Exhibit 1
to Registration Statement
CENTURY TELEPHONE ENTERPRISES, INC.
$____________ ___ percent Senior Debt Securities due ____
UNDERWRITING AGREEMENT
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___________ ___, 1998
[name]
As Representatives of
the several Underwriters
[address]
Dear Ladies and Gentlemen:
Century Telephone Enterprises, Inc., a Louisiana corporation (the
"Company"), proposes to issue and sell an aggregate of $______________
principal amount of the Company's ___ percent Senior Debt Securities
due ____ (the "Securities") to be issued pursuant to an Indenture
dated as of March 31, 1994 (the "Indenture"), between the Company and
Regions Bank of Louisiana (successor-in-interest to First American
Bank & Trust of Louisiana), as Trustee (the "Trustee"). The Secur-
ities will be sold to you and to the other underwriters named
in Schedule I (collectively, the "Underwriters") for whom you are
acting as representatives (the "Representatives").
The purchase price for the Securities to be paid by the several
Underwriters shall be agreed upon by the Company and the
Representatives, acting on behalf of the several Underwriters, and
such agreement shall be set forth in a separate written instrument
substantially in the form of Exhibit A hereto (the "Price
Determination Agreement"). The Price Determination Agreement may take
the form of an exchange of any standard form of written
telecommunication among the Company and the Representatives and shall
specify such applicable information as is indicated in Exhibit A
hereto. The offering of the Securities will be governed by this
Agreement, as supplemented by the Price Determination Agreement. From
and after the date of the execution and delivery of the Price
Determination Agreement, this Agreement shall be deemed to
incorporate, and unless the context otherwise indicates all references
contained herein to "this Agreement" and to the phrase "herein" shall
be deemed to include, the Price Determination Agreement.
The Company confirms as follows its agreements with the
Representatives and the several other Underwriters.
1. Agreement to Sell and Purchase.
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(a) On the basis of the representations, warranties and
agreements of the Company herein contained and subject to all the
terms and conditions of this Agreement, the Company agrees to sell to
each Underwriter named below, and each Underwriter agrees, severally
and not jointly, to purchase from the Company, the principal amount of
the Securities set forth opposite the name of such Underwriter in
Schedule I, plus such additional principal amount of Securities which
such Underwriter may become obligated to purchase pursuant to Section
8 hereof, all at the purchase price plus accrued interest, if any,
from _________ __, 1998, to the Closing Date (as hereinafter defined),
to be agreed upon by the Representatives and the Company in accordance
with Section 1(b) and as set forth in the Price Determination
Agreement.
(b) The purchase price for the Securities to be paid by the
several Underwriters shall be agreed upon and set forth in the Price
Determination Agreement, which shall be dated the Execution Date (as
hereinafter defined), and a Final Prospectus (as hereinafter defined)
containing such price information shall be filed pursuant to 424(b)
under the Securities Act of 1933, as amended (the "Act").
2. Delivery and Payment. Delivery of the Securities shall be
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made to the Representatives for the accounts of the Underwriters
against payment of the purchase price by wire transfer in same day
funds to the Company or its order at the office of [name & address] or
at such other location as the parties may agree. Such payment shall
be made at 10:00 a.m., New York City time, on the third business day
following the date of this Agreement or at such time on such other
date, not later than seven business days after the date of this
Agreement, as may be agreed upon by the Company and the
Representatives (such date is hereinafter referred to as the "Closing
Date").
Certificates evidencing the Securities shall be in temporary or
definitive form and shall be registered in such names and in such
authorized denominations as the Representatives shall request by
written notice to the Company at least two business days prior to the
Closing Date. For the purpose of expediting the checking and
packaging of certificates for the Securities, the Company agrees to
make such certificates available for inspection at least 24 hours
prior to the Closing Date.
The cost of original issue tax stamps, if any, in connection with
the issuance and sale of the Securities by the Company to the
respective Underwriters shall be borne by the Company. The Company
will pay and hold each Underwriter and any subsequent holder of the
Securities harmless from any and all liabilities with respect to or
resulting from any failure or delay in paying federal and state stamp
and other issuance taxes, if any, which may be payable or determined
to be payable in connection with the original issuance or sale to such
Underwriter of the Securities.
3. Representations and Warranties of the Company. The Company
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represents and warrants to and covenants with each Underwriter that:
(a) The Company meets the requirements for use of Form S-3.
A registration statement (Registration No. 333-_____) on Form S-3
relating to the Securities, and the offering thereof from time to time
in accordance with Rule 415 under the Act, including a Basic
Prospectus (as hereinafter defined) and such amendments to such
registration statement as may have been required to the date of this
Agreement, has been (i) prepared by the Company under the provisions
of the Act, and the rules and regulations thereunder (collectively
referred to as the "Rules and Regulations") of the Securities and
Exchange Commission (the "Commission"); (ii) filed with the
Commission; and (iii) declared effective by the Commission. Copies of
such registration statement and amendments, if any, and of any
Preliminary Prospectus (as hereinafter defined) used by the Company
have been delivered to the Representatives. The offering of the
Securities is a Delayed Offering (as hereinafter defined) and,
although the Basic Prospectus may not include all the information with
respect to the Securities and the offering thereof required by the Act
and the Rules and Regulations to be included in the Final Prospectus,
such Basic Prospectus includes all such information required by the
Act and the Rules and Regulations to be included therein as of the
Effective Date (as hereinafter defined). The Company will file the
Final Prospectus in accordance with Rule 424(b) of the Rules and
Regulations. As filed, the Final Prospectus shall include all
required information with respect to the Securities and the offering
thereof and, except to the extent the Representatives shall agree in
writing to a modification, shall be in all substantive respects in the
form furnished to you prior to the Execution Date or, to the extent
not completed at the Execution Date, shall contain such specific
additional information and other changes (beyond that contained in
such Basic Prospectus and any Preliminary Prospectus) as the Company
has advised you, prior to the Execution Date.
The term "Registration Statement" means such registration
statement as amended or supplemented to the date hereof, including
incorporated documents, financial statements and all exhibits, each as
amended, and, in the event any post-effective amendment to such
registration statement becomes effective prior to the Closing Date,
shall also mean such registration statement as so amended. The term
"Effective Date" means the later of the date the Registration
Statement initially became effective, the date that any post-effective
amendment or amendments thereto became or become effective or the date
of the filing of the Company's most recent Annual Report on Form 10-K.
The term "Execution Date" means the date that this Agreement is
executed and delivered by the parties hereto. The term "Basic
Prospectus" means the prospectus contained in and forming a part of
the Registration Statement, including incorporated documents or
documents deemed to be incorporated therein, at the Execution Date.
