1
Exhibit 1.1
[Form of Underwriting
Agreement]
1,700,000 Shares
US Unwired Inc.
Class A Common Stock
UNDERWRITING AGREEMENT
February __, 1997
THE ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ COMPANY, INC.
▇.▇. ▇▇▇▇▇▇▇ & SONS, INC.
As representatives of the
several underwriters
named in Schedule I hereto
c/o The ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Company, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
US Unwired Inc., a Louisiana corporation (the "Company")
proposes to issue and sell 1,700,000 shares of its Class A Common Stock, par
value $.01 per share (the "Firm Shares") to the several underwriters named in
Schedule I hereto (the "Underwriters"). The Company also proposes to issue
and sell to the several Underwriters not more than 255,000 additional shares of
its Class A Common Stock, par value $.01 per share (the "Additional Shares") if
requested by the Underwriters as provided in Section 2 hereof. The Firm Shares
and the Additional Shares are herein collectively called the "Shares." The
shares of Class A Common Stock, par value $.01, and Class B Common Stock, par
value $.01, of the Company to be outstanding after giving effect to the sales
contemplated hereby are hereinafter referred to as the "Common Stock."
1. Registration Statement and Prospectus. The Company
has prepared and filed with the Securities and Exchange Commission (the
"Commission") in accordance with the provisions of the Securities Act of 1933,
as amended, and the rules and regulations of the Commission thereunder
(collectively called the "Act"), a registration statement on Form S-1 including
a prospectus relating to the Shares, which may be amended. The registration
2
statement as amended at the time when it becomes effective, including a
registration statement (if any) filed pursuant to Rule 462(b) under the Act
increasing the size of the offering registered under the Act and information
(if any) deemed to be part of the registration statement at the time of
effectiveness pursuant to Rule 430A or Rule 434 under the Act, is hereinafter
referred to as the Registration Statement; and the prospectus including any
prospectus subject to completion taken together with any term sheet meeting the
requirements of Rule 434(b) or Rule 434(c) under the Act in the form first used
to confirm sales of Shares is hereinafter referred as the Prospectus.
2. Agreements to Sell and Purchase. On the basis of the
representations and warranties contained in this Agreement, and subject to its
terms and conditions, the Company agrees to issue and sell, and each
Underwriter agrees, severally and not jointly, to purchase from the Company at
a price per share of $______ (the "Purchase Price") the number of Firm Shares
set forth opposite the name of such Underwriter in Schedule I hereto.
On the basis of the representations and warranties contained
in this Agreement, and subject to its terms and conditions, the Company agrees
to issue and sell the Additional Shares and the Underwriters shall have the
right to purchase, severally and not jointly, up to 255,000 Additional Shares
from the Company at the Purchase Price. Additional Shares may be purchased
solely for the purpose of covering over-allotments made in connection with the
offering of the Firm Shares. The Underwriters may exercise their right to
purchase Additional Shares in whole or in part from time to time by giving
written notice thereof to the Company within 30 days after the date of this
Agreement. You shall give any such notice on behalf of the Underwriters and
such notice shall specify the aggregate number of Additional Shares to be
purchased pursuant to such exercise and the date for payment and delivery
thereof. The date specified in any such notice shall be a business day (i) no
earlier than the Closing Date (as hereinafter defined), (ii) no later than ten
business days after such notice has been given and (iii) no earlier than two
business days after such notice has been given. If any Additional Shares are
to be purchased, each Underwriter, severally and not jointly, agrees to
purchase from the Company the number of Additional Shares (subject to such
adjustments to eliminate fractional shares as you may determine) which bears
the same proportion to the total number of Additional Shares to be purchased
from the Company as the number of Firm Shares set forth opposite the name of
such Underwriter in Schedule I bears to the total number of Firm Shares.
The Company hereby agrees and the Company shall, concurrently
with the execution of this Agreement, deliver an agreement executed by (i) each
of the directors and officers of the Company, and (ii) each stockholder listed
on Annex I hereto, pursuant to which each such person agrees, not to offer,
sell, contract to sell, grant any option to purchase, or otherwise dispose of
any common stock of the Company or any securities convertible into or
exercisable or exchangeable for such common stock or in any other manner
transfer all or a portion of the economic consequences associated with the
ownership of any such common stock, except to the Underwriters pursuant to this
Agreement, for a period of 180 days after the date of the Prospectus without
the prior written consent of The ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Company, Inc.
Notwithstanding the foregoing, during such period (i) the Company may grant
stock options pursuant to the Company's 1997 Stock Option Plan and (ii) the
Company may issue shares of its common stock upon the exercise of an option or
warrant or the conversion of a security outstanding on the date hereof.
2
3
3. Terms of Public Offering. The Company is advised by
you that the Underwriters propose (i) to make a public offering of their
respective portions of the Shares as soon after the effective date of the
Registration Statement as in your judgment is advisable and (ii) initially to
offer the Shares upon the terms set forth in the Prospectus.
4. Delivery and Payment. Delivery to the Underwriters
of and payment for the Firm Shares shall be made at 10:00 A.M., New York City
time, on the third or fourth business day following the date of the initial
public offering (the "Closing Date"), unless otherwise agreed by the parties
and permitted by the Commission pursuant to Rule 15c6-1 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") at such place as you
shall designate in the City of New York. The Closing Date and the location of
delivery of and the form of payment for the Firm Shares may be varied by
agreement between you and the Company.
Delivery to the Underwriters of and payment for any Additional
Shares to be purchased by the Underwriters shall be made at such place in the
City of New York as you shall designate at 10:00 A.M., New York City time, on
the date specified in the applicable exercise notice given by you pursuant to
Section 2 (an "Option Closing Date"). Any such Option Closing Date and the
location of delivery of and the form of payment for such Additional Shares may
be varied by agreement between you and the Company.
Certificates for the Shares shall be registered in such names
and issued in such denominations as you shall request in writing not later than
two full business days prior to the Closing Date or an Option Closing Date, as
the case may be. Such certificates shall be made available to you for
inspection not later than 9:30 A.M., New York City time, on the business day
next preceding the Closing Date or the applicable Option Closing Date, as the
case may be. Certificates in definitive form evidencing the Shares shall be
delivered to you on the Closing Date or the applicable Option Closing Date, as
the case may be, with any transfer taxes thereon duly paid by the Company, for
the respective accounts of the several Underwriters, against payment of the
Purchase Price therefor by wire or certified or official bank checks payable in
Federal funds to the order of the Company.
5. Agreements of the Company. The Company agrees with
you:
(a) To use its best efforts to cause the Registration
Statement to become effective at the earliest possible time.
(b) To advise you promptly and, if requested by you, to
confirm such advice in writing, (i) when the Registration Statement
has become effective and when any post-effective amendment to it
becomes effective, (ii) of any request by the Commission for
amendments to the Registration Statement or amendments or supplements
to the Prospectus or for additional information, (iii) of the issuance
by the Commission of any stop order suspending the effectiveness of
the Registration Statement or of the suspension of qualification of
the Shares for offering or sale in any jurisdiction, or the initiation
of any proceeding for such purposes, and (iv) of the happening of any
event during the period referred to in paragraph (e) below which makes
any statement of a material fact
3
4
made in the Registration Statement or the Prospectus untrue or which
requires the making of any additions to or changes in the Registration
Statement or the Prospectus in order to make the statements therein
not misleading. If at any time the Commission shall issue any stop
order suspending the effectiveness of the Registration Statement, the
Company will make every reasonable effort to obtain the withdrawal or
lifting of such order at the earliest possible time.
(c) To furnish to you, without charge, three signed
copies of the Registration Statement as first filed with the
Commission and of each amendment to it, including all exhibits, and to
furnish to you and each Underwriter designated by you such number of
conformed copies of the Registration Statement as so filed and of each
amendment to it, without exhibits, as you may reasonably request.
