EXHIBIT 1
UNDERWRITING AGREEMENT
WESTERN WIRELESS CORPORATION
8,000,000 Shares of Class A Common Stock
August 24, 2004
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.,
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
Ladies and Gentlemen:
Western Wireless Corporation, a Washington corporation (the "Company"),
proposes to issue and sell to the several Underwriters listed in Schedule I
hereto (the "Underwriters"), for whom you are acting as the representative (the
"Representative"), an aggregate of 8,000,000 shares of Class A common stock, no
par value, of the Company (the "Shares"). The shares of Class A common stock, no
par value, of the Company to be outstanding after giving effect to the sale of
the Shares are herein referred to as the "Common Stock".
The Company hereby confirms its agreement with the several Underwriters
concerning the purchase and sale of the Shares, as follows:
1. Registration Statement. The Company has prepared and filed with the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Securities Act"), a registration statement (File No.
333-117793) including a prospectus, relating to the Shares. Such registration
statement, as amended at the time it became effective, including the
information, if any, deemed pursuant to Rule 430A under the Securities Act to be
part of the registration statement at the time of its effectiveness ("Rule 430A
Information"), is referred to herein as the "Registration Statement"; and as
used herein, the term "Preliminary Prospectus" means each prospectus included in
such registration statement (and any amendments thereto) before it became
effective, any prospectus filed with the Commission pursuant to Rule 424(a)
under the Securities Act and the prospectus included in the Registration
Statement at the time of its effectiveness that omits Rule 430A Information, and
the term "Prospectus" means the prospectus (including both the base prospectus
and the prospectus supplement) in the form first used to confirm sales of the
Shares. If the Company has filed an abbreviated registration statement pursuant
to Rule 462(b) under the Securities Act (the "Rule 462 Registration Statement"),
then any reference herein to the term "Registration Statement" shall be deemed
to include such Rule 462 Registration Statement. Any reference in this Agreement
to the Registration Statement, any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the Securities Act, as of the
effective date of the
Registration Statement or the date of such Preliminary Prospectus or the
Prospectus, as the case may be, and any reference to "amend", "amendment" or
"supplement" with respect to the Registration Statement, any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include any
documents filed after such date under the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder
(collectively, the "Exchange Act") that are deemed to be incorporated by
reference therein. Capitalized terms used but not defined herein shall have the
meanings given to such terms in the Registration Statement and the Prospectus.
2. Purchase of the Shares by the Underwriters. (a) The Company agrees to
issue and sell the Shares to the several Underwriters as provided in this
Agreement, and each Underwriter, on the basis of the representations, warranties
and agreements set forth herein and subject to the conditions set forth herein,
agrees, severally and not jointly, to purchase from the Company the respective
number of Shares set forth opposite such Underwriter's name in Schedule I hereto
at a price per share (the "Purchase Price") of $25.13.
(b) The Company understands that the Underwriters intend to make a public
offering of the Shares as soon after the effectiveness of this Agreement as in
the judgment of the Representative is advisable, and initially to offer the
Shares on the terms set forth in the Prospectus. The Company acknowledges and
agrees that the Underwriters may offer and sell Shares to or through any
affiliate of an Underwriter and that any such affiliate may offer and sell
Shares purchased by it to or through any Underwriter.
(c) Payment for the Shares shall be made by wire transfer in immediately
available funds to the account specified by the Company to the Representative at
the offices of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ at 10:00 A.M. New York City time on August 27, 2004,
or at such other time or place on the same or such other date, not later than
the fifth business day thereafter, as the Representative and the Company may
agree upon in writing. The time and date of such payment is referred to herein
as the "Closing Date".
Payment for the Shares shall be made against delivery to the
Representative, through the facilities of The Depository Trust Company for the
respective accounts of the several Underwriters, of the Shares registered in
such names and in such denominations as the Representative shall request in
writing not later than two full business days prior to the Closing Date with any
transfer taxes payable in connection with the sale of the Shares duly paid by
the Company.
3. Representations and Warranties. The Company represents and warrants to
each Underwriter that:
(a) Preliminary Prospectus. No order preventing or suspending the use of
any Preliminary Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, complied in all material
respects with the Securities Act and did not contain any untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; provided
that the Company makes no representation and warranty with respect to any
statements or omissions made in reliance upon and in conformity with information
furnished to the Company in writing by such Underwriter through the
Representative expressly for use in any Preliminary Prospectus.
(b) Registration Statement and Prospectus. No order suspending the
effectiveness of the Registration Statement has been issued by the Commission
and no proceeding for that purpose has been initiated or threatened by the
Commission; as of the applicable effective date of the Registration Statement
and any amendment thereto, the Registration Statement complied and will comply
in all material respects with the Securities Act, and did not and will not
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein not misleading; and as of the applicable filing date of the Prospectus
and any amendment or supplement thereto and as of the Closing Date, the
Prospectus did not and will not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided that the Company makes no
representation and warranty with respect to any statements or omissions made in
reliance upon and in conformity with information furnished to the Company in
writing by such Underwriter through the Representative expressly for use in the
Registration Statement and the Prospectus and any amendment or supplement
thereto.
(c) Incorporated Documents. The documents incorporated by reference in the
Prospectus, when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and none of such documents
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,
in the light of the circumstances under which they were made, not misleading;
and any further documents so filed and incorporated by reference in the
Prospectus, when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material respects to the
requirements of the Securities Act or the Exchange Act, as applicable, and will
not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading.
(d) Forward-Looking Statements. No forward-looking statement (within the
meaning of Section 27A of the Securities Act and Section 21E of the Exchange
Act) contained in the Registration Statement or the Prospectus has been made or
reaffirmed without a reasonable basis or has been disclosed other than in good
faith.
(e) Statistical and Market Data. Nothing has come to the attention of the
Company that has caused the Company to believe that the statistical and
market-related data included in the Registration Statement and the Prospectus is
not based on or derived from sources that are reliable and accurate in all
material respects.
(f) Investment Company Act. 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, an "investment company" or an entity
"controlled" by an "investment company" within the meaning of the Investment
Company Act of 1940, as amended, and the rules and regulations of the Commission
thereunder (collectively, the "Investment Company Act").
(g) Margin Rules. Neither the issuance, sale and delivery of the Shares
nor the application of the proceeds thereof by the Company as described in the
Registration Statement and the Prospectus will violate Regulation T, U or X of
the Board of Governors of the Federal Reserve System or any other regulation of
such Board of Governors.
(h) No Broker's Fees. Neither the Company nor any of its subsidiaries is a
party to any contract, agreement or understanding with any person (other than
this Agreement) that would give rise to a valid claim against the Company or any
of its subsidiaries or any Underwriter for a brokerage commission, finder's fee
or like payment in connection with the offering and sale of the Shares.
(i) No Stabilization. The Company has not taken, directly or indirectly,
any action designed to or that could reasonably be expected to cause or result
in any stabilization or manipulation of the price of the Shares.
(j) Significant Subsidiaries. The subsidiaries listed on Schedule II
attached hereto are the only "significant subsidiaries" of the Company (as
defined in Rule 1-02(w) of Regulation S-X under the Securities Act) (each, a
"Significant Subsidiary" and, collectively, the "Significant Subsidiaries").
(k) Organization and Good Standing. The Company and each Significant
Subsidiary has been duly incorporated or organized and is validly existing in
good standing (in jurisdictions where such concept applies) as a corporation or
other entity under the laws of the jurisdiction in which it is chartered or
organized, with full power and authority (corporate and other) to own, lease or
operate its properties and conduct its business as described in the Prospectus,
and has been duly qualified as a foreign entity for the transaction of business
and is in good standing (in jurisdictions where such concept applies) under the
laws of each other jurisdiction in which it owns or leases properties or
conducts any business so as to require such qualification, except where the
failure to be so qualified would not, individually or in the aggregate, have a
material adverse effect on the business, properties, management, financial
position, shareholders' equity, results of operations or prospects of the
Company and its subsidiaries taken as a whole (a "Material Adverse Effect").