The term "Preliminary Prospectus" means any preliminary prospectus (or
any supplement thereto) which describes the Securities and the
offering thereof and is used prior to the filing of the Final
Prospectus. The term "Final Prospectus" means the prospectus
supplement relating to the Securities as first filed with the
Commission pursuant to Rule 424(b) of the Rules and Regulations after
the Execution Date, together with the Basic Prospectus. The term
"Delayed Offering" means an offering of securities pursuant to Rule
415 under the Rules and Regulations which does not commence promptly
after the effective date of a registration statement.
(b) On the Effective Date, the Registration Statement did
and when the Final Prospectus is first filed with the Commission
pursuant to Rule 424(b), the Final Prospectus (and any supplement
thereto), including the financial statements included or incorporated
by reference in the Final Prospectus, will comply in all material
respects with the applicable provisions of the Act, the Rules and
Regulations, the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), the rules and regulations thereunder (the "Exchange
Act Rules and Regulations"), the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act") and the rules and regulations
thereunder (the "Trust Indenture Act Rules and Regulations") and will
contain all information required to be included therein in accordance
with the Act, the Rules and Regulations, the Exchange Act and the
Exchange Act Rules and Regulations. On the Effective Date, the
Registration Statement did 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.
At the date the Final Prospectus (together with any supplement
thereto) is first filed with the Commission pursuant to Rule 424(b)
and at the Closing Date, the Final Prospectus did not or will not
contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading. The foregoing representations and warranties in this
Section 3(b) do not apply to any statements or omissions made in
reliance on and in conformity with information furnished in writing to
the Company by the Representatives specifically for inclusion in the
Registration Statement or Final Prospectus (or any supplement
thereto). On the Effective Date, the date the Final Prospectus is
first filed with the Commission pursuant to Rule 424(b), and at all
subsequent times to and including the Closing Date, the Indenture did
or will comply with all applicable provisions of the Trust Indenture
Act and the Trust Indenture Act Rules and Regulations.
(c) The documents which are incorporated by reference in
the Basic Prospectus, any Preliminary Prospectus and the Final
Prospectus or from which information is so incorporated by reference,
when they became effective or were filed with the Commission, as the
case may be, complied in all material respects with the requirements
of the Act, the Rules and Regulations, the Exchange Act or the
Exchange Act Rules and Regulations, as applicable; and any documents
so filed and incorporated by reference subsequent to the Effective
Date shall, when they are filed with the Commission, conform in all
material respects with the requirements of the Act, the Rules and
Regulations, the Exchange Act or the Exchange Act Rules and
Regulations, as applicable.
(d) Each of the Company and each of its subsidiaries listed
on Schedule II hereto (the "Subsidiaries") is, and at the Closing Date
will be, a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation. Each of
the Company and each of the Subsidiaries has, and at the Closing Date
will have, full corporate power and authority to conduct all the
activities conducted by it, to own or lease all the assets owned or
leased by it and to conduct its business as described in the
Registration Statement and the Final Prospectus. Each of the Company
and each of the Subsidiaries is, and at the Closing Date will be, duly
licensed or qualified to do business and in good standing as a foreign
corporation in all jurisdictions in which the nature of the activities
conducted by it or the character of the assets owned or leased by it
makes such licensing or qualification necessary except where the
failure to be so qualified or licensed would not have a material
adverse effect on the Company and its subsidiaries, taken as a whole.
For purposes of this Agreement, (i) "subsidiaries" shall mean (a) the
Company's directly and indirectly majority-owned corporate
subsidiaries, (b) the Company's directly and indirectly majority-owned
limited liability companies and (c) the partnerships, joint ventures
and other entities of which the Company or any subsidiary is the
majority owner and acts as the managing general partner or in any
similar capacity and (ii) the phrase "Company and its subsidiaries,
taken as a whole" shall be construed to include minority-owned
partnerships in which a corporate subsidiary of the Company is a
limited partner, but only to the extent of the Company's equity
interests in such partnerships. Complete and correct copies of the
certificate of incorporation and of the by-laws of the Company and
each of the Subsidiaries and all amendments thereto have been made
available to the Representatives, and no changes therein will be made
subsequent to the Execution Date and prior to the Closing Date.
(e) The Securities have been duly and validly authorized
and, when authenticated by the Trustee and issued, delivered and sold
in accordance with this Agreement and the Indenture, will have been
duly and validly executed, authenticated, issued and delivered and
will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their respective
terms and entitled to the benefits provided by the Indenture except
(i) that such enforcement may be subject to bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other similar
laws, now or hereafter in effect, relating to creditors' rights
generally and (ii) that the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(f) The description of the Securities in the Registration
Statement and the Final Prospectus is, and at the Closing Date will
be, complete and accurate in all material respects and, insofar as
such description contains statements constituting a summary of the
legal matters or documents referred to therein, such description
fairly summarizes the information referred to therein.
(g) The financial statements and schedules included or
incorporated by reference in the Registration Statement or the Final
Prospectus present fairly the consolidated financial condition of the
Company as of the respective dates thereof and the consolidated
results of operations and cash flows of the Company for the respective
periods covered thereby, all in conformity with generally accepted
accounting principles applied on a consistent basis throughout the
entire period involved, except as otherwise disclosed in the
Registration Statement or the Final Prospectus. [The selected
consolidated financial data included in the Registration Statement or
the Final Prospectus present fairly the information shown therein and
have been compiled on a basis consistent with that of the audited
consolidated financial statements of the Company included in the
Registration Statement or the Final Prospectus.] No other financial
statements or schedules of the Company are required by the Act, the
Rules and Regulations or the Exchange Act to be included in or
incorporated by reference into the Registration Statement or the Final
Prospectus. KPMG Peat Marwick LLP ("Peat Marwick") and Deloitte &
Touche LLP ("Deloitte & Touche"), who have reported on certain
financial statements and schedules of the Company and Pacific Telecom,
Inc., respectively, each are or were, as the case may be, independent
accountants with respect to the Company and Pacific Telecom, Inc.,
respectively, as required by the Act and the Rules and Regulations.
(h) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Final
Prospectus and prior to the Closing Date, except as set forth in or
contemplated by the Registration Statement and the Final Prospectus,
(i) there has not been and will not have been any material change in
the capitalization of the Company, (ii) there has not been and will
not have been any material adverse change in the business, properties,
condition (financial or otherwise) or results of operations of the
Company and its subsidiaries, taken as a whole, arising for any reason
whatsoever, (iii) except in the ordinary course of business, neither
the Company nor any of the Subsidiaries has incurred nor will it
voluntarily incur any liabilities or obligations, direct or
contingent, that are material to the Company and its subsidiaries,
taken as a whole, and (iv) the Company has not and will not have paid
or declared any dividends or other distributions of any kind on any
class of its capital stock except cash dividends paid in the ordinary
course of business and consistent with past practice.