(d) Not to file any amendment or supplement to the
Registration Statement, whether before or after the time when it
becomes effective, or to make any amendment or supplement to the
Prospectus (including the issuance or filings of any term sheet within
the meaning of Rule 434) of which you shall not previously have been
advised or to which you shall reasonably object; and to prepare and
file with the Commission, promptly upon your reasonable request, any
amendment to the Registration Statement or supplement to the
Prospectus (including the issuance or filings of any term sheet within
the meaning of Rule 434) which may be necessary or advisable in
connection with the distribution of the Shares by you, and to use its
best efforts to cause the same to become promptly effective.
(e) Promptly after the Registration Statement becomes
effective, and from time to time thereafter for such period as in the
opinion of counsel for the Underwriters a prospectus is required by
law to be delivered in connection with sales by an Underwriter or a
dealer, to furnish to each Underwriter and dealer as many copies of
the Prospectus (and of any amendment or supplement to the Prospectus)
as such Underwriter or dealer may reasonably request.
(f) If during the period specified in paragraph (e) any
event shall occur as a result of which, in the opinion of counsel for
the Underwriters it becomes 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 it is necessary to amend or supplement the
Prospectus to comply with any law, forthwith to prepare and file with
the Commission an appropriate amendment or supplement to the
Prospectus so that the statements in the Prospectus, as so amended or
supplemented, will not in the light of the circumstances when it is so
delivered, be misleading, or so that the Prospectus will comply with
law, and to furnish to each Underwriter and to such dealers as you
shall specify, such number of copies thereof as such Underwriter or
dealers may reasonably request.
(g) Prior to any public offering of the Shares, to
cooperate with you and counsel for the Underwriters in connection with
the registration or qualification of the Shares for offer and sale by
the several Underwriters and by dealers under the state
4
5
securities or Blue Sky laws of such jurisdictions as you may request,
to continue such qualification in effect so long as required for
distribution of the Shares and to file such consents to service of
process or other documents as may be necessary in order to effect such
registration or qualification; provided, however, that the Company
shall not be required to register or qualify as a foreign corporation
in any jurisdiction where it is not now so qualified or to take any
action that would subject it to service of process in suits or
taxation, other than as to matters and transactions relating to the
offer and sale of the Shares, in any jurisdictions where it is not now
so subject.
(h) To mail and make generally available to its
stockholders as soon as reasonably practicable an earnings statement
covering a period of at least twelve months after the effective date
of the Registration Statement (but in no event commencing later than
90 days after such date) which shall satisfy the provisions of Section
11(a) of the Act and Rule 158 thereunder, and to advise you in writing
when such statement has been so made available.
(i) During the period of five years after the date of
this Agreement, (i) to mail as soon as reasonably practicable after
the end of each fiscal year to the record holders of its Common Stock
a financial report of the Company and its subsidiaries on a
consolidated basis (and a similar financial report of all
unconsolidated subsidiaries, if any, if required by Rule 3-09 of
Regulation S-X under the Act), all such financial reports to include a
consolidated balance sheet, a consolidated statement of operations, a
consolidated statement of cash flows and a consolidated statement of
shareholders' equity as of the end of and for such fiscal year,
together with comparable information as of the end of and for the
preceding year, certified by independent certified public accountants,
and (ii) to mail and make generally available as soon as practicable
after the end of each quarterly period (except for the last quarterly
period of each fiscal year) to such holders, a consolidated balance
sheet, a consolidated statement of operations and a consolidated
statement of cash flows (and similar financial reports of all
unconsolidated subsidiaries, if any, if required by Rule 3-09 of
Regulation S-X under the Act) as of the end of and for such period,
and for the period from the beginning of such year to the close of
such quarterly period, together with comparable information for the
corresponding periods of the preceding year.
(j) During the period referred to in paragraph (i), to
furnish to you as soon as available a copy of each report or other
publicly available information of the Company mailed to the holders of
Common Stock or filed with the Commission and such other publicly
available information concerning the Company and its subsidiaries as
you may reasonably request.
(k) To pay all costs, expenses, fees and taxes incident
to (i) the preparation, printing, filing and distribution under the
Act of the Registration Statement (including financial statements and
exhibits), each preliminary prospectus and all amendments and
supplements to any of them prior to or during the period specified in
paragraph (e), (ii) the printing and delivery of the Prospectus and
all amendments or supplements to it during the period specified in
paragraph (e), (iii) the printing and delivery of this
5
6
Agreement, the Preliminary and Supplemental Blue Sky Memoranda and all
other agreements, memoranda, correspondence and other documents
printed and delivered in connection with the offering of the Shares
(including in each case any disbursements of counsel for the
Underwriters relating to such printing and delivery), (iv) the
registration or qualification of the Shares for offer and sale under
the securities or Blue Sky laws of the several states (including in
each case the reasonable fees and disbursements of counsel for the
Underwriters relating to such registration or qualification and
memoranda relating thereto), (v) filings and clearance with the
National Association of Securities Dealers, Inc. in connection with
the offering, (vi) the listing of the Shares on the National
Association of Securities Dealers Automated Quotation system
("Nasdaq") National Market System and (vii) furnishing such copies of
the Registration Statement, the Prospectus and all amendments and
supplements thereto as may be requested for use in connection with the
offering or sale of the Shares by the Underwriters or by dealers to
whom Shares may be sold.
(l) To use its best efforts to maintain the inclusion of
such Common Stock in the Nasdaq National Market System (or on a
national securities exchange) for a period of five years after the
effective date of the Registration Statement.
(m) The Company will apply the net proceeds from the
offering of the Shares in the manner set forth under "Use of Proceeds"
in the Prospectus, and the Company will file timely and accurate
reports on Form SR with the Commission in accordance with Rule 463 of
the Commission under the Act or any successor provision.
(n) If at any time during the period beginning on the
date the Registration Statement becomes effective and ending on the
later of (i) the date 30 days after such effective date and (ii) the
date that is the earlier of (A) the date on which the Company first
files with the Commission its first Annual Report on Form 10-K after
such effective date and (B) the date on which the Company first issues
a quarterly financial report to shareholders after such effective
date, any rumor, publication or event relating to or affecting the
Company shall occur as a result of which in your reasonable opinion
the market price of the Common Stock has been or is likely to be
materially affected (regardless of whether such rumor, publication or
event necessitates an amendment of or supplement to the Prospectus),
the Company will, after written notice from you advising the Company
to the effect set forth above, forthwith prepare, consult with you
concerning the substance of, and disseminate a press release or other
public statement, reasonably satisfactory to you, responding to or
commenting on such rumor, publication or event.
(o) To use its best efforts to do and perform all things
required or necessary to be done and performed under this Agreement by
the Company prior to the Closing Date or any Option Closing Date, as
the case may be, and to satisfy all conditions precedent to the
delivery of the Shares.
6. Representations and Warranties of the Company. The
Company represents and warrants to each Underwriter that:
6
7
(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 threatened by the Commission or the securities authority of any
state.
(b) (i) Each part of the Registration Statement, when
such part became effective, did not contain and each such part, as
amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading, (ii) the Registration Statement and the Prospectus comply
and, as amended or supplemented, if applicable, will comply in all
material respects with the Act and (iii) 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 representations and warranties set forth in this
paragraph (b) 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) 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 Act, and each
Registration Statement filed pursuant to Rule 462(b) under the Act, if
any, complied when so filed in all material respects with the Act; and
did not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(d) The Company and each of its subsidiaries has been
duly incorporated, is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation and has
the corporate power and authority to carry on its business as it is
currently being conducted, to own, lease and operate its properties,
and to enter into this Agreement and to perform its obligations
hereunder, and each is duly qualified and is in good standing as a
foreign corporation authorized to do business in each jurisdiction in
which the nature of its business or its ownership or leasing of
property requires such qualification, except where the failure to be
so qualified would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole.
(e) All of the outstanding shares of capital stock of, or
other ownership interests in, each of the Company's subsidiaries have
been duly authorized and validly issued and are fully paid and
non-assessable, and are owned by the Company, free and clear of any
security interest, claim, lien, pledge, charge, defect, shareholders
agreement, voting trust, equity, encumbrance or adverse interest of
any nature.
(f) All the outstanding shares of capital stock of the
Company have been duly authorized and validly issued and are fully
paid, non-assessable and not subject to any preemptive or similar
rights; and the Shares have been duly authorized and, when issued
7
8
and delivered to the Underwriters against payment therefor as provided
by 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.
(g) The authorized capital stock of the Company,
including the Common Stock, conforms as to legal matters to the
description thereof contained in the Prospectus.
(h) Neither the Company nor any of its subsidiaries is in
violation of its respective charter or by-laws or in default in the
performance of any obligation, agreement or condition contained in any
bond, debenture, note or any other evidence of indebtedness or in any
other agreement, indenture or instrument material to the conduct of
the business of the Company and its subsidiaries, taken as a whole, to
which the Company or any of its subsidiaries is a party or by which it
or any of its subsidiaries or their respective property is bound.
(i) The execution, delivery and performance of this
Agreement, compliance by the Company with all the provisions hereof
and the consummation of the transactions contemplated hereby will not
require any consent, approval, authorization or other order of any
court, regulatory body, administrative agency or other governmental
body (except as such may be required under the securities or Blue Sky
laws of the various states) and will not conflict with or constitute a
breach of any of the terms or provisions of, or a default under, the
charter or by-laws of the Company or any of its subsidiaries or any
agreement, indenture or other instrument to which it or any of its
subsidiaries is a party or by which it or any of its subsidiaries or
their respective property is bound, or violate or conflict with any
laws, administrative regulations or rulings or court decrees
applicable to the Company, any of its subsidiaries or their respective
property.
(j) Except as otherwise set forth in the Prospectus,
there are no material legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a party or of which
any of their respective property is the subject, and, to the best of
the Company's knowledge, no such proceedings are threatened or
contemplated. No statute, contract or document of a character
required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration Statement
is not so described or filed as required.
(k) Neither the Company nor any of its subsidiaries has
violated any foreign, federal, state or local law or regulation
relating to the protection of human health and safety, the environment
or hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), nor any federal or state law relating to
discrimination in the hiring, promotion or pay of employees nor any
applicable federal or state wages and hours laws, nor any provisions
of the Employee Retirement Income Security Act or the rules and
regulations promulgated thereunder, which in each case might result in
any material adverse change in the business, prospects, financial
condition or results of operation of the Company and its subsidiaries,
taken as a whole.
8
9
(l) The Company and each of its subsidiaries (i) has such
permits, licenses, franchises and authorizations of governmental or
regulatory authorities ("permits"), including, without limitation,
under any applicable Environmental Laws, as are necessary to own,
lease and operate its respective properties and to conduct its
business; and (ii) has fulfilled and performed all of its 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 results in any other material impairment of
the rights of the holder of any such permit; except, in the case of
clauses (i) and (ii), where failure to have such permits, the failure
to fulfill or perform such obligations or the revocation or
termination of any such permits would not, individually or in the
aggregate, result in a material adverse effect on the Company and its
subsidiaries taken as a whole. Except as described in the Prospectus,
such permits contain no restrictions that are materially burdensome to
the Company or any of its subsidiaries.
[(m) In the ordinary course of its business, the Company
conducts a periodic review of the effect of Environmental Laws on the
business, operations and properties of the Company and its
subsidiaries, in the course of which it identifies and evaluates
associated costs and liabilities (including, without limitation, any
capital or operating expenditures required for clean-up, closure of
properties or compliance with Environmental Laws or any permit,
license or approval, any related constraints on operating activities
and any potential liabilities to third parties). On the basis of such
review, the Company has reasonably concluded that such associated
costs and liabilities would not, singly or in the aggregate, have a
material adverse effect on the Company and its subsidiaries, taken as
a whole.]
(n) Except as otherwise set forth in the Prospectus or
such as are not material to the business, prospects, financial
condition or results of operation of the Company and its subsidiaries,
taken as a whole, the Company and each of its subsidiaries has good
and marketable title, free and clear of all liens, claims,
encumbrances and restrictions except liens for taxes not yet due and
payable, to all property and assets described in the Registration
Statement as being owned by it. All leases to which the Company or
any of its subsidiaries is a party are valid and binding and no
default has occurred or is continuing thereunder, which might result
in any material adverse change in the business, prospects, financial
condition or results of operation of the Company and its subsidiaries
taken as a whole, and the Company and its subsidiaries enjoy peaceful
and undisturbed possession under all such leases to which any of them
is a party as lessee with such exceptions as do not materially
interfere with the use made by the Company or such subsidiary.
(o) The Company and each of its subsidiaries maintains
reasonably adequate insurance.
(p) KMPG Peat Marwick LLP are independent public
accountants with respect to the Company as required by the Act.
9
10
(q) The financial statements, together with related
schedules and notes forming part of the Registration Statement and the
Prospectus (and any amendment or supplement thereto), present fairly
the consolidated financial position, results of operations and changes
in financial position of the Company and its subsidiaries on the basis
stated in the Registration Statement at the respective dates or for
the respective periods to which they apply; such statements and
related schedules and notes have been prepared in accordance with
generally accepted accounting principles consistently applied
throughout the periods involved, except as disclosed therein; and the
other financial and statistical information and data set forth in the
Registration Statement and the Prospectus (and any amendment or
supplement thereto) is, in all material respects, accurately presented
and prepared on a basis consistent with such financial statements and
the books and records of the Company.
(r) The Company is not an "investment company" or a
company "controlled" by an "investment company" within the meaning of
the Investment Company Act of 1940, as amended.
(s) Except as described in the Registration Statement, no
holder of any security of the Company has any right to require
registration of shares of Common Stock or any other security of the
Company.
(t) The Company has complied with all provisions of
Section 517.075, Florida Statutes (Chapter 92- 198, Laws of Florida).
(u) In the case of Rule 434(b) term sheets, such term
sheet and prospectus subject to completion provided by the Company to
the Underwriters for use in connection with the offering and sale of
the shares pursuant to Rule 434 under the Act together are not
materially different from the prospectus included in the Registration
at the time of effectiveness or an effective post-effective amendment
thereto and such term sheet sets forth all information material to
investors with respect to the offering that is not disclosed in the
prospectus subject to completion or the confirmation.
(v) There are no outstanding subscriptions, rights,
warrants, options, calls, convertible securities, commitments of sale
or liens related to or entitling any person to purchase or otherwise
to acquire any shares of the capital stock of, or other ownership
interest in, the Company or any subsidiary thereof except as otherwise
disclosed in the Registration Statement.
(w) Except as disclosed in the Prospectus, there are no
business relationships or related party transactions required to be
disclosed therein by Item 404 of Regulation S-K of the Commission.
(x) There is (i) no significant unfair labor practice
complaint pending against the Company or any of its subsidiaries or,
to the best knowledge of the Company, threatened against any of them,
before the National Labor Relations Board or any state or local labor
relations board, and no significant grievance or more significant
arbitration
10
11
proceeding arising out of or under any collective bargaining agreement
is so pending against the Company or any of its subsidiaries or, to
the best knowledge of the Company, threatened against any of them, and
(ii) no significant strike, labor dispute, slowdown or stoppage
pending against the Company or any of its subsidiaries or, to the best
knowledge of the Company, threatened against it or any of its
subsidiaries except for such actions specified in clause (i) or (ii)
above, which, singly or in the aggregate could not reasonably be
expected to have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(y) The Company and each of its subsidiaries maintains 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.
(z) All material tax returns required to be filed by the
Company and each of its subsidiaries in any jurisdiction have been
filed, other than those filings being contested in good faith, and all
material taxes, including withholding taxes, penalties and interest,
assessments, fees and other charges due pursuant to such returns or
pursuant to any assessment received by the Company or any of its
subsidiaries have been paid, other than those being contested in good
faith and for which adequate reserves have been provided.
(aa) The Company has filed a registration statement
pursuant to Section 12(g) of the Exchange Act, to register the Common
Stock, has filed an application to list the Shares on the Nasdaq
National Market, and has received notification that the listing has
been approved, subject to notice of issuance of the Shares.
(ab) Since the date of the most recent audited financial
statements included in the Prospectus, 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 dispute or court or
governmental action, order or decree, otherwise than as disclosed in
or contemplated by the Prospectus.
(ac) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, (A) neither
the Company nor any of its subsidiaries has incurred any liabilities
or obligations, direct or contingent, or entered into any
transactions, not in the ordinary course of business, that are
material to the Company and its subsidiaries, taken as a whole, (B)
the Company has not purchased any of its outstanding capital stock or
declared, paid or otherwise made any dividend or distribution of any
kind on its capital stock, (C) there has not been any change in the
capital stock, long-term debt or short-term debt (other than changes
effected in the
11
12
ordinary course of business consistent with past practice) of the
Company or any of its subsidiaries, and (D) there has not been any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the financial position,
results of operations or business of the Company and its subsidiaries
taken as a whole, in each case other than as disclosed in or
contemplated by the Prospectus.
(ad) All offers and sales of the Company's capital stock
prior to the date hereof within the period covered by Item 15 of Part
II of the Registration Statement were at all relevant times duly
registered under the Act or exempt from the registration requirements
thereof and were duly registered or the subject of an available
exemption from the registration requirements of the applicable state
securities or blue sky laws.
(ae) This Agreement has been duly authorized, executed and
delivered by the Company and constitutes the valid and binding
agreement of the Company enforceable against the Company in accordance
with its terms, subject, as to enforcement, to applicable bankruptcy,
insolvency, reorganization and moratorium laws and other laws relating
to or affecting the enforcement of creditors rights generally and to
general equitable principles and except as the enforceability of
rights to indemnity and contribution under this Agreement may be
limited under applicable securities laws or the public policy
underlying such laws.
(af) Neither the Company nor any of its officers,
directors or affiliates (A) has taken or will take or has induced or
will induce other to take, directly or indirectly, any action designed
to cause or result in, or that has constituted or might reasonably be
expected to constitute, the stabilization or manipulation of the price
of any security of the Company to facilitate the sale or resale of the
Shares or (B) has, since the filing of the Registration Statement (1)
sold, bid for, purchased or paid anyone any compensation for
soliciting purchases of, the Shares or (2) paid or agreed to pay to
any person any compensation for soliciting another to purchase any
other securities of the Company.
(ag) Neither the Company, any of its subsidiaries, nor any
director, officer, agent, employee or other person associated with or
acting on behalf of the Company or any such subsidiary has, directly
or indirectly, used any corporate funds for unlawful contributions,
gifts, entertainment or other unlawful expenses relating to political
activity; made any unlawful payment to foreign or domestic government
officials or employees or to foreign or domestic political parties or
campaigns from corporate funds; violated any provision of the Foreign
Corrupt Practices Act of 1977, as amended; or made any unlawful bribe,
rebate, payoff, influence payment, kickback or other unlawful payment.
(ah) The Company and its subsidiaries own or have the
right to use all patents, patent applications, trademarks, trademark
applications, tradenames, service marks, copyrights, franchises, trade
secrets, proprietary or other confidential information and intangible
properties and assets (collectively, "Intellectual Property")
necessary to their respective businesses as presently conducted or as
the Prospectus indicates the Company or such subsidiary proposes to
conduct; to the best knowledge of the Company, neither the Company nor
any subsidiary has infringed or is infringing, and neither the Company
12
13
nor any subsidiary has received notice of infringement with respect
to, asserted Intellectual Property of others; and, to the best
knowledge of the Company, there is no infringement by others of the
Intellectual Property of the Company or any of its subsidiaries.
(ai) No subsidiary of the Company is currently prohibited,
directly or indirectly, from paying any dividends to the Company, from
making any other distributions on such subsidiary's capital stock,
from repaying to the Company any loans or advances to such subsidiary
or from transferring any of such subsidiary's property or assets to
the Company or any other subsidiary of the Company, except as
disclosed in the Prospectus.
(aj) The Company and each of its subsidiaries validly
holds all Federal Communications Commission ("FCC") licenses necessary
for the operation of its cellular Systems, as identified in the
Prospectus (the "Cellular Licenses"). The Cellular Licenses are in
full force and effect and are not subject to any conditions other than
those conditions listed thereon and those conditions generally
applicable to entities holding similar licenses issued by the FCC.
The Cellular Licenses constitute all of the licenses, permits,
consents or authorizations required by the FCC to permit operation of
a cellular telephone system in each of its Cellular Systems, as
identified in the Prospectus. The Cellular Licenses expire on the
following dates: [insert dates]. The five-year build-out periods for
the Cellular Systems expire[d] on [insert dates].
(ak) There are no judgments, decrees or orders issued by
the FCC that could result in a suspension, revocation, material
impairment, termination prior to its expiration date, non-renewal or
adverse modification of the Cellular Licenses, or that could have a
material adverse effect upon, or cause material disruption to, the
cellular operations pursuant to the Cellular Licenses. To the best of
the Company's knowledge, there is no complaint, investigation, action
or proceeding pending or threatened relative to the Cellular Licenses
relating to its cellular operations, including, without limitation,
any Notice of Violation, Notice of Apparent Liability or Order to Show
Cause, other than proceedings that affect the cellular telephone
industry generally, that could result in a suspension, revocation,
material impairment, termination prior to its expiration date,
non-renewal or adverse modification of the Cellular Licenses or which
could have a material adverse effect upon, or cause material
disruption to, the cellular operations in any of the Cellular Systems.
(al) The Company and each of its subsidiaries has, or has
timely filed applications for, all permits, licenses, franchises and
other authorizations ("permits") of governmental or regulatory
authorities (including, as appropriate, the state public utilities
commissions of Louisiana, Kansas, Oklahoma, Mississippi, Alabama and
Texas) necessary to engage in the wireless businesses currently
conducted by the Company, except where the failure to hold such
permits would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole; and there is no reason to believe
that any governmental body or agency is considering limiting,
suspending or revoking any such permit. All such permits are valid
and in full force and effect. Such counsel
13
14
has not represented the Company or its subsidiaries with respect to,
and has not reviewed, the leases to which the Company or any of its
subsidiaries is a party.
(am) Meretel Communications Limited Partnership (the "PCS
Partnership") was the winning bidder, and its applications (the "PCS
Applications") have been accepted for filing, for the following PCS
C-block BTAs: Baton Rouge, LA (BTA #032), Beaumont, TX (BTA #034),
Hammond, LA (BTA #180), Lafayette, LA (BTA #236), and Lufkin, TX (BTA
#265), collectively, the "PCS Systems." The PCS Applications have
been granted by the FCC, and licenses have been issued (the "PCS
Licenses"). All applicable administrative and judicial appeal, review
and reconsideration periods of the orders granting the PCS Licenses
have expired, without the timely filing of any such appeal or request
for review or reconsideration and without the FCC having instituted
review of the grant of the PCS Licenses on its own motion.
(an) Mercury Mobility, L.L.C. ("Mobility") was the winning
bidder, and its PCS Applications have been accepted for filing, for
the following PCS D, E and F-block BTAs:________________. The PCS
Applications with respect to the PCS D, E, and F-block BTAs are
pending before the FCC.
(ao) The PCS Licenses are in full force and effect and are
not subject to any conditions other than those conditions listed
thereon and those conditions generally applicable to entities holding
similar licenses issued by the FCC. The PCS Licenses constitute all
of the licenses, permits, consents or authorizations required by the
FCC to permit operation of a C-Block PCS system in each of its PCS
Systems. The PCS Licenses expire on the following dates: [insert
dates]. The five-year build-out periods for the PCS Systems expire
on [insert dates], and the ten-year build-out periods expire on
[insert dates].
(ap) The Company knows of no FCC complaint, investigation,
action or proceeding pending or threatened relative to the PCS
Applications or Licenses or the PCS Systems, including, without
limitation, any Notice of Violation, Notice of Apparent Liability or
Order to Show Cause, other than proceedings that affect the PCS
industry generally, that could result in a denial of any of the PCS
Applications, or suspension, revocation, material impairment,
termination prior to its expiration date, non-renewal or adverse
modification of any licenses granted pursuant to the PCS Applications
or which could have a material adverse effect upon, or cause material
disruption to, the PCS operations in any of the PCS Systems.
(aq) The PCS Partnership has timely paid all fees required
by the FCC in connection with the PCS Applications, including any and
all down payments required by FCC rules to be paid as of the date
hereof.
(ar) The Company and each of its subsidiaries validly
holds all FCC licenses necessary for the operation of its paging
system within the Louisiana Cluster in the 158.10 MHz and 152.84 MHz
range, as identified in the Prospectus (the "Paging Licenses"). The
Paging Licenses are in full force and effect and are not subject to
any
14
15
conditions other than those conditions listed thereon and those
conditions generally applicable to entities holding similar licenses
issued by the FCC. The Paging Licenses constitute all of the
licenses, permits, consents or authorizations required by the FCC to
permit operation of a paging system in the Louisiana Cluster.
(as) There does not exist any FCC complaint,
investigation, action or proceeding pending or threatened relative to
the Paging Licenses, including, without limitation, any Notice of
Violation, Notice of Apparent Liability or Order to Show Cause, other
than proceedings that affect the paging industry generally, that could
result in a denial of any of the Paging Licenses, or suspension,
revocation, material impairment, termination prior to its expiration
date, non-renewal or adverse modification of any of the Paging
Licenses or which could have a material adverse effect upon, or cause
material disruption to, the Paging operations in any of the Paging
Licenses.
(at) The PCS Partnership was qualified to participate in
the FCC's C-Block auctions as a "Small Business," as defined by FCC
Rules, and is qualified to hold the licenses for the PCS Systems
according to the rules of the FCC. The Company's investment in the
PCS Partnership does not violate the rules of the FCC.
7. Indemnification.
(a) The Company agrees to indemnify and hold harmless
each Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the Act or Section 20 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), from
and against any and all losses, claims, damages, liabilities and
judgments caused by any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or the
Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements 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 to
make the statements therein not misleading, and will reimburse each
Underwriter for any legal or other expenses reasonably incurred by
such Underwriter in connection with investigating, defending against
or appearing as a third-party witness in connection with any such
loss, claim, damage, liability or judgment, except insofar as such
losses, claims, damages, liabilities or judgments are caused by any
such untrue statement or omission or alleged untrue statement or
omission based upon information relating to any Underwriters furnished
in writing to the Company by or on behalf of any Underwriter through
you expressly for use therein; provided, however, 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 and liabilities and
judgments 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
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
15
16
(as so amended and supplemented) would have cured the defect giving
rise to such loss, claim, damage, liability or judgment.
(b) In case any action shall be brought against any
Underwriter or any person controlling such Underwriter, based upon any
preliminary prospectus, the Registration Statement or the Prospectus
or any amendment or supplement thereto and with respect to which
indemnity may be sought against the Company, such Underwriter shall
promptly notify the Company in writing and the Company shall assume
the defense thereof, including the employment of counsel reasonably
satisfactory to such indemnified party and payment of all fees and
expenses, but the omission to so notify the Company shall not relieve
the Company from any liability which it may have to the Underwriters
otherwise than under this subsection. Any Underwriter or any such
controlling person shall have the right to employ separate counsel in
any such action and participate in the defense thereof, but the fees
and expenses of such counsel shall be at the expense of such
Underwriter or such controlling person unless (i) the employment of
such counsel shall have been specifically authorized in writing by the
Company, (ii) the Company shall have failed to assume the defense and
employ counsel or (iii) the named parties to any such action
(including any impleaded parties) include both such Underwriter or
such controlling person and the Company and such Underwriter or such
controlling person shall have been advised by such counsel that there
may be one or more legal defenses available to it which are different
from or additional to those available to the Company (in which case
the Company shall not have the right to assume the defense of such
action on behalf of such Underwriter or such controlling person, it
being understood, however, that the Company shall not, in connection
with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the fees and
expenses of more than one separate firm of attorneys (in addition to
any local counsel) for all such Underwriters and controlling persons,
which firm shall be designated in writing by The ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇
Company, Inc. and that all such fees and expenses shall be reimbursed
as they are incurred). The Company shall not be liable for any
settlement of any such action effected without its written consent but
if settled with the written consent of the Company, the Company agrees
to indemnify and hold harmless any Underwriter and any such
controlling person from and against any loss or liability by reason 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
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.
(c) Each Underwriter agrees, severally and not jointly,
to indemnify and hold harmless the Company, its directors, its
officers who sign the Registration Statement and any person
controlling the Company within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, to the same extent as the foregoing
indemnity from the Company to each Underwriter but only with reference
to information relating to such Underwriter furnished in writing by or
on behalf of such Underwriter through you
16
17
expressly for use in the Registration Statement, the Prospectus or any
preliminary prospectus. In case any action shall be brought against
the Company, any of its directors, any such officer or any person
controlling the Company based on the RegistrationStatement, the
Prospectus or any preliminary prospectus and in respect of which
indemnity may be sought against any Underwriter, the Underwriter shall
have the rights and duties given to the Company (except that if the
Company shall have assumed the defense thereof, such Underwriter shall
not be required to do so, but may employ separate counsel therein and
participate in the defense thereof but the fees and expenses of such
counsel shall be at the expense of such Underwriter), and the Company,
its directors, any such officers and any person controlling the
Company shall have the rights and duties given to the Underwriter, by
Section 7(b) hereof.
(d) If the indemnification provided for in this Section 7
is unavailable to an indemnified party in respect of any losses,
claims, damages, liabilities or judgments referred to therein, then
each indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages,
liabilities and judgments (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand
and the Underwriters on the other hand from the offering of the Shares
or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above
but also the relative fault of the Company and the Underwriters in
connection with the statements or omissions which resulted in such
losses, claims, damages, liabilities or judgments, as well as any
other relevant equitable considerations. The relative benefits
received by the Company and the Underwriters shall be deemed to be in
the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Company, and the total
underwriting discounts and commissions received by the Underwriters,
bear to the total price to the public of the Shares, in each case as
set forth in the table on the cover page of the Prospectus. The
relative fault of the Company and the Underwriters shall be determined
by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission to state a
material fact relates to information supplied by the Company or the
Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.
The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 7(d) were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities or judgments 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 7, 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
17
18
the public exceeds the amount of any damages which 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 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 7(d) are several in proportion to the respective number of Shares
purchased by each of the Underwriters hereunder and not joint.
8. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase the Firm Shares under this
Agreement are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company
contained in this Agreement shall be true and correct on the Closing
Date with the same force and effect as if made on and as of the
Closing Date.
(b) The Registration Statement shall have become
effective not later than 5:00 P.M. (and in the case of a Registration
Statement filed under Rule 462 (b) of the Act, not later than 10:00
P.M.), New York City time, on the date of this Agreement or at such
later date and time as you may approve in writing, and at the Closing
Date no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose
shall have been commenced or shall be pending before or contemplated
by the Commission.
(c) (i) Since the date of the latest balance sheet
included in the Registration Statement and the Prospectus, there shall
not have been any material adverse change, or any development
involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, affairs or business
prospects, whether or not arising in the ordinary course of business,
of the Company, (ii) since the date of the latest balance sheet
included in the Registration Statement and the Prospectus there shall
not have been any change, or any development involving a prospective
material adverse change, in the capital stock or in the long-term debt
of the Company from that set forth in the Registration Statement and
Prospectus, (iii) the Company and its subsidiaries shall have no
liability or obligation, direct or contingent, which is material to
the Company and its subsidiaries, taken as a whole, other than those
reflected in the Registration Statement and the Prospectus and (iv) on
the Closing Date you shall have received a certificate dated the
Closing Date, signed by ▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇, in their
capacities as the President and Chief Financial Officer of the
Company, respectively, confirming the matters set forth in paragraphs
(a), (b), and (c) of this Section 8.
(d) You shall have received on the Closing Date an
opinion (satisfactory to you and counsel for the Underwriters), dated
the Closing Date, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ &
Casteix, L.L.P., counsel for the Company, to the effect that:
18
19
(i) the Company and each of its subsidiaries
has been duly incorporated, is validly existing as a
corporation in good standing under the laws of its
jurisdiction of incorporation and has the corporate power and
authority required to carry on its business as described in
the Registration Statement and to own, lease and operate its
properties as described in the Registration Statement;
(ii) the Company and each of its
subsidiaries is duly qualified and is in good standing as a
foreign corporation authorized to do business in each
jurisdiction in which the nature of its business or its
ownership or leasing of property requires such qualification,
except where the failure to be so qualified would not have a
material adverse effect on the Company and its subsidiaries,
taken as a whole;
(iii) all of the outstanding shares of
capital stock of, or other ownership interests in, each of the
Company's subsidiaries have been duly and validly authorized
and issued and are fully paid and non-assessable, and are
owned by the Company, free and clear of any security interest,
claim, lien, encumbrance or adverse interest of any nature;
(iv) all the outstanding shares of Common
Stock have been duly authorized and validly issued and are
fully paid, non-assessable and not subject to any preemptive
or similar rights;
(v) the Shares have been duly authorized,
and when issued and delivered to the Underwriters against
payment therefor as provided by this Agreement, will have been
validly issued and will be fully paid and non-assessable, and
the issuance of such Shares is not subject to any preemptive
or similar rights;
(vi) this Agreement has been duly
authorized, executed and delivered by the Company and is a
valid and binding agreement of the Company enforceable in
accordance with its terms (except as rights to indemnity and
contribution hereunder may be limited by applicable law and
except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors
rights generally and (ii) rights of acceleration and the
availability of equitable remedies may be limited by equitable
principles of general applicability);
(vii) the authorized capital stock of the
Company, including the Common Stock, conforms as to legal
matters to the description thereof contained in the
Prospectus;
(viii) the Registration Statement has become
effective under the Act, no stop order suspending its
effectiveness has been issued and no proceedings for that
purpose are, to the knowledge of such counsel, pending before
or contemplated by the Commission;
19
20
(ix) the statements under the captions
"Dividend Policy", "Management--1997 Stock Option Plan",
"Certain Transactions", "Description of Capital Stock",
"Shares Eligible for Future Sale" and "Underwriting" in the
Prospectus and Items 14 and 15 of Part II of the Registration
Statement insofar as such statements constitute a summary of
legal matters, documents or proceedings referred to therein,
fairly present the information called for with respect to such
legal matters, documents and proceedings;
(x) to such counsel's knowledge, neither the
Company nor any of its subsidiaries is (i) in violation of its
respective charter or by-laws or (ii) in default in the
performance of any obligation, agreement or condition
contained in any bond, debenture, note or any other evidence
of indebtedness or in any other agreement, indenture or
instrument material to the conduct of the business of the
Company and its subsidiaries, taken as a whole, to which the
Company or any of its subsidiaries is a party or by which it
or any of its subsidiaries or their respective property is
bound;
(xi) the execution, delivery and performance
of this Agreement by the Company, compliance by the Company
with all the provisions hereof and the consummation of the
transactions contemplated hereby will not require any consent,
approval, authorization or other order of any court,
regulatory body, administrative agency or other governmental
body (except as such may be required under the Act or other
securities or Blue Sky laws) and will not conflict with or
constitute a breach of any of the terms or provisions of, or a
default under, the charter or by-laws of the Company or any of
its subsidiaries, or any agreement, indenture or other
instrument known by such counsel to which the Company or any
of its subsidiaries is a party or by which the Company or any
of its subsidiaries or their respective properties are bound,
or violate or conflict with any laws, administrative
regulations or rulings or court decrees applicable to the
Company or any of its subsidiaries or their respective
properties;
(xii) such counsel does not know of any
legal or governmental proceeding pending or threatened to
which the Company or any of its subsidiaries is a party or to
which any of their respective property is subject which is
required to be described in the Registration Statement or the
Prospectus and is not so described, or of any contract or
other document which is required to be described in the
Registration Statement or the Prospectus or is required to be
filed as an exhibit to the Registration Statement which is not
described or filed as required;
(xiii) to such counsel's knowledge, neither
the Company nor any of its subsidiaries has violated any
Environmental Laws, nor any federal or state law relating to
discrimination in the hiring, promotion or pay of employees
nor any applicable federal or state wages and hours laws, nor
any provisions of the Employee Retirement Income Security Act
or the rules and regulations promulgated thereunder, which in
each case might result in any material adverse
20
21
change in the business, prospects, financial condition or
results of operation of the Company and its subsidiaries,
taken as a whole;
(xiv) such counsel is not aware of any
failure by the Company or any of its subsidiaries to hold such
permits, licenses, franchises and authorizations of
governmental or regulatory authorities ("permits"), including,
without limitation, under any applicable Environmental Laws,
as are necessary to own, lease and operate its respective
properties and to conduct its business in the manner described
in the Prospectus; such counsel is not aware of any failure by
the Company or any of its subsidiaries to fulfill and perform
any of its material obligations with respect to such permits
and such counsel is not aware of any event that has occurred
which allows, or after notice or lapse of time would allow,
revocation or termination thereof or results in any other
material impairment of the rights of the holder of any such
permit, subject in each case to such qualification as may be
set forth in the Prospectus; and, except as described in the
Prospectus, such permits are not known by such counsel to
contain any restrictions that are materially burdensome to the
Company or any of its subsidiaries;
(xv) the Company is not an "investment
company" or a company "controlled" by an "investment company"
within the meaning of the Investment Company Act of 1940, as
amended;
(xvi) to such counsel's knowledge, except as
described in the Prospectus, no holder of any security of the
Company has any right to require registration of shares of
Common Stock or any other security of the Company;
(xvii) except as otherwise set forth in the
Registration Statement or such as are not material to the
business, prospects, financial condition or results of
operation of the Company and its subsidiaries, taken as a
whole, such counsel has no reason to believe that the Company
and each of its subsidiaries do not have good and marketable
title, free and clear of all liens, claims, encumbrances and
restrictions except liens for taxes not yet due and payable,
to all property and assets described in the Registration
Statement as being owned by it;
(xviii) such counsel has no reason to
believe that any material lease to which the Company or any of
its subsidiaries is a party is not valid and binding or that
any default has occurred or is continuing thereunder, which
might result in any material adverse change in the business,
prospects, financial condition or results of operation of the
Company and its subsidiaries taken as a whole, or that the
Company and its subsidiaries do not enjoy peaceful and
undisturbed possession under all such leases to which any of
them is a party as lessee with such exceptions as do not
materially interfere with the use made by the Company or such
subsidiary;
21
22
(xix) except as disclosed in the
Prospectus, to such counsel's knowledge and there are no
outstanding (A) securities or obligations of the Company or an
of its subsidiaries convertible into or exchangeable for any
capital stock of the Company or any such subsidiary, (B)
warrants, rights or options to subscribe for or purchase from
the Company or any such subsidiary any such capital stock or
any such convertible or exchangeable securities or
obligations, or (C) obligations of the Company or any such
subsidiary to issue any shares of capital stock, any such
convertible or exchangeable securities or obligations, or any
such warrants, rights or options.
(xx) all offers and sales of the
Company's capital stock known to such counsel prior to the
date hereof within the period covered by Item 15 of Part II of
the Registration Statement were at all relevant times duly
registered under the Act or exempt from the registration
requirements thereof.
(xxi) the Registration Statement
(including any Registration Statement filed under Rule 462 (b)
under the Act, if any) and the Prospectus and any supplement
or amendment thereto (except for financial statements and
other financial data as to which no opinion need be expressed)
comply as to form in all material respects with the Act. In
addition, such counsel shall state that (except for financial
statements and other financial data, as aforesaid), such
counsel, while not passing upon, or assuming any
responsibility for, the accuracy, completeness or fairness of
the statements contained in the Registration Statement or the
Prospectus, has no reason to believe that the Registration
Statement and the prospectus included therein at the time the
Registration Statement 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, and that the Prospectus, as
amended or supplemented, if applicable (except for financial
statements and other financial data, as aforesaid) contained
any untrue statement of a material fact or omitted 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;
In giving such opinion with respect to the matters covered by
clause (xxi) such counsel 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 and review and discussion
of the contents thereof, but are without independent check or verification
except as specified.
The opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇, L.L.P. described in paragraph (d) above shall be rendered to you at
the request of the Company and shall so state therein and shall be limited to
the laws of the United States of America and those of the state of Louisiana.
22
23
(e) You shall have received on the Closing Date an
opinion (satisfactory to you and counsel for the Underwriters), dated
the Closing Date, of [FCC counsel], counsel for the Company, to the
effect that:
(i) The statements in the Prospectus
under the captions "Risk Factors - Government Regulation," and
"Business of the Company," insofar as such statements
constitute a summary of Communications Act of 1934, as
amended, and the rules and regulations promulgated thereunder
(the"Communications Act"), fairly and accurately summarize the
matters therein described.
(ii) The Company and each of its
subsidiaries validly holds all Cellular Licenses. The
Cellular Licenses are in full force and effect and are not
subject to any conditions other than those conditions listed
thereon and those conditions generally applicable to entities
holding similar licenses issued by the FCC. The Cellular
Licenses constitute all of the licenses, permits, consents or
authorizations required by the FCC to permit operation of a
cellular telephone system in each of its Cellular Systems, as
identified in the Prospectus. The Cellular Licenses expire on
the following dates: [insert dates]. The five-year
build-out periods for the Cellular Systems expire[d] on
[insert dates].
(iii) There are no judgments, decrees or
orders issued by the FCC that could result in a suspension,
revocation, material impairment, termination prior to its
expiration date, non- renewal or adverse modification of the
Cellular Licenses, or that could have a material adverse
effect upon, or cause material disruption to, the cellular
operations pursuant to the Cellular Licenses. To the best of
the Company's knowledge, there is no complaint, investigation,
action or proceeding pending or threatened relative to the
Cellular Licenses relating to its cellular operations,
including, without limitation, any Notice of Violation, Notice
of Apparent Liability or Order to Show Cause, other than
proceedings that affect the cellular telephone industry
generally, that could result in a suspension, revocation,
material impairment, termination prior to its expiration date,
non-renewal or adverse modification of the Cellular Licenses
or which could have a material adverse effect upon, or cause
material disruption to, the cellular operations in any of the
Cellular Systems.
(iv) The Company and each of its
subsidiaries has, or has timely filed applications for, all
permits, licenses, franchises and other authorizations
("permits") of governmental or regulatory authorities
(including, as appropriate, the state public utilities
commissions of Louisiana, Kansas, Oklahoma, Mississippi,
Alabama and Texas) necessary to engage in the wireless
businesses currently conducted by the Company, except where
the failure to hold such permits would not have a material
adverse effect on the Company and its subsidiaries, taken as a
whole; and there is no reason to believe that any governmental
body or agency is considering limiting, suspending or revoking
any such permit. All such permits are valid and in full force
and effect. Such
23
24
counsel has not represented the Company or its subsidiaries
with respect to, and has not reviewed, the leases to which the
Company or any of its subsidiaries is a party.
(v) The PCS Partnership was the
winning bidder, and the PCS Applications have been accepted
for filing, for the following PCS C-block BTAs: Baton Rouge,
LA (BTA #032), Beaumont, TX (BTA #034), Hammond, LA (BTA
#180), Lafayette, LA (BTA #236), and Lufkin, TX (BTA #265),
collectively, the "PCS Systems." The PCS Applications have
been granted by the FCC, and PCS Licenses have been issued.
All applicable administrative and judicial appeal, review and
reconsideration periods of the orders granting the PCS
Licenses have expired, without the timely filing of any such
appeal or request for review or reconsideration and without
the FCC having instituted review of the grant of the PCS
Licenses on its own motion.
(vi) Mobility was the winning bidder,
and the PCS Applications have been accepted for filing, for
the following PCS D, E and F-block BTAs: _____________. The
PCS Applications with respect to the D, E and F-block BTAs are
pending before the FCC.
(vii) The PCS Licenses are in full force
and effect and are not subject to any conditions other than
those conditions listed thereon and those conditions generally
applicable to entities holding similar licenses issued by the
FCC. The PCS Licenses constitute all of the licenses,
permits, consents or authorizations required by the FCC to
permit operation of a C-Block PCS system in each of its PCS
Systems. The PCS Licenses expire on the following dates:
[insert dates]. The five-year build-out periods for the PCS
Systems expire on [insert dates], and the ten-year build-out
periods expire on [insert dates].
(viii) The Company knows of no FCC
complaint, investigation, action or proceeding pending or
threatened relative to the PCS Applications or Licenses or the
PCS Systems, including, without limitation, any Notice of
Violation, Notice of Apparent Liability or Order to Show
Cause, other than proceedings that affect the PCS industry
generally, that could result in a denial of any of the PCS
Applications, or suspension, revocation, material impairment,
termination prior to its expiration date, non-renewal or
adverse modification of any licenses granted pursuant to the
PCS Applications or which could have a material adverse effect
upon, or cause material disruption to, the PCS operations in
any of the PCS Systems.
(ix) The PCS Partnership has timely paid
all fees required by the FCC in connection with the PCS
Applications, including any and all down payments required by
FCC rules to be paid as of the date hereof.
(x) The Company and each of its
subsidiaries validly holds all Paging Licenses necessary for
the operation of its paging system within the Louisiana
24
25
Cluster in the 158.10 MHz and 152.84 MHz range, as identified
in the Prospectus. The Paging Licenses are in full force and
effect and are not subject to any conditions other than those
conditions listed thereon and those conditions generally
applicable to entities holding similar licenses issued by the
FCC. The Paging Licenses constitute all of the licenses,
permits, consents or authorizations required by the FCC to
permit operation of a paging system in the Louisiana Cluster.
(xi) Such counsel has no knowledge of
any FCC complaint, investigation, action or proceeding pending
or threatened relative to the Paging Licenses, including,
without limitation, any Notice of Violation, Notice of
Apparent Liability or Order to Show Cause, other than
proceedings that affect the paging industry generally, that
could result in a denial of any of the Paging Licenses, or
suspension, revocation, material impairment, termination prior
to its expiration date, non-renewal or adverse modification of
any of the Paging Licenses or which could have a material
adverse effect upon, or cause material disruption to, the
Paging operations in any of the Paging Licenses.