(l) Capitalization. The Company has an authorized equity capitalization as
set forth in the Prospectus under the heading "Capitalization"; all the issued
and outstanding shares of capital stock of the Company have been duly authorized
and validly issued and are fully paid and nonassessable, and are not subject to
any pre-emptive or similar rights; and, except as set forth in the Prospectus,
no options, warrants or other rights to purchase, agreements or other
obligations
to issue, or rights to convert any obligations into or exchange any securities
for, shares of capital stock of or ownership interests in the Company are
outstanding; the capital stock of the Company conforms in all material respects
to the description thereof contained in the Registration Statement and the
Prospectus.
(m) Capital Stock of Significant Subsidiaries. All of the outstanding
shares of capital stock of each Significant Subsidiary have been duly authorized
and validly issued and are fully paid and nonassessable, and, except as
otherwise set forth in the Prospectus, all outstanding shares of capital stock
of the Significant Subsidiaries (except for minority interests representing less
than 3% of any such Significant Subsidiary) are owned by the Company either
directly or through wholly-owned subsidiaries free and clear of any security
interest, claim, lien or encumbrance other than liens granted pursuant to (i)
the Credit Agreement, dated as of May 28, 2004 (the "Credit Facility"), among
the Company, the banks, financial institutions and other lenders named on the
signature pages thereof, Wachovia Bank, National Association, as administrative
agent, JPMorgan Chase Bank, as syndication agent, and Deutsche Bank Securities
Inc. and Societe Generale, as co-documentation agents, or (ii) any debt
agreement to which Western Wireless International Holding Corporation or its
subsidiaries is a party (the "Foreign Financings").
(n) Due Authorization. The Company has full right, power and authority to
execute and deliver this Agreement and to perform its obligations hereunder; and
all action (corporate and other) required to be taken for the due and proper
authorization, execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby has been duly and validly taken.
(o) Underwriting Agreement. This Agreement has been duly authorized,
executed and delivered by the Company.
(p) The Shares. The Shares to be issued and sold by the Company hereunder
have been duly authorized by the Company and, when issued and delivered and paid
for as provided herein, will be duly and validly issued and will be fully paid
and nonassessable and will conform to the descriptions thereof in the
Prospectus; and the issuance of the Shares is not subject to any preemptive or
similar rights.
(q) No Consents Required. No consent, approval, authorization, filing or
order of any court or governmental agency or body is required in connection with
the transactions contemplated herein, except for the registration of the Shares
under the Securities Act and such consents, approvals, authorizations, filings,
orders and registrations or qualifications as may be required under applicable
state securities laws in connection with the purchase and distribution of the
Shares by the Underwriters.
(r) No Conflicts. Neither the execution and delivery of this Agreement,
the issuance and sale of the Shares, nor the consummation of any other of the
transactions herein contemplated, nor the fulfillment of the terms hereof will
conflict with, result in a breach or violation or imposition of any lien, charge
or encumbrance upon any property or assets of the Company or any of its
Significant Subsidiaries pursuant to, (i) the charter or by-laws or similar
organizational documents of the Company or any of its Significant Subsidiaries;
(ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement, shareholders agreement, registration rights agreement
or other agreement, obligation, condition, covenant or instrument to which the
Company or any of its Significant Subsidiaries is a party or bound or to which
its or their property is subject; or (iii) any statute, law, rule, regulation,
judgment, order or decree applicable to the Company or any of its Significant
Subsidiaries of any court, regulatory body, administrative agency, governmental
body, arbitrator or other authority having jurisdiction over the Company or any
of its Significant Subsidiaries or any of its or their properties.
(s) Financial Statements. The financial statements and the related notes
thereto incorporated by reference in the Registration Statement and the
Prospectus comply in all material respects with the applicable requirements of
the Securities Act and the Exchange Act, as applicable, and present fairly in
all material respects the financial position of the Company and its subsidiaries
as of the dates indicated and the results of their operations and the changes in
their cash flows for the periods specified; such financial statements have been
prepared in conformity with generally accepted accounting principles in the
United States applied on a consistent basis throughout the periods covered
thereby (except as otherwise noted therein), and the supporting schedules
incorporated by reference in the Registration Statement and the Prospectus
present fairly in all material respects the information required to be stated
therein; and the other financial information included or incorporated by
reference in the Registration Statement and the Prospectus has been derived from
the accounting records of the Company and its subsidiaries and presents fairly
in all material respects the information shown thereby; and the pro forma
financial information and the related notes thereto included or incorporated by
reference in the Registration Statement and the Prospectus has been prepared in
accordance with the applicable requirements of the Securities Act and the
Exchange Act, as applicable, and the assumptions underlying such pro forma
financial information are reasonable and are set forth in the Registration
Statement and the Prospectus.
(t) Legal Proceedings. Except as described in the Prospectus, including,
without limitation, the documents incorporated by reference in the Prospectus,
there are no legal, governmental or regulatory investigations, actions, suits or
proceedings pending or, to the knowledge of the Company, threatened to which the
Company or any of its subsidiaries is or may be a party or to which any property
of the Company or any of its subsidiaries is or may be the subject that,
individually or in the aggregate, if determined adversely to the Company or any
of its subsidiaries, could reasonably be expected to have a Material Adverse
Effect or materially and adversely affect the ability of the Company to perform
its obligations under this Agreement; and (i) there are no current or pending
legal, governmental or regulatory actions, suits or proceedings that are
required under the Securities Act to be described in the Registration Statement
or the Prospectus that are not so described and (ii) there are no statutes,
regulations or contracts or other documents that are required under the
Securities Act to be filed as exhibits to the Registration Statement or
described in the Registration Statement or the Prospectus that are not so filed
or described.
(u) No Material Adverse Change. Since the date of the most recent audited
financial statements of the Company incorporated by reference in the
Registration Statement and the Prospectus, (i) there has not been any change in
the capital stock (other than pursuant to the exercise of employee stock options
to purchase Common Stock and grants and purchases of Common Stock pursuant to
the Company's employee restricted stock and stock purchase plans) or long-term
debt of the Company or any of its subsidiaries, or any dividend or distribution
of any kind declared, set aside for payment, paid or made by the Company on any
class of capital stock, or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the business,
properties, management, financial position, shareholders' equity, results of
operations or prospects of the Company and its subsidiaries taken as a whole;
(ii) neither the Company nor any of its subsidiaries has entered into any
transaction or agreement that is material to the Company and its subsidiaries
taken as a whole or incurred any liability or obligation, direct or contingent,
that is material to the Company and its subsidiaries taken as a whole; and (iii)
neither the Company nor any of its subsidiaries has sustained any material loss
or interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor disturbance or dispute or
any action, order or decree of any court or arbitrator or governmental or
regulatory authority, except in each case as otherwise disclosed in the
Registration Statement and the Prospectus.
(v) Title to Real and Personal Property. The Company and its subsidiaries
have good and marketable title in fee simple to, or have valid rights to lease
or otherwise use, all items of real and personal property that are material to
the respective businesses of the Company and its subsidiaries, in each case free
and clear of all liens, encumbrances, claims and defects and imperfections of
title except those that (i) are described in the Prospectus (including the
Credit Facility and the Foreign Financings), (ii) do not materially interfere
with the use made and proposed to be made of such property by the Company and
its subsidiaries or (iii) could not reasonably be expected, individually or in
the aggregate, to have a Material Adverse Effect.
