aggregate number of the Shares to be purchased on such date,
the other Underwriters shall be obligated severally in the proportions that
the number of Firm Shares set forth opposite their respective names in
Schedule II bears to the aggregate number of Firm Shares set forth opposite
the names of all such non-defaulting Underwriters, or in such other
proportions as you may specify, to purchase the Shares which such
defaulting Underwriter or Underwriters agreed but failed or refused to
purchase on such date; provided that in no event shall the number of Shares
that any Underwriter has agreed to purchase pursuant to this Agreement be
increased pursuant to this Section 11 by an amount in excess of one-ninth
of such number of Shares without the written consent of such Underwriter.
If, on the Closing Date, any Underwriter or Underwriters shall fail or
refuse to purchase Firm Shares and the aggregate number of Firm Shares with
respect to which such default occurs is more than one-tenth of the
aggregate number of Firm Shares to be purchased, and arrangements
satisfactory to you, the Company and the Selling Shareholders for the
purchase of such Firm Shares are not made within 36 hours after such
default, this Agreement shall terminate without liability on the part of
any non-defaulting Underwriter, the Company or the Selling Shareholders. In
any such case either you or the relevant Sellers shall have the right to
postpone the Closing Date, but in no event for longer than seven days, in
order that the required changes, if any, in the Registration Statement and
in the Prospectus or in any other documents or arrangements may be
effected. If, on the Option Closing Date, any Underwriter or Underwriters
shall fail or refuse to purchase Additional Shares and the aggregate number
of Additional Shares with respect to which such default occurs is more than
one-tenth of the aggregate number of Additional Shares to be purchased, the
non-defaulting Underwriters shall have the option to (i) terminate their
obligation hereunder to purchase Additional Shares or (ii) purchase not
less than the number of Additional Shares that such non-defaulting
Underwriters would have been obligated to purchase in the absence of such
default. Any action taken under this paragraph shall not relieve any
defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of any Seller to comply
with the terms or to fulfill any of the conditions of this Agreement, or if
for any reason any Seller shall be unable to perform its obligations under
32
this Agreement, the Sellers will reimburse the Underwriters or such
Underwriters as have so terminated this Agreement with respect to
themselves, severally, for all out-of-pocket expenses (including the fees
and disbursements of their counsel) reasonably incurred by such
Underwriters in connection with this Agreement or the offering contemplated
hereunder.
12. Stockholders' Agreement. The Selling Shareholders confirm to the
Company that they do not need written notice of the filing of the
Registration Statement under the Stockholders' Agreement, and that the
filing of the Registration Statement satisfies any obligations that the
Company may have to the Selling Shareholders under the Stockholders'
Agreement to register the offering of the Shares that the Selling
Shareholders propose to sell.
13. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as
if the signatures thereto and hereto were upon the same instrument.
14. Applicable Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York.
33
15. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
Very truly yours,
TRITON PCS HOLDINGS, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Chief Financial Officer
The Selling Shareholders named in
Schedule I hereto, acting severally
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
------------------------------
Attorney-in-Fact
Accepted as of the date hereof
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
FIRST UNION SECURITIES, INC.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & CO. INCORPORATED
Acting severally on behalf of themselves and
the several Underwriters named in
Schedule II hereto.
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Mangaing Director
SCHEDULE I
Maximum Number
Number of Firm of Additional
Selling Shareholder Shares To Be Sold To Be Sold
------------------------------------ ---------------------- ---------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 135,653 48,835
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 100,256 36,092
▇.▇. ▇▇▇▇▇▇ Partners (23A SBIC), LLC 633,184 227,946
▇.▇. ▇▇▇▇▇▇ SBIC LLC 530,253 190,891
Sixty Wall Street SBIC Fund, L.P. 26,502 9,541
Equity-Linked Investors-II 614,195 221,110
Toronto Dominion Capital (U.S.A.), Inc. 153,549 55,278
First Union Affordable Housing Community 210,526 75,790
Development Corporation
DAG-Triton PCS, L.P. 95,882 34,517
------------------ ----------------
Total: 2,500,000 900,000
================== ================
I-1
SCHEDULE II
Number of Firm Shares To Be
Underwriter Purchased
-------------------------------------- -------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated 2,137,500
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. 2,137,500
First Union Securities, Inc. 855,000
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co. Incorporated. 570,000
ABN AMRO Incorporated 60,000
CIBC World Markets Corp. 60,000
Credit Lyonnais Securities (USA) Inc. 60,000
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co., L.P. 60,000
▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners LLC 60,000
--------------
Total Firm Shares 6,000,000
==============
II-1
EXHIBIT A
[FORM OF OPINION OF DOW ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ PLLC,
SPECIAL REGULATORY COUNSEL FOR THE COMPANY]
We have represented Triton PCS Holdings, Inc., a Delaware corporation
(the "Company"), as special communications counsel in connection with the
Underwriting Agreement (the "Agreement") dated as of February 22, 2001, by and
among the Company, the Selling Shareholders and you as representatives of the
several underwriters listed therein (collectively, the "Underwriters"). This
opinion is delivered to you pursuant to Section 6(e) of the Agreement.
