Exhibit 1
EXECUTION COPY
10,000,000 Shares
CENTENNIAL COMMUNICATIONS CORP.
Common Stock ($0.01 par value)
UNDERWRITING AGREEMENT
November 4, 2003
1
November 4, 2003
Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Dear Sirs and Mesdames:
Centennial Communications Corp., a Delaware corporation (the
"Company") and certain stockholders of the Company named in Schedule I hereto
(the "Selling Stockholders"), confirm their respective agreements with Xxxxxx
Brothers, Inc. (the "Underwriter"), with respect to the issuance and sale by the
Company and the sale by the Selling Stockholders (the Company and the Selling
Stockholders, together, the "Sellers") and the purchase by the Underwriter, of
10,000,000 shares of common stock, par value $0.01 (the "Common Stock") of the
Company (the "Firm Shares"), with each Seller selling up to the amount set forth
opposite such Seller's name in Schedule I hereto. The Sellers also propose to
sell to the Underwriter not more than an additional 1,500,000 shares of Common
Stock (the "Additional Shares"), if and to the extent that the Underwriter shall
have determined to exercise the right to purchase such shares of Common Stock
granted to the Underwriter in Section 3 hereof. The Firm Shares and all or any
part of the Additional Shares are hereinafter collectively referred to as the
"Shares."
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, including the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), a registration
statement on Form S-3 under the Securities Act (No. 333-39004) including a
prospectus, registering among other things, certain securities of the Company to
be issued from time to time by the Company, including the shares of Common Stock
(the "Shelf Securities"). Promptly after the execution and delivery of this
Agreement, the Company will prepare and file a prospectus in accordance with the
provisions of Rule 430A of the Securities Act ("Rule 430A") and Rule 424(b) of
the Securities Act ("Rule 424(b)"). The information included in any such
prospectus that was omitted from such registration statement at the time it
became effective but that is deemed to be part of such registration statement at
the time it became effective pursuant to Rule 430A is referred to as "Rule 430A
Information." Such registration statement as amended to the date of this
Agreement, including the exhibits and schedules thereto and the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the
Securities Act, the Rule 430A Information and any registration statement filed
pursuant to Rule 462(b) of the Securities Act is herein called the "Registration
Statement." The prospectus covering the Shelf Securities included as part of the
Registration Statement is hereinafter referred to as the "Base Prospectus." The
Base Prospectus as supplemented by the prospectus supplement specifically
relating to the Shares in the form first used to confirm sales of the Shares is
hereinafter referred to as the "Prospectus." Any reference in this Agreement to
the Registration Statement, the Base 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 which were filed under
the Securities Exchange Act of 1934, as amended, including the rules and
regulations of the Commission thereunder (collectively, the "Exchange Act") on
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or before the date of this Agreement or the date of the Base Prospectus or the
Prospectus, as the case may be; and any reference to "amend," "amendment" or
"supplement" with respect to the Registration Statement, the Base Prospectus or
the Prospectus shall be deemed to refer to and include any documents filed under
the Exchange Act after the date of this Agreement, or the date of the Base
Prospectus or the Prospectus, as the case may be, which are deemed to be
incorporated by reference therein. For purposes of this Agreement, all
references to the Registration Statement, the Base Prospectus, the Prospectus or
any amendment or supplement to any of the foregoing shall be deemed to include
the copy filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval system ("XXXXX").
1. Representations and Warranties. The Company represents and warrants
to, and agrees with, the Underwriter that:
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act; the Registration Statement has been declared effective by
the Commission under the Securities Act; no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose has been instituted or threatened by the
Commission.
At the respective times the Registration Statement and any
post-effective amendments thereto became effective and at the Closing Date
(and, if any Additional Shares are issued, at each Option Closing Date),
the Registration Statement, the Base Prospectus and any amendments and
supplements thereto complied and will comply in all material respects with
the requirements of the Securities Act; as of the date of the Prospectus or
the date of any amendment or supplement thereto, and at the Closing Date
(and, if any Additional Shares are issued, at each Option Closing Date),
the Prospectus, as then amended or supplemented, complied or will comply in
all material respects with the requirements of the Securities Act; and the
Registration Statement and the Prospectus did not and will not, as of the
applicable effective date as to the Registration Statement and any
amendment thereto and as of the date of the Prospectus and as of the date
of any amendment or supplement thereto, contain any untrue statement of a
material fact or omit to state any 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 the
Prospectus, as amended or supplemented at the Closing Date (as defined
below) (and, if any Additional Shares are issued, at each Option Closing
Date), 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 foregoing representations and warranties shall
not apply to statements or omissions in the Registration Statement or the
Prospectus made in reliance upon and in conformity with information
relating to the Underwriter furnished to the Company in writing by the
Underwriter expressly for use therein as specified in Section 9(h).
(b) The documents incorporated by reference in the Prospectus, when
they were filed with the Commission, conformed in all material respects to
the requirements of the Exchange Act, and none of such documents contained
an untrue statement of a material fact or omitted to state a material fact
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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
are filed with the Commission, will conform in all material respects to the
requirements of the Exchange Act, as applicable, and will not contain an
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.
(c) The Prospectus delivered to the Underwriter for use in connection
with this offering was identical to the electronically transmitted copies
thereof filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T.
(d) The Company has been duly incorporated, is validly existing as a
corporation and in good standing under the laws of the State of Delaware
and has the corporate power and authority to enter into the Underwriting
Agreement, own its property and to conduct its business as described in the
Prospectus and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not
reasonably be expected to have a material adverse effect on the Company and
its subsidiaries, taken as a whole. The amended and restated certificate of
incorporation of the Company, which was filed with the Secretary of State
of the State of Delaware on August 21, 2003 (the "Amended Certificate of
Incorporation"), which, among other things, increased the authorized number
of shares of Common Stock from 140,000,000 shares to 240,000,000 shares,
became effective on September 11, 2003.
(e) Each direct or indirect subsidiary of the Company having an
aggregate net book value of assets in excess of 10% of the total assets of
the Company and its subsidiaries on a consolidated basis (each, a
"Significant Subsidiary" and collectively, the "Significant Subsidiaries"),
has been duly formed or incorporated, as the case may be, is validly
existing as a corporation, partnership or a limited liability company, as
the case may be, in good standing under the laws of the jurisdiction of its
formation or incorporation, has the power and authority to own its property
and to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the failure
to be so qualified or be in good standing would not reasonably be expected
to have a material adverse effect on the Company and its subsidiaries,
taken as a whole; all of the issued shares of capital stock or membership
interests of each Significant Subsidiary of the Company, as applicable,
have been duly and validly authorized and issued, are fully paid and
non-assessable and are owned directly or indirectly by the Company, free
and clear of all liens, encumbrances, equities or claims, other than
"Permitted Liens" as such term is defined in the Indenture among the
Company, Centennial Cellular Operating Co. LLC ("Centennial Cellular"),
Centennial Puerto Rico Operations Corp. ("Centennial Puerto Rico") and U.S.
Bank National Association, as trustee, dated as of June 20, 2003, relating
to the 10?% Senior Notes due 2013 issued by the Company and Centennial
Cellular. As used in this Agreement, "subsidiary" or "subsidiaries" shall
mean both direct and indirect subsidiaries of an entity. For purposes of
this Agreement, Centennial Cellular and Centennial Puerto Rico shall be
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deemed Significant Subsidiaries. There are no other Significant
Subsidiaries of the Company other than those listed on Schedule II.
(f) This Agreement has been duly authorized, executed and delivered by
the Company.
(g) The Company's authorized equity capitalization is as set forth in
the Prospectus and as amended by the Amended Certificate of Incorporation;
the outstanding shares of Common Stock of the Company (including the Shares
to be sold by the Selling Stockholders) prior to the issuance of the Shares
have been duly and validly authorized and issued and are fully paid and
non-assessable. The Common Stock conforms to the descriptions thereof
contained in the Prospectus and such description conforms to the rights set
forth in the instruments defining the same.
(h) All of the Company's options, warrants and other rights to
purchase or exchange any securities for shares of Common Stock have been
duly authorized and validly issued and conform in all material respects to
the description thereof contained in the Registration Statement and the
Prospectus. The Company has no capital stock currently outstanding other
than the Common Stock or as otherwise described in the Prospectus.
(i) The Shares to be sold by the Company have been duly authorized for
issuance and sale to the Underwriter pursuant to this Agreement and upon
payment for and delivery of the Shares to be sold by the Company pursuant
to this Agreement, will be validly issued, fully paid and non assessable.
No holder of the Shares will be subject to personal liability by reason of
being such a holder. The issuance of the Shares is not subject to the
preemptive or other similar rights of any securityholder of the Company.
(j) (A) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement and the
issuance, sale and delivery of the Shares will not contravene any provision
of applicable law or the certificate of incorporation or by-laws or other
governing documents of the Company or any of its subsidiaries, or
contravene any agreement or other instrument binding upon the Company or
any of its subsidiaries that is material to the Company and its
subsidiaries, taken as a whole, or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or
any of its subsidiaries, and (B) no consent, approval, authorization or
order of, or qualification with, any governmental body or agency is
required for the performance by the Company of its obligations under this
Agreement or the issuance, sale and delivery of the Shares, except such as
may be required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Shares, except in each case in
this clause (B) to the extent such would not reasonably be expected to have
a material adverse effect on the Company and its subsidiaries, taken as a
whole or to the extent such consents, approvals or authorizations will be
obtained on the Closing Date.
(k) Deloitte & Touche LLP, the certified public accountants who have
certified the consolidated financial statements, together with related
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schedules and notes, included in the Prospectus, and who have delivered the
letters referred to in Section 6(h), are independent public accountants
with respect to the Company within the meaning of Regulation S-X of the
Securities Act.
(l) The consolidated financial statements, together with related
schedules and notes, filed as part of the Registration Statement and
included in the Prospectus (and any amendment or supplement thereto),
present fairly the consolidated financial condition, results of operations,
cash flows and stockholders' equity of the Company and its subsidiaries on
the basis stated in the Registration Statement and the Prospectus 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 information and data set forth in the Registration Statement and
Prospectus (and any amendment or supplement thereto) is presented fairly
and is prepared on a basis consistent with the audited financial statements
included in the Registration Statement or the Prospectus, as applicable.
(m) The Company has established and maintains disclosure controls and
procedures (as such term is defined in Rule 13a-14 and 15d-14 under the
Exchange Act); such disclosure controls and procedures are designed to
ensure that material information relating to the Company and its
subsidiaries is made known to the Company's Chief Executive Officer and its
Chief Financial Officer by others within those entities, and such
disclosure controls and procedures are effective to perform the functions
for which they were established; since the date of the filing of the
Company's Annual Report on Form 10-K for the most recent fiscal year ended
for which filings shall have been made, the Company's auditors and the
Audit Committee of the board of directors of the Company have been advised
of: (i) any significant deficiencies in the design or operation of internal
controls which could adversely affect the Company's ability to record,
process, summarize, and report financial data and (ii) any fraud, whether
or not material, that involves management or other employees who have a
role in the Company's internal controls; any material weaknesses in
internal controls have been identified for the Company's auditors; and
since the date of the most recent evaluation of such disclosure controls
and procedures, there have been no significant changes in internal controls
or in other factors that could significantly affect internal controls,
including any corrective actions with regard to significant deficiencies
and material weaknesses.
(n) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business, properties
or operations of the Company and its subsidiaries, taken as a whole from
that set forth in the Prospectus (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement).
(o) There are no legal or governmental proceedings (including, without
limitation, those of the Federal Communications Commission or any state,
local or commonwealth communications agency or commission) pending or to
our knowledge threatened to which the Company or any of its subsidiaries is
a party or to which any of the properties of the Company or any of its
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subsidiaries is subject other than proceedings accurately described in all
material respects in the Registration Statement or the Prospectus, as
applicable, other than proceedings that would not reasonably be expected to
have a material adverse effect on the Company and its subsidiaries, taken
as a whole, or on the power or ability of the Company to perform its
obligations under this Agreement or to consummate the transactions
contemplated by this Agreement, or to apply the net proceeds of the
issuance of the Shares as described in the Prospectus under the caption
"Use of Proceeds".
(p) The Company and each of its Significant Subsidiaries (i) is in
compliance with any and all applicable foreign, federal, state and local
laws and regulations relating to the protection of human health and safety,
the environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (ii) have received all permits,
licenses or other approvals required of them under applicable Environmental
Laws to conduct their respective businesses and (iii) are in compliance
with all terms and conditions of any such permit, license or approval,
except where such noncompliance with Environmental Laws, failure to receive
required permits, licenses or other approvals or failure to comply with the
terms and conditions of such permits, licenses or approvals would not,
singly or in the aggregate, reasonably be expected to have a material
adverse effect on the Company and its subsidiaries, taken as a whole.
(q) There are no costs or liabilities associated with Environmental
Laws (including, without limitation, any capital or operating expenditures
required for clean-up, closure of properties or compliance with
Environmental Laws or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to third
parties) which would, singly or in the aggregate, reasonably be expected to
have a material adverse effect on the Company and its subsidiaries, taken
as a whole.
(r) 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" as such term is
defined in the Investment Company Act of 1940, as amended.
(s) The Company and its Significant Subsidiaries have all necessary
certificates, orders, permits, licenses, authorizations, consents and
approvals of and from, and have made all declarations and filings with, all
federal, state, local, foreign supranational, national, regional and other
governmental authorities and all courts and tribunals, to own, lease,
license and use its properties and assets and to conduct its business in
the manner described in the Prospectus, except to the extent the failure to
do so would not reasonably be expected to have a material adverse effect on
the Company and its Significant Subsidiaries taken as a whole; and none of
the Company or any of its Significant Subsidiaries has received any notice
of proceedings relating to revocation or modification of any such
certificates, orders, permits, licenses, authorizations, consents or
approvals, nor is the Company or any of its subsidiaries in violation of,
or in default under, any federal, state, local, foreign supranational,
national or regional law, regulation, rule, decree, order or judgment
applicable to the Company or any of its subsidiaries the effect of which,
singly or in the aggregate, would reasonably be expected to have a material
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adverse effect on the Company and its subsidiaries, taken as a whole,
except as described in the Prospectus.
(t) The Company and each of its Significant Subsidiaries are insured
by insurers of recognized financial responsibility against such losses and
risks and in such amounts as the Company reasonably believes are prudent
and customary in the businesses in which they are engaged; none of the
Company or any of its Significant Subsidiaries has been refused any
insurance coverage sought or applied for, except for any such refusal that
would not reasonably be expected to have a material adverse effect on the
Company and its subsidiaries, taken as a whole; and none of the Company or
any of its Significant Subsidiaries has any reason to believe that it will
not be able to renew its existing insurance coverage as and when such
coverage expires or to obtain similar coverage from similar insurers as may
be necessary to continue its business at a cost that would not reasonably
be expected to have a material adverse effect on the Company and its
subsidiaries, taken as a whole, except as described in the Prospectus.
(u) The Company and each of its subsidiaries keep accurate books and
records reflecting their respective assets and 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 consolidated 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.
(v) No material labor dispute with the employees of the Company or its
Significant Subsidiaries exists or, to the knowledge of the Company, is
imminent; none of the Company or any of its subsidiaries is aware of any
existing or imminent labor disturbance by the employees of any of the
Company's or any of its subsidiaries' principal suppliers, manufacturers,
customers or contractors which, in either case, would reasonably be
expected to result in a material adverse effect on the Company and its
subsidiaries, taken as a whole, except as described in the Prospectus.