(w) Rights to Intellectual Property. To the best of its knowledge, the
Company and its subsidiaries own or possess adequate rights to use all material
patents, patent applications, trademarks, service marks, trade names, trademark
registrations, service ▇▇▇▇ registrations, copyrights, licenses and know-how,
including trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures (collectively "Intellectual
Property Rights"), necessary for the conduct of their respective businesses; the
conduct of their respective businesses will not conflict with any such
Intellectual Property Rights of others, except to the extent that such conflict
would not reasonably be expected to, individually or in the aggregate, have a
Material Adverse Effect; and, except for any claims that would not reasonably be
expected to, individually or in the aggregate, have a Material Adverse Effect,
no claim has been filed against the Company or any of its subsidiaries alleging
the infringement by the Company or any of its subsidiaries of any Intellectual
Property Rights of any person.
(x) No Undisclosed Relationships. No relationship, direct or indirect,
exists between or among the Company or any of its subsidiaries, on the one hand,
and the directors, officers, shareholders, customers or suppliers of the Company
or any of its subsidiaries, on the other, that
is required by the Securities Act to be described in the Registration Statement
and the Prospectus and that is not so described.
(y) No Violation or Default. Except as otherwise set forth in or
contemplated by the Prospectus, neither the Company nor any of its Significant
Subsidiaries is in violation or default of (i) any provision of its charter,
bylaws or similar organizational documents; (ii) the terms of any indenture,
contract, lease, mortgage, deed of trust, note agreement, loan agreement,
shareholders agreement, registration rights agreement or other agreement,
obligation, condition, covenant or instrument to which it is a party or bound or
to which its property is subject; or (iii) any statute, law, rule, regulation,
judgment, order or decree applicable to it of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority having
jurisdiction over it or any of its properties, except, in the case of clauses
(ii) and (iii) above, for any such default or violation that would not,
individually or in the aggregate, have a Material Adverse Effect.
(z) Independent Accountants. To the knowledge of the Company,
PricewaterhouseCoopers LLP, who have certified certain financial statements of
the Company and its consolidated subsidiaries and delivered their report with
respect to the audited consolidated financial statements and schedules
incorporated by reference in the Prospectus, are independent public accountants
with respect to the Company and its subsidiaries within the meaning of the
applicable rules and regulations adopted by the Commission.
(aa) FCC Permits. Except as otherwise set forth in or contemplated by the
Prospectus (exclusive of any amendment or supplement thereto), the Company and
its subsidiaries have such certificates of convenience or necessity, easements,
rights-of-way, operating rights, permits, licenses, franchises and
authorizations of governmental or regulatory authorities ("Permits"), including
Permits issued by the Federal Communications Commission (the "FCC"), as are
necessary to own their respective properties and to conduct their respective
businesses substantially in the manner described in the Prospectus, except for
any such Permits the absence of which could not reasonably be expected to result
in a Material Adverse Effect; the Company and its subsidiaries have fulfilled
all their material obligations with respect to such Permits and no event has
occurred which allows (or after notice or lapse of time would allow) revocation
or termination thereof or result in any other material impairment of the rights
of the holder of any such Permit, in each case which could reasonably be
expected to result in a Material Adverse Effect; and, except as described in the
Prospectus (exclusive of any amendment or supplement thereto), none of such
Permits contains any restriction that is burdensome to the Company or any of its
subsidiaries, except for restrictions that could not reasonably be expected to
have a Material Adverse Effect.
(bb) Accounting Controls. 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 is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(cc) Compliance With Environmental Laws. In the ordinary course of its
business, the Company periodically reviews the effect of applicable non-U.S.,
U.S. 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 (collectively, "Environmental Laws") on the
business, operations and properties of the Company and its subsidiaries, in the
course of which it identifies and evaluates associated costs and liabilities
(including, without limitation, any capital or operating expenditures required
for clean-up, closure of properties or compliance with Environmental Laws or any
permit, license or approval, any related constraints on operating activities and
any potential liabilities to third parties); on the basis of such review, the
Company has reasonably concluded that such associated costs and liabilities
would not, individually or in the aggregate, have a Material Adverse Effect.
(dd) No Unlawful Payments. None of the Company, its subsidiaries or, to
the knowledge of the Company, any director, officer, agent, employee or
affiliate of the Company or any of its subsidiaries is aware of or has taken any
action, directly or indirectly, that would result in a violation by such persons
of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and
regulations thereunder (the "FCPA"), including, without limitation, making use
of the mails or any means or instrumentality of interstate commerce corruptly in
furtherance of an offer, payment, promise to pay or authorization of the payment
of any money, or other property, gift, promise to give, or authorization of the
giving of anything of value to any "foreign official" (as such term is defined
in the FCPA) or any foreign political party or official thereof or any candidate
for foreign political office, in contravention of the FCPA; and the Company, its
subsidiaries and, to the knowledge of the Company, its affiliates have conducted
their businesses in compliance with the FCPA and have instituted and maintain
policies and procedures designed to ensure, and which are reasonably expected to
continue to ensure, continued compliance therewith.
(ee) No Sanctions. None of the Company, any of its subsidiaries or, to the
knowledge of the Company, any director, officer, agent, employee or affiliate of
the Company or any of its subsidiaries is currently subject to any U.S.
sanctions administered by the Office of Foreign Assets Control of the U.S.
Department of the Treasury ("OFAC"); and the Company will not directly or
indirectly use the proceeds of the offering of the Shares, or lend, contribute
or otherwise make available such proceeds to any subsidiary, joint venture
partner or other person or entity, for the purpose of financing the activities
of any person currently subject to any U.S. sanctions administered by OFAC.
(ff) Taxes. The Company and its subsidiaries have paid all federal, state,
local and foreign taxes and filed all tax returns required to be paid or filed
through the date hereof; and except as otherwise disclosed in the Prospectus,
there is no tax deficiency that has been, or could reasonably be expected to be,
asserted against the Company or any of its subsidiaries or any of their
respective properties or assets.
(gg) Lock-Up Agreements. Prior to the date hereof, the Company has
furnished to the Representative "lock-up agreements", each substantially in the
form of Exhibit A hereto, duly executed by each of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, M. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, relating to sales and certain other dispositions of shares
of capital stock or certain other securities, addressed to the Representative;
provided, however, that the lock-up agreement executed by ▇▇▇▇ ▇▇▇▇▇ will
contain an exclusion for sales of the Company's Class A common stock pursuant to
the Sales Plan, dated as of February 27, 2004, between ▇▇. ▇▇▇▇▇ and ▇▇▇▇▇▇▇,
▇▇▇▇▇ & Co.
(hh) Disclosure Controls and Procedures. The Company has established and
maintains disclosure controls and procedures (as such term is defined in Rule
13a-15 and 15d-15 under the Exchange Act); such disclosure controls and
procedures are designed to ensure that material information relating to the
Company, including its consolidated subsidiaries, is made known to the Company's
principal executive officer and its principal financial officer by others within
those entities, and such disclosure controls and procedures are effective to
perform the functions for which they were established.
(ii) Internal Controls. As of the filing of the Company's Form 10-Q for
the quarter ended June 30, 2004, the Company's auditors and the Audit Committee
of the Board of Directors have been advised of: (i) any significant deficiencies
or material weaknesses in the design or operation of the Company's internal
control over financial reporting (as such term is defined in Rule 13a-15 and
15d-15 under the Exchange Act) which are reasonably likely to adversely affect
the Company's ability to record, process, summarize and report financial
information and (ii) any fraud, whether or not material, that involves
management or other employees who have a role in the Company's internal control
over financial reporting; and, except as disclosed in Item 4(B) in the Company's
Form 10-Q for the quarter ended June 30, 2004, there have been no changes in the
Company's internal control over financial reporting that has materially
affected, or is reasonably likely to materially affect, the Company's internal
control over financial reporting.
Any certificate signed by any officer of the Company and delivered to the
Representative or counsel for the Underwriters in connection with the offering
of the Shares shall be deemed a representation and warranty by the Company, as
to matters covered thereby, to each Underwriter.