Capitalized terms defined in the Agreement and used herein without definition
shall have the meanings given such terms in the Agreement.
As special communications counsel to the Company, we address only
matters within the jurisdiction of the FCC pertaining to the regulation of
commercial mobile radio services ("CMRS") under the Communications Act of 1934,
as amended, and the rules, regulations, published and publicly available orders
and published and publicly available policy statements promulgated by the FCC
(collectively, the "Communications Laws") with respect to the Personal
Communications Services ("PCS") and cellular licenses, permits, and other
authorizations issued to the Company and its subsidiaries as listed in Annex A
hereto (the "FCC Licenses"). We have not reviewed or considered any requirements
imposed by the laws of any state or any state public service commission or
similar agency in rendering this opinion. We have examined the Agreement, the
Basic Prospectus dated February 2, 2001, and the final Prospectus Supplement
dated February 22, 2001 (such Basic Prospectus and Prospectus Supplement
collectively hereinafter referred to as the "Final Prospectus") (collectively,
the "Transaction Documents"). We have not reviewed any other agreement, contract
or document in connection with the opinions expressed herein, other than the
Transaction Documents. Except with respect to a review of certain public records
of the FCC as described in Annex A and Annex B, we have not made any
investigation of the Company, the subsidiaries of the Company or their
operations or businesses in connection with the opinions expressed herein, and
have relied upon the Company's description of its operations and businesses in
the Final Prospectus. The opinions stated herein do not purport to cover areas
of compliance or any other matter that can only be determined through an
inspection of the facilities of the Company or any of the subsidiaries of the
Company or the work product, records or operations of the Company or any of the
subsidiaries of the Company. We advise you that the FCC's rules provide for the
automatic cancellation of certain of the FCC Licenses at an earlier date than
the scheduled expiration date if certain conditions, including the completion of
construction by a specified date, are not met. We have made no investigation or
other inquiry in connection with this opinion with respect to whether such
conditions have been met, and we have assumed that all such conditions have been
or will be timely met with respect to the FCC Licenses.
In rendering the opinions herein expressed, we have assumed, without
further investigation: (i) the genuineness of all signatures on documents
provided to us, (ii) the legal capacity of natural persons, (iii) the
authenticity of all documents provided to us as originals, (iv) the conformity
with original documents of all documents provided to us as certified, conformed
or photostatic copies or facsimiles, and (v) the authority of the person or
persons who executed any documents provided to us. We have assumed that each
person or entity has all the requisite power and authority and has fulfilled all
necessary procedures to take and adopt the actions, or enter into each of the
agreements, set forth in any documents provided to us and to effect the
transactions contemplated thereby and that such agreements constitute the legal,
valid and binding obligations of the parties thereto. We also have assumed and
relied upon, without any inquiry or verification by us, the accuracy and
completeness of the FCC's publicly available licensing records at the time of
examination by us, and the absence of changes since the date examined by us. It
is possible that there may be matters pending before the FCC relating to the FCC
Licenses of which we do not have knowledge because such matters have not been
incorporated into the publicly available files of the FCC reviewed by us as
described in Annex A and Annex B.
Whenever any statement in this opinion is indicated to be based on our
knowledge, it means only that, during the course of our representation of the
Company in connection with the preparation of this opinion, no information has
come to the attention of the attorneys in our firm representing the Company in
connection with the offering described in the Agreement that would give those
attorneys actual knowledge that such statement is incorrect. Other than our
review of certain public records of the FCC, we have not undertaken any
investigation to determine the accuracy of any such statement, and no inference
as to our knowledge regarding the accuracy of any such statement should be drawn
from our serving as special communications counsel to the Company.
We do not purport to express opinions herein concerning any laws other
than the Communications Laws. Our opinions are limited strictly to the matters
stated herein and no opinions may be inferred or are implied beyond the matters
expressly stated herein. We assume no obligation to advise you beyond the
opinions specifically expressed herein.
A-2
Based upon our examination of the foregoing disclosures, documents,
records and matters of law and subject to the qualifications, assumptions and
limitations set forth herein, we are of the opinion that:
1. The sale of the Shares and the execution, delivery and performance
by the Company of the Transaction Documents to which it is a party (i) do not
violate any Communications Laws, (ii) do not cause any cancellation,
termination, revocation, forfeiture, or adverse modification of any FCC Licenses
and (iii) do not require any authorization or filing with the FCC.
2. Except as disclosed in the Final Prospectus and except for rule
making proceedings and similar proceedings of general applicability to the CMRS
industry or substantial segments thereof, to our knowledge, there is no notice
of violation, order to show cause, petition to deny or complaint, or
investigatory proceeding pending against the Company or any subsidiary of the
Company listed in Annex A before the FCC that reasonably could be expected to
result in cancellation, termination, revocation, forfeiture or modification of
the FCC Licenses that individually or in the aggregate would have a material
adverse effect upon the Company and its subsidiaries considered as a single
enterprise. We inform you, however, that (i) the staff of the FCC's Wireless
Telecommunications Bureau has advised us that no reliable central record of such
matters exists by individual licensee name, (ii) there is, to our knowledge, no
central location of orders, decisions, judgments or other rulings that would
permit the reliable identification of all such matters that may be pending with
respect to the Company or the subsidiaries of the Company listed in Annex A, and
(iii) except as otherwise noted in Annex B, we have not undertaken to examine or
to make inquiries with respect to any such records.
3. The statements in the Final Prospectus, under the captions
"Business--Regulation" and "-- State Regulation and Local Approvals," insofar as
they are, or refer to, statements of federal communications law under the
Communications Laws applicable to CMRS services or legal conclusions with
respect to federal communications law under the Communications Laws applicable
to the CMRS services, have been reviewed by us and, taken together, present the
information required to make such statements of federal law or legal
conclusions, in light of the circumstances under which they were made, accurate
in all respects material to the business of the Company as described in the
Final Prospectus.
4. Based on the review of FCC publicly available records and our
inquiry of the FCC described herein, each of the FCC Licenses is held by the
subsidiary of the Company listed in Annex A as the holder thereof, is in effect,
and to our knowledge has not been suspended, terminated or revoked. The PCS and
cellular radio licenses issued by the FCC and included in the FCC Licenses
listed in Annex A authorize the holder thereof listed in Annex A to operate
A-3
either a PCS or cellular system (as indicated in Annex A) in the markets listed
in Annex A without a further PCS or cellular license issued by the FCC.
This opinion is being furnished to you at the request of the Company,
subject to the qualifications and limitations expressed herein and may be relied
upon by you only with respect to the specific matters that are the subject
hereof. This opinion is rendered only to you and is solely for your benefit in
connection with the transactions covered hereby. This opinion may not be relied
upon by you for any other purpose or be relied upon by any other person, without
our prior written consent.
A-4
EXHIBIT B
[FORM OF LOCK-UP LETTER]
February __, 2001
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
First Union Securities, Inc.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co. Incorporated
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear Sirs and Mesdames:
The undersigned understands that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
("▇▇▇▇▇▇ ▇▇▇▇▇▇▇") proposes to enter into an Underwriting Agreement (the
"Underwriting Agreement") with Triton PCS Holdings, Inc., a Delaware corporation
(the "Company") and certain Selling Shareholders providing for the public
offering (the "Public Offering") by the several Underwriters, including ▇▇▇▇▇▇
▇▇▇▇▇▇▇ (the "Underwriters") of shares (the "Shares") of the Class A Common
Stock, $.01 par value, of the Company (together with the Company's Class B
Common Stock, $.01 par value, the "Common Stock").
