EXHIBIT 1.1
__________ Shares
US UNWIRED INC.
Series A Common Stock
UNDERWRITING AGREEMENT
----------------------
__________, 2000
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
CREDIT SUISSE FIRST BOSTON
FIRST UNION SECURITIES, INC.
DLJdirect Inc.
As representatives of the
several Underwriters
named in Schedule I hereto
c/x Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
US Unwired Inc., a Louisiana corporation (the "COMPANY"), proposes to issue
and sell ____________ shares of its Class A Common Stock, $.01 par value (the
"FIRM SHARES") to the several underwriters named in Schedule I hereto (the
"UNDERWRITERS"). Those stockholders of the Company named in Schedule II hereto
(the "SELLING STOCKHOLDERS") severally propose to sell to the several
Underwriters an aggregate of not more than _______ shares of their Class A
Common Stock, $.01 par value (the "ADDITIONAL SHARES"), each Selling Stockholder
selling up to the amount set forth opposite such Selling Stockholder's name in
Schedule II hereto and in proportion to the respective amounts set forth in
Schedule II, if requested by the Underwriters as provided in Section 2 hereof.
The Firm Shares and the Additional Shares are hereinafter referred to
collectively as the "SHARES". The shares of common stock of the Company to be
outstanding after giving effect to the sales contemplated hereby are hereinafter
referred to as the "COMMON STOCK". The Company and the Selling Stockholders are
hereinafter sometimes referred to collectively as the "SELLERS".
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Section 1. Registration Statement and Prospectus. The Company has prepared
and filed with the Securities and Exchange Commission (the "COMMISSION") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively, the
"ACT"), a registration statement on Form S-1, including a prospectus, relating
to the Shares. The registration statement, as amended at the time it became
effective, including the information (if any) deemed to be part of the
registration statement at the time of effectiveness pursuant to Rule 430A under
the Act, is hereinafter referred to as the "REGISTRATION STATEMENT"; and the
prospectus in the form first used to confirm sales of Shares is hereinafter
referred to as the "PROSPECTUS". If the Company has filed or is required
pursuant to the terms hereof to file a registration statement pursuant to Rule
462(b) under the Act registering additional shares of Common Stock (a "RULE
462(B) REGISTRATION STATEMENT"), then, unless otherwise specified, any reference
herein to the term "Registration Statement" shall be deemed to include such Rule
462(b) Registration Statement.
Section 2. Agreements to Sell and Purchase and Lock-Up Agreements . On the
basis of the representations and warranties contained in this Agreement, and
subject to its terms and conditions, the Company agrees to issue and sell, and
each Underwriter agrees, severally and not jointly, to purchase from the Company
at a price per Share of $______ (the "PURCHASE PRICE") the number of Firm Shares
set forth opposite the name of such Underwriter in Schedule I hereto.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, each Selling Stockholder
agrees, severally and not jointly, to sell the number of Additional Shares set
forth opposite such Selling Stockholder's name in Schedule II hereto and the
Underwriters shall have the right to purchase, severally and not jointly, such
Additional Shares at the Purchase Price. Additional Shares may be purchased
solely for the purpose of covering over-allotments made in connection with the
offering of the Firm Shares. The Underwriters may exercise their right to
purchase Additional Shares in whole or in part from time to time by giving
written notice thereof to the Company within 30 days after the date of this
Agreement. You shall give any such notice on behalf of the Underwriters and such
notice shall specify the aggregate number of Additional Shares to be purchased
pursuant to such exercise and the date for payment and delivery thereof, which
date shall be a business day (i) no earlier than two business days after such
notice has been given (and, in any event, no earlier than the Closing Date (as
hereinafter defined)) and (ii) no later than ten business days after such notice
has been given. If any Additional Shares are to be purchased, (A) each
Underwriter, severally and not jointly, agrees to purchase from the Selling
Stockholders the number of Additional Shares (subject to such adjustments to
eliminate fractional shares as you may determine) which bears the same
proportion to the total number of Additional Shares to be purchased from the
Selling Stockholders as the number of Firm Shares set forth opposite the name of
such Underwriter in Schedule I bears to the total number of Firm Shares; and (B)
each Selling Stockholder, severally and not jointly, agrees to sell to the
Underwriters the number of Additional Shares (subject to such adjustments to
eliminate fractional shares as you may determine) which bears the same
proportion to the total number of Additional Shares to be sold to the
Underwriters as the number of Additional Shares set forth opposite the name of
such Selling Stockholder in Schedule II bears to the total number of Additional
Shares set forth in Schedule II.
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Each Seller hereby agrees not to (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, or otherwise transfer or
dispose of, directly or indirectly, any shares of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock or (ii) enter
into any swap or other arrangement that transfers all or a portion of the
economic consequences associated with the ownership of any Common Stock
(regardless of whether any of the transactions described in clause (i) or (ii)
is to be settled by the delivery of Common Stock, or such other securities, in
cash or otherwise), except to the Underwriters pursuant to this Agreement, for a
period of 180 days after the date of the Prospectus without the prior written
consent of Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation. Notwithstanding
the foregoing, during such period (i) the Company may grant stock options
pursuant to the Company's existing stock option plan and (ii) the Company may
issue shares of Common Stock upon the exercise of an option or warrant or the
conversion of a security outstanding on the date hereof, including (without
limitation) the conversion of the Series A and Series B Preferred Stock of the
Company. The Company also agrees not to file any registration statement with
respect to any shares of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock for a period of 180 days after the
date of the Prospectus without the prior written consent of Xxxxxxxxx, Xxxxxx &
Xxxxxxxx Securities Corporation, except for any registration statement that is
filed under Section 12(b) or 12(g) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), or on Form S-8 pursuant to the demand of any
stockholder entitled to make such a demand. In addition, each Selling
Stockholder agrees that, for a period of 180 days after the date of the
Prospectus without the prior written consent of Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation, it will not make any demand for, or exercise any right
with respect to, the registration of any shares of Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock. The
Company shall, prior to or concurrently with the execution of this Agreement,
deliver an agreement executed by (i) each Selling Stockholder, (ii) each of the
directors and officers of the Company who is not a Selling Stockholder and (iii)
each stockholder listed on Annex I hereto to the effect that such person will
not, during the period commencing on the date such person signs such agreement
and ending 180 days after the date of the Prospectus, without the prior written
consent of Xxxxxxxxx, Lufkin & Xxxxxxxx Corporation, (A) engage in any of the
transactions described in the first sentence of this paragraph or (B) make any
demand for, or exercise any right with respect to, the registration of any
shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock.
The Company and the Underwriters agree that up to _________ of the Firm
Shares to be purchased by the Underwriters (the "RESERVED SHARES") shall be
reserved for sale by the Underwriters to certain eligible directors, officers,
employees, customers, subscribers and persons having business relationships with
the Company, as part of the distribution of the Shares by the Underwriters,
subject to the terms of this Agreement, the applicable rules, regulations and
interpretations of the National Association of Securities Dealers, Inc. and all
other applicable laws, rules and regulations. To the extent that such Reserved
Shares are not orally confirmed for purchase by such eligible employees and
persons having business relationships with the Company by the end of the first
business day after the date of this Agreement, such Reserved Shares may be
offered to the public as part of the public offering contemplated hereby.
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Section 3. Terms of Public Offering. The Sellers are advised by you that
the Underwriters propose (i) to make a public offering of their respective
portions of the Shares as soon after the execution and delivery of this
Agreement as in your judgment is advisable and (ii) initially to offer the
Shares upon the terms set forth in the Prospectus.
Section 4. Delivery and Payment. The Shares shall be represented by
definitive certificates and shall be issued in such authorized denominations and
registered in such names as Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
shall request no later than two business days prior to the Closing Date or the
applicable Option Closing Date (as defined below), as the case may be. The
Shares shall be delivered by or on behalf of the Sellers, with any transfer
taxes thereon duly paid by the respective Sellers, to Xxxxxxxxx, Lufkin &
Xxxxxxxx Securities Corporation through the facilities of The Depository Trust
Company ("DTC"), for the respective accounts of the several Underwriters,
against payment to the Sellers of the Purchase Price therefor by wire transfer
of Federal or other funds immediately available in New York City. The
certificates representing the Shares shall be made available for inspection not
later than 9:30 A.M., New York City time, on the business day prior to the
Closing Date or the applicable Option Closing Date (as defined below), as the
case may be, at the office of DTC or its designated custodian (the "DESIGNATED
OFFICE"). The time and date of delivery and payment for the Firm Shares shall be
9:00 A.M., New York City time, on ________, 2000 or such other time on the same
or such other date as Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation and
the Company shall agree in writing. The time and date of delivery and payment
for the Firm Shares are hereinafter referred to as the "CLOSING DATE". The time
and date of delivery and payment for any Additional Shares to be purchased by
the Underwriters shall be 9:00 A.M., New York City time, on the date specified
in the applicable exercise notice given by you pursuant to Section 2 or such
other time on the same or such other date as Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation and the Company shall agree in writing. The time and date
of delivery and payment for any Additional Shares are hereinafter referred to as
the "OPTION CLOSING DATE".
The documents to be delivered on the Closing Date or any Option Closing
Date on behalf of the parties hereto pursuant to Section 9 of this Agreement
shall be delivered at the offices of Xxxxxx & Xxxxxxx, 000 Xxxxx Xxxxxx, Xxxxx
0000, Xxx Xxxx, Xxx Xxxx 00000 and the Shares shall be delivered at the
Designated Office, all on the Closing Date or such Option Closing Date, as the
case may be.
Section 5. Agreements of the Company. The Company agrees with you:
(a) To advise you promptly and, if requested by you, to confirm such advice
in writing, (i) of any request by the Commission for amendments to the
Registration Statement or amendments or supplements to the Prospectus or for
additional information, (ii) 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, (iii) when any amendment to the
Registration Statement becomes effective, (iv) if the Company is required to
file a Rule 462(b) Registration Statement after the effectiveness of this
Agreement, when the Rule 462(b) Registration Statement has become effective and
(v) of the happening of any event during the period referred to in Section 5(d)
below
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which makes any statement of a material fact made in the Registration
Statement or the Prospectus untrue or which requires 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 use its best efforts to obtain the withdrawal or lifting of such order at
the earliest possible time.