4. Further Agreements of the Company. The Company covenants and agrees
with each Underwriter that:
(a) Effectiveness of the Registration Statement. The Company will use its
reasonable best efforts to, if required, file the final Prospectus with the
Commission within the time periods specified by Rule 424(b) and Rule 430A under
the Securities Act and to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to
the date of the Prospectus and for so long as the delivery of a prospectus is
required in connection with the offering or sale of the Shares; and the Company
will use its reasonable best efforts to
furnish copies of the Prospectus to the Underwriters in New York City prior to
10:00 A.M., New York City time, on the business day next succeeding the date of
this Agreement in such quantities as the Representative may reasonably request.
(b) Delivery of Copies. The Company will deliver, without charge, (i) to
the Representative, two signed copies of the Registration Statement as
originally filed and each amendment thereto, in each case including all exhibits
and consents filed therewith and documents incorporated by reference therein;
and (ii) to each Underwriter (A) a conformed copy of the Registration Statement
as originally filed and each amendment thereto (without exhibits) and (B) during
the Prospectus Delivery Period, as many copies of the Prospectus (including all
amendments and supplements thereto and documents incorporated by reference
therein) as the Representative may reasonably request. As used herein, the term
"Prospectus Delivery Period" means such period of time after the first date of
the public offering of the Shares as in the opinion of counsel for the
Underwriters a prospectus relating to the Shares is required by law to be
delivered in connection with sales of the Shares by any Underwriter or dealer.
(c) Amendments or Supplements. Before filing any amendment or supplement
to the Registration Statement or the Prospectus the Company will furnish to the
Representative and counsel for the Underwriters a copy of the proposed amendment
or supplement for review and will not file any such proposed amendment or
supplement to which the Representative reasonably objects.
(d) Notice to the Representative. The Company will advise the
Representative promptly, and confirm such advice in writing, (i) when any
amendment to the Registration Statement has been filed or becomes effective;
(ii) when any supplement to the Prospectus or any amendment to the Prospectus
has been filed; (iii) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or the
receipt of any comments from the Commission relating to the Registration
Statement or any other request by the Commission for any additional information;
(iv) of the issuance by the Commission of any order suspending the effectiveness
of the Registration Statement or preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or the initiation or threatening of any
proceeding for that purpose; (v) of the occurrence of any event within the
Prospectus Delivery Period as a result of which the Prospectus as then amended
or supplemented would include any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances existing when the Prospectus is delivered to a
purchaser, not misleading; and (vi) of the receipt by the Company of any notice
with respect to any suspension of the qualification of the Shares for offer and
sale in any jurisdiction or the initiation or threatening of any proceeding for
such purpose; and the Company will use its reasonable best efforts to prevent
the issuance of any such order suspending the effectiveness of the Registration
Statement, preventing or suspending the use of any Preliminary Prospectus or the
Prospectus or suspending any such qualification of the Shares and, if any such
order is issued, will use its reasonable best efforts to obtain as soon as
possible the withdrawal thereof.
(e) Ongoing Compliance of the Prospectus. If during the Prospectus
Delivery Period (i) any event shall occur or condition shall exist as a result
of which the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances existing when the Prospectus is delivered to a
purchaser, not misleading or (ii) it is necessary to amend or supplement the
Prospectus to comply with applicable law, the Company will promptly notify the
Underwriters thereof and forthwith prepare and, subject to paragraph (c) above,
file with the Commission and furnish to the Underwriters and to such dealers as
the Representative may designate, such amendments or supplements to the
Prospectus as may be necessary so that the statements in the Prospectus as so
amended or supplemented will not, in the light of the circumstances existing
when the Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus will comply with law.
(f) Blue Sky Compliance. The Company will qualify the Shares for offer and
sale under the securities or Blue Sky laws of such jurisdictions as the
Representative shall reasonably request and will continue such qualifications in
effect so long as required for distribution of the Shares; provided that the
Company shall not be required to (i) qualify as a foreign corporation or other
entity or as a dealer in securities in any such jurisdiction where it would not
otherwise be required to so qualify, (ii) file any general consent to service of
process in any such jurisdiction or (iii) subject itself to taxation in any such
jurisdiction if it is not otherwise so subject.
(g) Earning Statement. The Company will make generally available to its
security holders and the Representative as soon as practicable an earning
statement that satisfies the provisions of Section 11(a) of the Securities Act
and Rule 158 of the Commission promulgated thereunder covering a period of at
least twelve months beginning with the first fiscal quarter of the Company
occurring after the "effective date" (as defined in Rule 158) of the
Registration Statement.
(h) Clear Market. For a period of 90 days after the date of this
Agreement, the Company will not, except as noted below, (i) offer, pledge,
announce the intention to sell, 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 or otherwise transfer or dispose of, directly or
indirectly, any shares of capital stock of the Company or any securities
convertible into or exercisable or exchangeable for such capital stock or (ii)
enter into any swap or other agreement that transfers, in whole or in part, any
of the economic consequences of ownership of the capital stock of the Company or
any securities convertible into or exercisable or exchangeable for such capital
stock, whether any such transaction described in clause (i) or (ii) above is to
be settled by delivery of capital stock or such other securities, in cash or
otherwise, without the prior written consent of the Representative, other than
(w) the Shares to be sold hereunder, (x) any shares of capital stock of the
Company issued in connection with the Company's existing employee stock option,
restricted stock and stock purchase plans, (y) any shares of the Company's Class
A common stock issued in connection with the conversion of the Company's Class B
common stock and (z) any shares of the Company's Class A common stock issued in
connection with the conversion of the Company's 45/8% Convertible Subordinated
Notes due 2023 (the "Convertible Notes"), including any conversion made at a
conversion price less than the one provided for by
the terms of such Convertible Notes. Notwithstanding the foregoing, the Company
may do any of the following during the 90-day period referenced above: (i) enter
into discussions concerning or otherwise make a non-binding offer to issue any
shares of the Company's capital stock as consideration for any acquisition or
merger to be made by the Company so long as the Company does not, and is not
required by applicable law to, publicly announce such discussions or offer; (ii)
commencing 30 days after the date of this Agreement, offer, contract to sell or
otherwise obligate itself to issue any shares of the Company's capital stock as
consideration for any acquisition or merger to be made by the Company, or make
any public announcement relating to the foregoing, so long as such acquisition
or merger does not close prior to the expiration of the 90-day period referenced
above; or (iii) enter into discussions concerning, offer, contract to sell,
obligate itself to issue or issue any shares of the Company's capital stock as
consideration for any acquisition or merger to be made by the Company so long as
(y) the total value of the shares of capital stock to be issued in such
acquisition or merger, together with the total value of any shares of capital
stock to be issued in connection with any other acquisitions or mergers during
such 90-day period, does not exceed ten percent (10%) of the total value as of
the date hereof of all outstanding shares of the Company's capital stock
(measured by multiplying the total number of shares of the Company's capital
stock outstanding as of the date hereof by the closing price as of the date
hereof of the Company's Class A common stock on the National Association of
Securities Dealers Automated Quotations National Market (the "Nasdaq National
Market")) and (z) the person or entity acquiring such shares of capital stock
shall have agreed in writing to the restrictions set forth in the first sentence
of this Section 4(h) (other than the exceptions set forth therein) with respect
to such capital stock during the 90-day period referenced above.
(i) Use of Proceeds. The Company will apply the net proceeds from the sale
of the Shares as described in the Prospectus under the heading "Use of
Proceeds".
(j) No Stabilization. The Company will not take, directly or indirectly,
any action designed to or that could reasonably be expected to cause or result
in any stabilization or manipulation of the price of the Shares.
(k) Exchange Listing. The Company will use its reasonable best efforts to
list for quotation the Shares on the Nasdaq National Market.
(l) Reports. During a period of five years from the effective date of the
Registration Statement, the Company will furnish to the Representative, as soon
as they are available, copies of all reports or other communications (financial
or other) furnished to holders of the Shares, and copies of any reports and
financial statements furnished to or filed with the Commission or any national
securities exchange or automatic quotation system, except to the extent such
reports or financial statements are publicly available on the Commission's ▇▇▇▇▇
system.