(i) The Company is not an "investment company" or an
"affiliated person" of, or "promoter" or "principal underwriter" for,
an "investment company," as such terms are defined in the Investment
Company Act of 1940, as amended.
(j) Except as set forth in the Registration Statement and
the Final Prospectus, there are no actions, suits or proceedings
pending or, to the best of the Company's knowledge, threatened against
or affecting the Company or any of its subsidiaries or any of their
respective officers in their capacity as such, before or by any
federal or state court, commission, regulatory body, administrative
agency or other governmental body, domestic or foreign, that is likely
to materially and adversely affect the business, properties, condition
(financial or otherwise) or results of operations of the Company and
its subsidiaries, taken as a whole. All actions, suits or proceedings
now pending against the Company or any of its subsidiaries, or any of
their respective officers in their capacities as such, before any
Federal or state court, commission, regulatory body, administrative
agency or other governmental body, domestic or foreign, if decided or
resolved in a manner unfavorable to the Company or any of its
subsidiaries, would not be likely to, singly or in the aggregate,
materially and adversely affect the business, properties, condition
(financial or otherwise) or results of operations of the Company and
its subsidiaries, taken as a whole.
(k) The Company and each of the Subsidiaries has, and at
the Closing Date, will have (i) such franchises, certificates,
authorities or permits issued by the appropriate state, federal or
foreign regulatory agencies or bodies necessary to conduct the
business now operated by them, other than those the absence of which
would not be likely to have a materially adverse effect on the
business, properties, condition (financial or otherwise) or results of
operations of the Company and its subsidiaries, taken as a whole, and
neither the Company nor any of the Subsidiaries has received any
notice of proceedings relating to the revocation or modification of
any such franchise, certificate, authority or permit which, singly or
in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would be likely to materially and adversely affect the
business, properties, condition (financial or otherwise) or results of
operations of the Company and its subsidiaries, taken as a whole, (ii)
complied in all material respects with all laws, statutes, ordinances,
rules, regulations, orders or decrees of any court, governmental body
or regulatory authority or administrative agency having jurisdiction
over the Company or any Subsidiary or any of the property or assets of
the Company or any Subsidiary (including, without limitation, any such
laws, statutes, ordinances, rules regulations, orders or decrees with
respect to environmental protection or the release, handling,
treatment, storage or disposal of hazardous substances or toxic
wastes), the failure to comply with which would be likely to
materially adversely affect the business, properties, condition
(financial or otherwise) or results of operations of the Company and
its subsidiaries, taken as a whole, and (iii) performed in all
material respects all of its obligations required to be performed by
it under any material contract or other instrument to which it is a
party or by which its property is bound or affected, and is not, and
at the Closing Date, will not be, in default under any such contract
or instrument the effect of which would be likely to materially
adversely affect the business, properties, condition (financial or
otherwise) or results of operations of the Company and its
subsidiaries, taken as a whole. To the best knowledge of the Company,
no other party under any material contract or other instrument to
which it or any Subsidiary is a party is in default in any respect
thereunder, except for any such defaults (alone or collectively) that
would not be likely to have a material adverse effect on the Company
and its subsidiaries, taken as a whole; provided that it is understood
and agreed that neither the Company nor any Subsidiary has undertaken
any special investigation to determine compliance by such other
parties under any such contract or other instrument. The Company is
not, and at the Closing Date, will not be, in violation of any
provision of its articles of incorporation or by-laws. The
Subsidiaries are not, and at the Closing Date, will not be, in
violation of any material provision of their respective articles of
incorporation or by-laws (or comparable documents).
(l) No consent, approval, authorization or order of, or any
filing, registration, qualification or declaration with, any court or
governmental agency or body is required for (i) the execution,
delivery or performance of this Agreement, the Securities or the
Indenture by the Company, (ii) the authorization, offer, issuance,
transfer, sale or delivery of the Securities by the Company in
accordance herewith or (iii) the consummation by the Company of the
transactions on its part contemplated herein and by the Indenture,
except such as may have been obtained under the Act, the Rules and
Regulations, the Trust Indenture Act or the Trust Indenture Act Rules
and Regulations and such as may be required under foreign or state
securities or Blue Sky laws or the by-laws and rules of the National
Association of Securities Dealers, Inc. (the "NASD") in connection
with the purchase and distribution of the Securities by the
Underwriters.
(m) The Company has full corporate power and authority to
enter into this Agreement. This Agreement has been duly authorized,
executed and delivered by the Company and, when executed and delivered
by the Representatives, constitutes a valid and binding agreement of
the Company and is enforceable against the Company in accordance with
the terms hereof, except (i) that such enforcement may be subject to
bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws, now or hereafter in effect, relating
to creditors' rights generally, (ii) that the remedy of specific
performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought and (iii) rights
to indemnity and contribution hereunder may be limited by federal or
state laws relating to securities or the policies underlying such
laws. The Indenture has been duly authorized and constitutes a valid
and binding agreement of the Company and is enforceable against the
Company in accordance with its terms, except (i) that such enforcement
may be subject to bankruptcy, insolvency, reorganization, moratorium
or other similar laws, now or hereafter in effect, relating to
creditors' rights generally and (ii) that the remedy of specific
performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought. The execution,
delivery and performance by the Company of this Agreement, the
Indenture and the Securities and the consummation of the transactions
contemplated hereby and thereby will not result in the creation or
imposition of any lien, charge or encumbrance upon any of the assets
of the Company or any of the Subsidiaries pursuant to the terms or
provisions of, or, except as disclosed in the Registration Statement
or the Final Prospectus, result in a breach or violation of any of the
terms or provisions of, or constitute a default under, or give any
other party a right to terminate any of its obligations under, or
result in the acceleration of any obligation under, the articles of
incorporation or by-laws (or comparable instruments) of the Company or
any of the Subsidiaries, any indenture, mortgage, deed of trust,
voting trust agreement, loan agreement, bond, debenture, note
agreement or other evidence of indebtedness, lease, contract or other
agreement or instrument to which the Company or any of the
Subsidiaries is a party or by which the Company or any of the
Subsidiaries or any of their respective properties is or are bound or
affected, or violate or conflict with any franchise or any judgment,
ruling, decree, order, statute, rule or regulation of any court or
other governmental agency or body applicable to the business or
properties of the Company or any of the Subsidiaries, except for any
liens, charges, encumbrances, breaches, violations, defaults,
termination rights or accelerations that do not adversely affect the
business, properties, condition (financial or otherwise) or results of
operations of the Company and its subsidiaries, taken as a whole.