(b) To furnish to you four signed copies of the Registration Statement as
first filed with the Commission and of each amendment to it, including all
exhibits, and to furnish to you and each Underwriter designated by you such
number of conformed copies of the Registration Statement as so filed and of each
amendment to it, without exhibits, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be
satisfactory to you, and to file the Prospectus in such form with the Commission
within the applicable period specified in Rule 424(b) under the Act; during the
period specified in Section 5(d) below, not to file any further amendment to the
Registration Statement and not to make any amendment or supplement to the
Prospectus of which you shall not previously have been advised or to which you
shall reasonably object after being so advised provided that such objections and
the rationale therefor shall have been delivered to the Company in writing and
counsel for the Company shall not have notified it in writing that such
amendment or supplement is nevertheless required by law despite such objections;
and, during such period, to prepare and file with the Commission, promptly upon
your reasonable request, any amendment to the Registration Statement or
amendment or supplement to the Prospectus which may be necessary or advisable in
connection with the distribution of the Shares by you, and to use its best
efforts to cause any such amendment to the Registration Statement to become
promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day
after the date of this Agreement and from time to time thereafter for such
period as in the opinion of counsel for the Underwriters a prospectus is
required by law to be delivered in connection with sales by an Underwriter or a
dealer, to furnish in New York City to each Underwriter and any dealer as many
copies of the Prospectus (and of any amendment or supplement to the Prospectus)
as such Underwriter or dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event shall occur
or condition shall exist as a result of which, in the opinion of counsel for the
Underwriters, it becomes necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading, or if, in the opinion of
counsel for the Underwriters, it is necessary to amend or supplement the
Prospectus to comply with applicable law, forthwith to prepare and file with the
Commission an appropriate amendment or supplement to the Prospectus so that the
statements in the Prospectus, as so amended or supplemented, will not in the
light of the circumstances when it is so delivered, be misleading, or so that
the Prospectus will comply with applicable law, and to furnish to each
Underwriter and to any dealer as many copies thereof as such Underwriter or
dealer may reasonably request.
(f) Prior to any public offering of the Shares, to cooperate with you and
counsel for the Underwriters in connection with the registration or
qualification of the Shares for offer and sale by
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the several Underwriters and by dealers under the state securities or Blue Sky
laws of such jurisdictions as you may reasonably request, to continue such
registration or qualification in effect so long as required for distribution of
the Shares and to file such consents to service of process or other documents as
may be necessary in order to effect such registration or qualification;
provided, however, that the Company shall not be required in connection
therewith to qualify as a foreign corporation in any jurisdiction in which it is
not now so qualified or to take any action that would subject it to general
consent to service of process or taxation other than as to matters and
transactions relating to the Prospectus, the Registration Statement, any
preliminary prospectus or the offering or sale of the Shares, in any
jurisdiction in which it is not now so subject.
(g) To mail and make generally available to its stockholders as soon as
practicable an earnings statement covering the twelve-month period ending June
30, 2001 that shall satisfy the provisions of Section 11(a) of the Act and Rule
158 of the Commission thereunder, and to advise you in writing when such
statement has been so made available.
(h) During the period of three years after the date of this Agreement, to
furnish to you as soon as available copies of all reports or other
communications furnished to the record holders of Common Stock or furnished to
or filed with the Commission or any national securities exchange on which any
class of securities of the Company is listed and such other publicly available
information concerning the Company and its subsidiaries as you may reasonably
request.
(i) Whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, to pay or cause to be paid all
expenses incident to the performance of the Sellers' obligations under this
Agreement, including: (i) the fees, disbursements and expenses of the Company's
counsel, the Company's accountants and any Selling Stockholder's counsel (in
addition to the Company's counsel) in connection with the registration and
delivery of the Shares under the Act and all other fees and expenses in
connection with the preparation, printing, filing and distribution of the
Registration Statement (including financial statements and exhibits), any
preliminary prospectus, the Prospectus and all amendments and supplements to any
of the foregoing, including the mailing and delivering of copies thereof to the
Underwriters and dealers in the quantities specified herein, (ii) all costs and
expenses related to the transfer and delivery of the Shares to the Underwriters,
including any transfer or other taxes payable thereon, (iii) all costs of
printing or producing this Agreement and any other agreements or documents in
connection with the offering, purchase, sale or delivery of the Shares, (iv) all
expenses in connection with the registration or qualification of the Shares for
offer and sale under the securities or Blue Sky laws of the several states and
all costs of printing or producing any Preliminary and Supplemental Blue Sky
Memoranda in connection therewith (including the filing fees and fees and
disbursements of counsel for the Underwriters in connection with such
registration or qualification and customary memoranda relating thereto), (v) the
filing fees and disbursements of counsel for the Underwriters in connection with
the review and clearance of the offering of the Shares by the National
Association of Securities Dealers, Inc., (vi) all fees and expenses in
connection with the preparation and filing of the registration statement on Form
8-A relating to the Common Stock and all costs and expenses incident to the
listing of the Shares on the Nasdaq National Market, (vii) the cost of printing
certificates representing the Shares, (viii) the costs and charges of any
transfer agent, registrar and/or depositary, and (ix) all other costs and
expenses incident to the performance
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of the obligations of the Company and the Selling Stockholders hereunder for
which provision is not otherwise made in this Section. The provisions of this
Section shall not supersede or otherwise affect any agreement that the Company
and the Selling Stockholders may otherwise have for allocation of such expenses
among themselves.
(j) To use its best efforts to list for quotation the Shares on the Nasdaq
National Market and to maintain the listing of the Shares on the Nasdaq National
Market for a period of three years after the date of this Agreement.
(k) To use its best efforts to do and perform all things required or
necessary to be done and performed under this Agreement by the Company prior to
the Closing Date or any Option Closing Date, as the case may be, and to satisfy
all conditions precedent to the delivery of the Shares.
(l) If the Registration Statement at the time of the effectiveness of this
Agreement does not cover all of the Shares, to file a Rule 462(b) Registration
Statement with the Commission registering the Shares not so covered in
compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of
this Agreement and to pay to the Commission the filing fee for such Rule 462(b)
Registration Statement at the time of the filing thereof or to give irrevocable
instructions for the payment of such fee pursuant to Rule 111(b) under the Act.
Section 6. Representations and Warranties of the Company. The Company
represents and warrants to each Underwriter that:
(a) The Registration Statement has become effective (other than any Rule
462(b) Registration Statement to be filed by the Company after the effectiveness
of this Agreement); any Rule 462(b) Registration Statement filed after the
effectiveness of this Agreement will become effective no later than 10:00 P.M.,
New York City time, on the date of this Agreement; and no stop order suspending
the effectiveness of the Registration Statement is in effect, and no proceedings
for such purpose are pending before or threatened by the Commission.
(b) (i) The Registration Statement (other than any Rule 462(b)
Registration Statement to be filed by the Company after the effectiveness of
this Agreement), when it became effective, did not contain and, as amended, if
applicable, will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, (ii) the Registration Statement (other than
any Rule 462(b) Registration Statement to be filed by the Company after the
effectiveness of this Agreement) and the Prospectus comply and, as amended or
supplemented, if applicable, will comply in all material respects with the Act,
(iii) if the Company is required to file a Rule 462(b) Registration Statement
after the effectiveness of this Agreement, such Rule 462(b) Registration
Statement and any amendments thereto, when they become effective (A) will not
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading and (B) will comply in all material respects with the Act and (iv)
the Prospectus does not contain and, as amended or supplemented, if applicable,
will not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that the
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representations and warranties set forth in this paragraph do not apply to
statements or omissions in the Registration Statement or the Prospectus based
upon information relating to any Underwriter furnished to the Company in writing
by such Underwriter through you expressly for use therein.
(c) Each preliminary prospectus filed as part of the registration statement
as originally filed or as part of any amendment thereto, or filed pursuant to
Rule 424 under the Act, complied when so filed in all material respects with the
Act, and did not contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except that the representations and warranties set forth
in this paragraph do not apply to statements or omissions in any preliminary
prospectus based upon information relating to any Underwriter furnished to the
Company in writing by such Underwriter through you expressly for use therein.
(d) Each of the Company and its subsidiaries has been duly incorporated or
formed, as the case may be, is validly existing as a corporation, limited
liability company or partnership, as the case may be, in good standing under the
laws of its jurisdiction of incorporation or formation, as the case may be, and
has the corporate or other power and authority to carry on its business as
described in the Prospectus and to own, lease and operate its properties, and
each is duly qualified and is in good standing as a foreign corporation, limited
liability company or partnership, as the case may be, authorized to do business
in each jurisdiction in which the nature of its business or its ownership or
leasing of property requires such qualification, except where the failure to be
so qualified would not have a material adverse effect on the business,
prospects, financial condition or results of operations of the Company and its
subsidiaries, taken as a whole (a "Material Adverse Effect").
(e) There are no outstanding subscriptions, rights, warrants, options,
calls, convertible securities, commitments of sale or liens granted or issued by
the Company or any of its subsidiaries relating to or entitling any person to
purchase or otherwise to acquire any shares of the capital stock of the Company
or any of its subsidiaries, except as otherwise disclosed in the Registration
Statement.
(f) All the outstanding shares of capital stock of the Company (including
the Additional Shares to be sold by the Selling Stockholders) have been duly
authorized and validly issued and are fully paid, non-assessable and not subject
to any preemptive or similar rights; and the Shares to be issued and sold by the
Company have been duly authorized and, when issued and delivered to the
Underwriters against payment therefor as provided by this Agreement, will be
validly issued, fully paid and non-assessable, and the issuance of such Shares
will not be subject to any preemptive or similar rights.
(g) The entities listed on Schedule III hereto are the only subsidiaries,
direct or indirect, of the Company. For purposes of this Agreement, a
subsidiary of the Company means any corporation, association or other business
entity of which the Company owns or controls, directly or indirectly, more than
50% of the voting power with respect to the election of directors, managers or
trustees thereof, and any partnership of which the Company or a subsidiary of
the Company is the sole general partner or the managing general partner or of
which the only general partners are
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the Company and one or more of its subsidiaries. All of the outstanding shares
of capital stock of, or other ownership interests in each of the Company's
subsidiaries have been duly authorized and validly issued and are fully paid and
non-assessable, and except as set for in the Prospectus, are owned by the
Company, directly or indirectly through one or more subsidiaries, free and clear
of any security interest, claim, lien, encumbrance or adverse interest of any
nature.
(h) The authorized capital stock of the Company conforms as to legal
matters to the description thereof contained in the Prospectus.
(i) Neither the Company nor any of its subsidiaries is in violation of its
respective charter, by-laws, operating agreement or partnership agreement or in
default in the performance of any obligation, agreement, covenant or condition
contained in any indenture, loan agreement, mortgage, lease or other agreement
or instrument that is material to the Company and its subsidiaries, taken as a
whole, to which the Company or any of its subsidiaries is a party or by which
the Company or any of its subsidiaries or their respective property is bound.
(j) The execution, delivery and performance of this Agreement by the
Company, the compliance by the Company with all the provisions hereof and the
consummation of the transactions contemplated hereby will not (i) require any
consent, approval, authorization or other order of, or qualification with, any
court or governmental body or agency (except such as may be required under the
securities or Blue Sky laws of the various states), (ii) conflict with or
constitute a breach of any of the terms or provisions of, or a default under,
the charter, by-laws, operating agreement or partnership agreement of the
Company or any of its subsidiaries or any indenture, loan agreement, mortgage,
lease or other agreement or instrument that is material to the Company and its
subsidiaries, taken as a whole, to which the Company or any of its subsidiaries
is a party or by which the Company or any of its subsidiaries or their
respective property is bound, (iii) violate or conflict with any applicable law
or any rule, regulation, judgment, order or decree of any court or any
governmental body or agency having jurisdiction over the Company, any of its
subsidiaries or their respective property or (iv) result in the suspension,
termination or revocation of any Authorization (as defined below) of the Company
or any of its subsidiaries or any other impairment of the rights of the holder
of any such Authorization.
(k) There are no legal or governmental proceedings pending or threatened to
which the Company or any of its subsidiaries is or is threatened to be a party
or to which any of their respective property is or could be subject that are
required to be described in the Registration Statement or the Prospectus and are
not so described; nor are there any statutes, regulations, contracts or other
documents that are required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement that are not
so described or filed as required.
(l) Neither the Company nor any of its subsidiaries has violated any
foreign, federal, state or local law or regulation relating to the protection of
human health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("Environmental Laws"), any provisions of the
Employee Retirement Income Security Act of 1974, as amended, or any provisions
of the Foreign Corrupt Practices Act, or the rules and regulations
9
promulgated thereunder, except for such violations which, singly or in the
aggregate, would not have a Material Adverse Effect.
(m) Each of the Company and its subsidiaries has such permits, licenses,
consents, exemptions, franchises, authorizations and other approvals (each,
subject to the exception set forth in this sentence, an "Authorization") of, and
has made all filings with and notices to, all governmental or regulatory
authorities and self-regulatory organizations and all courts and other
tribunals, including, without limitation, under any applicable Environmental
Laws, as are necessary to own, lease, license and operate its respective
properties and to conduct its business, except where the failure to have any
such Authorization or to make any such filing or notice would not, singly or in
the aggregate, have a Material Adverse Effect. Each such Authorization is valid
and in full force and effect and each of the Company and its subsidiaries is in
compliance with all the terms and conditions thereof and with the rules and
regulations of the authorities and governing bodies having jurisdiction with
respect thereto; and no event has occurred (including, without limitation, the
receipt of any notice from any authority or governing body) which allows or,
after notice or lapse of time or both, would allow, revocation, suspension or
termination of any such Authorization or results or, after notice or lapse of
time or both, would result in any other impairment of the rights of the holder
of any such Authorization; and such Authorizations contain no restrictions that
are burdensome to the Company or any of its subsidiaries; except where such
failure to be valid and in full force and effect or to be in compliance, the
occurrence of any such event or the presence of any such restriction would not,
singly or in the aggregate, have a Material Adverse Effect.
(n) 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
Authorization, any related constraints on operating activities and any potential
liabilities to third parties) which would, singly or in the aggregate, have a
Material Adverse Effect.
(o) This Agreement has been duly authorized, executed and delivered by the
Company.
(p) Ernst & Young LLP are independent public accountants with respect to
the Company and its subsidiaries as required by the Act.
(q) The consolidated financial statements included in the Registration
Statement and the Prospectus (and any amendment or supplement thereto), together
with related schedules and notes, present fairly the consolidated financial
position, results of operations and changes in financial position of the Company
and its subsidiaries on the basis stated therein 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; the supporting schedules, if any, included in the
Registration Statement present fairly in accordance with generally accepted
accounting principles the information required to be stated therein; and the
other financial and statistical information and data set forth in the
Registration Statement and the Prospectus (and any amendment or supplement
thereto) are, in all material respects, accurately presented and prepared on a
basis consistent with such financial statements and the books and records of the
Company.
10
(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) Except for (i) registration rights granted in favor of certain holders
of Class B common stock of the Company pursuant to the shareholder agreement
dated September 24, 1999 (the "Shareholder Agreement") and (ii) registration
rights granted in favor of The 1818 Fund III, L.P. and its affiliates in
connection with the issuance of 500,000 shares of the Company's Series A Senior
Redeemable Preferred Stock to The 1818 Fund III, L.P. on October 29, 1999 for
$50 million and in favor of Trust Company of the West and its affiliates in
connection with the issuance of 50,000 shares of the Company's Series B Senior
Redeemable Preferred Stock to Trust Company of the West or its affiliates on
February 15, 2000 for $5 million (the "Preferred Stock Offerings"), there are no
contracts, agreements or understandings between the Company and any person
granting such person the right to require the Company to file a registration
statement under the Act with respect to any securities of the Company or to
require the Company to include such securities with the Shares registered
pursuant to the Registration Statement.
(t) Since the respective dates as of which information is given in the
Prospectus other than as set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this Agreement), (i)
there has not occurred any material adverse change or any development involving
a prospective material adverse change in the condition, financial or otherwise,
or the earnings, business, management or operations of the Company and its
subsidiaries, taken as a whole, (ii) there has not been any material adverse
change or any development involving a prospective material adverse change in the
capital stock or in the long-term debt of the Company or any of its subsidiaries
and (iii) neither the Company nor any of its subsidiaries has incurred any
material liability or obligation, direct or contingent, not in the ordinary
course of business.
(u) Each certificate signed by any officer of the Company in connection
with the transactions contemplated by this Agreement and delivered to the
Underwriters or counsel for the Underwriters shall be deemed to be a
representation and warranty by the Company to the Underwriters as to the matters
covered thereby.
(v) The Company and its subsidiaries have good and marketable title to all
real property and good and marketable title to all personal property owned by
them which is material to the business of the Company and its subsidiaries, in
each case free and clear of all liens and defects, except such as are described
in the Prospectus or such as do not materially affect the value of such property
and do not interfere with the use made and proposed to be made of such property
by the Company and its subsidiaries; and any real property and buildings held
under lease by the Company and its subsidiaries are held by them under valid,
subsisting and enforceable leases with such exceptions as are not material and
do not interfere with the use made and proposed to be made of such property and
buildings by the Company and its subsidiaries, in each case except as described
in the Prospectus.
11
(w) The Company and its subsidiaries own or possess, or can acquire on
reasonable terms, all patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other proprietary or confidential
information, systems or procedures), trademarks, service marks and trade names
("intellectual property") currently employed by them in connection with the
business now operated by them except where the failure to own or possess or
otherwise be able to acquire such intellectual property would not, singly or in
the aggregate, have a Material Adverse Effect; and neither the Company nor any
of its subsidiaries has received any notice of infringement of or conflict with
asserted rights of others with respect to any of such intellectual property
which, singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would have a Material Adverse Effect.
(x) The Company and each of its subsidiaries are insured by insurers of
recognized financial responsibility against such losses and risks and in such
amounts as are prudent and customary in the businesses in which they are
engaged; and neither the Company nor any of its subsidiaries (i) has received
notice from any insurer or agent of such insurer that substantial capital
improvements or other material expenditures will have to be made in order to
continue such insurance or (ii) 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 at a cost that would not
have a Material Adverse Effect.
(y) Except as disclosed in the Prospectus, no relationship, direct or
indirect, exists between or among the Company or any of its subsidiaries on the
one hand, and the directors, officers, stockholders, other affiliates, customers
or suppliers of the Company or any of its subsidiaries on the other hand, which
would be required by the Act to be described in the Prospectus.
(z) There is no (i) significant unfair labor practice complaint, grievance
or arbitration proceeding pending or, to the best knowledge of the Company,
threatened against the Company or any of its subsidiaries before the National
Labor Relations Board or any state or local labor relations board, (ii) strike,
labor dispute, slowdown or stoppage pending or, to the best knowledge of the
Company, threatened against the Company or any of its subsidiaries or (iii)
union representation question existing with respect to the employees of the
Company or any of its subsidiaries, except in the case of clauses (i), (ii) and
(iii) for such actions which, singly or in the aggregate, would not have a
Material Adverse Effect. To the best knowledge of the Company, no collective
bargaining organizing activities are taking place with respect to the Company or
any of its subsidiaries.
(aa) The Company and each of its subsidiaries maintains a system of
internal accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
12
(bb) All material tax returns required to be filed by the Company and each
of its subsidiaries in any jurisdiction have been filed, other than those
filings being contested in good faith, and all material taxes, including
withholding taxes, penalties and interest, assessments, fees and other charges
due pursuant to such returns or pursuant to any assessment received by the
Company or any of its subsidiaries have been paid, other than those being
contested in good faith and for which adequate reserves have been provided.
(cc) The Company and each of its subsidiaries validly holds the Federal
Communication Commission ("FCC") licenses set forth opposite each entity's name
on Schedule 6(cc) attached hereto (the "PCS Licenses"). The PCS Licenses are in
full force and effect and are not subject to any conditions other than those
conditions listed thereon and those conditions generally applicable to entities
holding similar licenses issued by the FCC. The PCS Licenses constitute all of
the licenses, permits, consents or authorizations required by the FCC to permit
operation of a PCS system in each of the markets indicated opposite each license
on Schedule 6(cc). The PCS Licenses expire on April 28, 2007. The five-year
buildout periods for the PCS Licenses expire on April 28, 2002 and the ten-year
buildout periods expire on April 28, 2007. All applicable administrative and
judicial appeal, review and reconsideration periods of the orders granting the
PCS Licenses have expired, without the timely filing of any such appeal or
request for review or reconsideration and without the FCC having instituted
review of the grant of the PCS Licenses on its own motion.
(dd) The Company validly holds the FCC licenses listed on Schedule 6(dd)
attached hereto (the "Cellular Licenses"). The Cellular Licenses are in full
force and effect and are not subject to any conditions other than those
conditions listed thereon and those conditions generally applicable to entities
holding similar licenses issued by the FCC. The Cellular Licenses constitute
all of the licenses, permits, consents or authorizations required by the FCC to
permit operation of the Company's cellular telephone system, as identified in
the Prospectus. The Cellular Licenses expire on the dates set forth opposite
each license listed on Schedule 6(dd). All applicable administrative and
judicial appeal, review and reconsideration periods of the orders granting the
Cellular Licenses have expired, without the timely filing of any such appeal or
request for review or reconsideration and without the FCC having instituted
review of the grant of the Cellular Licenses on its own motion.
(ee) There are no judgments, decrees or orders issued by the FCC that could
result in suspension, revocation, material impairment, termination prior to its
expiration date, non-renewal or adverse modification of the PCS Licenses or the
Cellular Licenses, or that could have a Material Adverse Effect upon, or cause
material disruption to, the PCS operations pursuant to the PCS Licenses or the
cellular operations pursuant to the Cellular Licenses. To the best of the
Company's knowledge, there is no complaint, investigation, action or proceeding
pending or threatened relative to the PCS Licenses relating to the PCS
operations or the Cellular Licenses relating to the cellular operations,
including, without limitation, any Notice of Violation, Notice of Apparent
Liability or Order to Show Cause, other than proceedings that affect the PCS or
the cellular telephone industry generally, that could result in a suspension,
revocation, material impairment, termination prior to its expiration date, non-
renewal or adverse modification of the PCS Licenses or the Cellular Licenses
13
or which could have a Material Adverse Effect upon, or cause material disruption
to, the Company's PCS or cellular operations.
(ff) [The Company and each of its subsidiaries has, or has timely filed
applications for, all permits, licenses, franchises and other authorizations
("permits") of governmental or regulatory authorities (including, as
appropriate, the state public utilities commissions of Alabama, Arkansas,
Florida, Louisiana, Mississippi and Texas) necessary to engage in the wireless
and competitive local exchange businesses currently conducted by the Company,
except where the failure to hold such permits would not have a Material Adverse
Effect; and there is no reason to believe that any governmental body or agency
is considering limiting, suspending or revoking any such permit, except where
the limitation, suspension or revocation of such permits would not have a
Material Adverse Effect. All such permits are valid and in full force and
effect, except where the limitation, suspension or revocation of such permits
would not have a Material Adverse Effect.]
(gg) All fees required by the FCC in connection with the PCS Licenses,
including any and all down payments or installment payments required by FCC
rules to be paid as of the date hereof have been timely and fully paid.
(hh) The Company and each of its subsidiaries validly holds all FCC
licenses necessary for the operation of its paging system, as described in the
Prospectus (the "Paging Licenses"). Except as set forth in Schedule 6(hh), the
Paging Licenses are in full force and effect and are not subject to any
conditions other than those conditions listed thereon and those conditions
generally applicable to entities holding similar licenses issued by the FCC.
The Paging Licenses constitute all of the licenses, permits, consents or
authorizations required by the FCC to permit operation of the paging system, as
described in the Prospectus.
(ii) There does not exist any FCC complaint, investigation, action or
proceeding pending or threatened relative to the Paging Licenses, including,
without limitation, any Notice of Violation, Notice of Apparent Liability or
Order to Show Cause, other than proceedings that affect the paging industry
generally, that could result in a denial of any of the Paging Licenses, or
suspension, revocation, material impairment, termination prior to its expiration
date, non-renewal or adverse modification of any of the Paging Licenses or which
could have a Material Adverse Effect upon, or cause material disruption to, the
Company's paging operations.
(jj) LA Unwired was qualified to participate in the FCC's PCS license
auctions as a "Small Business," as defined by FCC Rules, and is qualified to
hold the licenses for LA Unwired's PCS operations according to the rules of the
FCC. The Company's investment in LA Unwired does not violate the rules of the
FCC.
(kk) To the Company's best knowledge, Sprint Spectrum L.P. and SprintCom,
Inc. validly hold the FCC licenses set forth on Schedule 6(kk) (the "Sprint PCS
Licenses"). To the Company's best knowledge, the Sprint PCS Licenses are in
full force and effect and are not subject to any conditions other than those
conditions listed thereon and those conditions generally applicable to entities
holding similar licenses issued by the FCC. The Sprint PCS Licenses, together
with the PCS Licenses, constitute all of the licenses, permits, consents or
authorizations required by the FCC to permit operation of the PCS operations of
the Company and its subsidiaries,
14
including the Company's planned PCS network buildout, as described in the
Prospectus. All applicable administrative and judicial appeal, review and
reconsideration periods of the orders granting the Sprint PCS Licenses have
expired, without the timely filing of any such appeal or request for review or
reconsideration and without the FCC having instituted review of the grant of the
Sprint PCS Licenses on its own motion.
(ll) Since the date of the Prospectus, there have been no material changes
to the Company's PCS network buildout plan, as described in the Prospectus. The
proceeds from the sale of the Firm Shares, together with the other existing
financing sources described in the Prospectus, are sufficient to fund the entire
PCS network buildout plan as set forth in the Prospectus.
Section 7. Representations and Warranties of the Selling Stockholders.
Each Selling Stockholder represents and warrants to each Underwriter that:
(a) Such Selling Stockholder is the lawful owner of the Additional
Shares to be sold by such Selling Stockholder pursuant to this Agreement and
has, and on the Option Closing Date will have, good and clear title to such
Additional Shares, free of all restrictions on transfer, liens, encumbrances,
security interests, equities and claims whatsoever.
(b) The Additional Shares to be sold by such Selling Stockholder have
been duly authorized and are validly issued, fully paid and non-assessable.
(c) Such Selling Stockholder has, and on the Option Closing Date will
have, full legal right, power and authority, and all authorization and approval
required by law, to enter into this Agreement, the Custody Agreement signed by
such Selling Stockholder and Xxxxxx X. Xxxxxxx, as Custodian, relating to the
deposit of the Additional Shares to be sold by such Selling Stockholder (the
"Custody Agreement") and the Power Of Attorney of such Selling Stockholder
appointing certain individuals as such Selling Stockholder's attorneys-in-fact
(the "Attorneys") to the extent set forth therein, relating to the transactions
contemplated hereby and by the registration statement and the Custody Agreement
(the "Power Of Attorney") and to sell, assign, transfer and deliver the
Additional Shares to be sold by such Selling Stockholder in the manner provided
herein and therein.
(d) This Agreement has been duly authorized, executed and delivered by
or on behalf of such Selling Stockholder.
(e) The Custody Agreement of such Selling Stockholder has been duly
authorized, executed and delivered by such Selling Stockholder.
(f) The Power Of Attorney of such Selling Stockholder has been duly
authorized, executed and delivered by such Selling Stockholder, and, pursuant to
such Power Of Attorney, such Selling Stockholder has, among other things,
authorized the Attorneys, or any one of them, to execute and deliver on such
Selling Stockholder's behalf this Agreement and any other document that they, or
any one of them, may deem necessary or desirable in connection with the
transactions contemplated hereby and thereby and to deliver the Shares to be
sold by such Selling Stockholder pursuant to this Agreement.
15
(g) Upon delivery of and payment for the Additional Shares to be sold
by such Selling Stockholder pursuant to this Agreement, good and clear title to
such Additional Shares will pass to the Underwriters, free of all restrictions
on transfer, liens, encumbrances, security interests, equities and claims
whatsoever, except those, if any, attributable to acts of the Underwriters.
(h) The execution, delivery and performance of this Agreement and the
Custody Agreement and Power Of Attorney of such Selling Stockholder by or on
behalf of such Selling Stockholder, the compliance by such Selling Stockholder
with all the provisions hereof and thereof and the consummation of the
transactions contemplated hereby and thereby will not (i) require any consent,
approval, authorization or other order of, or qualification with, any court or
governmental body or agency (except such as may be required under the securities
or Blue Sky laws of the various states), (ii) conflict with or constitute a
breach of any of the terms or provisions of, or a default under, the
organizational documents of such Selling Stockholder, if such Selling
Stockholder is not an individual, or any indenture, loan agreement, mortgage,
lease or other agreement or instrument to which such Selling Stockholder is a
party or by which such Selling Stockholder or any property of such Selling
Stockholder is bound or (iii) violate or conflict with any applicable law or any
rule, regulation, judgment, order or decree of any court or any governmental
body or agency having jurisdiction over such Selling Stockholder or any property
of such Selling Stockholder.
(i) The information in the Registration Statement under the caption
"Principal And Selling Stockholders" which specifically relates to such Selling
Stockholder does not, and will not on the Option Closing Date, 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.
(j) At any time during the period described in Section 5(d), if there
is any change in the information referred to in Section 7(i), such Selling
Stockholder will immediately notify you of such change.
(k) Each certificate signed by or on behalf of such Selling Stockholder
and delivered in connection with the transactions contemplated by this Agreement
to the Underwriters or counsel for the underwriters shall be deemed to be a
representation and warranty by such Selling Stockholder to the Underwriters as
to the matters covered thereby.
Section 8. Indemnification.
(a)
(i) The Company agrees to indemnify and hold harmless each
Underwriter, its directors, its officers and each person, if any, who controls
any 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, damages,
liabilities and judgments (including, without limitation, any legal or other
expenses incurred in connection with investigating or defending any matter,
including any action, that could give rise to any such losses, claims, damages,
liabilities or judgments) caused by any untrue statement or alleged untrue
statement of a material fact
16
contained in the Registration Statement (or any amendment thereto), the
Prospectus (or any amendment or supplement thereto) or any preliminary
prospectus, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages,
liabilities or judgments are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to (i) any
Underwriter furnished in writing to the Company by such Underwriter through you
expressly for use therein or (ii) any Selling Stockholder furnished in writing
to the Company by such Selling Stockholder for use therein; provided, however,
that the foregoing indemnity agreement with respect to any preliminary
prospectus shall not inure to the benefit of any Underwriter who failed to
deliver a Prospectus (as then amended or supplemented, provided by the Company
to the several Underwriters in the requested quantity and on a timely basis to
permit proper delivery on or prior to the Closing Date) to the person asserting
any losses, claims, damages and liabilities and judgments caused by any untrue
statement or alleged untrue statement of a material fact contained in any
preliminary prospectus, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, if such material misstatement or omission or
alleged material misstatement or omission was cured in such Prospectus as so
amended or supplemented and such Prospectus was required by law to be delivered
at or prior to the written confirmation of sale to such person. In addition to
the foregoing, in connection with the offer and sale of the Reserved Shares,
the Company agrees, promptly upon a request in writing, to indemnify and hold
harmless the Underwriters from and against any and all losses, liabilities,
claims, damages and expenses incurred by them as a result of (A) the failure of
purchasers of the Reserved Shares (including eligible directors, officers,
employees, customers, subscribers and persons having business relationships
with the Company) to pay for and accept delivery of the Reserved Shares which,
by the end of the first business day following the date of this Agreement, were
subject to a properly confirmed application to purchase or (B) any violation or
alleged violation of the Act or any other federal or state law or any liability
based on common law, in each case, arising out of or relating to the manner in
which the Reserved Shares are sold and pertaining to any actions or inactions
by the Company (or by the Company jointly with any other person), including
without limitation any e-mails or other communications by the Company (or by
the Company jointly with any other person) with customers or subscribers of the
Company relating to the Reserved Shares or possible opportunities to purchase
Reserved Shares.
(ii) Each Selling Stockholder, severally and not jointly, agrees to
indemnify and hold harmless each Underwriter, its directors, its officers and
each person, if any, who controls any Underwriter within the meaning of Section
15 of the Act or Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with respect
to information relating to such Selling Stockholder furnished in writing by or
on behalf of such Selling Stockholder expressly for use in the Registration
Statement, the Prospectus or any preliminary prospectus; provided, however, that
the foregoing indemnity agreement with respect to any preliminary prospectus
shall not inure to the benefit of any Underwriter who failed to deliver a
Prospectus (as then amended
17
or supplemented, provided by the Company to the several Underwriters in the
requisite quantity and on a timely basis to permit proper delivery on or
prior to the Closing Date) to the person asserting any losses, claims,
damages and liabilities and judgments caused by any untrue statement or
alleged untrue statement of a material fact contained in any preliminary
prospectus, or caused by any omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, if such material misstatement or
omission or alleged material misstatement or omission was cured in such
Prospectus as so amended or supplemented and such Prospectus was required
by law to be delivered at or prior to the written confirmation of sale to
such person. Notwithstanding the foregoing, the aggregate liability of any
Selling Stockholder pursuant to this Section 8(a)(ii) shall be limited to
an amount equal to the total proceeds (before deducting underwriting
discounts and commissions and expenses) received by such Selling
Stockholder from the Underwriters for the sale of the Additional Shares
sold by such Selling Stockholder hereunder.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement 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, and each Selling
Stockholder and each person, if any, who controls such Selling Stockholder
within the meaning of Section 15 of the Act or section 20 of the Exchange Act to
the same extent as the foregoing indemnity from the Sellers to such Underwriter
but only with reference to information relating to such Underwriter furnished in
writing to the Company by such Underwriter through you expressly for use in the
Registration Statement (or any amendment thereto), the Prospectus (or any
amendment or supplement thereto) or any preliminary prospectus.
(c) In case any action shall be commenced involving any person in respect
of which indemnity may be sought pursuant to Section 8(a) or 8(b) (the
"indemnified party"), the indemnified party shall promptly notify the person
against whom such indemnity may be sought (the "indemnifying party") in writing
and the indemnifying party shall assume the defense of such action, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all fees and expenses of such counsel, as incurred (except that
in the case of any action in respect of which indemnity may be sought pursuant
to both Sections 8(a) and 8(b), the Underwriters shall not be required to assume
the defense of such action pursuant to this Section 8(c), but may employ
separate counsel and participate in the defense thereof, but the fees and
expenses of such counsel, except as provided below, shall be at the expense of
such Underwriters). Any indemnified party shall have the right to employ
separate counsel in any such action and participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of the indemnified
party unless (i) the employment of such counsel shall have been specifically
authorized in writing by the indemnifying party, (ii) the indemnifying party
shall have failed to assume the defense of such action or to employ counsel
reasonably satisfactory to the indemnified party or (iii) the named parties to
any such action (including any impleaded parties) include both the indemnified
party and the indemnifying party, and the indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party (in which case the indemnifying party shall not have the
right to assume the defense of such action on behalf of the
18
indemnified party). In any such case, the indemnifying party shall not, in
connection with any one action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances, be liable for (i) the fees and expenses of more than one separate
firm of attorneys (in addition to any local counsel) for all Underwriters, their
officers and directors and all persons, if any, who control any Underwriter
within the meaning of either Section 15 of the Act or Section 20 of the Exchange
Act, (ii) the fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) for the Company, its directors, its officers who
sign the Registration Statement and all persons, if any, who control the Company
within the meaning of either such Section and (iii) the fees and expenses of
more than one separate firm of attorneys (in addition to any local counsel) for
all Selling Stockholders and all persons, if any, who control any Selling
Stockholder within the meaning of either such Section, and all such fees and
expenses shall be reimbursed as they are incurred. In the case of any such
separate firm for the Underwriters, their officers and directors and such
control persons of any Underwriters, such firm shall be designated in writing by
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation. 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 any Selling Stockholders, such firm shall be designated in writing by
the Selling Stockholders or, if they fail to do so, by the Attorneys. The
indemnifying party shall indemnify and hold harmless the indemnified party from
and against any and all losses, claims, damages, liabilities and judgments by
reason of any settlement of any action (i) effected with the written consent of
the indemnifying party or (ii) effected without its written consent if the
settlement is entered into more than twenty business days after the indemnifying
party shall have received a request from the indemnified party for reimbursement
for the fees and expenses of counsel (in any case where such fees and expenses
are at the expense of the indemnifying party) and, prior to the date of such
settlement, the indemnifying party shall have failed to comply with such
reimbursement request. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement or compromise of, or
consent to the entry of judgment with respect to, any pending or threatened
action in respect of which the indemnified party is or could have been a party
and indemnity or contribution may be or could have been sought hereunder by the
indemnified party, unless such settlement, compromise or judgment (i) includes
an unconditional release of the indemnified party from all liability on claims
that are or could have been the subject matter of such action and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of the indemnified party.
(d) To the extent the indemnification provided for in this Section 8 is
unavailable to an indemnified party or insufficient in respect of any losses,
claims, damages, liabilities or judgments referred to therein, and such
unavailability or insufficiency is otherwise than in accordance with the express
terms of Section 8(a) or 8(b), then each indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages,
liabilities and judgments (i) in such proportion as is appropriate to reflect
the relative benefits received by the Sellers on the one hand and the
Underwriters on the other hand from the offering of the Shares or (ii) if the
allocation provided by clause 8(d)(i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause 8(d)(i) above but also the relative fault of the Sellers
on the one hand and the Underwriters on the other hand in connection with the
19
statements or omissions which resulted in such losses, claims, damages,
liabilities or judgments, as well as any other relevant equitable
considerations. The relative benefits received by the Sellers on the one hand
and the Underwriters on the other hand shall be deemed to be in the same
proportion as the total net proceeds from the offering (after deducting
underwriting discounts and commissions, but before deducting expenses) received
by the Sellers, and the total underwriting discounts and commissions received by
the Underwriters, bear to the total price to the public of the Shares, in each
case as set forth in the table on the cover page of the Prospectus. The relative
fault of the Sellers on the one hand and the Underwriters on the other hand
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company or the
Selling Stockholders on the one hand or the Underwriters on the other hand, and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
The Sellers and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 8(d) were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such indemnified party in
connection with investigating or defending any matter, including any action,
that could have given rise to such losses, claims, damages, liabilities or
judgments. Notwithstanding the provisions of this Section 8, no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Shares underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Section 8(d) are several in proportion to the respective number
of Shares purchased by each of the Underwriters hereunder and not joint. The
Selling Stockholders' obligations to contribute pursuant to this Section 8(d)
are several in proportion to the respective number of Additional Shares sold by
them and not joint.
(e) The remedies provided for in this Section 8 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.
(f) Each Selling Stockholder hereby designates US Unwired, Xxx Xxxxxxxxx
Xxxxx, Xxxxx 0000, Xxxx Xxxxxxx, Xxxxxxxxx 00000, as its authorized agent, upon
which process may be served in any action which may be instituted in any state
or federal court in the State of New York by any Underwriter, any director or
officer of any Underwriter or any person controlling any Underwriter asserting a
claim for indemnification or contribution under or pursuant to this Section 8,
and each Selling Stockholder will accept the jurisdiction of such court in such
action, and waives, to the fullest extent permitted by applicable law, any
defense based upon lack of personal jurisdiction or
20
venue. A copy of any such process shall be sent or given to such Selling
Stockholder, at the address for notices specified in Section 12 hereof.
Section 9. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase the Firm Shares under this Agreement
are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company contained in
this Agreement shall be true and correct on the Closing Date with the same force
and effect as if made on and as of the Closing Date.
(b) If the Company is required to file a Rule 462(b) Registration
Statement after the effectiveness of this Agreement, such Rule 462(b)
Registration Statement shall have become effective by 10:00 P.M., New York City
time, on the date of this Agreement; and no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been commenced or shall be pending
before or contemplated by the Commission.
(c) You shall have received on the Closing Date a certificate dated the
Closing Date, signed by Xxxxxx X. Xxxxx and Xxxxx X. Xxxxxx, in their capacities
as the President and Chief Finance Officer of the Company, confirming the
matters set forth in Sections 6(t), 9(a) and 9(b) and that the Company has
complied with all of the agreements and satisfied all of the conditions herein
contained and required to be complied with or satisfied by the Company on or
prior to the Closing Date.
(d) Since the respective dates as of which information is given in the
Prospectus other than as set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this Agreement), (i)
there shall not have occurred any change or any development involving a
prospective change in the condition, financial or otherwise, or the earnings,
business, management or operations of the Company and its subsidiaries, taken as
a whole, (ii) there shall not have been any change or any development involving
a prospective change in the capital stock or in the long-term debt of the
Company or any of its subsidiaries and (iii) neither the Company nor any of its
subsidiaries shall have incurred any liability or obligation, direct or
contingent, the effect of which, in any such case described in clause 9(d)(i),
9(d)(ii) or 9(d)(iii), in your judgment, is material and adverse and, in your
judgment, makes it impracticable to market the Shares on the terms and in the
manner contemplated in the Prospectus.
(e) All the representations and warranties of each Selling Stockholder
contained in this Agreement shall be true and correct on the Closing Date with
the same force and effect as if made on and as of the Closing Date and you shall
have received on the Closing Date a certificate dated the Closing Date from each
Selling Stockholder to such effect and to the effect that such Selling
Stockholder has complied with all of the agreements and satisfied all of the
conditions herein contained and required to be complied with or satisfied by
such Selling Stockholder on or prior to the Closing Date.
(f) You shall have received on the Closing Date an opinion (satisfactory
to you and counsel for the Underwriters), dated the Closing Date, of Xxxxxxx
Xxxxxxx Xxxxxxx Xxxxxx
21
Xxxxxxxx & Casteix, L.L.P., counsel for the Company, to the effect set forth in
subsections (i) through (xvii) below and making the statements described in the
paragraph that follows subsection (xxiii) below; and of Xxxxxxx Xxxxxxx Xxxxxxx
Xxxxxx Xxxxxxxx & Xxxxxxx, L.L.P., as counsel for the Company, or of counsel
(reasonably satisfactory to you) for the Selling Stockholders, to the effect set
forth in subsections (xviii) through (xxiii) below:
(i) each of the Company and its subsidiaries listed in Schedule
III has been duly incorporated or formed, as the case may be, is validly
existing as a corporation, partnership or limited liability company, as the
case may be, in good standing under the laws of Louisiana and has the
corporate or other power and authority to carry on its business as
described in the Prospectus and to own, lease and operate its properties,
as described therein;
(ii) each of the Company and its subsidiaries is duly qualified and
is in good standing as a foreign corporation, partnership or limited
liability company, as the case may be, authorized to do business in each
jurisdiction in which the nature of its business or its ownership or
leasing of property requires such qualification, except where the failure
to be so qualified would not have a Material Adverse Effect;
(iii) all the outstanding shares of capital stock of the Company
(including the Additional Shares to be sold by the Selling Stockholders)
have been duly authorized and validly issued and are fully paid, non-
assessable and not subject to any preemptive or similar rights;
(iv) the Firm Shares to be issued by the Company hereunder have
been duly authorized and, when issued and delivered to the Underwriters
against payment therefor as provided by this Agreement, will be validly
issued, fully paid and non-assessable, and the issuance of such Firm Shares
will not be subject to any preemptive or similar rights;
(v) all of the outstanding shares of capital stock of or other
ownership interest in each of the Company's subsidiaries have been duly
authorized and validly issued and are fully paid and non-assessable, and
except as described in the Prospectus are owned by the Company, directly or
indirectly through one or more subsidiaries, free and clear of any security
interest, claim, lien, encumbrance or adverse interest of any nature;
(vi) this Agreement has been duly authorized, executed and
delivered by the Company;
(vii) the authorized capital stock of the Company conforms as to
legal matters to the description thereof contained in the Prospectus;
(viii) the Registration Statement has become effective under the Act,
no stop order suspending its effectiveness has been issued and no
proceedings for that purpose are, to the best of such counsel's knowledge
after due inquiry, pending before or contemplated by the Commission;
22
(ix) the statements under the captions "Certain Relationships and
Related Transactions", "Sprint PCS Agreements", "Management-1999 Equity
Incentive Plan", "Certain Indebtedness", "Description of Capital Stock" and
"Underwriting" in the Prospectus and Items 14 and 15 of Part II of the
Registration Statement, insofar as such statements constitute a summary of
the legal matters, contracts or legal proceedings referred to therein (but
not factual matters), fairly present the information called for with
respect to such legal contracts, documents and legal proceedings;
(x) to such counsel's knowledge, (i) neither the Company nor any of
its subsidiaries is in violation of its respective articles of
incorporation, by-laws, operating agreement or partnership agreement, (ii)
and neither the Company nor any of its subsidiaries is in default in the
performance of any obligation, agreement, covenant or condition contained
in any indenture, loan agreement, mortgage, lease or other agreement or
instrument known to us that is material to the Company and its
subsidiaries, taken as a whole, to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries
or their respective property is bound;
(xi) the execution, delivery and performance of this Agreement by
the Company, the compliance by the Company with all the provisions hereof
and the consummation of the transactions contemplated hereby will not (A)
require any consent, approval, authorization or other order of, or
qualification with, any court or governmental body or agency (except such
as may be required under the securities or Blue Sky laws of the various
states), (B) conflict with or constitute a breach of any of the terms or
provisions of, or a default under, the articles of incorporation, by-laws,
operating agreement or partnership agreement of the Company or any of its
subsidiaries or any indenture, loan agreement, mortgage, lease or other
agreement or instrument know by such counsel that is material to the
Company and its subsidiaries, taken as a whole, to which the Company or any
of its subsidiaries is a party or by which the Company or any of its
subsidiaries or their respective property is bound, (C) violate or conflict
with any applicable Louisiana or federal law or any rule, regulation,
judgment, order or decree known to us of any court or any governmental body
or agency having jurisdiction over the Company, any of its subsidiaries or
their respective property or (D) result in the suspension, termination or
revocation of any Authorization (other than any Authorization relating to
federal taxation law or any communications matters including without
limitation matters regulated by the Federal Communications Commission, the
Communications Act of 1934 or the Louisiana Public Service Commission) of
the Company or any of its subsidiaries known to us or any other impairment
of the rights of the holder of any such Authorization;
(xii) such counsel does not know of any legal or governmental
proceedings pending or threatened to which the Company or any of its
subsidiaries party or to which any of their respective property is subject
that are required to be described in the Registration Statement or the
Prospectus and are not so described, or of any statutes, regulations,
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not so described or filed as required;
23
(xiii) to such counsel's knowledge, neither the Company nor any of
its subsidiaries has violated any Environmental Law, any provisions of the
Employee Retirement Income Security Act of 1974, as amended, or any
provisions of the Foreign Corrupt Practices Act, or the rules and
regulations promulgated thereunder, except, in each case, for such
violations which, singly or in the aggregate, would not have a Material
Adverse Effect;
(xiv) to such counsel's knowledge, each of the Company and its
subsidiaries has such Authorizations of, and has made all filings with and
notices to, all governmental or regulatory authorities and self-regulatory
organizations and all courts and other tribunals, including, without
limitation, under any applicable Environmental Laws, as are necessary to
own, lease, license and operate its respective properties and to conduct
its business (excluding, in each case, those relating to communications),
except where the failure to have any such Authorization or to make any such
filing or notice would not, singly or in the aggregate, have a Material
Adverse Effect. To such counsel's knowledge, (i) each such Authorization
(excluding, in each case, those relating to communications) is valid and in
full force and effect and each of the Company and its subsidiaries is in
compliance with all the terms and conditions thereof and with the rules and
regulations of the authorities and governing bodies having jurisdiction
with respect thereto; (ii) no event has occurred (including, without
limitation, the receipt of any notice from any authority or governing body)
which allows or, after notice or lapse of time or both, would allow,
revocation, suspension or termination of any such Authorization (other than
any Authorization relating to federal taxation law or any communications
matters including without limitation matters regulated by the Federal
Communications Commission, the Communications Act of 1934 or the Louisiana
Public Service Commission) or results or, after notice or lapse of time or
both, would result in any other impairment of the rights of the holder of
any such Authorization; and (iii) such Authorizations (other than any
Authorization relating to federal taxation law or any communications
matters including without limitation matters regulated by the Federal
Communications commission, the Communications Act of 1934 or the Louisiana
Public Service Commission) contain no restrictions that are burdensome to
the Company or any of its subsidiaries; except where such failure to be
valid and in full force and effect or to be in compliance, the occurrence
of any such event or the presence of any such restriction would not, singly
or in the aggregate, have a Material Adverse Effect;
(xv) 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;
(xvi) to such counsel's knowledge, there are no contracts, agreements
or understandings between the Company and any person granting such person
the right to require the Company to file a registration statement under the
Act with respect to any securities of the Company or to require the Company
to include such securities with the Shares registered pursuant to the
Registration Statement, except for registration rights granted in favor of
certain holders of Class B common stock of the Company pursuant to
24
the Shareholder Agreement and registration rights granted in favor of The
1818 Fund III, L.P. and its affiliates and Trust Company of the West and
its affiliates in connection with the Preferred Stock Offerings;
(xvii) the Registration Statement and the Prospectus and any
supplement or amendment thereto (except for the financial statements, notes
and schedules and other financial data included in the Registration
Statement, the Prospectus, or any supplement or amendment thereto, as to
which no opinion need be expressed) comply as to form with the Act;
(xviii) each Selling Stockholder is the lawful owner of the Additional
Shares to be sold by such Selling Stockholder pursuant to this Agreement
and has good and clear title to such Additional Shares, free of all
restrictions on transfer, liens, encumbrances, security interests, equities
and claims whatsoever;
(xix) each Selling Stockholder has full legal right, power and
authority, and all authorization and approval required by law, to enter
into this Agreement and the Custody Agreement and the Power of Attorney of
such Selling Stockholder and to sell, assign, transfer and deliver the
Additional Shares to be sold by such Selling Stockholder in the manner
provided herein and therein; and this Agreement has been duly authorized,
executed and delivered by the Selling Stockholders;
(xx) the Custody Agreement of each Selling Stockholder has been
duly authorized, executed and delivered by such Selling Stockholder and is
a valid and binding agreement of such Selling Stockholder;
(xxi) the Power of Attorney of each Selling Stockholder has been
duly authorized, executed and delivered by such Selling Stockholder and is
a valid and binding instrument of such Selling Stockholder;
(xxii) upon delivery of and payment for the Additional Shares to be
sold by each Selling Stockholder pursuant to this Agreement, good and clear
title to such Additional Shares will pass to the Underwriters, free of all
restrictions on transfer, liens, encumbrances, security interests, equities
and claims whatsoever, except those, if any, attributable to acts of the
Underwriters; and
(xxiii) the execution, delivery and performance of this Agreement and
the Custody Agreement and Power of Attorney of each Selling Stockholder by
such Selling Stockholder, the compliance by such Selling Stockholder with
all the provisions hereof and thereof and the consummation of the
transactions contemplated hereby and thereby will not (A) require any
consent, approval, authorization or other order of, or qualification with,
any court or governmental body or agency (except such as may be required
under the securities or Blue Sky laws of the various states), (B) conflict
with or constitute a breach of any of the terms or provisions of, or a
default under, the organizational documents of such Selling Stockholder, if
such Selling Stockholder is not an individual, or any indenture, loan
agreement, mortgage, lease or other agreement or instrument to which such
Selling Stockholder is a party or by which any property of such Selling
Stockholder is bound or (C) violate or conflict with any applicable law or
any rule, regulation, judgment, order or decree
25
of any court or any governmental body or agency having jurisdiction over
such Selling Stockholder or any property of such Selling Stockholder.