5. Conditions of Underwriters' Obligations. The obligation of each
Underwriter to purchase the Shares on the Closing Date as provided herein is
subject to the performance by the Company of its covenants and other obligations
hereunder and to the following additional conditions:
(a) Registration Compliance; No Stop Order. The Registration Statement (or
if a post-effective amendment thereto is required to be filed under the
Securities Act, such post-effective amendment) shall have become effective, and
the Representative shall have received notice thereof, not later than 5:00 P.M.,
New York City time, on the date hereof; no order suspending the effectiveness of
the Registration Statement shall be in effect, and no proceeding for such
purpose shall be pending before or threatened by the Commission; the Prospectus
shall have been timely filed with the Commission under the Securities Act and in
accordance with Section 4(a) hereof; and all requests by the Commission for
additional information shall have been complied with to the reasonable
satisfaction of the Representative.
(b) Representations and Warranties. The representations and warranties of
the Company contained herein shall be true and correct on the date hereof and on
and as of the Closing Date; and the statements of the Company and its officers
made in any certificates delivered pursuant to this Agreement shall be true and
correct on and as of the Closing Date.
(c) No Downgrade. Subsequent to the execution and delivery of this
Agreement, (i) no downgrading shall have occurred in the rating accorded any
debt securities of the Company by any "nationally recognized statistical rating
organization", as such term is defined by the Commission for purposes of Rule
436(g)(2) under the Securities Act, and (ii) no such organization shall have
publicly announced that it has under surveillance or review, with negative
implications, its rating of any debt securities of the Company.
(d) No Material Adverse Change. Subsequent to the execution and delivery
of this Agreement, no event or condition of a type described in Section 3(u)
hereof shall have occurred or shall exist, which event or condition is not
described in the Prospectus (excluding any amendment or supplement thereto) and
the effect of which in the judgment of the Representative makes it impracticable
or inadvisable to proceed with the offering, sale or delivery of the Shares on
the Closing Date on the terms and in the manner contemplated by this Agreement
and the Prospectus.
(e) Officer's Certificate. The Representative shall have received on and
as of the Closing Date a certificate of the chief financial officer or chief
accounting officer of the Company and one additional senior executive officer of
the Company who is satisfactory to the Representative (i) confirming that such
officers have carefully reviewed the Registration Statement and the Prospectus
and, to the best knowledge of such officers, the representation set forth in
Section 3(b) hereof is true and correct, (ii) confirming that the other
representations and warranties of the Company in this Agreement are true and
correct and that the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or prior to
such Closing Date and (iii) to the effect set forth in paragraphs (a), (c) and
(d) above.
(f) Comfort Letters. On the Closing Date, PricewaterhouseCoopers LLP shall
have furnished to the Representative, at the request of the Company, a letter,
dated the Closing Date and addressed to the Underwriters, in form and substance
reasonably satisfactory to the Representative, containing statements and
information of the type customarily included in
accountants' "comfort letters" to underwriters with respect to the financial
statements and certain financial information contained or incorporated by
reference in the Registration Statement and the Prospectus; provided, that the
letter shall use a "cut-off" date no more than three business days prior to the
Closing Date.
(g) Opinion of Company Counsel. ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the
Company, shall have furnished to the Representative, at the request of the
Company, their written opinion, dated the Closing Date and addressed to the
Underwriters, in form and substance reasonably satisfactory to the
Representative, to the effect that:
(i) the Registration Statement was declared effective under the
Securities Act as of the date and time specified in such opinion; the
Prospectus was filed with the Commission pursuant to the subparagraph of
Rule 424(b) under the Securities Act specified in such opinion on the date
specified therein; and, to the knowledge of such counsel, no order
suspending the effectiveness of the Registration Statement has been issued
and no proceeding for that purpose is pending or threatened by the
Commission;
(ii) the Registration Statement and the Prospectus (other than the
financial statements and related schedules therein, related notes thereto
and financial and statistical information derived therefrom, as to which
such counsel need express no opinion) comply as to form in all material
respects with the requirements of the Securities Act;
(iii) the Company has been duly incorporated and is validly existing
as a corporation under the laws of the State of Washington, with full
corporate power and authority to own, lease or operate its properties and
conduct its business as described in the Prospectus, and is duly qualified
to do business as a foreign corporation and is in good standing (in
jurisdictions where such concept applies) under the laws of each
jurisdiction in which it owns or leases properties or conducts business
and where the failure to be so qualified would, individually or in the
aggregate, have a Material Adverse Effect, except as set forth in or
contemplated in the Prospectus;
(iv) each of the Significant Subsidiaries has been duly incorporated
and is validly existing as a corporation in good standing under the laws
of the State of Delaware (except for WWC Texas RSA Limited Partnership
("WWC Texas LP"), which has been duly formed and is validly existing as a
limited partnership in good standing under the laws of the State of
Delaware, and WWC License LLC, which has been duly formed and is validly
existing as a limited liability company in good standing under the laws of
the State of Delaware), with full corporate (or partnership, in the case
of WWC Texas LP, or limited liability company, in the case of WWC License
LLC) power and authority to own, lease or operate its properties and
conduct its business as described in the Prospectus, and is duly qualified
to do business as a foreign corporation (or partnership, in the case of
WWC Texas LP, or limited liability company, in the case of WWC License
LLC) and is in good standing (in jurisdictions where such concept applies)
under the laws of each jurisdiction in which it owns or leases properties
or conducts business and where the
failure to be so qualified would, individually or in the aggregate, have a
Material Adverse Effect, except as set forth in or contemplated in the
Prospectus;
(v) the authorized capital stock of the Company consists of
300,000,000 shares of authorized Class A common stock and Class B common
stock, no par value, and 50,000,000 shares of authorized preferred stock;
all of the outstanding shares of capital stock of the Company have been
duly and validly authorized and issued and are fully paid and
nonassessable; and (x) such shares are not subject to any pre-emptive or
similar rights and (y) except as set forth in the Prospectus, no options,
warrants or other rights to purchase, agreements or other obligations to
issue, or rights to convert any obligations into or exchange any
securities for, such shares of capital stock of or ownership interests in
the Company are outstanding in the case of (x) or (y) either (1) to such
counsel's knowledge or (2) pursuant to (A) the Company's certificate of
incorporation or bylaws or (B) any agreement or other document to which
the Company or any of its subsidiaries is a party or is subject to or
bound which has been filed as an exhibit to or incorporated by reference
into the Registration Statement and the Prospectus or to any report that
has been incorporated by reference into the Registration Statement and the
Prospectus;
(vi) all of the issued and outstanding shares of capital stock (or,
in the case of WWC Texas LP, partnership interests, or, in the case of WWC
License LLC, membership interests) of each Significant Subsidiary have
been duly and validly authorized and issued, are fully paid and
non-assessable, and, except as otherwise set forth in the Prospectus (and
except for minority interests representing less than 3% of such
Significant Subsidiary), are owned by the Company either directly or
through wholly-owned subsidiaries;
(vii) the Shares to be issued and sold by the Company hereunder have
been duly authorized, and when issued and delivered to and paid for by the
Underwriters in accordance with the terms of this Agreement, will be
validly issued, fully paid and non-assessable and conform to the
descriptions thereof in the Prospectus; and the issuance of the Shares is
not subject to any preemptive or similar rights either (x) to such
counsel's knowledge or (y) pursuant to (1) the Company's certificate of
incorporation or bylaws or (2) any agreement or other document to which
the Company or any of its subsidiaries is a party or is subject to or
bound which has been filed as an exhibit to or incorporated by reference
into the Registration Statement and the Prospectus or to any report that
has been incorporated by reference into the Registration Statement and the
Prospectus;
(viii) the statements set forth in the Prospectus under the heading
"Description of Common Stock", to the extent that they constitute
summaries of the terms of the Common Stock, matters of law or regulation
or legal conclusions, accurately and completely summarize the matters
described therein in all material respects;
(ix) the Company has full right, power and authority to execute and
deliver this Agreement and to perform its obligations hereunder; and all
action (corporate and other) required to be taken for the due and proper
authorization, execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby
have been duly and validly taken;
(x) this Agreement has been duly authorized, executed and delivered
by the Company;
(xi) No consent, approval, authorization, filing, order,