(n) The Company and each of the Subsidiaries has good and
marketable title to all franchises, properties and assets owned by it,
which are material to the business or operations of the Company and
its subsidiaries, taken as a whole, free and clear of all liens,
charges, encumbrances or restrictions, except such as are described in
the Final Prospectus. The Company and each of the Subsidiaries has
valid, subsisting and enforceable leases for the properties leased by
it, with such exceptions as would not materially interfere with the
business or operations of the Company and its subsidiaries, taken as a
whole.
(o) All existing material contracts described in the Final
Prospectus to which the Company or any of the Subsidiaries is a party
have been duly authorized, executed and delivered by the Company or
such Subsidiary, constitute valid and binding agreements of the
Company or such Subsidiary and are enforceable against the Company or
such Subsidiary in accordance with the terms thereof, except (i) that
such enforcement may be subject to bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other similar
laws, now or hereafter in effect, relating to creditors' rights
generally and (ii) that the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(p) No statement, representation, warranty or covenant made
by the Company in this Agreement or the Indenture or made in any
certificate or document required by this Agreement to be delivered to
the Representatives was or will be, when made, inaccurate, untrue or
incorrect in any material respect.
(q) No holder of securities of the Company has rights to
the registration of any securities of the Company because of the
filing of the Registration Statement.
4. Agreements of the Company. The Company agrees with each of
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the several Underwriters as follows:
(a) The Company will not, either prior to the Effective
Date or thereafter during such period as the Final Prospectus is
required by law to be delivered in connection with sales of the
Securities by an Underwriter or dealer, file any amendment or
supplement to the Registration Statement or the Final Prospectus,
unless a draft thereof shall first have been submitted to the
Representatives within a reasonable period of time prior to the filing
thereof and the Representatives shall not have objected thereto in
good faith.
(b) The Company will notify the Representatives promptly,
and will confirm such advice in writing, (1) when any post-effective
amendment to the Registration Statement becomes effective, (2) of any
request by the Commission for amendments or supplements to the
Registration Statement or the Final Prospectus or for additional
information, (3) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose or the threat thereof,
(4) of the happening of any event during the period mentioned in the
second sentence of Section 4(e) that in the judgment of the Company
requires the Company to file an amendment or supplement to the
Registration Statement and (5) of receipt by the Company, or any
representatives or attorney of the Company, of any other communication
from the Commission relating to the Registration Statement, the Basic
Prospectus, any Preliminary Prospectus or the Final Prospectus or the
offering of the Securities. If at any time the Commission shall issue
any order suspending the effectiveness of the Registration Statement,
the Company will make every reasonable effort to obtain the withdrawal
of such order at the earliest possible moment.
(c) The Company will furnish to the Representatives,
without charge, one complete copy of the Registration Statement and of
any post-effective amendment thereto, including financial statements
and schedules, and all exhibits thereto (including any documents filed
under the Exchange Act and deemed to be incorporated by reference into
the Final Prospectus), and will furnish to the Representatives,
without charge, for transmittal to each of the other Underwriters,
additional copies of the Registration Statement and any post-effective
amendment thereto, but without exhibits and documents incorporated by
reference therein.
(d) The Company will comply with all the provisions of any
undertakings contained in the Registration Statement.
(e) On the Effective Date, and thereafter from time to
time, the Company will deliver to each of the Underwriters, without
charge, as many copies of the Final Prospectus or any supplement
thereto, as the Representatives may reasonably request. The Company
consents to the use of any Preliminary Prospectus and the Final
Prospectus or any amendment or supplement thereto by the several
Underwriters and by all dealers to whom the Securities may be sold,
both in connection with the offering or sale of the Securities and for
any period of time thereafter during which a prospectus is required by
law to be delivered in connection therewith. If during such period of
time, any event shall occur which in the judgment of the Company or
counsel to the Underwriters should be set forth in the Final
Prospectus in order to make any statement therein, in the light of the
circumstances under which it was made when delivered, not misleading,
or if it is necessary to supplement the Final Prospectus to comply
with law, the Company will forthwith prepare and duly file with the
Commission an appropriate supplement thereto, and will deliver to each
of the Underwriters, without charge, such number of copies thereof as
the Representatives may reasonably request. The Company shall not
file any document under the Exchange Act before the termination of the
offering of the Securities by the Underwriters if such document would
be deemed to be incorporated by reference into any Preliminary
Prospectus or the Final Prospectus, unless a draft thereof shall first
have been submitted to the Representatives within a reasonable period
of time prior to the filing thereof and the Representatives shall not
have objected thereto in good faith.
(f) Prior to any public offering of the Securities by the
Underwriters, the Company will cooperate with the Representatives and
counsel to the Underwriters in connection with the registration or
qualification of the Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions as the
Representatives may request; provided, that in no event shall the
Company be obligated to qualify to do business in any jurisdiction
where it is not now so qualified or to take any action which would
subject it to general service of process in any jurisdiction where it
is not now so subject.
(g) During the period of five years commencing on the
Effective Date, the Company will furnish to the Representatives and
each other Underwriter who may so request copies of such financial
statements and other periodic and special reports as the Company may
from time to time distribute generally to the holders of any class of
its capital stock, and will furnish to the Representatives and each
other Underwriter who may so request a copy of each annual or other
report it shall be required to file with the Commission.
(h) The Company will make generally available to holders of
its securities as soon as may be practicable but in no event later
than the last day of the fifteenth full calendar month following the
calendar quarter in which the Execution Date falls, an earnings
statement (which need not be audited but shall be in reasonable
detail) for a period of 12 months ended commencing after the effective
date, within the meaning of and satisfying the provisions of Section
11(a) of the Act (including Rule 158 of the Rules and Regulations).
(i) Whether or not the transactions contemplated by this
Agreement are consummated or this Agreement is terminated, the Company
will pay, or reimburse if paid by the Representatives, all costs and
expenses incident to the performance of the obligations of the Company
under this Agreement, including but not limited to costs and expenses
of or relating to (1) the preparation, printing and filing of the
Registration Statement and exhibits thereto, the Basic Prospectus any
Preliminary Prospectus, the Final Prospectus and any amendment or
supplement to the Registration Statement or the Final Prospectus, (2)
the preparation and delivery of certificates representing the
Securities, (3) the printing of this Agreement, any Agreement Among
Underwriters, any Dealer Agreements and any Underwriters'
Questionnaire, (4) furnishing (including costs of shipping and
mailing) such copies of the Registration Statement, the Basic
Prospectus, any Preliminary Prospectus and the Final Prospectus, and
all amendments and supplements thereto, as may be reasonably requested
for use in connection with the offering and sale of the Securities by
the Underwriters or by dealers to whom Securities may be sold, (5) any
filings required to be made by the Underwriters with the NASD, and the
fees, disbursements and other charges of counsel for the Underwriters
in connection therewith, (6) the registration or qualification of the
Securities for offer and sale under the securities or Blue Sky laws of
such jurisdictions designated pursuant to Section 4(f), including the
fees, disbursements and other charges of counsel to the Underwriters
in connection therewith, and the preparation and printing of
preliminary, supplemental and final Blue Sky memoranda, (7) counsel to
the Company, (8) the transfer agent and registrar for the Securities
(9) the rating of the Securities by one or more rating agencies and
(10) the Trustee and any agent of the Trustee and the fees,
disbursements and other charges of counsel for the Trustee in
connection with the Indenture and the Securities.
(j) If this Agreement shall be terminated by the Company
pursuant to any of the provisions hereof (other than pursuant to
Section 8) or if for any reason the Company shall be unable to perform
its obligations hereunder, the Company will reimburse the several
Underwriters for all out-of-pocket expenses (including the fees,
disbursements and other charges of counsel to the Underwriters)
reasonably incurred by them in connection herewith.
(k) The Company will not at any time, directly or
indirectly, take any action intended, or which might reasonably be
expected, to cause or result in, or which will constitute
stabilization of the price of the Securities to facilitate the sale or
resale of any of the Securities.
(l) The Company will apply the net proceeds from the
offering and sale of the Securities in the manner set forth in the
Final Prospectus under "Use of Proceeds".
(m) Until sixty (60) days from the Execution Date, the
Company will not, without the consent of the Representatives, offer,
sell or contract to sell, or otherwise dispose of, by public offering,
or announce the public offering of, any other debt securities of the
Company other than the Securities.
5. Conditions of Obligations of the Underwriters. In addition
---------------------------------------------
to the execution and delivery of the Price Determination Agreement,
the obligations of each Underwriter hereunder are subject to the
following conditions:
(a) (i) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for
that purpose shall be pending or threatened by the Commission, (ii) no
order suspending the effectiveness of the Registration Statement or
the qualification or registration of the Securities under the
securities or Blue Sky laws of any jurisdiction shall be in effect and
no proceeding for such purpose shall be pending before or threatened
or contemplated by the Commission or the authorities of any such
jurisdiction, (iii) any request for additional information on the part
of the staff of the Commission or any such authorities with respect to
the offering of the Securities shall have been complied with to the
satisfaction of the staff of the Commission or such authorities and
(iv) after the Execution Date no amendment or supplement to the
Registration Statement or the Final Prospectus shall have been filed
unless a copy thereof was first submitted to the Representatives and
the Representatives did not object thereto in good faith, and the
Representatives shall have received certificates, dated the Closing
Date and signed on behalf of the Company by the Chief Executive
Officer or the Chairman of the Board of Directors of the Company and
the Chief Financial Officer of the Company (who may, as to proceedings
threatened, rely upon the best of their information and belief), to
the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is
given in the Registration Statement and the Final Prospectus (i) there
shall not have been a material adverse change in the general affairs,
business, properties, management, condition (financial or otherwise)
or results of operations of the Company and its subsidiaries, taken as
a whole, whether or not arising from transactions in the ordinary
course of business, in each case other than as set forth in or
contemplated by the Registration Statement and the Final Prospectus
and (ii) neither the Company nor any of the Subsidiaries shall have
sustained any loss or interference with its business or properties
from fire, explosion, flood or other casualty, whether or not covered
by insurance, or from any labor dispute or any court or legislative or
other governmental action, order or decree, which is not set forth in
the Registration Statement and the Final Prospectus, and which in each
case in clause (ii) is material to the Company and its subsidiaries,
taken as a whole, if in the judgment of the Representatives any such
development makes it impracticable or inadvisable to consummate the
sale and delivery of the Securities by the Underwriters in accordance
with the terms hereof.
(c) Since the respective dates as of which information is
given in the Registration Statement and the Final Prospectus, there
shall have been no litigation or other proceeding instituted against
the Company or any of the Subsidiaries or any of their respective
officers or directors in their capacities as such, before or by any
federal, state or local court, commission, regulatory body,
administrative agency or other governmental body, domestic or foreign,
in which litigation or proceeding an unfavorable ruling, decision or
finding would materially and adversely affect the business,
properties, condition (financial or otherwise) or results of
operations of the Company and its subsidiaries, taken as a whole.
(d) Each of the representations and warranties of the
Company contained herein shall be true and correct in all material
respects at the Closing Date and all covenants and agreements herein
contained to be performed on the part of the Company and all
conditions herein contained to be fulfilled or complied with by the
Company at or prior to the Closing Date shall have been duly
performed, fulfilled or complied with.
(e) On the Closing Date, the Representatives shall have
received an opinion, dated the Closing Date, and satisfactory in form
and substance to counsel for the Underwriters, from Xxxxxx X. Xxxxx,
Esq., General Counsel of the Company, and from Jones, Xxxxxx,
Xxxxxxxx, Poitevent, Xxxxxxx & Xxxxxxx, L.L.P., special counsel to the
Company, to the effects set forth in Exhibit B and Exhibit C hereto,
respectively.
(f) On the Closing Date, the Representatives shall have
received an opinion, dated the Closing Date, from [insert name],
counsel to the Underwriters, with respect to the Registration
Statement, the Final Prospectus and this Agreement, which opinion
shall be satisfactory in all respects to the Representatives. In
giving such opinion, such counsel may rely, as to all matters governed
by the laws of the State of Louisiana, upon the opinion of Xxxxx,
Xxxxxx, Xxxxxxxx, Xxxxxxxxx, Xxxxxxx & Xxxxxxx, L.L.P. Such counsel
may also state that, insofar as such opinion involves factual matters,
they have relied, to the extent they deem proper, upon certificates of
officers of the Company and its subsidiaries, and certificates of
public officials.
(g) Concurrently with the execution and delivery of this
Agreement, Peat Marwick and Deloitte & Touche shall have furnished to
the Representatives letters, dated the date of this Agreement,
addressed to the Representatives and in form and substance
satisfactory to the Representatives, confirming that they are or were,
as the case may be, independent accountants with respect to the
Company and Pacific Telecom, Inc., respectively, as required by the
Act and the Rules and Regulations and with respect to the financial
and other statistical and numerical information contained or
incorporated by reference in the Registration Statement. At the
Closing Date, Peat Marwick shall have furnished to the Representatives
a letter, dated the date of the Closing Date, which shall confirm, on
the basis of a review in accordance with the procedures set forth in
the letter from Peat Marwick, that nothing has come to their attention
during the period from the date of their letter referred to in the
prior sentence to a date (specified in the letter) not more than five
days prior to the Closing Date which would require any change in their
letter dated the Execution Date if it were required to be dated and
delivered at the Closing Date.
(h) Concurrently with the execution and delivery of this
Agreement and at the Closing Date, there shall be furnished to the
Representatives an accurate certificate, dated the date of its
delivery, signed on behalf of the Company by each of the Chief
Executive Officer and the Chief Financial Officer of the Company, in
form and substance satisfactory to the Representatives, to the effect
that:
(i) Each signer of such certificate has carefully
examined the Registration Statement and the Final Prospectus and
(A) as of the date of such certificate, (i) the Registration
Statement is true and correct in all material respects and does
not omit to state a material fact required to be stated therein
or necessary in order to make the statements therein not untrue
or misleading and (ii) the Final Prospectus is true and correct
in all material respects and does not omit 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 untrue
or misleading (it being understood that to the extent a statement
in the Final Prospectus, including any documents deemed to be
incorporated by reference therein, refers to and speaks as of a
specific date, each signer of such certificate only represents
with respect to such statement that it was true and correct in
all material respects as of such date) and (B) in the case of the
certificate delivered at the Closing Date, since the Execution
Date, no event has occurred as a result of which it is necessary
to supplement the Final Prospectus in order to make the
statements therein, in light of the circumstances under which
they were made, not untrue or misleading in any material respect
and there has been no document required to be filed under the
Exchange Act and the Exchange Act Rules and Regulations that upon
such filing would be deemed to be incorporated by reference into
the Final Prospectus that has not been so filed.
(ii) Each of the representations and warranties of the
Company contained in this Agreement were, when originally made,
and are, at the time such certificate is delivered, true and
correct in all material respects.
(iii) Each of the covenants required herein to be
performed by the Company on or prior to the delivery of such
certificate has been duly, timely and fully performed and each
condition herein required to be complied with by the Company on
or prior to the date of such certificate has been duly, timely
and fully complied with.
(i) The Securities shall be qualified for sale in such
states as the Representatives may reasonably request, each such
qualification shall be in effect and not subject to any stop order or
other proceeding on the Closing Date.
(j) The Company shall have furnished to the Representatives
such certificates, in addition to those specifically mentioned herein,
as the Representatives may have reasonably requested as to the
accuracy and completeness at the Closing Date of any statement in the
Registration Statement or the Final Prospectus or any documents filed
under the Exchange Act and deemed to be incorporated by reference into
the Final Prospectus, as to the accuracy at the Closing Date of the
representations and warranties of the Company herein, as to the
performance by the Company of its obligations hereunder, or as to the
fulfillment of the conditions concurrent and precedent to the
obligations hereunder of the Representatives.
6. Indemnification.
---------------
(a) The Company will indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of each
Underwriter and each person, if any, who controls each Underwriter
within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act from and against any and all losses, claims, liabilities,
expenses and damages (including any and all investigative, legal and
other expenses reasonably incurred in connection with, and any amount
paid in settlement of, any action, suit or proceeding or any claim
asserted), to which they, or any of them, may become subject under the
Exchange Act or other federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, liabilities,
expenses or damages arise out of or are based on any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement, the Basic Prospectus, any Preliminary
Prospectus or the Final Prospectus or any amendment or supplement
thereto or in any documents filed under the Exchange Act and deemed to
be incorporated by reference into the Final Prospectus, or the
omission or alleged omission to state in (i) the Registration
Statement, any amendment or supplement thereto a material fact
required to be stated in it or necessary to make the statements in it
not misleading or (ii) the Basic Prospectus, any Preliminary
Prospectus or the Final Prospectus a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading, provided that the Company
will not be liable to the extent that such loss, claim, liability,
expense or damage arises from the sale of the Securities in the public
offering to any person by an Underwriter and is based on an untrue
statement or omission or alleged untrue statement or omission made in
reliance on and in conformity with information relating to any
Underwriter furnished in writing to the Company by the Representatives
on behalf of any Underwriter expressly for inclusion in the
Registration Statement, the Basic Prospectus, any Preliminary
Prospectus or the Final Prospectus and provided further, that the
Company shall not be liable in any such case under the indemnity
agreement in this Section 6(a) with respect to any Preliminary
Prospectus or Final Prospectus, to the extent that any such loss,
claim, liability, expense or damage results from the fact that the
Underwriter sold Securities to a person to whom there was not sent or
given, at or prior to the written confirmation of such sale, a copy of
the Final Prospectus or of the Final Prospectus as then amended or
supplemented in any case where such delivery is required by the Act if
the Company has previously furnished copies thereof to the Underwriter
and the loss, claim, liability, expense or damage of the Underwriter,
the directors, officers, employees or agents of the Underwriter or any
person who controls the Underwriter results from an untrue statement,
alleged untrue statement, omission or alleged omission of a material
fact contained in the Preliminary Prospectus which was corrected in
the Final Prospectus (or the Final Prospectus as amended or
supplemented). This indemnity agreement is in addition to any
liability that the Company might otherwise have.
(b) Each Underwriter will indemnify and hold harmless the
Company and its officers, employees and agents and each person, if
any, who controls the Company within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act, each director of the Company
and each officer of the Company who signs the Registration Statement
to the same extent as the foregoing indemnity from the Company to each
Underwriter, but only insofar as losses, claims, liabilities, expenses
or damages arise out of or are based on any untrue statement or
omission or alleged untrue statement or omission made in reliance on
and in conformity with information relating to such Underwriter
furnished in writing to the Company by the Representatives on behalf
of such Underwriter expressly for use in the Registration Statement,
the Basic Prospectus, any Preliminary Prospectus or the Final
Prospectus. This indemnity is in addition to any liability that each
Underwriter might otherwise have.