In addition, the opinion of Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxx Xxxxxxxx &
Xxxxxxx, L.L.P. will state that although such counsel has not checked the
accuracy and completeness of, or otherwise verified, and is not passing upon and
assumes no responsibility for the accuracy or completeness of, the statements
contained in the Registration Statement or Prospectus, or any amendment or
supplement thereto, except to the limited extent stated in subsections (ix) and
(xvii) above, in the course of such counsel's review and discussion of the
contents of the Registration Statement or Prospectus and any amendment or
supplement thereto with certain officers and employees of the Company and its
independent accountants, but without independent check or verification, no facts
have come to such counsel's attention which cause such counsel to believe (A)
that at the time the Registration Statement became effective or on the date of
this Agreement, the Registration Statement and the Prospectus included therein
(except for the financial statement, notes and schedules and other financial
data as to which such counsel need not express any belief) contained any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading and
(B) that the Prospectus, as amended or supplemented, if applicable (except for
the financial statement, notes and schedules and other financial data as to
which such counsel need not express any belief) contains any untrue statement of
a material fact or omits to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
The opinion of Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx, L.L.P.
described in Section 9(e) above shall be rendered to you at the request of the
Company and shall so state therein and shall be limited to the laws of the
United States of America and those of the state of Louisiana. The opinion of
counsel (if any) for the Selling Stockholders described in Section 9(e) above
shall be rendered to you at the request of the Selling Stockholders and shall so
state therein and shall be limited to the laws of the United States of America
and those of the State of Louisiana.
(g) You shall have received on the Closing Date an opinion (satisfactory
to you and counsel for the Underwriters), dated the Closing Date, of Lukas,
Nace, Xxxxxxxxx & Sachs, Chartered, special communications counsel for the
Company, to the effect that:
(i) the statements in the Prospectus under the captions "Risk
Factors--Government Regulation" and "Business of the Company," insofar as
such statements constitute a summary of Communications Act of 1934, as
amended, and the rules and regulations of the FCC promulgated thereunder
(the "Communications Act"), are accurate in all material respects and
fairly summarize all matters referred to therein;
(ii) the Company holds the PCS Licenses, the Cellular Licenses and the
Paging Licenses (together, the "Licenses"). The Licenses are in full force
and effect and are not subject to any conditions other than those
conditions listed on the Licenses and those conditions generally applicable
to entities holding similar licenses issued by the FCC. All applicable
administrative and judicial appeal, review and reconsideration periods of
the
26
FCC's grant of the Licenses have expired, without the timely filing of any
such appeal or request for review or reconsideration and without the FCC
having instituted review of the grant of the Licenses on its own motion;
(iii) the Licenses (along with the Sprint PCS Licenses) provide all
necessary FCC certificates, orders, permits, licenses, authorizations,
consents or approvals required by the FCC for the Company to construct and
operate a wireless communications network in the respective markets
designated in the Licenses and to conduct its business in the manner
described in the Prospectus;
(iv) the Company has made all reports, filings and registrations
with, and paid all fees required by the FCC, including any and all down
payments or installment payments, except where such failure would not have
Material Adverse Effect on the Company's operations as a whole;
(v) to such counsel's knowledge, (a) there is no unsatisfied
adverse FCC order, decree or ruling outstanding against the Company, or any
of the Licenses; (b) there is no litigation, proceeding (including any
rulemaking proceeding), complaint, inquiry or investigation against the
Company or in respect of any of the Licenses, pending or threatened before
the FCC (including any pending judicial review of such an action by the
FCC), including without limitation, any Notice of Violation, Notice of
Apparent Liability or Order to Show Cause, except for proceedings affecting
the wireless industry generally to which the Company is not a specified
party; (c) neither the Company nor any Guarantor has received any notice of
proceedings relating to the violation, revocation or modification of any of
the Licenses, certificates, orders, permits, licenses, authorizations,
consents or approvals or the qualification or rejection of any FCC filing,
the effect of which, singly or in the aggregate, would have a Material
Adverse Effect upon, or cause material disruption to, the Company's
operations, taken as a whole;
(vi) to such counsel's knowledge, the Company is not in violation
of, or in default under, the Communications Act, the effect of which,
singly or in the aggregate, would have a Material Adverse Effect on the
Company or the Licenses, taken as a whole;
(vii) the execution and delivery of the Transaction Documents and
the performance of the Company of their obligations thereunder, will not
violate the Communications Act or, to our such counsel's knowledge, the
terms of any order, writ, judgment, award, injunction or decree of the
FCC;.
(viii) except to the extent that prior FCC approval is required in
connection with the exercise of creditors' rights in the event of a
default, no consent or approval by the FCC is required for the execution
delivery or performance of the Transaction Documents by the Company or the
Guarantors or for the consummation of the transactions described therein;
(ix) LA Unwired was qualified to participate in the FCC's PCS
license auctions as a "Small Business," as defined by FCC Rules, and is
qualified to hold the licenses for LA
27
Unwired's PCS operations according to the FCC's rules. The Company's
ownership interest in LA Unwired does not violate the FCC's rules;
(x) to such counsel's knowledge, (i) the Sprint PCS Licenses are in
full force and effect and are not subject to any conditions other than
those conditions listed thereon and those conditions listed thereon and
those conditions generally applicable to entities holding similar licenses
issued by the FCC; (ii) all applicable administrative and judicial appeal,
review and reconsideration periods of the Sprint PCS Licenses have expired,
without the timely filing of any such appeal or request for review or
reconsideration and without the FCC having instituted review of the grant
of the Sprint PCS Licenses on its own motion; and
(xi) Pursuant to Section 332(c)(3) of the Communications Act of 1934,
as amended, state and local governments are not authorized to regulate the
entry of or rates charged by any commercial mobile radio service.
Accordingly, the Company is not required to apply for state or local
authority to operate its cellular, paging or PCS systems, nor are the
states in which the Company does business authorized to regulate the rates
charged by the Company.
(h) You shall have received on the Closing Date an opinion (satisfactory to
you and counsel for the Underwriters), dated the Closing Date, of Jones, Walker,
Xxxxxxxx, Poltevent, Carrere & Xxxxxxx LLP, tax counsel for the Company, to the
effect that the statements under the caption "Important United States Federal
Tax Consequences of Our Common Stock to Non-U.S. Holders" in the Prospectus,
insofar as such statements constitute a summary of the legal matters, documents
or proceedings referred to therein, fairly present in all material respects such
legal matters, documents and proceedings.
(i) The Underwriters shall have received on the Closing Date an opinion,
dated the Closing Date, of Xxxxxx & Xxxxxxx, counsel for the Underwriters, in
form and substance reasonably satisfactory to the Underwriters.
(j) In making statements of the type set forth in the paragraph that
follows Section 9(f)(xxiii) above, Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxx Xxxxxxxx &
Xxxxxxx, L.L.P. and Xxxxxx & Xxxxxxx may state that their opinion and belief are
based upon their participation in the preparation of the Registration Statement
and Prospectus and any amendments or supplements thereto and review and
discussion of the contents thereof, but are without independent check or
verification except as specified.
(k) You shall have received on the Closing Date an opinion (satisfactory to
you and counsel for the Underwriters), dated the Closing Date, of Xxxxxxx Berlin
Shereff Xxxxxxxx LLP, special New York counsel to the Company, to the effect
that:
(i) the Custody Agreement of each Selling Stockholder is a valid and
binding agreement of such Selling Stockholder, enforceable in accordance
with its terms; and
(ii) the Power of Attorney of each Selling Stockholder is a valid and
binding instrument of such Selling Stockholder, enforceable in accordance
with its terms.
28
(l) You 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 you, from Ernst & Young LLP, independent
public accountants, containing the information and statements of the type
ordinarily included in accountants' "comfort letters" to Underwriters with
respect to the financial statements and certain financial information contained
in the Registration Statement and the Prospectus.
(m) The Company shall have delivered to you the agreements specified in
Section 2 hereof which agreements shall be in full force and effect on the
Closing Date.
(n) The Shares shall have been duly listed for quotation on the Nasdaq
National Market.
(o) The Company and the Selling Stockholders shall not have failed on or
prior to the Closing Date to perform or comply with any of the agreements herein
contained and required to be performed or complied with by the Company or the
Selling Stockholders, as the case may be, on or prior to the Closing Date.
(p) You shall have received on the Option Closing Date, a certificate of
any Selling Stockholder who is not a U.S. Person (as defined under applicable
U.S. federal tax legislation) to the effect that such Selling Stockholder is not
a U.S. Person, which certificate may be in the form of a properly completed and
executed United States Treasury Department Form W-8 (or other applicable form or
statement specified by Treasury Department regulations in lieu thereof).
The several obligations of the Underwriters to purchase any Additional
Shares hereunder are subject to the delivery to you on the applicable Option
Closing Date of such documents as you may reasonably request with respect to the
good standing of the Company, the due authorization and issuance of such
Additional Shares and other matters related to the issuance of such Additional
Shares.
Section 10. Effectiveness of Agreement and Termination. This Agreement
shall become effective upon the execution and delivery of this Agreement by the
parties hereto.
This Agreement may be terminated at any time on or prior to the Closing
Date by you by written notice to the Sellers if any of the following has
occurred: (i) any outbreak or escalation of hostilities or other national or
international calamity or crisis or change in economic conditions or in the
financial markets of the United States or elsewhere that, in your judgment, is
material and adverse and, in your judgment, makes it impracticable to market the
Shares on the terms and in the manner contemplated in the Prospectus, (ii) the
suspension or material limitation of trading in securities or other instruments
on the New York Stock Exchange, the American Stock Exchange, the Chicago Board
of Options Exchange or the Nasdaq National Market or limitation on prices for
securities or other instruments on any such exchange or the Nasdaq National
Market, (iii) the suspension of trading of any securities of the Company on any
exchange or in the over-the-counter market, (iv) the enactment, publication,
decree or other promulgation of any federal or state statute, regulation, rule
or order of any court or other governmental authority which in your opinion
materially and adversely affects, or will materially and adversely affect, the
business, prospects, financial condition or results of operations of the Company
and its subsidiaries, taken as a whole,
29
(v) the declaration of a banking moratorium by either federal or New York State
authorities or (vi) the taking of any action by any federal, state or local
government or agency in respect of its monetary or fiscal affairs which in your
opinion has a material adverse effect on the financial markets in the United
States.
If on the Closing Date or on an Option Closing Date, as the case may be,
any one or more of the Underwriters shall fail or refuse to purchase the Firm
Shares or Additional Shares, as the case may be, which it has or they have
agreed to purchase hereunder on such date and the aggregate number of Firm
Shares or Additional Shares, as the case may be, which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not more
than one-tenth of the total number of Firm Shares or Additional Shares, as the
case may be, to be purchased on such date by all Underwriters, each non-
defaulting Underwriter shall be obligated severally, in the proportion which the
number of Firm Shares set forth opposite its name in Schedule I bears to the
total number of Firm Shares which all the non-defaulting Underwriters have
agreed to purchase, or in such other proportion as you may specify, to purchase
the Firm Shares or Additional Shares, as the case may be, which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date; provided that in no event shall the number of Firm Shares or Additional
Shares, as the case may be, which any Underwriter has agreed to purchase
pursuant to Section 2 hereof be increased pursuant to this Section 10 by an
amount in excess of one-ninth of such number of Firm Shares or Additional
Shares, as the case may be, without the written consent of such Underwriter. If
on the Closing Date any Underwriter or Underwriters shall fail or refuse to
purchase Firm Shares and the aggregate number of Firm Shares with respect to
which such default occurs is more than one-tenth of the aggregate number of Firm
Shares to be purchased by all Underwriters and arrangements satisfactory to you
and the Company for purchase of such Firm Shares are not made within 48 hours
after such default, this Agreement will terminate without liability on the part
of any non-defaulting Underwriter, the Company or the Selling Stockholders. In
any such case which does not result in termination of this Agreement, either you
or the Company shall have the right to postpone the Closing Date, but in no
event for longer than seven days, in order that the required changes, if any, in
the Registration Statement and the Prospectus or any other documents or
arrangements may be effected. If, on an Option Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Additional Shares and the
aggregate number of Additional Shares with respect to which such default occurs
is more than one-tenth of the aggregate number of Additional Shares to be
purchased on such date, the non-defaulting Underwriters shall have the option to
(i) terminate their obligation hereunder to purchase such Additional Shares or
(ii) purchase not less than the number of Additional Shares that such non-
defaulting Underwriters would have been obligated to purchase on such date in
the absence of such default. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
any such Underwriter under this Agreement.
Section 11. Agreements of the Selling Stockholders. Each Selling
Stockholder agrees with you and the Company:
(a) To pay or to cause to be paid all transfer taxes payable in connection
with the transfer of the Additional Shares to be sold by such Selling
Stockholder to the Underwriters.
30
(b) To do and perform all things to be done and performed by such Selling
Stockholder under this Agreement prior to the Closing Date and to satisfy all
conditions precedent to the delivery of the Additional Shares to be sold by such
Selling Stockholder pursuant to this Agreement.
Section 12. Miscellaneous. Notices given pursuant to any provision of
this Agreement shall be addressed as follows: (i) if to the Company, to US
Unwired Inc., Xxx Xxxxxxxxx Xxxxx, Xxxxx 0000, Xxxx Xxxxxxx, Xxxxxxxxx 00000,
Attention: General Counsel, (ii) if to the Selling Stockholders, to Xxxxxxx X.
Xxxxxxx, Xx. or Xxxxxx X. Xxxxxxx c/o US Unwired Inc., Xxx Xxxxxxxxx Xxxxx,
Xxxxx 0000, Xxxx Xxxxxxx, Xxxxxxxxx 00000 and (iii) if to any Underwriter or to
you, to you c/x Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation, 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Syndicate Department, or in any
case to such other address as the person to be notified may have requested in
writing.
The respective indemnities, contribution agreements, representations,
warranties and other statements of the Company, the Selling Stockholders and the
several Underwriters set forth in or made pursuant to this Agreement shall
remain operative and in full force and effect, and will survive delivery of and
payment for the Shares, regardless of (i) any investigation, or statement as to
the results thereof, made by or on behalf of (A) any Underwriter, (B) the
officers or directors of any Underwriter, (C) any person controlling any
Underwriter, (D) the Company, (E) the officers or directors of the Company, (F)
any person controlling the Company or (G) any Selling Stockholder or any person
controlling such Selling Stockholder, (ii) acceptance of the Shares and payment
for them hereunder and (iii) termination of this Agreement.
If for any reason the Shares are not delivered by or on behalf of any
Seller as provided herein (other than as a result of any termination of this
Agreement pursuant to Section 10), the Sellers agree, jointly and severally, to
reimburse the several Underwriters for all out-of-pocket expenses (including the
fees and disbursements of counsel) incurred by them. Notwithstanding any
termination of this Agreement, the Company shall be liable for all expenses
which it has agreed to pay pursuant to Section 5(i) hereof. The Sellers also
agree, jointly and severally, to reimburse the several Underwriters, their
directors and officers and any persons controlling any of the Underwriters for
any and all fees and expenses (including, without limitation, the fees and
disbursements of counsel) incurred by them in connection with enforcing their
rights hereunder (including, without limitation, pursuant to Section 8 hereof).
The Underwriters agree, severally, to reimburse the Company, and its officers,
managers, directors 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 for any and
all fees and expenses (including without limitation the fees and expenses of
counsel) incurred by them in connection with enforcing their rights under this
Agreement (including without limitation their rights under Section 8).
Except as otherwise expressly provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Company, the Selling
Stockholders, the Underwriters, the Underwriters' directors and officers, any
controlling persons referred to herein, the Company's directors and the
Company's officers who sign the Registration Statement and their respective
successors and assigns, all as and to the extent provided in this Agreement, and
no other person
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shall acquire or have any right under or by virtue of this Agreement. The term
"successors and assigns" shall not include a purchaser of any of the Shares from
any of the several Underwriters merely because of such purchase.
This Agreement shall be governed and construed in accordance with the laws
of the State of New York.
This Agreement may be signed in various counterparts which together shall
constitute one and the same instrument.
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Please confirm that the foregoing correctly sets forth the agreement among
the Company, the Selling Stockholders and the several Underwriters.
Very truly yours,
US UNWIRED INC.
By:_________________________________
Title:
THE SELLING STOCKHOLDERS NAMED
IN SCHEDULE II HERETO, ACTING
SEVERALLY
By:_________________________________
Attorney-in-fact
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
CREDIT SUISSE FIRST BOSTON
FIRST UNION SECURITIES, INC.
DLJdirect INC.
Acting severally on behalf of
themselves and the several
Underwriters named in
Schedule I hereto
By: XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
By:_________________________________
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SCHEDULE I
----------
Underwriters Number of Firm Shares
to be Purchased
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation
Credit Suisse First Boston
First Union Securities, Inc.
DLJdirect Inc.
Total
SCHEDULE II
SELLING STOCKHOLDERS
Name Number of Additional Shares Being Sold
Total
SCHEDULE III
SUBSIDIARIES
Louisiana Unwired, LLC
Unwired Telecom Corp.
LEC Unwired, LLC
Command Connect, LLC
Texas Unwired
SCHEDULE 6(cc)
PCS LICENSES
SCHEDULE 6(dd)
CELLULAR LICENSES
SCHEDULE 6(hh)
PAGING LICENSES
Paging licenses KNKP448 and KNLM672 are now being operated under a Station
Temporary Authority and are expected to be renewed by the FCC in the ordinary
course.
SCHEDULE 6(kk)
SPRINT PCS LICENSES
Annex I
[Insert names of stockholders of the Company who will be required to sign lock
ups]