registration or qualification of or with any federal or Washington court
or arbitrator or governmental or regulatory authority is required (other
than any consent, approval, authorization, filing, order, registration or
qualification under the Communications Act or the FCC Rules as to which
such counsel need express no opinion) for the execution, delivery and
performance by the Company of this Agreement, the issuance and sale of the
Shares to be sold by the Company and delivered on the Closing Date, and
compliance by the Company with the terms hereof and the consummation of
the transactions contemplated by this Agreement, except for (x) the
registration of the Shares under the Securities Act, (y) such consents,
approvals, authorizations, filings, orders, registrations or
qualifications as may be required under applicable state securities laws
in connection with the purchase and distribution of the Shares by the
Underwriters or (z) such consents, approvals, authorizations, filings,
orders, registrations or qualifications the failure of which to be
obtained, individually or in the aggregate, would not affect the validity
of the Shares, their issuance or delivery or the transactions contemplated
by this Agreement or result in a Material Adverse Effect;
(xii) the execution, delivery and performance by the Company of this
Agreement, the issuance and sale of the Shares to be sold by the Company
and delivered on the Closing Date, and compliance by the Company with the
terms of, and the consummation of the transactions contemplated by, this
Agreement will not (i) conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under, or
result in the imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its subsidiaries pursuant to,
any term, covenant or condition contained in any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument which has been
filed as an exhibit to or incorporated by reference into the Registration
Statement and the Prospectus or to any report that has been incorporated
by reference into the Registration Statement and the Prospectus or is
otherwise known to such counsel, (ii) result in any violation of the
provisions of the charter or by-laws or similar organizational documents
of the Company or any of its Significant Subsidiaries or (iii) result in
the violation of any Washington or federal law or statute (other than the
Communications Act or the FCC Rules as to which such counsel need express
no opinion) or any judgment, order, decree, rule or regulation of any
federal or Washington court or arbitrator or governmental or regulatory
authority binding on the Company of which such counsel is aware, except,
in the case of clause (iii), such violations which would not, individually
or in the aggregate, affect the validity of the Shares, their issuance or
delivery or the transactions contemplated by this Agreement or result in a
Material Adverse Effect;
(xiii) to the knowledge of such counsel, except as described in the
Prospectus, there are no legal, governmental or regulatory investigations,
actions, suits or proceedings pending to which the Company or any of its
subsidiaries is or may be a party or to which any property of the Company
or any of its subsidiaries is or may be the subject that, individually or
in the aggregate, if determined adversely to the Company or any of its
subsidiaries, could reasonably be expected to have a Material Adverse
Effect or materially and adversely affect the ability of the Company to
perform its obligations under this Agreement; to the knowledge of such
counsel, no such investigations, actions, suits or proceedings are
threatened or contemplated by any governmental or regulatory authority or
threatened by others; and, to the knowledge of such counsel, (i) there are
no current or pending legal, governmental or regulatory actions, suits or
proceedings that are required under the Securities Act to be described in
the Registration Statement or the Prospectus that are not so described and
(ii) there are no statutes, regulations or contracts or other documents
that are required under the Securities Act to be filed as exhibits to the
Registration Statement or described in the Registration Statement or the
Prospectus that are not so filed or described;
(xiv) 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 an "investment company" within
the meaning of the Investment Company Act;
(xv) the documents incorporated by reference in the Prospectus or
any further amendment or supplement thereto made by the Company prior to
the Closing Date other than the financial statements and related schedules
therein, related notes thereto and financial and statistical information
derived therefrom, as to which such counsel need express no opinion), when
they became effective or were filed with the Commission, as the case may
be, complied as to form in all material respects with the requirements of
the Securities Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder; and
(xvi) such counsel shall also state that they have participated in
conferences with representatives of the Company and with representatives
of its independent accountants and its counsel at which conferences the
contents of the Registration Statement and the Prospectus and any
amendment and supplement thereto and related matters were discussed and,
although such counsel assumes no responsibility for the accuracy,
completeness or fairness of the Registration Statement, the Prospectus and
any amendment or supplement thereto (except as expressly provided above),
nothing has come to the attention of such counsel to cause such counsel to
believe that the Registration Statement or any further amendment thereto
made by the Company prior to the Closing Date, as of its effective date
and as of the Closing Date, contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact required to be
stated therein or necessary to make the statements therein not misleading,
or that the Prospectus or any amendment or supplement thereto as of its
date and 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
to make the statements therein, in the light of the circumstances under
which they were made, not
misleading other than the financial statements and related schedules
therein, related notes thereto and financial and statistical information
derived therefrom, as to which such counsel need express no opinion).
In rendering such opinion, such counsel may rely as to matters of fact on
certificates of responsible officers of the Company and public officials that
are furnished to the Underwriters. The opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇ LLP
described above shall be rendered to the Underwriters at the request of the
Company and shall so state therein.
(h) Opinion of Special Communications Regulatory Counsel. ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ LLP, special communications regulatory counsel for the Company, shall
have furnished to the Representative, at the request of the Company, their
written opinion, dated the Closing Date, and addressed to the Underwriters, in
form and substance reasonably satisfactory to the Representative, to the effect
that:
(i) the Company and its subsidiaries have all Permits from the FCC
necessary to conduct their respective cellular telephone businesses in the
manner described in the Prospectus, which Permits are material to the
conduct of the Company's or such subsidiary's business;
(ii) the compliance by the Company with all of the provisions of
this Agreement and the consummation of the transactions herein
contemplated will not result in any conflict with or result in a breach or
violation of the Communications Act of 1934, as amended (the
"Communications Act"), or the published rules and regulations of the FCC
(the "FCC Rules") or any Permit issued to the Company or any of its
subsidiaries, as the case may be, under or pursuant to authority granted
under the Communications Act;
(iii) no consent, approval, authorization, order, registration or
qualification under the Communications Act or the FCC Rules is required
for the sale of the Shares as described in the Prospectus or the
consummation by the Company of the transactions contemplated by this
Agreement; and
(iv) other than as set forth or contemplated in the Prospectus, such
counsel does not know of any legal or governmental proceedings pending
before the FCC to which the Company or any of its subsidiaries is a party
or of which any property of the Company or any of its subsidiaries is the
subject which, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a Material
Adverse Effect; and such counsel does not know of any such proceedings
that are threatened or contemplated by the FCC.
In rendering such opinion, such counsel may rely as to matters of fact on
certificates of responsible officers of the Company and public officials that
are furnished to the Underwriters. The opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
described above shall be rendered to the Underwriters at the request of the
Company and shall so state therein.
(i) Opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP. The Representative shall have
received on and as of the Closing Date an opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP,
counsel for the Underwriters, with respect to such matters as the Representative
may reasonably request, and such counsel shall have received such documents and
information from the Company as they may reasonably request to enable them to
pass upon such matters.
(j) No Legal Impediment to Issuance. No action shall have been taken and
no statute, rule, regulation or order shall have been enacted, adopted or issued
by any federal, state or foreign governmental or regulatory authority that
would, as of the Closing Date, prevent the issuance or sale of the Shares; and
no injunction or order of any federal, state or foreign court shall have been
issued that would, as of the Closing Date, prevent the issuance or sale of the
Shares.
(k) Good Standing. The Representative shall have received as of the
Closing Date satisfactory evidence of the good standing (in jurisdictions where
such concept is applicable) of the Company and its Significant Subsidiaries in
their respective jurisdictions of organization and their good standing as
foreign entities in such other jurisdictions as the Representative may
reasonably request, in each case in writing or any standard form of
telecommunication from the appropriate governmental authorities of such
jurisdictions.