To induce the Underwriters that may participate in the Public Offering
to continue their efforts in connection with the Public Offering, the
undersigned hereby agrees that, without the prior written consent of ▇▇▇▇▇▇
▇▇▇▇▇▇▇ on behalf of the Underwriters, it will not, during the period commencing
on the date hereof and ending 90 days after the date of the final prospectus
relating to the Public Offering (the "Prospectus"), (1) offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant to purchase, lend, or
otherwise transfer or dispose of, directly or indirectly, any shares of Common
Stock or any securities convertible into or exercisable or exchangeable for
Common Stock, or (2) enter into any swap or other arrangement that transfers to
another, in whole or in part, any of the economic consequences of ownership of
the Common Stock, whether any such transaction described in clause (1) or (2)
above is to be settled by delivery of Common Stock or such other securities, in
cash or otherwise. The foregoing sentence shall not apply to (a) the sale of any
Shares to the Underwriters pursuant to the Underwriting Agreement, (b)
transactions relating to shares of Common Stock or other securities acquired in
open market transactions after the completion of the Public Offering, or (c)
bona fide gifts, sales or other dispositions of shares of any class of the
Company's capital stock, in each case that are made exclusively between and
among the undersigned or members of the undersigned's family, or affiliates of
the undersigned, including its partners (if a partnership) or members (if a
limited liability company); provided that it shall be a condition to any such
transfer under clause (c) that (i) the transferee executes a duplicate form of
this Lock-Up Letter, and (ii) no filing by any party (donor, donee, transferor
or transferee) under Section 16(a) of the Securities Exchange Act of 1934, as
amended, shall be required or shall be voluntarily made in connection with such
transfer or distribution (other than a filing on a Form 5 made after the
expiration of the 90-day period referred to above). In addition, the undersigned
agrees that, without the prior written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ on behalf of
the Underwriters, it will not, during the period commencing on the date hereof
and ending 90 days after the date of the Prospectus, make any demand for or
exercise any right with respect to, the registration of any shares of Common
Stock or any security convertible into or exercisable or exchangeable for Common
Stock. The undersigned also agrees and consents to the entry of stop transfer
instructions with the Company's transfer agent and registrar against the
transfer of the undersigned's share of Common Stock except in compliance with
the foregoing restrictions.
The undersigned further understands that this Lock-Up Agreement is
irrevocable and shall be binding upon the undersigned's heirs, legal
representatives, successors and assigns.
B-2
Whether or not the Public Offering actually occurs depends on a number
of factors, including market conditions. Any Public Offering will only be made
pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation between the Company and the Underwriters.
Very truly yours,
-----------------------------
Name
-----------------------------
Address
B-3
CROSS-REFERENCE TARGET LIST
NOTE: Due to the number of targets some target names may not appear in the
target pull-down list.
(This list is for the use of the wordprocessor only, is not a part of this
document and may be discarded.)
ARTICLE/SECTION TARGET NAME
===========================
1......................represents warrants
1(a).............................regst.eff
1(b).......................regstmnt untrue
1(c).........................valid company
1(d)......................valid subsidiary
1(e)..............................agt auth
1(f)....................auth capital stock
1(g).....................outstanding stock
1(h)...........................shares auth
1(i).....................co applicable law
1(j)........................adverse change
1(k)....................no pending proceed
1(l)........................prosp complies
1(m)....................co. not investment
1(n)...........................co. and sub
1(n)(i), 1(w)(i)................compliance
1(n)(ii), 1(w)(i)..............all permits
1(n)(iii), 1(w)(i)all terms and conditions
1(o)...............environ law liabilities
1(p)..........................no contracts
?.........................florida statutes
3....................agt to sell and purch
4.........................public off terms
5.................... payment and delivery
6...................obligations underwrtrs
6(a)...................subsequent to execu
6(a)(i).....................no downgrading
6(a)(ii).............no change in business
6(b)..................cert of exec officer
6(c).......................counsel opinion
6(c)(i)......................company valid
6(c)(ii)......................subsid valid
6(c)(ii).........................agt execu
6(c)(iii)...............capital stock auth
6(c)(iv).................stock outstanding
6(c)(vi).....................issued shares
6(d)(i)........................auth shares
6(d)(ii).........................agt execu
2(b)(ii)6(c)(vii)....contra applicable law
6(c)(viii)......................statements
6(c)(viii)(A),6(d)(iv)(A).......prospectus
6(d)(iv)(B)..................reg statement
6(c)(ix).......................due inquiry
6(d)(v),(d)(vi)..........not investment co
?......................company and subsids
?...........................law compliance
?........................recvd all permits
?...........................terms and cond
?.............................such counsel
6(d)(vii)(A)..............regstmnt opinion
6(d)(vii)(A),6(d)(vii)(C).....believe that
6(d)(vii)(6(d)(vii)(E)........no reason to
6(g)...........................dpw opinion
6(f)(6(h)...............underwrtr received
6(i)...............................lock-up
?......................several obligations
7.............................co covenants
7(a).....................furnish signed cc
7(b).......................cc before amend
7(c).......................after pub offer
7(d)...................endeavor to qualify
7(e)........................make available
?.............................not to offer
9........................indem and contrib
9(a).....................company indemnify
9(c)...................underwrtr indemnify
ARTICLE/SECTION TARGET NAME
===========================
9(d).......................promptly notify
9(e).......................each contribute
9(e)(i).........................proportion
9(f).....................just or equitable
9(g)......................remain operative
10.............................termination
10(a)......................after execution
10(a)(i).................trading generally
10(a)(ii)...............trading securities
10(a)(iii)......................moratorium
10(a)(iv).........................outbreak
11......................default underwrtrs
13............................counterparts
14..........................applicable law
15................................headings