(xii) The PCS Partnership was qualified to
participate in the FCC's C-Block auctions as a "Small
Business," as defined by FCC Rules, and is qualified to hold
the licenses for the PCS Systems according to the rules of the
FCC. The Company's investment in the PCS Partnership does not
violate the rules of the FCC.
(f) You shall have received on the Closing Date an
opinion, dated the Closing Date, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the
Underwriters, as to the matters referred to in clauses (v), (vi),
(viii), (ix) (but only with respect to the statements under the
caption "Description of Capital Stock" and "Underwriting") and (xxi)
of the foregoing paragraph (d). In giving such opinion with respect
to the matters covered by clause (xix) such counsel 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 and review and discussion of the
contents thereof, but are without independent check or verification
except as specified.
(g) You shall have received a letter on and as of the
Closing Date, in form and substance satisfactory to you, from KMPG
Peat Marwick LLP, independent public accountants, with respect to the
financial statements and certain financial information contained in
the Registration Statement and the Prospectus and substantially in the
form and substance of the letter delivered to you by KMPG Peat Marwick
LLP on the date of this Agreement.
(h) The Company shall have delivered to you the
agreements specified in Section 2 hereof.
25
26
(i) The Company shall not have failed at or prior to the
Closing Date to perform or comply with any of the agreements herein
contained and required to be performed or complied with by the Company
at or prior to the Closing Date.
The several obligations of the Underwriters to purchase any Additional Shares
hereunder are subject to the delivery to you on the applicable 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 such Additional
Shares and other matters related to the issuance of such Additional Shares.
9. Effective Date of Agreement and Termination. This
Agreement shall become effective upon the later of (i) execution of this
Agreement and (ii) when notification of the effectiveness of the Registration
Statement has been released by the Commission.
This Agreement may be terminated at any time prior to the
Closing Date by you by written notice to the Company if any of the following
has occurred: (i) since the respective dates as of which information is given
in the Registration Statement and the Prospectus, any material adverse change
or development involving a prospective material adverse change in the
condition, financial or otherwise, of the Company and its subsidiaries, taken
as a whole, or the earnings, affairs, or business prospects of the Company or
any of its subsidiaries, taken as a whole, whether or not arising in the
ordinary course of business, which would, in your judgment, make it
impracticable to market the Shares on the terms and in the manner contemplated
in the Prospectus, (ii) any outbreak or escalation of hostilities or other
national or international calamity or crisis or change in economic conditions
or in the financial markets of the United States or elsewhere that, in your
judgment, is material and adverse and would, in your judgment, make it
impracticable to market the Shares on the terms and in the manner contemplated
in the Prospectus, (iii) the suspension or material limitation of trading in
securities on the New York Stock Exchange, the American Stock Exchange or the
Nasdaq National Market System or limitation on prices for securities on any
such exchange or National Market System, (iv) the enactment, publication,
decree or other promulgation of any federal or state statute, regulation, rule
or order of any court or other governmental authority which in your opinion
materially and adversely affects, or will materially and adversely affect, the
business or operations of the Company and its subsidiaries taken as a whole,
(v) the declaration of a banking moratorium by either federal or New York State
authorities or (vi) the taking of any action by any federal, state or local
government or agency in respect of its monetary or fiscal affairs which in your
opinion has a material adverse effect on the financial markets in the United
States.
If on the Closing Date or on an Option Closing Date, as the
case may be, any one or more of the Underwriters shall fail or refuse to
purchase the Firm Shares or Additional Shares, as the case may be, which it or
they have agreed to purchase hereunder on such date and the aggregate number of
Firm Shares or Additional Shares, as the case may be, which such defaulting
Underwriter or Underwriters, as the case may be, agreed but failed or refused
to purchase is not more than one-tenth of the total number of Shares to be
purchased on such date by all Underwriters, each non-defaulting Underwriter
shall be obligated severally, in the proportion which the number of Firm Shares
set forth opposite its name in Schedule I bears to the total number of Firm
Shares which all the non-defaulting Underwriters, as the case may be,
26
27
have agreed to purchase, or in such other proportion as you may specify, to
purchase the Firm Shares or Additional Shares, as the case may be, which such
defaulting Underwriter or Underwriters, as the case may be, agreed but failed
or refused to purchase on such date; provided that in no event shall the number
of Firm Shares or Additional Shares, as the case may be, which any Underwriter
has agreed to purchase pursuant to Section 2 hereof be increased pursuant to
this Section 9 by an amount in excess of one-ninth of such number of Firm
Shares or Additional Shares, as the case may be, without the written consent of
such Underwriter. If on the Closing Date or on an Option Closing Date, as the
case may be, any Underwriter or Underwriters shall fail or refuse to purchase
Firm Shares, or Additional Shares, as the case may be, and the aggregate number
of Firm Shares or Additional Shares, as the case may be, with respect to which
such default occurs is more than one-tenth of the aggregate number of Shares to
be purchased on such date by all Underwriters and arrangements satisfactory to
you and the Company for purchase of such Shares are not made within 48 hours
after such default, this Agreement will terminate without liability on the part
of any non-defaulting Underwriter and the Company. In any such case which does
not result in termination of this Agreement, either you or the Company shall
have the right to postpone the Closing Date or the applicable Option Closing
Date, as the case may be, but in no event for longer than seven days, in order
that the required changes, if any, in the Registration Statement and the
Prospectus or any other documents or arrangements may be effected. Any action
taken under this paragraph shall not relieve any defaulting Underwriter from
liability in respect of any default of any such Underwriter under this
Agreement.
10. Miscellaneous. Notices given pursuant to any
provision of this Agreement shall be addressed as follows: (a) if to the
Company, to US Unwired Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and (b) if to any Underwriter or to you, to you c/o The
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Company, Inc., ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: Corporate Finance Department, or in any case to such other
address as the person to be notified may have requested in writing.
The respective indemnities, contribution agreements,
representations, warranties and other statements of the Company, its officers
and directors and of the several Underwriters set forth in or made pursuant to
this Agreement shall remain operative and in full force and effect, and will
survive delivery of and payment for the Shares, regardless of (i) any
investigation, or statement as to the results thereof, made by or on behalf of
any Underwriter or by or on behalf of the Company, the officers or directors of
the Company or any controlling person of the Company, (ii) acceptance of the
Shares and payment for them hereunder and (iii) termination of this Agreement.
If this Agreement shall be terminated by the Underwriters
because of any failure or refusal on the part of the Company to comply with the
terms or to fulfill any of the conditions of this Agreement, the Company agrees
to reimburse the several Underwriters for all out-of-pocket expenses (including
the fees and disbursements of counsel) reasonably and customarily incurred by
them in connection with the transactions contemplated by this Agreement.
27
28
Except as otherwise provided, this Agreement has been and is
made solely for the benefit of and shall be binding upon the Company, the
Underwriters, any controlling persons referred to herein and their respective
successors and assigns, all as and to the extent provided in this Agreement,
and no other person shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" shall not include a purchaser of
any of the Shares from any of the several Underwriters merely because of such
purchase.
This Agreement shall be governed and construed in accordance
with the laws of the State of New York.
This Agreement may be signed in various counterparts which
together shall constitute one and the same instrument.
28
29
Please confirm that the foregoing correctly sets forth the
agreement between the Company and the several Underwriters.
Very truly yours,
US UNWIRED INC.
By
----------------------------------
Name:
Title:
THE ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ COMPANY, INC.
▇.▇. ▇▇▇▇▇▇▇ & SONS, INC.
Acting severally on behalf of
themselves and the several
Underwriters named in
Schedule I hereto
By THE ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ COMPANY, INC.
By
------------------------
29
30
SCHEDULE I
Number of Firm Shares
Underwriters to be Purchased
------------ ---------------------
The ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Company, Inc.
▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc.
---------------------
30