(c) Any party that proposes to assert the right to be
indemnified under this Section 6 will, promptly after receipt of
notice of commencement of any action against such party in respect of
which a claim is to be made against an indemnifying party or parties
under this Section 6, notify each such indemnifying party of the
commencement of such action, enclosing a copy of all papers served,
but the omission so to notify such indemnifying party will not relieve
it from any liability that it may have to any indemnified party under
the foregoing provisions of this Section 6 unless, and only to the
extent that, such omission results in the forfeiture of substantive
rights or defenses by the indemnifying party. If any such action is
brought against any indemnified party and it notifies the indemnifying
party of its commencement, the indemnifying party will be entitled to
participate in and, to the extent that it elects by delivering written
notice to the indemnified party promptly after receiving notice of the
commencement of the action from the indemnified party, jointly with
any other indemnifying party similarly notified, to assume the defense
of the action, with counsel satisfactory to the indemnified party, and
after notice from the indemnifying party to the indemnified party of
its election to assume the defense, the indemnifying party will not be
liable to the indemnified party for any legal or other expenses except
as provided below and except for the reasonable costs of investigation
subsequently incurred by the indemnified party in connection with the
defense. The indemnified party will have the right to employ its own
counsel in any such action, but the fees, expenses and other charges
of such counsel will be at the expense of such indemnified party
unless (1) the employment of counsel by the indemnified party has been
authorized in writing by the indemnifying party, (2) the indemnified
party has reasonably concluded (based on advice of counsel) that there
may be legal defenses available to it or other indemnified parties
that are different from or in addition to those available to the
indemnifying party, (3) a conflict or potential conflict exists (based
on advice of counsel to the indemnified party) between the indemnified
party and the indemnifying party (in which case the indemnifying party
will not have the right to direct the defense of such action on behalf
of the indemnified party) or (4) the indemnifying party has not in
fact employed counsel to assume the defense of such action within a
reasonable time after receiving notice of the commencement of the
action, in each of which cases the reasonable fees, disbursements and
other charges of counsel will be at the expense of the indemnifying
party or parties. It is understood that the indemnifying party or
parties shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable
fees, disbursements and other charges of more than one separate firm
(plus any local counsel retained by you in your reasonable judgment)
admitted to practice in such jurisdiction at any one time for all such
indemnified party or parties. All such fees, disbursements and other
charges will be reimbursed by the indemnifying party promptly as they
are incurred. An indemnifying party will not be liable for any
settlement of any action or claim effected without its written consent
(which consent will not be unreasonably withheld).
(d) In order to provide for just and equitable contribution
in circumstances in which the indemnification provided for in the
foregoing paragraphs of this Section 6 is applicable in accordance
with its terms but for any reason is held to be unavailable from the
Company or the Underwriters, the Company and the Underwriters will
contribute to the total losses, claims, liabilities, expenses and
damages (including any investigative, legal and other expenses
reasonably incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claim asserted,
but after deducting any contribution received by the Company from
persons other than the Underwriters, such as persons who control the
Company within the meaning of the Act, officers of the Company who
signed the Registration Statement and directors of the Company, who
also may be liable for contribution) to which the Company and any one
or more of the Underwriters may be subject in such proportion as shall
be appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other. The
relative benefits received by the Company on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters, in each case
as set forth in the table on the cover page of the Final Prospectus.
If, but only if, the allocation provided by the foregoing sentence is
not permitted by applicable law, the allocation of contribution shall
be made in such proportion as is appropriate to reflect not only the
relative benefits referred to in the foregoing sentence but also the
relative fault of the Company, on the one hand, and the Underwriters,
on the other, with respect to the statements or omissions which
resulted in such loss, claim, liability, expense or damage, or action
in respect thereof, as well as any other relevant equitable
considerations with respect to such offering. Such relative fault
shall be determined by reference to whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the Company
or the Representatives on behalf of the Underwriters, the intent of
the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
Company and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section 6(d) were to be
determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an
indemnified party as a result of the loss, claim, liability, expense
or damage, or action in respect thereof, referred to above in this
Section 6(d) shall be deemed to include, for purpose of this Section
6(d), 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
6(d), no Underwriter shall be required to contribute any amount in
excess of the underwriting discounts received by it, and no person
found guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) will be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute as provided in this Section
6(d) are several in proportion to their respective underwriting
obligations and not joint. For purposes of this Section 6(d), any
person who controls a party to this Agreement within the meaning of
the Act will have the same rights to contribution as that party, and
each officer of the Company who signed the Registration Statement will
have the same rights to contribution as the Company, subject in each
case to the provisions hereof. Any party entitled to contribution,
promptly after receipt of notice of commencement of any action against
such party in respect of which a claim for contribution may be made
under this Section 6(d), will notify any such party or parties from
whom contribution may be sought, but the omission so to notify will
not relieve the party or parties from whom contribution may be sought
from any other obligation it or they may have under this Section 6(d).
No party will be liable for contribution with respect to any action or
claim settled without its written consent (which consent will not be
unreasonably withheld).
(e) The indemnity and contribution agreements contained in
this Section 6 and the representations and warranties of the Company
contained in this Agreement shall remain operative and in full force
and effect regardless of (i) any investigation made by or on behalf of
the Underwriters, (ii) acceptance of any of the Securities and payment
therefor or (iii) any termination of this Agreement.
7. Termination. The obligations of the several Underwriters
-----------
under this Agreement may be terminated at any time on or prior to the
Closing Date by notice to the Company from the Representatives,
without liability on the part of any Underwriter to the Company, if,
prior to delivery and payment for the Securities, in the sole judgment
of the Representatives, (i) trading in securities generally on the New
York Stock Exchange shall have been suspended or limited or minimum or
maximum prices shall have been generally established on such exchange,
or additional material governmental restrictions, not in force on the
date of this Agreement, shall have been imposed upon trading in
securities generally by such exchange or by order of the Commission or
any court or other governmental authority, and any such suspensions,
limitations or restrictions shall continue to remain in effect, (ii) a
general banking moratorium shall have been declared by either federal
or New York State authorities or (iii) any material adverse change in
the financial or securities markets in the United States or in
political, financial or economic conditions in the United States or
any outbreak or material escalation of hostilities or declaration by
the United States of a national emergency or war or other calamity or
crisis shall have occurred the effect of any of which is such as to
make it, in the sole judgment of the Representatives, impracticable or
inadvisable to market the Securities on the terms and in the manner
contemplated by the Final Prospectus.