(l) Exchange Listing. The Shares to be delivered on the Closing Date shall
have been approved for quotation on the Nasdaq National Market, subject to
official notice of issuance.
(m) Lock-up Agreements. The "lock-up agreements", each substantially in
the form attached as Exhibit A hereto, duly executed by each of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, M. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, relating to sales and certain other dispositions
of shares of capital stock or certain other securities, delivered to the
Representative on or before the date hereof, shall be in full force and effect
on the Closing Date.
(n) Additional Documents. On or prior to the Closing Date the Company
shall have furnished to the Representative such further certificates and
documents as the Representative may reasonably request.
All opinions, letters, certificates and other documents mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
6. Indemnification and Contribution.
(a) Indemnification of the Underwriters. The Company agrees to indemnify
and hold harmless each Underwriter, its affiliates, directors and officers and
each person, if any, who controls such Underwriter within the meaning of 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,
legal fees and other expenses incurred in connection with any suit,
action or proceeding or any claim asserted, as such fees and expenses are
incurred), joint or several, that arise out of, or are based upon, any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus (or any amendment or supplement
thereto) or any Preliminary Prospectus, or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except insofar as such
losses, claims, damages or liabilities arise out of, or are based upon, any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with any information furnished to the Company in
writing by such Underwriter through the Representative expressly for use
therein, it being understood and agreed that the only such information furnished
by any Underwriter consists of the information described as such in subsection
(b) below.
(b) Indemnification of the Company. Each Underwriter agrees, severally and
not jointly, to indemnify and hold harmless the Company, its directors, its
officers who signed the Registration Statement and each person, if any, who
controls the Company within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act to the same extent as the indemnity set forth in
paragraph (a) above, but only with respect to any losses, claims, damages or
liabilities that arise out of, or are based upon, any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with any information relating to such Underwriter furnished to the
Company in writing by such Underwriter through the Representative expressly for
use in the Registration Statement and the Prospectus (or any amendment or
supplement thereto) or any Preliminary Prospectus, it being understood and
agreed upon that the only such information furnished by any Underwriter consists
of the following information in the Prospectus furnished on behalf of each
Underwriter: the information contained in the second, fifth and sixth paragraphs
under the caption "Underwriting".
(c) Notice and Procedures. If any suit, action, proceeding (including any
governmental or regulatory investigation), claim or demand shall be brought or
asserted against any person in respect of which indemnification may be sought
pursuant to either paragraph (a) or (b) above, such person (the "Indemnified
Person") shall promptly notify the person against whom such indemnification may
be sought (the "Indemnifying Person") in writing; provided that the failure to
notify the Indemnifying Person shall not relieve it from any liability that it
may have under paragraph (a) or (b) above except to the extent that it has been
materially prejudiced (through the forfeiture of substantive rights or defenses)
by such failure; and provided, further, that the failure to notify the
Indemnifying Person shall not relieve it from any liability that it may have to
an Indemnified Person otherwise than under paragraph (a) or (b) above. If any
such proceeding shall be brought or asserted against an Indemnified Person and
it shall have notified the Indemnifying Person thereof, the Indemnifying Person
shall retain counsel reasonably satisfactory to the Indemnified Person to
represent the Indemnified Person and any others entitled to indemnification
pursuant to paragraph (a) or (b) above that the Indemnifying Person may
designate in such proceeding and shall pay the fees and expenses of such counsel
related to such proceeding, as incurred. In any such proceeding, any Indemnified
Person 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 Person unless (i)
the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary; (ii) the Indemnifying Person has failed within
a reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person; (iii) the Indemnified Person shall have reasonably concluded that there
may be legal defenses available to it that are different from or in addition to
those available to the Indemnifying Person; or (iv) the named parties in any
such proceeding (including any impleaded parties) include both the Indemnifying
Person and the Indemnified Person and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them. It is understood and agreed that the Indemnifying Person shall
not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all Indemnified Persons, and that all
such fees and expenses shall be paid or reimbursed as they are incurred. Any
such separate firm for any Underwriter, its affiliates, directors and officers
and any control persons of such Underwriter shall be designated in writing by
the Representative and any such separate firm for the Company, its directors,
its officers who signed the Registration Statement and any control persons of
the Company shall be designated in writing by the Company. The Indemnifying
Person 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 Person agrees to indemnify each
Indemnified Person from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an Indemnified Person shall have requested that an Indemnifying Person reimburse
the Indemnified Person for fees and expenses of counsel as contemplated by this
paragraph, the Indemnifying Person shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by the Indemnifying Person of such
request and (ii) the Indemnifying Person shall not have reimbursed the
Indemnified Person in accordance with such request prior to the date of such
settlement. No Indemnifying Person shall, without the written consent of the
Indemnified Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have been a
party and indemnification could have been sought hereunder by such Indemnified
Person, unless such settlement (x) includes an unconditional release of such
Indemnified Person, in form and substance reasonably satisfactory to such
Indemnified Person, from all liability on claims that are the subject matter of
such proceeding and (y) does not include any statement as to or any admission of
fault, culpability or a failure to act by or on behalf of any Indemnified
Person.
(d) Contribution. If the indemnification provided for in paragraphs (a)
and (b) above is unavailable to an Indemnified Person or insufficient in respect
of any losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person 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 Company on the one hand and the Underwriters on the
other from the offering of the Shares or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
but also the relative fault of the Company on the one hand and the Underwriters
on the other 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 Company on the
one hand and the
Underwriters on the other shall be deemed to be in the same respective
proportions as the net proceeds (before deducting expenses) received by the
Company from the sale of the Shares and the total underwriting discounts and
commissions received by the Underwriters in connection therewith, in each case
as set forth in the table on the cover of the Prospectus, bear to the aggregate
offering price of the Shares. The relative fault of the Company on the one hand
and the Underwriters on the other shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
(e) Limitation on Liability. The Company and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this Section 6
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 account of the equitable considerations referred to in paragraph (d) above.
The amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in paragraph (d) above shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses incurred by such Indemnified Person in connection with any such
action or claim. Notwithstanding the provisions of this Section 6, in no event
shall an Underwriter be required to contribute any amount in excess of the
amount by which the total underwriting discounts and commissions received by
such Underwriter with respect to the offering of the Shares 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
Underwriters' obligations to contribute pursuant to this Section 6 are several
in proportion to their respective purchase obligations hereunder and not joint.
(f) Non-Exclusive Remedies. The remedies provided for in this Section 6
are not exclusive and shall not limit any rights or remedies which may otherwise
be available to any Indemnified Person at law or in equity.
7. Effectiveness of Agreement. This Agreement shall become effective upon
the execution and delivery hereof by the parties hereto.
8. Termination. This Agreement may be terminated in the absolute
discretion of the Representative, by notice to the Company, if 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
either of the New York Stock Exchange or the NASD; (ii) trading of any
securities issued or guaranteed by the Company shall have been suspended on any
exchange or in any over-the-counter market; (iii) a general moratorium on
commercial banking activities shall have been declared by federal or New York
State authorities or a material disruption in commercial banking or securities
settlement or clearance services in the United States shall have occurred; (iv)
the outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war; or (v) the
occurrence of any other calamity or crisis or any change in financial, political
or economic conditions in the United States or elsewhere, if the effect of any
such event specified in clause (iv) or (v) in the judgment of the Representative
makes it impracticable or inadvisable to proceed with the offering, sale or
delivery of the Shares on the Closing Date on the terms and in the manner
contemplated by this Agreement and the Prospectus.