(w) The Company and its Significant Subsidiaries each have (i) good
and marketable title to all material real property owned by them and (ii)
good title to all other properties owned by them except, in the case of
(ii), as would not reasonably be expected to have a material adverse effect
on the Company and its subsidiaries, taken as a whole, and, in the case of
(i) and (ii), free and clear of all mortgages, pledges, liens, security
interests, claims, restrictions or encumbrances of any kind (other than
Permitted Liens), except such as would not, singly or in the aggregate,
reasonably be expected to materially affect the value of such property and
would not interfere with the use made and proposed to be made of such
property by the Company or any of its Significant Subsidiaries, except for
any such affect on the value of the property or such interference that
would not reasonably be expected to have a material adverse effect on the
Company and its subsidiaries, taken as a whole; all of the leases and
subleases material to the business of the Company and its subsidiaries,
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considered as one enterprise, and under which the Company or any of its
subsidiaries hold properties, are in full force and effect, and none of the
Company or any of its subsidiaries, has any notice of any material claim of
any sort that has been asserted by anyone adverse to the rights of the
Company or any of its subsidiaries under any of these leases or subleases,
or affecting or questioning the rights of the Company or any of its
subsidiaries to the continued possession of the leased or subleased
premises under any such lease or sublease, except in each case to the
extent such would not reasonably be expected to have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(x) All material United States federal income tax returns of the
Company and its subsidiaries required by law to be filed have been filed
and all taxes shown by such returns or otherwise assessed, which are due
and payable, have been paid, except assessments against which appeals have
been or will be promptly taken and as to which adequate reserves have been
provided. The Company and its subsidiaries have filed all other tax returns
that are required to have been filed by them pursuant to applicable
foreign, federal, state, local or other law except insofar as the failure
to file such returns would not reasonably be expected to result in a
material adverse effect on the Company and its subsidiaries, taken as a
whole, and have paid all taxes due pursuant to such returns or pursuant to
any assessment received by the Company and its subsidiaries, except for
such taxes, if any, as are being contested in good faith and by appropriate
proceedings and as to which adequate reserves have been provided. The
charges, accruals and reserves on the books of the Company and its
subsidiaries in respect of all federal, state, local and foreign tax
liabilities of the Company and each subsidiary for any years not finally
determined are adequate to meet any assessments or reassessments for
additional income tax for any years not finally determined, except to the
extent of any inadequacy that would not reasonably be expected to result in
a material adverse effect on the Company and its subsidiaries, taken as a
whole.
(y) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Company with any person that would
give rise to a claim against the Company or the Underwriter for a brokerage
commission, finder's fee or other like payment in connection with this
offering.
(z) There are no persons or entities with registration or other
similar rights to require the Company to include any securities in the
Prospectus that have not waived any such rights with respect to the
offering of Common Stock contemplated hereby other than (i) the Selling
Stockholders or (ii) any person or entity whose failure to waive such
rights would not, either individually or collectively, reasonably be
expected to have a material adverse effect on the Company and its
subsidiaries, taken as a whole, or on the power or ability of the Company
to perform its obligations under this Agreement or to consummate the
transactions contemplated by this Agreement.
(aa) The Company has not sold or issued any shares of Common Stock
during the six-month period preceding the date of the Prospectus, including
any sales pursuant to Rule 144A under, or Regulations D or Regulation S of,
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the Securities Act other than shares issued pursuant to employee benefit
plans, qualified stock options plans or other employee compensation plans
or pursuant to outstanding options, rights or warrants.
(bb) No relationship, direct or indirect, exists between or among any
of the Company or any affiliate of the Company, on the one hand, and any
director, officer or stockholder of any of them, on the other hand, which
is required by the Securities Act to be described in the Registration
Statement or the Prospectus which is not so described or is not described
as required.
(cc) Since the date as of which information is given in the Prospectus
through the date hereof, and except as may otherwise be disclosed or
incorporated by reference in the Prospectus, the Company has not (i) issued
or granted any securities other than shares issued pursuant to existing
employee benefit plans, qualified stock option plans or other employee
compensation plans or pursuant to outstanding options, rights or warrants,
(ii) incurred any liability or obligation, direct or contingent, other than
non-material liabilities and obligations which were incurred in the
ordinary course of business, (iii) entered into any material transaction
which would be required to be disclosed in the Prospectus or (iv) declared
or paid any dividend on its capital stock.
Each certificate signed by any officer of the Company and delivered to the
Underwriter or its counsel shall be deemed to be a representation and warranty
by the Company to the Underwriter as to the matters covered thereby.
2. Representations and Warranties of the Selling Stockholders. The
Selling Stockholders, severally and not jointly, represent, warrant to and agree
with the Underwriter as of the date hereof, and if the Selling Stockholders are
selling Additional Shares on an Option Closing Date, as of any such Option
Closing Date, that:
(a) This Agreement has been duly authorized, executed and delivered by
or on behalf of each Selling Stockholder.
(b) The execution and delivery by the Selling Stockholders of, and the
performance by the Selling Stockholders of their obligations under, this
Agreement will not contravene any provision of applicable law, or the
organizational documents of the Selling Stockholders, or any agreement or
other instrument binding upon the Selling Stockholders or any judgment,
order or decree of any governmental body, agency or court having
jurisdiction over the Selling Stockholders.
(c) The Selling Stockholders have, and on each Option Closing Date
will have, good and valid title to all of the Shares to be sold by the
Selling Stockholders pursuant to this Agreement on such date, free and
clear of any adverse claim.
(d) The Shares to be sold by the Selling Stockholders pursuant to this
Agreement are certificated securities in registered form and are not held
in any securities account or by or through any securities intermediary
within the meaning of the Uniform Commercial Code as in effect in the State
of New York. Each Selling Stockholder has, and on each Option Closing Date
will have, full partnership right, power and authority to hold, sell,
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transfer and deliver the Shares to be sold by the Selling Stockholders
pursuant to this Agreement and upon the Underwriter's acquiring possession
of such Shares and paying the purchase price therefor as herein
contemplated, the Underwriter will acquire its interests in such Shares
(including, without limitation, all rights that such Selling Stockholder
has or has the power to transfer in such Shares) free of any adverse claim.
(e) Certificates for all of the Shares to be sold by the Selling
Stockholders pursuant to this Agreement, in suitable form for transfer by
delivery or accompanied by duly executed instruments of transfer or
assignment in blank, with signatures guaranteed, will be placed in custody
with the American Stock Transfer & Trust Co., the transfer agent for the
Company's Common Stock, no later than the business day preceding the
Closing Date or Option Closing Date, as applicable, with irrevocable
conditional instructions to deliver the Shares to the Underwriter pursuant
to this Agreement.
(f) The Selling Stockholders are not prompted to sell the Shares to be
sold to the Underwriter hereunder by any material non-public information
concerning the Company or its subsidiaries which is not set forth or
incorporated by reference in the Prospectus to sell their Shares pursuant
to this Agreement.
(g) Each of the Selling Stockholders have reviewed and are familiar
with the Registration Statement and the Prospectus. The Selling Stockholder
Information (as defined herein) contained in the Registration Statement or
the Prospectus, or any amendments or supplements thereto, on the date
hereof and on the Closing Date (and, if any Additional Shares are
purchased, on any Option Closing Date), such statements did not or will not
contain any untrue statement of material fact or omit to state any material
fact required to be stated therein or necessary in order to make the
statements therein not misleading. "Selling Stockholder Information" shall
mean the information in the Prospectus relating to (i) the beneficial
ownership of Common Stock by the Selling Stockholders, (ii) the
biographical information with respect to Xxxxxxxx X. Xxxxxx and Xxxxx X.
Xxxxxx and (iii) information with respect to the participation of the
Selling Stockholders in the offering of the Shares.
(h) The Selling Stockholders have not taken, and will not take,
directly or indirectly, any action which is designed to or which has
constituted or which might reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Shares.
(i) No filing with, or consent, approval, authorization, order,
registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign, is necessary or required for the
performance by the Selling Stockholders of their obligations hereunder or
in connection with the sale and delivery of the Shares hereunder by the
Selling Stockholders or the consummation by the Selling Stockholders of the
transactions contemplated by this Agreement, except (i) such as may have
previously been made or obtained or as may be required under the Securities
Act or under the Exchange Act with respect to the Common Stock, or under
state securities or blue sky laws or under foreign securities laws, (ii)
which shall have been obtained or made prior to the Closing Date or any
Option Closing Date, and (iii) such as have been already obtained or as may
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be required under the laws and regulations of jurisdictions outside the
United States in which the Shares are offered.
(j) Neither the Selling Stockholders nor any of their affiliates
directly, or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, or has any other
association with (within the meaning of Article I, Section (dd) of the
By-laws of the National Association of Securities Dealers, Inc.), any
member firm of the National Association of Securities Dealers, Inc.
(k) The Selling Stockholders do not have any registration or other
similar rights to have any equity or debt securities registered for sale by
the Company, except for such rights as are set forth in the First Amended
and Restated Registration Rights Agreement, dated as of January 20, 1999
among the Company, the Selling Stockholders and other parties named
therein.
Any certificate signed by or on behalf of the Selling Stockholders as such and
delivered to the Underwriter or to counsel for the Underwriter pursuant to the
terms of this Agreement shall be deemed a representation and warranty by the
Selling Stockholders to the Underwriter as to the matters covered thereby.
3. Agreements to Sell and Purchase. Each Seller hereby agrees,
severally and not jointly, to sell to the Underwriter the respective number of
Firm Shares set forth in Schedule I hereto opposite its name, and the
Underwriter, upon the basis of the representations and warranties herein
contained, but subject to the conditions hereinafter stated, agrees to purchase
from the Sellers such Firm Shares at $5.25 per share (the "Purchase Price").
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, each Seller hereby agrees,
severally and not jointly, to sell to the Underwriter the Additional Shares, as
set forth in Schedule I hereto opposite its name, and the Underwriter shall have
the right to purchase the Additional Shares at the Purchase Price. The
Underwriter may exercise this right in whole or from time to time in part by
giving notice of each election to exercise the option to the Sellers not later
than 30 days after the date of this Agreement. Any exercise notice shall specify
the number of Additional Shares to be purchased by the Underwriter and the date
on which such Additional Shares are to be purchased. Each purchase date must be
at least one business day after the notice is given and may not be earlier than
the Closing Date nor later than ten business days after the date of such notice;
provided, that unless waived by the Company, in no event shall the closing of
such purchase occur less than 24 hours after the receipt of such notice by the
Company. Additional Shares may be purchased as provided in Section 5 hereof
solely for the purpose of covering over-allotments made in connection with the
offering of the Firm Shares. On each day, if any, that Additional Shares are to
be purchased (an "Option Closing Date"), the Underwriter agrees to purchase the
number of Additional Shares that are to be purchased on such Option Closing Date
and the Sellers agree, severally and not jointly, to sell the number of
Additional Shares (subject to such adjustments to eliminate fractional shares as
you may determine) that bears the same proportion to the total number of
Additional Shares to be purchased on any such Option Closing Date as the number
of Additional Shares set forth in Schedule I opposite the name of such Seller
bears to the total number of Additional Shares set forth in Schedule I hereto.
12
Each Seller hereby agrees that, without the prior written consent of
the Underwriter, it will not, during the period ending 60 days after the date of
the Prospectus, (i) offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase, lend, or otherwise transfer or dispose of,
directly or indirectly, any shares of Common Stock or any securities convertible
into or exercisable or exchangeable for Common Stock, (ii) enter into any swap
or other arrangement that transfers to another, in whole or in part, any of the
economic consequences of ownership of the Common Stock, whether any such
transaction described in clause (i) or (ii) above is to be settled by delivery
of Common Stock or such other securities, in cash or otherwise, or (iii)
otherwise dispose of or transfer, or announce the offering of, or file any
registration statement under the Securities Act in respect of, any shares of
Common Stock, options or warrants to acquire shares of the Common Stock or
securities exchangeable or exercisable for or convertible into shares of Common
Stock.
The restrictions contained in the preceding paragraph shall not apply
to (A) the Shares to be sold hereunder, (B) the issuance by the Company of
shares of Common Stock upon the exercise of an option or warrant or the
conversion of a security outstanding on the date hereof of which the Underwriter
has been advised in writing, (C) any shares of Common Stock issued or options to
purchase Common Stock granted pursuant to existing employee benefit plans of the
Company or (D) transactions by any person other than the Company and the Selling
Stockholders relating to shares of Common Stock or other securities acquired in
open market transactions after the completion of the offering of the Shares. In
addition, each Selling Stockholder agrees that, without the prior written
consent of the Underwriter, it will not, during the period ending 60 days after
the date of the Prospectus, make any demand for, or exercise any right with
respect to, the registration of any shares of Common Stock or any security
convertible into or exercisable or exchangeable for Common Stock.
4. Terms of Public Offering. The Company is advised that the
Underwriter proposes to make a public offering of the Shares upon the terms and
in the manner set forth in the Prospectus. The Company is further advised that
the Shares are to be offered to the public initially at $5.50 per share (the
"Public Offering Price").
5. Payment and Delivery. Payment for the Firm Shares shall be made to
the Sellers by wire transfer in immediately available funds to their respective
accounts specified in writing by the Sellers against delivery of such Firm
Shares for the account of the Underwriter at the offices of Shearman & Sterling
LLP, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, 10:00 a.m., New York City
time, on November 7, 2003, or at such other place and time on the same or such
other date as shall be designated by the Underwriter. The time and date of such
payment are hereinafter referred to as the "Closing Date."
The Sellers hereby advise the Underwriter that payment for any
Additional Shares sold by the Sellers shall be made by the Underwriter to the
Sellers by wire transfer in immediately available funds to their respective
accounts specified in writing by the Sellers against delivery of such Additional
Shares for the respective accounts of the Underwriter at the offices of Shearman
& Sterling LLP, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, 10:00 a.m., New
York City time, on the date specified in the corresponding notice described in
13
Section 3 or at such other time on the same or on such other date as shall be
designated by the Underwriter.
The Firm Shares and Additional Shares shall be registered in such
names and in such denominations as the Underwriter shall request in writing not
later than one full business day prior to the Closing Date or the applicable
Option Closing Date, as the case may be. The Firm Shares and Additional Shares
shall be delivered to the Underwriter on the Closing Date or an Option Closing
Date, as the case may be, for its account, with any transfer taxes payable in
connection with the transfer of the Shares to the Underwriter duly paid, against
payment of the Purchase Price therefor.
6. Conditions to the Underwriter's Obligations. The obligations of the
Sellers to sell the Shares to the Underwriter and the obligation of the
Underwriter to purchase and pay for the Shares on the Closing Date are subject
to the satisfaction of each of the following conditions:
(a) The Prospectus containing the Rule 430A Information shall have
been filed with the Commission pursuant to Rule 424(b) within the
applicable time period prescribed for such filing pursuant to the
Securities Act; 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; and any request on the part of the
Commission for additional information shall have been complied with to the
satisfaction of counsel to the Underwriter.
(b) The Underwriter shall have received a certificate of an executive
officer of the Company, dated as of the Closing Date, to the effect that
(i) the representations and warranties of the Company contained in this
Agreement are true and correct with the same force and effect as though
expressly made at and as of the Closing Date, (ii) the Company has complied
with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to the Closing Date, and (iii) no stop
order suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or are
pending or, to the best of such officers' knowledge, are threatened by the
Commission. The officers signing and delivering such certificates may rely
upon the best of their knowledge as to proceedings threatened.
(c) The Underwriter shall have received a certificate of the general
partner of each Selling Stockholder, dated as of the Closing Date, to the
effect that (i) the representations and warranties of such Selling
Stockholder contained in this Agreement are true and correct in all
material respects with the same force and effect as though expressly made
at and as of the Closing Date and (ii) such Selling Stockholder has
complied in all material respects with all agreements and conditions on its
part to be performed under this Agreement at or prior to the Closing Date.
(d) The Underwriter shall have received on the Closing Date (1) an
opinion of Xxxxxx, Xxxx & Xxxxxxxx L.L.P., outside counsel for the Company,
dated the Closing Date, substantially to the effect set forth in Exhibit B
and (2) an opinion from Xxxx X. Xxxx, Senior Vice President and General
14
Counsel for the Company, dated the Closing Date, substantially to the
effect set forth in Exhibit C.
(e) The Underwriter shall have received on the Closing Date (i) an
opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling
Stockholders, dated the Closing Date, substantially to the effect set forth
in Exhibit D and (ii) an opinion of Walkers, Cayman Islands counsel for
Blackstone CCC Offshore Capital Partners L.P., a Selling Stockholder, dated
the Closing Date, substantially to the effect set forth in Exhibit H.
(f) The Underwriter shall have received on the Closing Date an opinion
of Xxxx, Raywid & Xxxxxxxxx, L.L.P., United States and Puerto Rico
regulatory counsel for the Company, dated the Closing Date, substantially
to the effect set forth in Exhibit E.
(g) The Underwriter shall have received on the Closing Date an opinion
of Xxxxxxx Xxxxxx, in-house Dominican Republic counsel for the Company,
dated the Closing Date, substantially to the effect set forth in Exhibit F.
The above opinions shall be rendered to the Underwriter at the request
of the Company and shall so state therein.
(h) The Underwriter shall have received on the Closing Date an opinion
of Shearman & Sterling LLP, counsel for the Underwriter, dated the Closing
Date, in form and substance satisfactory to the Underwriter.
(i) The Underwriter shall have received on each of the date hereof and
the Closing Date a letter, dated the date hereof or the Closing Date, as
the case may be, in form and substance satisfactory to the Underwriter,
from Deloitte & Touche LLP, independent public accountants, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements
and certain financial information contained in or incorporated by reference
into the Registration Statement and Prospectus including any amendment or
supplement thereto; provided that the letter delivered on the Closing Date
shall use a "cut-off date" not earlier than the date hereof.
(j) At the date of this Agreement, the Underwriter shall have received
a "lock-up" agreement substantially in the form of Exhibit A hereto signed
by the persons and entities listed on Schedule III hereto.
(k) The Amended Certificate of Incorporation which, among other
things, increases the total number of authorized shares of Common Stock of
the Company to 240,000,000, shall be effective.
(l) At Closing Time, the Shares shall have been approved for inclusion
in the Nasdaq National Market, subject only to official notice of issuance.
(m) On the Closing Date hereof, the Company and the Selling
Stockholders shall have furnished to the Underwriter and counsel to the
15
Underwriter any such further information, certificates and documents as the
Underwriter and counsel to the Underwriter may reasonably request.
(n) On or prior to the Closing Date, the Company shall have delivered
to the Transfer Agent a direction letter from the Company stating that the
certificates for all the Common Shares to be sold by the Selling
Stockholders pursuant to this Agreement may upon due presentment for
transfer be reissued by the Transfer Agent to future transferees without a
legend restricting transfers.
(o) In the event that the Underwriter exercises its option provided in
Section 3 hereof to purchase all or any portion of the Additional Shares,
the representations and warranties of the Company and the Selling
Stockholders contained herein and the statements in any certificates
furnished by the Company and the Selling Stockholders hereunder shall be
true and correct as of each Option Closing Date and the Underwriter shall
have received:
(i) A certificate, dated such Option Closing Date, of an
executive officer of the Company confirming that the certificate
delivered at Closing Date pursuant to Section 6(b) hereof remains true
and correct as of such Option Closing Date.
(ii) A certificate of the general partner of each Selling
Stockholder, dated as of such Option Closing Date, to the effect that
(i) the representations and warranties of such Selling Stockholder
contained in this Agreement are true and correct in all material
respects with the same force and effect as though expressly made at
and as of such Option Closing Date and (ii) such Selling Stockholder
has complied in all material respects with all agreements and
conditions on its part to be performed under this Agreement at or
prior to such Option Closing Date.
(iii) The opinion of Xxxxxx, Xxxx & Xxxxxxxx L.L.P., outside
counsel for the Company, in form and substance satisfactory to counsel
for the Underwriter, dated such Option Closing Date, relating to the
Additional Shares to be purchased on such Option Closing Date and
otherwise to the same effect as the opinion required by Section 6(c)
hereof.
(iv) The opinion of Xxxx X. Xxxx, Senior Vice President and
General Counsel for the Company, in form and substance satisfactory to
counsel for the Underwriter, dated such Option Closing Date, relating
to the Additional Shares to be purchased on such Option Closing Date
and otherwise to the same effect as the opinion required by Section
6(c) hereof.
(v) The opinion of Xxxx, Raywid & Xxxxxxxxx, L.L.P., United
States and Puerto Rico regulatory counsel for the Company, in form and
substance satisfactory to counsel for the Underwriter, dated such
Option Closing Date, relating to the Additional Shares to be purchased
on such Option Closing Date and otherwise to the same effect as the
opinion required by Section 6(d) hereof.
16
(vi) The opinion of Xxxxxxx Xxxxxx, in-house Dominican Republic
counsel for the Company, in form and substance satisfactory to counsel
for the Underwriter, dated such Option Closing Date, relating to the
Additional Shares to be purchased on such Option Closing Date and
otherwise to the same effect as the opinion required by Section 6(e)
hereof.
(vii) The opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for
the Selling Stockholders, dated such Option Closing Date,
substantially to the effect set forth in Exhibit D and the opinion of
Walkers, Cayman Islands counsel for Blackstone CCC Offshore Capital
Partners L.P., a Selling Stockholder, dated such Option Closing Date,
substantially to the effect set forth in Exhibit G.
(viii) The opinion of Shearman & Sterling LLP, counsel for the
Underwriter, dated such Option Closing Date, relating to the
Additional Shares to be purchased on such Option Closing Date and
otherwise to the same effect as the opinion required by Section 6(f)
hereof.
(ix) A letter from Deloitte & Touche LLP, in form and substance
satisfactory to the Underwriter and dated such Option Closing Date,
substantially in the same form and substance as the letter furnished
to the Underwriter on the Closing Date pursuant to Section 6(g)
hereof, except that the "cut-off date" in the letter furnished
pursuant to this paragraph shall be a date not more than five days
prior to such Option Closing Date.
(x) On or prior to each Option Closing Date, the Company shall
have delivered to the Transfer Agent a direction letter from the
Company stating that the certificates for all the Common Shares to be
sold by the Selling Stockholders pursuant to this Agreement may upon
due presentment for transfer be reissued by the Transfer Agent to
future transferees without a legend restricting transfers.
(p) At the Closing Date and at each Option Closing Date, counsel for
the Underwriter shall have been furnished with such documents and opinions
from the Company and its counsel and the Selling Stockholders and their
counsel, as they may reasonably require, for the purpose of enabling them
to pass upon the issuance and sale of the Shares as herein contemplated, or
in order to evidence the accuracy of any of the representations or
warranties, or the fulfillment of any of the conditions, herein contained;
and all proceedings taken by the Company and the Selling Stockholders in
connection with the issuance and sale of the Shares as herein contemplated
shall be reasonably satisfactory in form and substance to the Underwriter
and counsel for the Underwriter.
7. Covenants of the Company. In further consideration of the
agreements of the Underwriter contained in this Agreement, the Company covenants
with the Underwriter as follows:
(a) To file the Prospectus, pursuant to Rule 430A, in a form approved
by the Underwriter with the Commission within the time periods specified by
17
Rule 424(b); to comply with the Securities Act and the Exchange Act so as
to permit the completion of the distribution of the Shares as contemplated
in this Agreement and in the Prospectus; 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 delivery of a prospectus is required in connection with the
offering or sale of the Shares; and to furnish copies of the Prospectus to
the Underwriter in New York City prior to 3:00 p.m., New York City time, on
the Business Day next succeeding the date of this Agreement in such
quantities as the Underwriter may reasonably request.
(b) To advise the Underwriter promptly and, if requested by the
Underwriter, to confirm such advice in writing, (i) when any post-effective
amendment to the Registration Statement has been filed or becomes
effective, (ii) of the receipt of comments from the Commission or 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 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 the Underwriter one executed copy of the
Registration Statement as first filed with the Commission and of each
amendment to it, including all exhibits thereto and documents incorporated
by reference therein and an executed copy of consents and certificates of
experts, and to furnish to the Underwriter such number of executed copies
of the Registration Statement as so filed and of each amendment to it,
without exhibits thereto and documents incorporated by reference therein,
as the Underwriter 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 of which the
Underwriter shall not previously have been advised or to which the
Underwriter shall reasonably object.
(e) For such period as in the opinion of counsel for the Underwriter a
prospectus is required by law to be delivered in connection with sales by
the Underwriter or a dealer in connection with the offering of the Shares,
to furnish to the Underwriter and any dealer as many copies of the
Prospectus (and of any amendment or supplement to the Prospectus) as the
Underwriter or any dealer may reasonably request.
18
(f) If, during such period after the first date of the public offering
of the Shares as in the opinion of counsel for the Underwriter the
Prospectus is required by law to be delivered in connection with sales by
an Underwriter or dealer, any event shall occur or condition exist as a
result of which it is necessary to amend the Registration Statement or to
amend or supplement the Prospectus in order to make the statements therein,
in the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if, in the reasonable opinion of counsel for
the Underwriter, it is necessary to amend the Registration Statement or to
amend or supplement the Prospectus to comply with applicable law including
the Securities Act, forthwith to prepare and file with the Commission,
subject to Section 7(d), and furnish, at their own expense, to the
Underwriter and to the dealers (whose names and addresses the Underwriter
will furnish to the Company) to which Shares may have been sold by the
Underwriter and to any other dealers upon request, such amendments and
supplements so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus, as amended or supplemented, will comply with applicable law,
including the Securities Act.
(g) To endeavor to qualify the Shares for offer and sale under the
securities or Blue Sky laws of such jurisdictions as the Underwriter shall
reasonably request provided that the Company and any of its subsidiaries
shall not be required to qualify as a foreign corporation or subject itself
to taxation in excess of a nominal dollar amount in any such jurisdiction
in which it is not now subject.
(h) The Company will apply the net proceeds received by it from the
sale of Shares in the manner specified in the Prospectus under the caption
"Use of Proceeds" and as required by terms of the Amended and Restated
Credit Agreement, dated as of February 29, 2000, as amended, among
Centennial Cellular and Centennial Puerto Rico, as borrowers; the Company
and certain subsidiaries of the Company, as guarantors; and Bank of
America, N.A. and X.X. Xxxxxx Xxxxx Bank and certain other parties thereto,
as lenders.
(i) The Company will timely file such reports pursuant to the Exchange
Act as are necessary to make generally available to the Company's
securityholders as soon as practicable an earnings for the purposes of, and
to provide the benefits contemplated by the last paragraph of Section 11(a)
of the Securities Act.
(j) The Company will use its reasonable best efforts to effect the
listing of the Shares in the Nasdaq National Market.
(k) The Company, during the period when the Prospectus is required to
be delivered under the Securities Act or the Exchange Act, will file all
documents required to be filed with the Commission pursuant to the Exchange
Act within the time periods required by the Exchange Act.
8. Expenses. Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, the Company agrees to
19
pay or cause to be paid all reasonable expenses incident to the performance of
its obligations under this Agreement, including: (i) the fees, disbursements and
expenses of the Company's counsel and accountants and the Selling Stockholders'
counsels in connection with the registration and delivery of the Shares under
the Securities Act and all other fees or expenses in connection with the
preparation and filing of the Registration Statement, the Prospectus and
amendments and supplements to any of the foregoing, including all printing costs
associated therewith, and the delivering of copies thereof to the Underwriter
and dealers, in the quantities herein above specified, (ii) all costs and
expenses related to the transfer and delivery of the Shares to the Underwriter,
including those of the Selling Stockholders, and including any transfer or other
taxes payable thereon, (iii) the cost of printing or producing any Blue Sky or
legal investment memorandum in connection with the offer and sale of the Shares
under state securities laws and all expenses in connection with the
qualification of the Shares for offer and sale under state securities laws as
provided in Section 7(g) hereof, including filing fees and the reasonable fees
and disbursements of counsel for the Underwriter in connection with such
qualification and in connection with the Blue Sky or legal investment
memorandum, (iv) any filing fees and the reasonable fees and disbursements of
counsel to the Underwriter incurred in connection with the review and
qualification of the offering of the Shares by the National Association of
Securities Dealers, Inc., (v) all costs and expenses incident to listing the
Shares on the Nasdaq National Market, (vi) the costs and charges of any transfer
agent, registrar or depositary, (vii) the cost of the preparation, issuance and
delivery of the Shares, (viii) the costs and expenses of the Company relating to
investor presentations on any "road show" undertaken in connection with the
marketing of the offering of the Shares, including, without limitation, expenses
associated with the production of road show slides and graphics, fees and
expenses of any consultants engaged in connection with the road show
presentations with the prior approval of the Company, travel and lodging
expenses of the representatives and officers of the Company and any such
consultants, and (ix) all other costs and expenses incident to the performance
of the obligations of the Company and the Selling Stockholders hereunder for
which provision is not otherwise made in this Section. It is understood,
however, that except as provided in this Section, Section 9 entitled "Indemnity
and Contribution," and the last paragraph of Section 11 below, the Underwriter
will pay all of its costs and expenses, including, without limitation, fees and
disbursements of its counsel, transfer taxes payable on resale of any of the
Shares by it and any advertising expenses connected with any offers it may make.
9. Indemnity and Contribution. (a) The Company agrees to indemnify and
hold harmless the Underwriter, each Selling Stockholder and each person, if any,
who controls the Underwriter or any Selling Stockholder within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act, and
each affiliate of the Underwriter or any Selling Stockholder within the meaning
of Rule 405 under the Securities Act from and against any and all losses,
claims, damages and liabilities (including, without limitation, any legal or
other expenses reasonably incurred in connection with defending or investigating
any such action or claim) caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or any
amendment thereof or the Prospectus (as amended or supplemented if the Company
shall have furnished any amendments or supplements thereto), or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any such untrue statement
or omission or alleged untrue statement or omission based upon information
20
relating to the Underwriter furnished to the Company in writing by the
Underwriter expressly for use therein as specified in Section 9(h).
(b) Each Selling Stockholder, severally and not jointly, agrees to
indemnify and hold harmless each of the Company and the Underwriter, each
person, if any, who controls the Company or the Underwriter within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act,
and each affiliate of the Company or the Underwriter within the meaning of Rule
405 under the Securities Act from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating any
such action or claim) caused by any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or any amendment
thereof or the Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto), or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein in the light of the circumstances
under which they were made not misleading, but in each case only to the extent
that the untrue statement or alleged untrue statement or the omission or alleged
omission (i) relates to information under the caption "Principal and Selling
Stockholders" relating to such Selling Stockholder or to the participation of
such Selling Stockholder in the offering contemplated herein or (ii) was made in
conformity with information concerning such Selling Stockholder furnished to the
Company by or on behalf of that Selling Stockholder specifically for inclusion
therein (subsections (i) and (ii) together, the "Selling Stockholder
Information"). Notwithstanding any other provision of this Agreement, the
liability of the Selling Stockholders, collectively, under the indemnity
agreement contained in this paragraph and in paragraph 9(e) shall not exceed the
aggregate gross proceeds, net of underwriting discounts, of the Shares sold by
the Selling Stockholders pursuant to this Agreement.
(c) The Underwriter agrees to indemnify and hold harmless the Company,
the Selling Stockholders, the directors of the Company, the officers and each
person, if any, who controls the Company or the Selling Stockholders within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act to the same extent as the foregoing indemnity from the Company and the
Selling Stockholders to the Underwriter, but only with reference to information
relating to such Underwriter furnished to the Company in writing by the
Underwriter expressly for use in the Registration Statement, the Prospectus or
any amendments or supplements thereto as specified in Section 9(h), where such
information is actually included in the Registration Statement, the Prospectus
or any amendment or supplement thereto. Additionally, the Underwriter
acknowledges that the indemnity contained in (a) above shall not operate to
indemnify the Underwriter regarding the matters described in the prior sentence.
(d) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to Section 9(a), 9(b) or 9(c), such person (the "indemnified
party") shall promptly notify the person against whom such indemnity may be
sought (the "indemnifying party") in writing and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably satisfactory
to the indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the reasonable
21
fees and disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the reasonable fees and expenses of more than one separate firm of
legal counsel (in addition to any local counsel) for all such indemnified
parties and that all such fees and expenses shall be reimbursed as they are
incurred. Such firm shall be designated in writing by the Underwriter, in the
case of parties indemnified pursuant to Section 9(a) or Section 9(b). In the
case of any such separate firm for the Company, and such directors, officers and
control persons of the Company, such firm shall be designated in writing by the
Company. In the case of any such separate firm for the Selling Stockholders and
such control persons of the Selling Stockholders, such firm shall be designated
in writing by the Selling Stockholders. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the second and third
sentences of this paragraph, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding.
(e) To the extent the indemnification provided for in Section 9(a),
9(b) or 9(c) is unavailable to an indemnified party or insufficient in respect
of any losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Selling Stockholders on the one hand
and the Underwriter on the other hand from the offering of the Shares or (ii) if
the allocation provided by Section 9(e)(i) herein is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in Section 9(e)(i) herein but also the relative fault of
the Company and the Selling Stockholders on the one hand and of the Underwriter
on the other hand in connection with the statements or omissions that resulted
22
in such losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
Selling Stockholders on the one hand and the Underwriter on the other hand in
connection with the offering of the Shares shall be deemed to be in the same
respective proportions as the net proceeds from the offering of the Shares
(before deducting expenses) received by each of the Company and the Selling
Stockholders and the total discounts and commissions received by the
Underwriter, in each case as set forth in the table on the cover of the
Prospectus, bear to the aggregate Public Offering Price of the Shares. The
relative fault of the Company and the Selling Stockholders on the one hand and
the Underwriter on the other hand shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company, the Selling Stockholders or by the
Underwriter and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The liability
of the Selling Stockholders under the contribution agreement contained in this
Section 9(e) shall be limited to the Selling Stockholder Information and shall
not exceed the aggregate gross proceeds, net of underwriting discounts, of the
Shares sold by the Selling Stockholder under this Agreement.
(f) The Sellers and the Underwriter agree that it would not be just or
equitable if contribution pursuant to this Section 9 were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in Section 9(e). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in Section 9(e) 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 9, the
Underwriter shall not be required to contribute any amount in excess of the
amount by which the total price at which the Shares underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages that such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The remedies provided
for in this Section 9 are not exclusive and shall not limit any rights or
remedies which may otherwise be available to any indemnified party at law or in
equity.
(g) The indemnity and contribution provisions contained in this
Section 9 and the representations, warranties and other statements of the
Company and the Selling Stockholders contained in this Agreement shall remain
operative and in full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by or on behalf of the Underwriter, or
any person controlling the Underwriter or any affiliate of the Underwriter, the
Selling Stockholders or any person controlling the Selling Stockholders, or the
Company, its officers or directors or any person controlling the Company and
(iii) acceptance of and payment for any of the Shares.
(h) The only information furnished by the Underwriter to the Company
for the purposes of Section 1(a) and Sections 9(a) and (c) hereof, to the extent
such statements relate to the Underwriter, are (i) the names of the Underwriter
set forth on the front cover page of the Prospectus; (ii) statements set forth
in first full paragraph appearing under the caption "Underwriting--Commissions
and Expenses" on page S-23 of the Prospectus, relating to the public offering
price at which the Underwriter will offer the Shares; and (iii) statements set
forth in the first full paragraph appearing under the caption
23
"Underwriting--Stabilization, Short Positions and Penalty Bids" on page S-24 of
the Prospectus, relating to the over-allotment, stabilizing and covering
transactions and penalty bids.
10. Termination. This Agreement shall be subject to termination by
notice given by the Underwriter to the Company, if subsequent to the execution
and delivery of this Agreement, there shall have occurred (i) any change, or any
development or event involving a prospective change, in the condition (financial
or other), business, properties or results of operations of the Company and its
subsidiaries taken as one enterprise which, in the judgment of the Underwriter
is material and adverse and makes it impractical or inadvisable to proceed with
the completion of the offering or the sale of and payment for the Shares; (ii)
any downgrading in the rating of any debt securities of the Company by any
"nationally recognized statistical rating organization" (as defined for purposes
of Rule 436(g) under the Securities Act), or any public announcement that any
such organization has under surveillance or review its rating of any debt
securities of the Company (other than an announcement with positive implications
of a possible upgrading, and no implication of a possible downgrading, of such
rating) or any announcement that the Company has been placed on negative outlook
which, in the judgment of the Underwriter makes it impracticable or inadvisable
to proceed with the offering, sale or delivery of the Shares on the terms and in
the manner contemplated in the Prospectus; (iii) any change in U.S. or
international financial, political or economic conditions or currency exchange
rates or exchange controls as would, in the judgment of the Underwriter, be
likely to prejudice materially the success of the proposed issue, sale or
distribution of the Shares, whether in the primary market or in respect of
dealings in the secondary market; (iv) any material suspension or material
limitation of trading in securities generally on the New York Stock Exchange or
any setting of minimum prices for trading on such exchange, or any suspension of
trading of any securities of the Company on any exchange or in the
over-the-counter market; (v) any banking moratorium declared by U.S. Federal or
New York authorities; (vi) any major disruption of settlements of securities or
securities payment or clearance services in the United States or (vii) any
attack on, outbreak or escalation of hostilities or act of terrorism involving
the United States, any declaration of war by Congress or any other national or
international calamity or emergency if, in the judgment of the Underwriter, the
effect of any such attack, outbreak, escalation, act, declaration, calamity or
emergency makes it impracticable or inadvisable to proceed with completion of
the offer, sale or delivery of and payment for the Shares on the terms and in
the manner contemplated in the Prospectus.
11. Effectiveness. This Agreement shall become effective upon the
execution and delivery hereof by the parties hereto.
If this Agreement shall be terminated by the Underwriter, or because
of any failure or refusal on the part of any Seller to comply with the terms or
to fulfill any of the conditions of this Agreement or if for any reason any
Seller shall be unable to perform its obligations under this Agreement, the
defaulting Seller(s) will reimburse the Underwriter as have so terminated this
Agreement for all reasonable fees and disbursements of their counsel in
connection with this Agreement or the offering contemplated hereunder, provided
that the Sellers shall have no obligation to reimburse the Underwriter that has
breached its obligations hereunder for any such out-of-pocket expenses.
24
12. Notices. All notices and other communications under this Agreement
shall be in writing and mailed, delivered or sent by facsimile transmission to:
if sent to the Underwriter, c/x Xxxxxx Brothers Inc., 000 Xxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Global Finance; if sent to the Company,
Attention: Xxxx X. Xxxx, facsimile number (000) 000-0000; and if sent to the
Selling Stockholders, c/o The Blackstone Group, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000.
13. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
14. Applicable Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
15. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
25
Very truly yours,
CENTENNIAL COMMUNICATIONS CORP.
By: /s/ Xxx Xxxxxxxxxxx
-----------------------
Name: Xxx Xxxxxxxxxxx
Title: CFO
26
BLACKSTONE CCC CAPITAL PARTNERS L.P.,
By: Blackstone Management Associates
III L.L.C., its general partner
By: /s/ Xxxxxxxx X. Xxxxxx
--------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Member
BLACKSTONE CCC OFFSHORE CAPITAL PARTNERS L.P.,
By: Blackstone Management Associates
III L.L.C., its general partner
By: /s/ Xxxxxxxx X. Xxxxxx
--------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Member
BLACKSTONE FAMILY INVESTMENT PARTNERSHIP III L.P.,
By: Blackstone Management Associates
III L.L.C., its general partner
By: /s/ Xxxxxxxx X. Xxxxxx
--------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Member
27
Accepted as of the date hereof
XXXXXX BROTHERS INC.
By: /s/ Xxxxxxx X. Xxxxx
-------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
28
SCHEDULE I
----------
Number Maximum Number
of Firm of Additional
Sellers Shares to Shares to
be Sold be Sold
Centennial Communications Corp. 7,000,000 1,050,000
Blackstone CCC Capital Partners L.P............... 2,386,752 358,013
Blackstone CCC Offshore Capital Partners L.P...... 433,248 64,987
Blackstone Family Investment Partnership III L.P.. 180,000 27,000
------- ------
Total.................................... 10,000,000 1,500,000
========== =========
II-1
29
SCHEDULE II
-----------
List of Significant Subsidiaries
--------------------------------
Centennial Caribbean Holding Corp.
Centennial Michigan RSA 7 Cellular Corp.
Centennial Dominican Republic Holding Corp.
Centennial Puerto Rico Holding Corp. II
Michiana Metronet
Centennial Cellular Operating Co. LLC
Centennial Puerto Rico Operations Corp
Centennial Puerto Rico Cable TV Corp
III-1
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SCHEDULE III
------------
Directors and Officers
----------------------
Xxxxxxx X. Small
Xxxxxx X. Xxxxxxxxxxx
Xxxxxxx X. Xxxxxxxx
Xxxx X. xx Xxxxx
Xxxxxx X. Xxxxx, Xx.
Xxxxxx X. Bucks
Xxxx X. Xxxx
Xxxxxx X. Xxxxxx
Xxxxxx X. XxXxxxxxx
Xxxxxxx X. de Xxxxxx
Xxxxx X. Xxxxxxxx
Xxxxxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
J. Xxxxxxx Xxxxxxxxxxx
Xxxxx X. Xxxx
Xxxxx X. Xxxxxx
Xxxxxx X. Xxxx
Principal Stockholders
----------------------
Welsh, Carson, Xxxxxxxx & Xxxxx VII, L.P.
Welsh, Carson, Xxxxxxxx & Xxxxx VIII, L.P.
WCAS Information Partners, L.P.
WCAS Capital Partners III, L.P.
Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxxx
Xxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxx Trust
Xxxx X. Xxxxxxxx Trust
Xxxxxx X. Xxxxxxxx Trust
Xxxxxx X. XxXxxxxxx
Xxxxxx X. Xxxx
Xxxxxx X. Xxxxxxxxx
Xxxx X. Xxxxxxx
Xxxxxxxx X. Xxxxxx
D. Xxxxx Xxxxxxx
Xxxxxxxxx X. Xxxxxx
Xxxxx X. XxxXxxxx
Signal/Centennial Partners, L.L.C
Guayacan Private Equity Fund, X.X
XX-1
31
EXHIBIT A
---------
[FORM OF LOCK-UP LETTER]
November 4, 2003
Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Dear Ladies and Gentlemen:
The undersigned understands that Xxxxxx Brothers Inc. (the "Underwriter")
proposes to enter into an Underwriting Agreement (the "Underwriting Agreement")
with Centennial Communications Corp., a Delaware corporation (the "Company") and
certain selling stockholders providing for the public offering (the "Public
Offering") by the Underwriter of shares (the "Shares") of the common stock
($0.01 par value) of the Company (the "Common Stock").
To induce the Underwriter that may participate in the Public Offering to
continue their efforts in connection with the Public Offering, the undersigned
hereby agrees that, without the prior written consent of the Underwriter, it
will not, during the period commencing on the date hereof and ending 60 days
after the date of the prospectus supplement relating to the Public Offering (the
"Prospectus"), (1) offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase, lend, or otherwise transfer or dispose of,
directly or indirectly, any shares of Common Stock (including, without
limitation, shares of Common Stock that may be deemed to be beneficially owned
by the undersigned in accordance with the rules and regulations of the
Securities and Exchange Commission and shares of Common Stock that may be issued
upon exercise of any option or warrant) or any securities convertible into or
exercisable or exchangeable for Common Stock, or (2) enter into any swap or
other arrangement that transfers to another, in whole or in part, any of the
economic consequences of ownership of the Common Stock, whether any such
transaction described in clause (1) or (2) above is to be settled by delivery of
Common Stock or such other securities, in cash or otherwise. The foregoing
sentence shall not apply to (a) the sale of any Shares to the Underwriter
pursuant to the Underwriting Agreement or (b) transactions relating to shares of
Common Stock or other securities acquired in open market transactions after the
completion of the Public Offering.
Notwithstanding the foregoing, the undersigned may transfer the undersigned
shares of Common Stock or securities exercisable or exchangeable for Common
Stock (a) as a bona fide gift or gifts, provided that the donee or donees
thereof agree to be bound in writing by the restrictions set forth herein, and
provided further that no filing by any donor or donee under Section 16(a) of the
Securities Exchange Act of 1934, as amended, shall be required or shall be made
B-1
32
voluntarily in connection with such transfer, (b) to any trust, partnership or
other entity for the direct or indirect benefit of the undersigned or the
immediate family of the undersigned, provided that the trustee of the trust or
the authorized officer of the partnership or the other entity agrees to be bound
in writing by the restrictions set forth herein, and provided further that any
such transfer shall not involve a disposition for value, (c) to stockholders of
such person provided that the transferee thereof agrees to be bound in writing
by the restrictions set forth herein, and provided further that no filing by any
transferee under Section 16(a) of the Securities Exchange Act of 1934, as
amended, shall be required or shall be made voluntarily in connection with such
transfer or (d) upon exercise of stock options issued by the Company solely in
connection with a cashless option exercise transaction. For purposes of this
letter agreement, "immediate family" shall mean any relationship by blood,
marriage or adoption, not more remote than first cousin.
In addition, the undersigned agrees that, without the prior written consent
of the Underwriter, it will not, during the period commencing on the date hereof
and ending 60 days after the date of the Underwriting Agreement, make any demand
for or exercise any right with respect to, the registration of any shares of
Common Stock or any security convertible into or exercisable or exchangeable for
Common Stock.
The undersigned also agrees and consents to the entry of stop transfer
instructions with the Company's transfer agent and registrar against the
transfer of the undersigned's shares of Common Stock except in compliance with
the foregoing restrictions.
The undersigned acknowledges that whether or not the Public Offering
actually occurs depends on a number of factors, including market conditions
and that any Public Offering will only be made if the Company, certain
selling stockholders, if any, and the Underwriter agree upon the terms of,
and enter into, the Underwriting Agreement. This letter agreement shall
automatically terminate on the earlier of (i) if for any reason, the
Closing Date (as such term is defined in the Underwriting Agreement) does
not occur prior to November 14, 2003 or (ii) if for any reason, the
Underwriting Agreement is terminated prior to the Closing Date.
B-2
33
The undersigned understands that the Company and the Underwriter are
relying upon this letter agreement in proceeding toward consummation of the
Public Offering. The undersigned further understands that this letter agreement
is irrevocable and shall be binding upon the undersigned's heirs, legal
representatives, successors and assigns.
Very truly yours,
___________________________________
Signature of Centennial Stockholder
___________________________________
Name of Centennial Stockholder
B-3
34