8. Substitution of Underwriters. If any one or more of the
------------------------------
Underwriters shall fail or refuse to purchase any of the Securities
which it or they have agreed to purchase hereunder, and the aggregate
principal amount of Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than
one-tenth of the aggregate principal amount of Securities, the other
Underwriters shall be obligated, severally, to purchase the Securities
which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase, in the proportions which the principal amount of
Securities which they have respectively agreed to purchase pursuant to
Section 1 bears to the aggregate principal amount of Securities which
all such non-defaulting Underwriters have so agreed to purchase, or in
such other proportions as the Representatives may specify; provided
that in no event shall the maximum principal amount of Securities
which any Underwriter has become obligated to purchase pursuant to
Section 1 be increased pursuant to this Section 8 by more than one-
ninth of the principal amount of Securities agreed to be purchased by
such Underwriter without the prior written consent of such
Underwriter. If any Underwriter or Underwriters shall fail or refuse
to purchase any Securities and the aggregate principal amount of
Securities which such defaulting Underwriter or Underwriters agreed
but failed or refused to purchase exceeds one-tenth of the aggregate
principal amount of the Securities and arrangements satisfactory to
the Representatives and the Company for the purchase of such
Securities are not made within 48 hours after such default, this
Agreement will terminate without liability on the part of any non-
defaulting Underwriter or the Company for the purchase or sale of any
Securities under this Agreement. In any such case either the
Representatives or the Company shall have the right to postpone the
Closing Date, but in no event for longer than seven days, in order
that the required changes, if any, in the Registration Statement and
in the Final Prospectus or in any other documents or arrangements may
be effected. Any action taken pursuant to this Section 8 shall not
relieve any defaulting Underwriter from liability in respect of any
default of such Underwriter under this Agreement.
9. Miscellaneous. Notice given pursuant to any of the
-------------
provisions of this Agreement shall be in writing and, unless otherwise
specified, shall be mailed or delivered (a) if to the Company, at the
office of the Company, 000 Xxxxxxx Xxxx Xxxxx, Xxxxxx, Xxxxxxxxx
00000, Attention: Xxxxxx X. Xxxxx, Senior Vice President, General
Counsel and Secretary or (b) if to the Underwriters, to the
Representatives at the offices of
______________________________________. Any such notice shall be
effective only upon receipt. Any notice under Section 7 or 8 may be
made by telex or telephone, but if so made shall be subsequently
confirmed in writing.
This Agreement has been and is made solely for the benefit
of the several Underwriters and the Company and of the controlling
persons, directors and officers referred to in Section 6, and their
respective successors and assigns, and no other person shall acquire
or have any right under or by virtue of this Agreement. The term
"successors and assigns" as used in this Agreement shall not include a
purchaser, as such purchaser, of Securities from any of the several
Underwriters.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
This Agreement may be signed in two or more counterparts
with the same effect as if the signatures thereto and hereto were upon
the same instrument.
In case any provision in this Agreement shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired
thereby.
The Company and the Underwriters each hereby irrevocably
waive any right they may have to trial by jury in respect of any claim
based upon or arising out of this Agreement or the transactions
contemplated hereby.
Please confirm that the foregoing correctly sets forth the
agreement between the Company and the several Underwriters.
Very truly yours,
CENTURY TELEPHONE ENTERPRISES, INC.
By:______________________________
Name:
Title:
Confirmed as of the date first
above mentioned:
[names]
Acting on behalf of themselves
and as the Representatives
of the other several Underwriters
named in Schedule I hereof.
[name]
By:________________________
Name:
Title:
SCHEDULE I
----------
UNDERWRITERS
Principal Amount
Name of Securities
---- To Be Purchased
---------------
------------------------------- $
---------------
Total . . . . . . . . . . . . . . $
===============
SCHEDULE II
-----------
SUBSIDIARIES
Name
----
Central Louisiana Telephone Company, Inc.
Xxxxxxxxxx Telephone Company
Century Telephone of Arkansas, Inc.
Mountain Home Telephone Co., Inc.
Century Telephone of Wisconsin, Inc.
Century Telephone Midwest, Inc.
Century Telephone of Michigan, Inc.
Century Cellunet of Southern Michigan, Inc.
Century Cellunet, Inc.
Century Investments, Inc.
Century Telephone of San Marcos, Inc.
Century Telephone of Ohio, Inc.
Celutel, Inc.
Pacific Telecom, Inc.
Pacific Telecom Cellular, Inc.
EXHIBIT A
CENTURY TELEPHONE ENTERPRISES, INC.
_____________________________
PRICE DETERMINATION AGREEMENT
-----------------------------
_________ __, 1998
[name]
As Representatives of
the several Underwriters
[address]
Dear Ladies and Gentlemen:
Reference is made to the Underwriting Agreement, dated __________
__,1998 (the "Underwriting Agreement"), among Century Telephone
Enterprises, Inc., a Louisiana corporation (the "Company"), and the
several Underwriters named in Schedule I thereto or hereto (the
"Underwriters"), for whom [name] are acting as representatives (the
"Representatives"). The Underwriting Agreement provides for the
purchase by the Underwriters from the Company, subject to the terms
and conditions set forth therein, of an aggregate of $_____________
principal amount of the Company's ___ percent Senior Debt Securities
due ____ (the "Securities") to be issued pursuant to an Indenture
dated as of March 31, 1994 between the Company and Regions Bank of
Louisiana (successor-in-interest to First American Bank & Trust of
Louisiana), as Trustee. This Agreement is the Price Determination
Agreement referred to in the Underwriting Agreement.
Pursuant to Section 1 of the Underwriting Agreement, the
undersigned agree with the Representatives that the purchase price for
the Securities to be paid by each of the several Underwriters shall be
___ percent of the aggregate principal amount of the Securities set
forth opposite the name of such Underwriter in Schedule I attached
hereto.
The Company represents and warrants to each of the Underwriters
that the representations and warranties of the Company set forth in
Section 3 of the Underwriting Agreement are accurate in all material
respects as though expressly made at and as of the date hereof.
As contemplated by the Underwriting Agreement, attached as
Schedule I is a completed list of the several Underwriters, which
shall be a part of this Agreement and the Underwriting Agreement.
This Agreement shall be governed by the law of the State of New
York.
If the foregoing is in accordance with your understanding of the
agreement among the Underwriters and the Company, please sign and
return to the Company a counterpart hereof, whereupon this instrument
along with all counterparts and together with the Underwriting
Agreement shall be a binding agreement among the Underwriters and the
Company in accordance with its terms and the terms of the Underwriting
Agreement.
Very truly yours,
CENTURY TELEPHONE ENTERPRISES, INC.
By:________________________________
Name:
Title:
Confirmed as of the date
first above mentioned:
[name]
Acting on behalf of themselves
and as the Representatives
of the other several Underwriters
named in Schedule I hereof.
[name]
By:_____________________________
Name:
Title:
[name]
By:_____________________________
Name:
Title:
EXHIBITS B AND C INTENTIONALLY DELETED