9. Intentionally Omitted.
10. Payment of Expenses. (a) Whether or not the transactions contemplated
by this Agreement are consummated or this Agreement is terminated, the Company
will pay or cause to be paid all costs and expenses incident to the performance
of its obligations hereunder, including without limitation, (i) the costs
incident to the authorization, issuance, sale, preparation and delivery of the
Shares and any taxes payable in connection therewith; (ii) the costs incident to
the preparation, printing and filing under the Securities Act of the
Registration Statement, the Preliminary Prospectus and the Prospectus (including
all exhibits, amendments and supplements thereto) and the distribution thereof;
(iii) the costs of reproducing and distributing this Agreement; (iv) the fees
and expenses of the Company's counsel and independent accountants; (v) the fees
and expenses incurred in connection with the registration or qualification and
determination of eligibility for investment of the Shares under the laws of such
jurisdictions as the Representative may designate and the preparation, printing
and distribution of a Blue Sky Memorandum (including the related fees and
expenses of counsel for the Underwriters); (vi) the cost of preparing stock
certificates; (vii) the costs and charges of any transfer agent and any
registrar; (viii) all expenses and application fees incurred in connection with
any filing with, and clearance of the offering by, the NASD; (ix) all expenses
incurred by the Company in connection with any "road show" presentation to
potential investors; and (x) all expenses and application fees related to the
listing of the Shares on the Nasdaq National Market.
(b) If (i) this Agreement is terminated pursuant to Section 8, (ii) the
Company for any reason fails to tender the Shares for delivery to the
Underwriters other than by reason of a default by any of the Underwriters or
(iii) the Underwriters decline to purchase the Shares for any reason permitted
under this Agreement, the Company agrees to reimburse the Underwriters for all
out-of-pocket costs and expenses (including the reasonable fees and expenses of
their counsel) reasonably incurred by the Underwriters in connection with this
Agreement and the offering contemplated hereby.
11. Persons Entitled to Benefit of Agreement. This Agreement shall inure
to the benefit of and be binding upon the parties hereto and their respective
successors and the officers and directors and any controlling persons referred
to in Section 6 hereof. Nothing in this Agreement is intended or shall be
construed to give any other person any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision contained herein. No
purchaser of the Shares from any Underwriter shall be deemed to be a successor
merely by reason of such purchase.
12. Survival. The respective indemnities, rights of contribution,
representations, warranties and agreements of the Company and the Underwriters
contained in this Agreement or made by or on behalf of the Company or the
Underwriters pursuant to this Agreement or any certificate delivered pursuant
hereto shall survive the delivery of and payment for the Shares and shall remain
in full force and effect, regardless of any termination of this Agreement or any
investigation made by or on behalf of the Company or the Underwriters.
13. Certain Defined Terms. For purposes of this Agreement, (a) except
where otherwise expressly provided, the term "affiliate" has the meaning set
forth in Rule 405 under the Securities Act; (b) the term "business day" means
any day other than a day on which banks are permitted or required to be closed
in New York City; and (c) the term "subsidiary" has the meaning set forth in
Rule 405 under the Securities Act.
14. Miscellaneous.
(a) Intentionally Omitted.
(b) Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted and
confirmed by any standard form of telecommunication. Notices to the Underwriters
shall be given to the Representative c/o Goldman, Sachs & Co., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇; Attention: Registration Department. Notices to the
Company shall be given to it at the address set forth in the Prospectus;
Attention: General Counsel.
(c) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
(d) Counterparts. This Agreement may be signed in counterparts (which may
include counterparts delivered by any standard form of telecommunication), each
of which shall be an original and all of which together shall constitute one and
the same instrument.
(e) Amendments or Waivers. No amendment or waiver of any provision of this
Agreement, nor any consent or approval to any departure therefrom, shall in any
event be effective unless the same shall be in writing and signed by the parties
hereto.
(f) Headings. The headings herein are included for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
If the foregoing is in accordance with your understanding, please indicate
your acceptance of this Agreement by signing in the space provided below.
Very truly yours,
WESTERN WIRELESS CORPORATION
By /s/ M. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Name: M. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
Accepted: August 24, 2004
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
By /s/ ▇▇▇▇▇▇▇, Sachs & Co.
-------------------------------
(▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.)
Schedule I
Underwriter Number of Shares
----------- ----------------
▇▇▇▇▇▇▇, Sachs & Co. 8,000,000
---------
Total 8,000,000
=========
Schedule II
Significant Subsidiaries
1. WWC Holding Co., Inc. (Delaware)
2. WWC License LLC (Delaware)
3. WWC Texas RSA Limited Partnership (Delaware)
4. Western Wireless International Austria Corporation (Delaware)
5. Western Wireless International Holding Corporation (Delaware)
6. Western Wireless International Ireland Corporation (Delaware)
II-1
Exhibit A
FORM OF LOCK-UP AGREEMENT
August 24, 2004
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.,
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
Re: Western Wireless Corporation - Public Offering
Ladies and Gentlemen:
The undersigned understands that you propose to enter into an Underwriting
Agreement (the "Underwriting Agreement") with Western Wireless Corporation, a
Washington corporation (the "Company"), providing for the public offering (the
"Public Offering") by ▇▇▇▇▇▇▇, Sachs & Co. of Class A common stock, no par
value, of the Company (the "Securities"). Capitalized terms used herein and not
otherwise defined shall have the meanings set forth in the Underwriting
Agreement.
In consideration of your agreement to purchase and make the Public
Offering of the Securities, and for other good and valuable consideration the
receipt of which is hereby acknowledged, the undersigned hereby agrees that,
without the prior written consent of ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., the undersigned will
not, during the period ending [Insert in the case of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇: 90] [Insert in the case of the other executive officers: 75] days
after the date of the prospectus supplement relating to the Public Offering (the
"Prospectus"), (1) offer, pledge, announce the intention to sell, 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, or otherwise
transfer or dispose of, directly or indirectly, any shares of capital stock of
the Company or any securities convertible into or exercisable or exchangeable
for such capital stock (including without limitation, securities which may be
deemed to be beneficially owned by the undersigned in accordance with the rules
and regulations of the Securities and Exchange Commission and securities which
may be issued upon exercise of a stock option or warrant) or (2) enter into any
swap or other agreement that transfers, in whole or in part, any of the economic
consequences of ownership of capital stock of the Company or any securities
convertible into or exercisable or exchangeable for such capital stock or
publicly announce an intention to do any of the foregoing, whether any such
transaction described in clause (1) or (2) above is to be settled by delivery of
capital stock of the Company or such other securities, in cash or otherwise. In
addition, the undersigned agrees that, without the prior written consent of
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., 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 capital stock or any security convertible
into or exercisable or exchangeable for such capital stock. The foregoing shall
not apply to the issuance of capital stock upon the exercise of options granted
under the Company's existing employee stock option plans [Insert in the case of
▇▇▇▇ ▇▇▇▇▇: or any sales of the Company's Class A common stock pursuant to the
Sales Plan, dated as of February 27, 2004, between the undersigned and ▇▇▇▇▇▇▇,
▇▇▇▇▇ & Co.][.]
In furtherance of the foregoing, the Company, and any duly appointed
transfer agent for the registration or transfer of the securities described
herein, are hereby authorized to decline to make any transfer of such securities
if transfer thereof would constitute a violation or breach of this lock-up
agreement.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to enter into this lock-up agreement. All authority
herein conferred or agreed to be conferred and any obligations of the
undersigned shall be binding upon the successors, assigns, heirs or personal
representatives of the undersigned.
The undersigned understands that, if the Underwriting Agreement does not
become effective, or if the Underwriting Agreement (other than the provisions
thereof which survive termination) shall terminate or be terminated prior to
payment for and delivery of the Securities to be sold thereunder, the
undersigned shall be released from all obligations under this lock-up agreement.
The undersigned understands that you are entering into the Underwriting
Agreement and proceeding with the Public Offering in reliance upon this lock-up
agreement.
This lock-up agreement shall be governed by and construed in accordance
with the laws of the State of New York, without regard to the conflict of laws
principles thereof.
Very truly yours,
By: _______________________
Name:
Title: