EXHIBIT 10.60
OMNIPOINT CORPORATION
6,500,000 Shares
Depository Shares Each Representing 1/20 of a Share of
7% Cumulative Convertible Preferred Stock
Purchase Agreement
May 1, 1998
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
BANCAMERICA XXXXXXXXX XXXXXXXX
BEAR, XXXXXXX & CO. INC.
XXXXX XXXXXX INC.
6,500,000 Shares
Depository Shares Representing 1/20 of a Share of
7% Cumulative Convertible Preferred Stock
of Omnipoint Corporation
PURCHASE AGREEMENT
May 1, 1998
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
BANCAMERICA XXXXXXXXX XXXXXXXX
BEAR, XXXXXXX & CO. INC.
XXXXX XXXXXX INC.
As representatives of the several Initial Purchasers
c/x Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Omnipoint Corporation, a Delaware corporation (the "COMPANY") proposes to
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issue and sell 325,000 shares of its 7% Cumulative Convertible Preferred Stock,
par value $.01 per share (the "CUMULATIVE PREFERRED STOCK").
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The Preferred Stock will, when issued, be deposited by the Company against
delivery of Depositary Receipts ("DEPOSITARY RECEIPTS") to be issued by Marine
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Midland Bank, as depositary (the "DEPOSITARY"), under a Deposit Agreement date
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as of May 6, 1998 (the "DEPOSIT AGREEMENT") between the Company and the
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Depositary. Each Depositary Receipt will evidence one or more Depositary Shares
(the "SHARES"), and each Depositary Share will represent ownership of one-
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twentieth of a share of Preferred Stock.
The Preferred Stock is to be issued pursuant to the provisions of the
Company's 7% Cumulative Convertible Preferred Stock Certificate of Designation
(the "CERTIFICATE"), pursuant to which the Preferred Stock, as provided therein,
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will be convertible at the option of the holders thereof into shares of the
Company's common stock, par value $.01 per share (the "COMMON STOCK"). The
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Shares, the Preferred Stock and the Common Stock issuable upon conversion
thereof are herein collectively referred to as the "SECURITIES". The Securities
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and the Certificate are more fully described in the Offering Memorandum (as
hereinafter defined).
The Company, proposes to issue and sell to Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation ("DLJ"), BancAmerica Xxxxxxxxx Xxxxxxxx, Bear, Xxxxxxx &
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Co. Inc., Xxxxx Xxxxxx Inc. and the several initial purchases set forth on
Exhibit A hereto (each an "INITIAL PURCHASER" and, collectively, the "INITIAL
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PURCHASERS") an aggregate of 6,500,000 Shares.
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1. OFFERING MEMORANDUM. The Shares will be offered and sold to the
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Initial Purchasers pursuant to one or more exemptions from the registration
requirements under the Securities Act of 1933, as amended (the "ACT"). The
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Company has prepared a preliminary offering memorandum, dated April 22, 1998
(the "PRELIMINARY OFFERING MEMORANDUM") and a final offering memorandum, dated
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May 1 (the "OFFERING MEMORANDUM"), relating to the Shares.
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Upon original issuance thereof, and until such time as the same is no
longer required, the Shares (and all securities issued in exchange therefor, in
substitution thereof or upon conversion thereof) shall bear the following
legend:
"THIS SECURITY (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND,
ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED,
EXCEPT AS SET FORTH IN THE NEXT SENTENCE HEREOF. BY ITS ACQUISITION HEREOF
OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER: (1) REPRESENTS THAT IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) (A "QIB"), (2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE
TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY OR ANY OF ITS
SUBSIDIARIES, (B) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QIB
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION
MEETING THE REQUIREMENTS OF RULE 904 OF THE SECURITIES ACT, (D) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT,
(E) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT (AND BASED UPON OPINION OF COUNSEL ACCEPTABLE TO THE
COMPANY) OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN
EACH CASE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF ANY STATE
OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (3) AGREES
THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY OR AN INTEREST
HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND."
2. AGREEMENTS TO SELL AND PURCHASE. On the basis of the representations,
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warranties and covenants contained in this Agreement, and subject to the terms
and conditions contained herein, the Company agrees to issue and sell to the
Initial Purchasers, and the Initial Purchasers agree, severally and not jointly,
to purchase from the Company, the number of Shares set forth opposite its name
as set forth on Schedule A hereto at a purchase price equal to $38.84 (the
"PURCHASE PRICE").
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3. TERMS OF OFFERING. The Initial Purchasers have advised the Company
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that the Initial Purchasers will make offers (the "EXEMPT RESALES") of the
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Shares purchased hereunder on the terms set forth in the Offering Memorandum, as
amended or supplemented, solely to persons whom the Initial Purchaser reasonably
believe to be "qualified institutional buyers" as defined in Rule 144A under the
Act
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("QIBS"). The Initial Purchasers will offer the Shares to QIBs initially at a
price equal to $50. Such price may be changed at any time without notice.
Holders (including subsequent transferees) of the Securities will have
the registration rights set forth in the registration rights agreement (the
"REGISTRATION RIGHTS AGREEMENT"), to be dated the Closing Date, in substantially
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the form of Exhibit A hereto, for so long as such Securities constitute
"TRANSFER RESTRICTED SECURITIES" (as defined in the Registration Rights
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Agreement). Pursuant to the Registration Rights Agreement, the Company will
agree to file with the Securities and Exchange Commission (the "COMMISSION")
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under the circumstances set forth therein, a shelf registration statement
pursuant to Rule 415 under the Securities Act of 1933, as amended (the "ACT")
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(the "REGISTRATION STATEMENT") relating to the resale by certain holders of the
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Securities and to use its best efforts to cause such Registration Statements to
be declared and remain effective and usable for the periods specified in the
Registration Rights Agreement. This Agreement, the Deposit Agreement, the
Deposit Account Agreement (as defined in the Offering Memorandum), the
Certificate and the Registration Rights Agreement are hereinafter sometimes
referred to collectively as the "OPERATIVE DOCUMENTS".
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4. DELIVERY AND PAYMENT.
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(a) Delivery of, and payment of the Purchase Price for, the Firm
Shares shall be made at the offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP,
0000 Xxx Xxxx Xxxxxx, X.X., Xxxxxxxxxx X.X. or such other location as may be
mutually acceptable. Such delivery and payment shall be made at 9:00 a.m. New
York City time, on May 6 or at such other time on the same date or such other
date as shall be agreed upon in writing by the Initial Purchasers and the
Company. The time and date of such delivery and the payment for the Shares are
herein called the "CLOSING DATE".
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(b) Shares in definitive global form, registered in the name of
Cede & Co., as nominee of the Depository Trust Company ("DTC"), in aggregate
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number corresponding to the aggregate number of the Shares (collectively, the
"GLOBAL SECURITIES"), shall be delivered by the Company to the Initial
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Purchasers (or as the Initial Purchasers direct) in each case with any transfer
taxes thereon duly paid by the Company against payment by the Initial Purchasers
of the Purchase Price thereof by wire transfer in same day funds to the order of
the Company. The Global Securities shall be made available to the Initial
Purchasers for inspection not later than 9:30 a.m., New York City time, on the
business day immediately preceding the Closing Date.
5. AGREEMENTS OF THE COMPANY. The Company hereby agrees with the Initial
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Purchasers as follows:
(a) To advise the Initial Purchasers promptly and, if requested by
the Initial Purchasers, confirm such advice in writing, (i) of the issuance by
any state securities commission of any stop order suspending the qualification
or exemption from qualification of any Shares for offering or sale in any
jurisdiction designated by the Initial Purchasers pursuant to Section 5(e)
hereof, or the initiation of any proceeding by any state securities commission
or any other federal or state regulatory authority for such purpose and (ii) of
the happening of any event during the period referred to in Section 5(c) below
that makes any statement of a material fact made in the Preliminary Offering
Memorandum or the Offering Memorandum untrue or that requires any additions to
or changes in the Preliminary Offering Memorandum or the Offering Memorandum in
order to make the statements therein not misleading. The Company shall use its
best efforts to prevent the issuance of any stop order or order suspending the
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qualification or exemption of any Shares under any state securities or Blue Sky
laws and, if at any time any state securities commission or other federal or
state regulatory authority shall issue an order suspending the qualification or
exemption of any Shares under any state securities or Blue Sky laws, the Company
shall use its best efforts to obtain the withdrawal or lifting of such order at
the earliest possible time.
(b) To furnish the Initial Purchasers and those persons identified by
the Initial Purchasers to the Company as many copies of the Preliminary Offering
Memorandum and the Offering Memorandum, any documents incorporated by reference
therein, and any amendments or supplements thereto, as the Initial Purchasers
may reasonably request for the time period specified in Section 5(c). Subject to
the Initial Purchasers' compliance with its representations and warranties and
agreements set forth in Section 7 hereof, the Company consents to the use of the
Preliminary Offering Memorandum and the Offering Memorandum, any documents
incorporated by reference therein, and any amendments and supplements thereto
required pursuant hereto, by the Initial Purchasers in connection with Exempt
Resales.
(c) During such period as in the opinion of counsel for the Initial
Purchasers an Offering Memorandum is required by law to be delivered in
connection with Exempt Resales by the Initial Purchasers (i) not to make any
amendment or supplement to the Offering Memorandum of which the Initial
Purchasers shall not previously have been advised or to which the Initial
Purchasers shall reasonably object after being so advised and (ii) to prepare
promptly upon the Initial Purchasers' reasonable request, any amendment or
supplement to the Offering Memorandum which may be necessary or advisable in
connection with such Exempt Resales.
(d) If, during the period referred to in Section 5(c) above, any
event shall occur or condition shall exist as a result of which, in the opinion
of counsel to the Initial Purchasers, it becomes necessary to amend or
supplement the Offering Memorandum in order to make the statements therein, in
the light of the circumstances when such Offering Memorandum is delivered to an
Eligible Purchaser, not misleading, or if, in the opinion of counsel for the
Initial Purchasers, it is necessary to amend or supplement the Offering
Memorandum to comply with any applicable law, forthwith to prepare an
appropriate amendment or supplement to such Offering Memorandum so that the
statements therein, as so amended or supplemented, will not, in the light of the
circumstances when it is so delivered, be misleading, or so that such Offering
Memorandum will comply with applicable law, and to furnish to the Initial
Purchasers and such other persons as the Initial Purchasers may designate such
number of copies thereof as the Initial Purchasers may reasonably request.
(e) Prior to the sale of all Shares pursuant to Exempt Resales as
contemplated hereby, to cooperate with the Initial Purchasers and counsel to the
Initial Purchasers in connection with the registration or qualification of the
Shares for offer and sale to the Initial Purchasers and pursuant to Exempt
Resales under the securities or Blue Sky laws of such jurisdictions as the
Initial Purchasers may request and to continue such registration or
qualification in effect so long as required for Exempt Resales 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 Preliminary
Offering Memorandum, the Offering Memorandum or Exempt Resales, in any
jurisdiction in which it is not now so subject.
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(f) So long as the Shares are outstanding, (i) to mail and make
generally available as soon as practicable after the end of each fiscal year to
the record holders of the Shares a financial report of the Company and its
subsidiaries on a consolidated basis (and a similar financial report of all
unconsolidated subsidiaries, if any), all such financial reports to include a
consolidated balance sheet, a consolidated statement of operations, a
consolidated statement of cash flows and a consolidated statement of
shareholders' equity as of the end of and for such fiscal year, together with
comparable information as of the end of and for the preceding year, certified by
the Company's independent public accountants and (ii) to mail and make generally
available as soon as practicable after the end of each quarterly period (except
for the last quarterly period of each fiscal year) to such holders, a
consolidated balance sheet, a consolidated statement of operations and a
consolidated statement of cash flows (and similar financial reports of all
unconsolidated subsidiaries, if any) as of the end of and for such period, and
for the period from the beginning of such year to the close of such quarterly
period, together with comparable information for the corresponding periods of
the preceding year.
(g) So long as the Shares are outstanding, to furnish to the Initial
Purchasers as soon as available, copies of all reports or other communications
furnished by the Company to its security holders 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/or its subsidiaries as the Initial
Purchasers may reasonably request.
(h) So long as any of the Transfer Restricted Securities remain
outstanding and during any period in which the Company is not subject to Section
13 or 15(d) of the Securities Exchange Act of 1934, as amended (the "EXCHANGE
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ACT"), to make available to any holder of Securities in connection with any sale
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thereof and any prospective purchaser of such Securities from such holder, the
information ("RULE 144A INFORMATION") required by Rule 144A(d)(4) under the Act.
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(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 obligations of the Company under
this Agreement, including: (i) the fees, disbursements and expenses of counsel
to the Company and accountants of the Company in connection with the sale and
delivery of the Shares to the Initial Purchasers and pursuant to Exempt Resales,
and all other fees and expenses in connection with the preparation, printing,
filing and distribution of the Preliminary Offering Memorandum, the Offering
Memorandum, any documents incorporated by reference and all amendments and
supplements to any of the foregoing (including financial statements), including
the mailing and delivering of copies thereof to the Initial Purchasers and
persons designated by them in the quantities specified herein, (ii) all costs
and expenses related to the transfer and delivery of the Shares to the Initial
Purchasers and pursuant to Exempt Resales, including any transfer or other taxes
payable thereon, (iii) all costs of printing or producing this Agreement, the
other Operative Documents and any other agreements or documents in connection
with the offering, purchase, sale or delivery of the Securities, (iv) all
expenses in connection with the registration or qualification of the Securities
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 Initial Purchasers in connection with such
registration or qualification and memoranda relating thereto), (v) the cost of
printing certificates representing the Securities, (vi) all expenses and listing
fees in connection with the application for quotation of the Shares in the
National Association of Securities Dealers, Inc. ("NASD") Automated Quotation
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System - PORTAL ("PORTAL"), (vii) the costs and charges of any transfer agent,
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registrar, deposit agent and/or depositary
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(including DTC), (viii) all costs and expenses of the Registration Statement, as
set forth in the Registration Rights Agreement, (ix) all expenses and listing
fees in connection with the application for listing the Common Stock on the
NASDAQ National Market and (x) and all other costs and expenses incident to the
performance of the obligations of the Company hereunder for which provision is
not otherwise made in this Section.
(j) To use its best efforts to effect the inclusion of the Shares in
PORTAL and to maintain the listing of the Shares on PORTAL for so long as the
Shares are outstanding.
(k) To obtain the approval of DTC for "book-entry" transfer of the
Shares, and to comply with all of its agreements set forth in the representation
letters of the Company to DTC relating to the approval of the Shares by DTC for
"book-entry" transfer.
(l) To cause the Common Stock issuable upon conversion of the Shares,
redemption thereof, payment of dividends thereon and purchase with funds from
the Deposit Account to be duly included for quotation on the Nasdaq Stock
Market's National Market (the "NASDAQ NATIONAL MARKET") prior to the Firm
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Closing Date subject to notice of official issuance. The Company will ensure
that such Common Stock remains included for quotation on the Nasdaq National
Market or any other national securities exchange following the Firm Closing Date
for so long as any shares of Common Stock remain registered under the Exchange
Act.
(m) The Company shall not (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 Initial Purchasers pursuant to this Agreement,
for a period of 90 days after the Closing Date 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. 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 90 days after the Closing Date without the
prior written consent of Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation.
The Company shall, prior to or concurrently with the execution of this
Agreement, deliver an agreement executed by (i) each of the directors of the
Company and (ii) agreed upon stockholders to the effect that such person will
not, during the period commencing on the date such person signs such agreement
and ending 90 days after the Closing Date without the prior written consent of
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities 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.
(n) Not to sell, offer for sale or solicit offers to buy or otherwise
negotiate in respect of any security (as defined in the Act) that would be
integrated with the sale of the Shares to the Initial
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Purchasers or pursuant to Exempt Resales in a manner that would require the
registration of any such sale of the Shares under the Act.
(o) To comply with all of its agreements set forth in the
Registration Rights Agreement.
(p) To use its best efforts to do and perform all things required or
necessary to be done and performed under this Agreement by it prior to the
Closing Date and to satisfy all conditions precedent to the delivery of the
Shares.
6. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY. As of the
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date hereof, the Company represents and warrants to, and agrees with, the
Initial Purchasers that:
(a) The Preliminary Offering Memorandum and the Offering Memorandum
(including the information incorporated by reference therein (the "INCORPORATED
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DOCUMENTS")) do not, and any supplement or amendment to them will not, contain
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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,
except that the representations and warranties contained in this paragraph (a)
shall not apply to statements in or omissions from the Preliminary Offering
Memorandum or the Offering Memorandum (or any supplement or amendment thereto)
based upon information relating to the Initial Purchasers furnished to the
Company in writing by the Initial Purchasers expressly for use therein. The
Company acknowledges for all purposes of this Agreement (including Section 8
hereof) that the statements with respect to price and discounts and commissions
and the last paragraph all as set forth in the cover page and in paragraphs one,
two and eight under the caption "Plan of Distribution" in the Offering
Memorandum (the "INITIAL PURCHASER INFORMATION") constitute the only written
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information furnished to the Company by or on behalf of the Initial Purchasers
expressly for use in the Preliminary Offering Memorandum or Offering Memorandum
(or any amendment or supplement to any of them) and that the Initial Purchasers
shall not be deemed to have provided any other information (and therefore are
not responsible for any such statements or omissions). No stop order preventing
the use of the Preliminary Offering Memorandum or the Offering Memorandum, or
any amendment or supplement thereto, or any order asserting that any of the
transactions contemplated by this Agreement are subject to the registration
requirements of the Act, has been issued. The Incorporated Documents, at the
time they were or hereafter are filed or last amended, as the case may be, with
the Commission, complied and will comply in all material respects with the
requirements of the Exchange Act.
(b) Each of the Company and its subsidiaries has been duly organized,
is validly existing as a corporation or limited liability company in good
standing under the laws of the State of Delaware and has the requisite power and
authority to carry on its business as described in the Preliminary Offering
Memorandum and the Offering Memorandum and to own, lease and operate its
properties, and each is duly qualified and is in good standing as a foreign
entity 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
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EFFECT").
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(c) All outstanding shares of capital stock of the Company have been
duly authorized and validly issued and are fully paid, non-assessable and not
subject to any preemptive or similar rights.
(d) The entities listed on Schedule B hereto are the only
subsidiaries, direct or indirect, of the Company. All of the outstanding shares
of capital stock of and other ownership interests in each of the Company's
subsidiaries have been duly authorized and validly issued and are fully paid and
non-assessable, and are owned by the Company, directly or indirectly through one
or more subsidiaries, free and clear of any security interest, claim, lien,
encumbrance or adverse interest of any nature (each, a "LIEN"), except for
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(i) the ownership by an unaffiliated third party of 549 shares of common stock,
$.01 value (the "OCI Common Stock") of Omnipoint Communication, Inc., a Delaware
corporation ("OCI"), constituting 4.4% of the outstanding capital stock of OCI
and (ii) except for the information set forth in Schedule C hereto; there are no
outstanding subscriptions, rights, warrants, options, calls, convertible or
exchangeable securities, commitments of sale, or Liens related to or entitling
any person to purchase or otherwise to acquire any shares of the capital stock
of, or other ownership interest in, any subsidiary.
(e) This Agreement has been duly authorized, executed and delivered
by the Company.
(f) The Preferred Stock, and the deposit of the Preferred Stock by
the Company in accordance with the Deposit Agreement, have been duly and validly
authorized and, when the shares of Preferred Stock are issued and delivered as
provided herein, and upon payment for the Shares and delivery of the Depositary
Receipts in accordance with this Agreement, the Preferred Stock will be validly
issued, fully paid and non-assessable, and the issuance of the shares of
Preferred Stock will not be subject to any preemptive or similar rights.
(g) Assuming due authorization, execution and delivery of the Deposit
Agreement by the Depositary, each Share, upon delivery of the Depositary
Receipts in accordance with the provisions of the Deposit Agreement against the
deposit of validly issued, fully paid and non-assessable share of Preferred
Stock, will represent an interest in one-twentieth of a validly issued,
outstanding, fully paid and non-assessable share of Preferred Stock; assuming
due execution and delivery of the Depositary Receipts by the Depositary pursuant
to the Deposit Agreement and upon payment for the Shares and delivery of the
Depositary Receipts in accordance with this Agreement, the Depositary Receipts
will entitle the holders thereof to the benefits provided therein and in the
Deposit Agreement.
(h) The Shares are convertible into Common Stock in accordance with
the terms of the Certificate; the shares of Common Stock issuable upon
conversion of the Shares have been, and the shares of Common Stock issuable for
payment of dividends thereon, for payment of the redemption price thereon and
upon purchase with funds from the Deposit Account in accordance with the Deposit
Account Agreement (as defined in the Offering Memorandum) will be, duly
authorized and reserved for issuance upon such conversion, payment, redemption
or purchase and, when issued upon such conversion, payment, redemption or
purchase, will be validly issued, fully paid and nonassessable, will conform to
the description thereof contained in the Offering Memorandum and will be duly
authorized for listing on the Nasdaq National Market, subject to notice of
official issuance; the Company has the authorized and outstanding capital stock
as set forth in the Offering Memorandum; and the stockholders of the Company or
other holders of the Company's securities have no pre-emptive or similar rights
with respect to the Shares or the Common Stock issuable upon the Shares.
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(i) Each of the Registration Rights Agreement, the Deposit Agreement
and the Deposit Account Agreement has been duly authorized by the Company and,
on the Closing Date, will have been duly executed and delivered by the Company.
When each of the Registration Rights Agreement, the Deposit Agreement and the
Deposit Account Agreement has been duly executed and delivered, each will be a
valid and binding agreement of the Company, enforceable against the Company in
accordance with its terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability. On
the Closing Date, the Registration Rights Agreement, the Deposit Agreement and
the Deposit Account Agreement will conform as to legal matters to the
description thereof in the Offering Memorandum.
(j) Neither the Company nor any of its subsidiaries is in violation
of its respective charter (or in the case of limited liability company,
certificate of formation) or by-laws 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.
(k) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is or could be a
party or to which any of their respective property is or could be subject, which
might result, singly or in the aggregate, in a Material Adverse Effect.
(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
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Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or any
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provisions of the Foreign Corrupt Practices Act or the rules and regulations
promulgated thereunder, except for such violations which, singly or in the
aggregate, would not have a Material Adverse Effect.
(m) 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.
(n) Each of the Company and its subsidiaries has such permits,
licenses, consents, exemptions, franchises, authorizations and other approvals
(each, an "AUTHORIZATION") of, and has made all filings with and notices to, all
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governmental or regulatory authorities and self-regulatory organizations and all
courts and other tribunals, including without limitation, the Federal
Communication Commission (the "FCC") and each applicable, state regulatory
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agency or body that exercises or will exercise jurisdiction over the Company
("APPLICABLE PUCS"), as are necessary to own, lease, license and operate its
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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
9
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.
(o) The execution, delivery and performance of the Operative
Documents by the Company, compliance by the Company with all 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 charter or by-laws 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 including the Telecommunication Act of 1996, the
Communications Act of 1934 or the rules and regulations of the FCC or any
Applicable PUC, (iv) result in the imposition or creation of (or the obligation
to create or impose) a Lien under, any agreement or instrument 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, (v) result in the
termination, suspension or revocation of any Authorization of the Company or any
of its subsidiaries or result in any other impairment of the rights of the
holder of any such Authorization or (vi) require notice to or approval of the
FCC, any Applicable PUC or any court or any governmental body or agency having
jurisdiction over the Company, any of its subsidiaries or their respective
property.
(p) The accountants, Xxxxxxx & Xxxxxxx L.L.P., that have certified
the financial statements and supporting schedules included in the Preliminary
Offering Memorandum and the Offering Memorandum are independent public
accountants with respect to the Company, as required by the Act and the Exchange
Act. The historical financial statements, together with related schedules and
notes, set forth in the Preliminary Offering Memorandum and the Offering
Memorandum comply as to form in all material respects with the requirements
applicable to registration statements on Form S-1 under the Act.
(q) The historical financial statements, together with related
schedules and notes forming part of the Offering Memorandum (and any amendment
or supplement thereto), present fairly the consolidated financial position,
results of operations and changes in financial position of the Company and its
subsidiaries on the basis stated or incorporated by reference in the Offering
Memorandum at the respective dates or for the respective periods to which they
apply; such statements and related schedules and notes have been prepared in
accordance with generally accepted accounting principles consistently applied
throughout the periods involved, except as disclosed therein; and the other
financial and statistical information and data set forth or incorporated by
10
reference in the Offering Memorandum (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.
(r) The Company is not and, after giving effect to the offering and
sale of the Shares and the application of the net proceeds thereof as described
in the Offering Memorandum, will not be, an "investment company," as such term
is defined in the Investment Company Act of 1940, as amended.
(s) 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 any Registration Statement, except for the parties set
forth in Schedule E hereto. The Company agrees to use its best efforts to
obtain consent from these parties not to exercise their right to require the
Company to include their securities on any Registration Statement.
(t) Neither the Company nor any of its subsidiaries nor any agent
thereof acting on the behalf of them has taken, and none of them will take, any
action that might cause this Agreement or the issuance or sale of the Shares to
violate Regulation T (12 C.F.R. Part 220), Regulation U (12 C.F.R. Part 221) or
Regulation X (12 C.F.R. Part 224) of the Board of Governors of the Federal
Reserve System.
(u) No "nationally recognized statistical rating organization" as
such term is defined for purposes of Rule 436(g)(2) under the Act (i) has
imposed (or has informed the Company that it is considering imposing) any
condition (financial or otherwise) on the Company's retaining any rating
assigned to the Company or any securities of the Company or (ii) has indicated
to the Company that it is considering (a) the downgrading, suspension, or
withdrawal of, or any review for a possible change that does not indicate the
direction of the possible change in, any rating so assigned or (b) any change in
the outlook for any rating of the Company, or any securities of the Company.
(v) Since the respective dates as of which information is given in
the Offering Memorandum other than as set forth in the Offering Memorandum
(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.
(w) Each of the Preliminary Offering Memorandum and the Offering
Memorandum, as of its date, contains all the information specified in, and
meeting the requirements of, Rule 144A(d)(4) under the Act.
(x) When the Shares are issued and delivered pursuant to this
Agreement, the Shares will not be of the same class (within the meaning of Rule
144A under the Act) as any security
11
of the Company that is listed on a national securities exchange registered under
Section 6 of the Exchange Act or that is quoted in a United States automated
inter-dealer quotation system.
(y) No form of general solicitation or general advertising (as
defined in Regulation D under the Act) was used by the Company, or any of its
representatives (other than the Initial Purchasers, as to whom the Company makes
no representation) in connection with the offer and sale of the Shares
contemplated hereby, including, but not limited to, articles, notices or other
communications published in any newspaper, magazine, or similar medium or
broadcast over television or radio, or any seminar or meeting whose attendees
have been invited by any general solicitation or general advertising. No
securities of the same class as the Securities have been issued and sold by the
Company within the six-month period immediately prior to the date hereof.
(z) No registration under the Act of the Securities is required for
the sale of the Securities to the Initial Purchasers as contemplated hereby or
for the Exempt Resales assuming the accuracy of the Initial Purchasers'
representations and warranties and agreements set forth in Section 7 hereof.
(aa) The form of Certificate to be filed in Delaware is in proper form
under Delaware law.
(bb) The Company and its subsidiaries maintain insurance at least in
such amounts and covering at least such risks as is adequate for the conduct of
their respective businesses and the value of their respective properties and as
is customary for companies engaged in similar businesses in similar industries.
(cc) The Company and each of its subsidiaries have filed (or have had
filed on their behalf) all tax returns required to be filed by any of them prior
to the date hereof under applicable law, other than those filings being
contested in good faith. All such tax returns and amendments thereto are true,
correct and complete in all material respects. The Company and each of its
subsidiaries have paid (or have had paid on their behalf) all material taxes,
including all Federal, state, local and foreign taxes, and other assessments of
a similar nature (whether imposed directly or through withholding), including
any interest, additions to tax, or penalties applicable thereto, other than
those taxes being contested in good faith and for which adequate reserves have
been provided or those currently payable without penalty or interest. To the
best of the Company's and each of its subsidiaries' knowledge, there are no tax
items of a material nature that are currently under examination by the Internal
Revenue Service or any other domestic or foreign governmental authority
responsible for the administration of any such taxes.
(dd) The Company and its subsidiaries possess the patents, patent
rights, licenses, inventions, copyrights, know-how (including trade secrets and
other unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks and trade names (collectively,
"Intellectual Property"), presently employed by them in connection with the busi
nesses now operated by them, and neither the Company nor any subsidiary has
received any notice of infringement of or conflict with asserted rights of
others with respect to the foregoing except as could not, singly or in the
aggregate, reasonably be expected to have a Material Adverse Effect. The use of
such Intellectual Property in connection with the business and operations of the
Company and the subsidiaries does not infringe on the rights of any person.
12
(ee) The Company and its subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with management's general or
specific authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with GAAP 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.
(ff) Except as disclosed or incorporated by reference in the Offering
Memorandum, there are no business relationships or related party transactions
which would be required to be disclosed therein by Item 404 of Regulation S-K of
the Commission if the Offering Memorandum were a prospectus contained in a
registration statement on Form S-1 filed under the Act.
(gg) Each certificate signed by any officer of the Company and
delivered to the Initial Purchasers or counsel for the Initial Purchasers shall
be deemed to be a representation and warranty by the Company to the Initial
Purchasers as to the matters covered thereby.
The Company acknowledges that the Initial Purchasers and, for purposes
of the opinions to be delivered to the Initial Purchasers pursuant to Section 9
hereof, counsel to the Company and counsel to the Initial Purchasers will rely
upon the accuracy and truth of the foregoing representations and hereby consents
to such reliance.
7. INITIAL PURCHASERS' REPRESENTATIONS AND WARRANTIES. Each Initial
--------------------------------------------------
Purchaser, severally and not jointly, represents and warrants to, and agrees
with, the Company:
(a) Such Initial Purchaser is a QIB with such knowledge and
experience in financial and business matters as is necessary in order to
evaluate the merits and risks of an investment in the Shares.
(b) Such Initial Purchaser (A) is not acquiring the Securities with a
view to any distribution thereof or with any present intention of offering or
selling any of the Securities in a transaction that would violate the Act or the
securities laws of any state of the United States or any other applicable
jurisdiction and (B) will be reoffering and reselling the Securities only to
QIBs in reliance on the exemption from the registration requirements of the Act
provided by Rule 144A.
(c) Such Initial Purchaser agrees that no form of general
solicitation or general advertising (within the meaning of Regulation D under
the Act) has been or will be used by such Initial Purchaser or any of its
representatives in connection with the offer and sale of the Securities pursuant
hereto, including, but not limited to, articles, notices or other communications
published in any newspaper, magazine or similar medium or broadcast over
television or radio, or any seminar or meeting whose attendees have been invited
by any general solicitation or general advertising.
(d) Each Initial Purchaser agrees that it will offer to sell the
Securities only to, and will solicit offers to buy the Securities only from,
purchasers that are QIBs that agree that
13
(x) the Securities purchased by them may be resold, pledged or otherwise
transferred within the time period referred to under Rule 144(k) (taking into
account the provisions of Rule 144(d) under the Act, if applicable) under the
Act, as in effect on the date of the transfer of such Securities, only (I) to
the Company or any of its subsidiaries, (II) to a person whom the seller
reasonably believes is a QIB purchasing for its own account or for the account
of a QIB in a transaction meeting the requirements of Rule 144A under the Act,
(III) in an offshore transaction (as defined in Rule 902 under the Act) meeting
the requirements of Rule 904 of the Act, (IV) in a transaction meeting the
requirements of Rule 144 under the Act, (V) in accordance with another exemption
from the registration requirements of the Act (and based on an opinion of
counsel acceptable to the Company) or (VI) pursuant to an effective registration
statement and, in each case, in accordance with the applicable securities laws
of any state of the United States or any other applicable jurisdiction and
(y) they will deliver to each person to whom such Securities or an interest
therein is transferred a notice substantially to the effect of the foregoing.
Each Initial Purchaser acknowledges that the Company, for purposes of
the opinions to be delivered to each Initial Purchaser pursuant to Section 9
hereof, counsel to the Company and counsel to the Initial Purchasers will rely
upon the accuracy and truth of the foregoing representations and each Initial
Purchaser hereby consents to such reliance.
8. INDEMNIFICATION.
---------------
(a) The Company agrees to indemnify and hold harmless each Initial
Purchaser, its directors, its officers and each person, if any, who controls
such Initial Purchaser (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 contained in the Offering Memorandum (or any
amendment or supplement thereto), the Preliminary Offering Memorandum or any
Rule 144A Information provided by the Company to any holder or prospective
purchaser of Securities pursuant to Section 5(h) 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
Initial Purchaser Information; provided, however, that the foregoing indemnity
agreement with respect to any Preliminary Offering Memorandum shall not inure to
the benefit of any Initial Purchaser who failed to deliver an Offering
Memorandum, as then amended or supplemented (so long as such Offering Memorandum
and any amendment or supplement thereto was provided by the Company to the
several Initial Purchasers 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, liabilities or judgments caused by any untrue
statement or alleged untrue statement of a material fact contained in such
Preliminary Offering Memorandum, 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 the Offering
Memorandum, as so amended or supplemented.
14
(b) Each Initial Purchaser, severally and not jointly, agrees to
indemnify and hold harmless the Company and its directors and officers and each
person, if any, who controls (within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act) the Company to the same extent as the foregoing
indemnity from the Company to the Initial Purchasers but only with reference to
Initial Purchaser Information.
(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 Initial Purchasers 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 the Initial Purchasers). 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
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
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 the fees and expenses of more than one separate
firm of attorneys (in addition to any local counsel) for all indemnified parties
and all such fees and expenses shall be reimbursed as they are incurred. Such
firm shall be designated in writing by Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation, in the case of the parties indemnified pursuant to Section 8(a),
and by the Company, in the case of parties indemnified pursuant to Section 8(b).
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 its written consent
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
15
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, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities and judgments (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company, on the one hand, and the Initial Purchasers, on the other hand, from
the offering of the Securities 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 Company, on the one hand, and
the Initial Purchasers, on the other hand, in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or
judgments, as well as any other relevant equitable considerations. The relative
benefits received by the Company, on the one hand, and the Initial Purchasers,
on the other hand, shall be deemed to be in the same proportion as the total net
proceeds from the offering of the Securities (after Initial Purchaser's
discounts or commissions, but before deducting expenses) received by the
Company, and the total discounts and commissions received by the Initial
Purchasers bear to the total price to investors of the Securities, in each case
as set forth in the table on the cover page of the Offering Memorandum. The
relative fault of the Company, on the one hand, and the Initial Purchasers, 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, on the one hand, or the Initial Purchasers, on the other hand, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Company and the Initial Purchasers 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 Initial Purchasers 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, the Initial Purchasers shall not be required to contribute any amount
in excess of the amount by which the total discounts and commissions received by
such Initial Purchasers exceeds the amount of any damages which the Initial
Purchasers have 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 Initial Purchasers' obligations to contribute
pursuant to this Section 8(d) are several in proportion to the respective number
of Shares purchased by each of the Initial Purchasers hereunder, and not joint.
16
(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.
9. CONDITIONS OF INITIAL PURCHASERS' OBLIGATIONS. The obligations
---------------------------------------------
of the Initial Purchasers to purchase the Shares under this Agreement on the
Closing Date 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) On or after the date hereof, (i) there shall not have occurred
any downgrading, suspension or withdrawal of, nor shall any notice have been
given of any potential or intended downgrading, suspension or withdrawal of, or
of any review (or of any potential or intended review) for a possible change
that does not indicate the direction of the possible change in, any rating of
the Company or any securities of the Company (including, without limitation, the
placing of any of the foregoing ratings on credit watch with negative or
developing implications or under review with an uncertain direction) by any
"nationally recognized statistical rating organization" as such term is defined
for purposes of Rule 436(g)(2) under the Act and (ii) there shall not have
occurred any change, nor shall any notice have been given of any potential or
intended change, in the outlook for any rating of the Company or any securities
of the Company by any such rating organization.
(c) Since the respective dates as of which information is given in
the Offering Memorandum other than as set forth in the Offering Memorandum
(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(c)(i), 9(c)(ii) or 9(c)(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 Offering Memorandum.
(d) The Initial Purchasers shall have received on the Closing Date a
certificate, dated the Closing Date, signed by the Chief Financial Officer and
the Secretary of the Company, confirming the matters set forth in Sections 6(v),
9(a) and 9(b) and stating that the Company has complied with all the agreements
and satisfied all of the conditions herein contained and required to be complied
with or satisfied on or prior to the Closing Date.
(e) The Initial Purchasers shall have received on the Closing Date an
opinion, dated the Closing Date, of Piper & Marbury L.L.P., counsel for the
Company, to the effect that:
17
(i) each of the Company and its subsidiaries identified in
Schedule D hereto has been duly organized, is validly existing as a corporation
or limited liability company, as applicable, in good standing under the laws of
the State of Delaware and has the requisite power and authority to carry on its
business as described in the Offering Memorandum and to own, lease and operate
its properties.
(ii) each of the Company and its subsidiaries identified in
Schedule D hereto is duly qualified and is in good standing as a foreign entity
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 have been duly authorized and validly issued and are fully paid, non-
assessable and not subject to any preemptive or similar rights;
(iv) all of the outstanding shares of capital stock of, or
other ownership interests in, each subsidiary have been duly authorized and
validly issued and are fully paid and nonassessable, and, to the best of such
counsel's knowledge after due inquiry, other than (i) the ownership by an
unaffiliated third-party of 549 shares of OCI Common Stock and (ii) except for
the information set forth in Schedule C hereto, are owned, directly or
indirectly, by the Company free and clear of any Lien; and, to the best of such
counsel's knowledge after due inquiry, there are no outstanding subscriptions,
rights, warrants, options, calls, convertible or exchangeable securities,
commitments of sale, or Liens related to or entitling any person to purchase or
other wise to acquire any shares of the capital stock of, or other ownership
interest in, any subsidiary;
(v) the Preferred Stock, and the deposit of the Preferred Stock
by the Company in accordance with the Deposit Agreement, have been duly and
validly authorized and, when shares of the Preferred Stock are issued and
delivered as provided herein, and upon payment for the Shares and delivery of
the Depositary Receipts in accordance with this Agreement, the shares of
Preferred Stock will be validly issued, fully paid and non-assessable, and the
issuance of the Preferred Stock is not subject to any preemptive or similar
rights arising by operation of the certificate of incorporation of the Company
or the Delaware General Corporation Law;
(vi) the shares of Common Stock issuable upon the conversion of
the Shares have been duly authorized and reserved for issuance upon such
conversion and, when issued upon such conversion, will be validly issued, fully
paid and nonassessable, will conform with the description thereof contained in
the Offering Memorandum and will not be subject to any preemptive or similar
rights arising by operation of the certificate of incorporation of the Company
or the Delaware General Corporation Law;
(vii) assuming due authorization, execution and delivery of the
Deposit Agreement by the Depositary, each Share, upon delivery of the Depositary
Receipts in accordance with the provisions of the Deposit Agreement against the
deposit of validly issued, fully paid and nonassessable shares of Preferred
Stock, will represent an interest in one-twentieth of a validly issued,
outstanding, fully paid and nonassessable shares of Preferred Stock; assuming
due execution and delivery of the Depositary Receipts by the Depositary pursuant
to the Deposit
18
Agreement and upon payment for the Depositary Shares and delivery of the
Depositary Receipts in accordance with this Agreement, the Depositary Receipts
will entitle the holders thereof to the benefits provided therein and in the
Deposit Agreement;
(viii) this Agreement has been duly authorized, executed and
delivered by the Company;
(ix) Each of the Registration Rights Agreement, the Deposit
Agreement and the Deposit Account Agreement has been duly authorized, executed
and delivered by the Company and is a valid and binding agreement of the Company
enforceable against the Company in accordance with its terms, except as (x) the
enforceability thereof may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and (y) rights of acceleration and the
availability of equitable remedies may be limited by equitable principles of
general applicability;
(x) the statements under the captions "Description of the
Depositary Shares", "Description of the Preferred Stock", "Business--Regulatory
Environment", "Plan of Distribution" and "Certain United States Federal Income
Tax Consequences" in the Offering Memorandum, 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;
(xi) to the best of such counsel's knowledge, after due
inquiry, neither the Company nor any of its subsidiaries is (A) in violation of
its respective charter (or in the case of limited liability company, certificate
of formation) or by-laws or (B) 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 identified to such
counsel in writing as 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;
(xii) the execution, delivery and performance of this Agreement
and the other Operative Documents by the Company, the compliance by the Company
with all 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 charter or
by-laws of the Company or any of its subsidiaries or any indenture, loan
agreement, mortgage, lease or other agreement or instrument that is identified
to such counsel in writing as 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, including the Telecommunication Act of 1996, the
Communications Act of 1934 or the rules and regulations of the FCC or any
Applicable PUC, (iv) result in the imposition or creation of (or the obligation
to create or impose) a Lien under, any agreement or
19
instrument 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, (v) result in the termination, suspension or revocation of any
Authorization of the Company or any of its subsidiaries or result in any other
impairment of the rights of the holder of any such Authorization, or
(vi) require notice to or approval of the FCC, any Applicable PUC or any court
or any governmental body or agency having jurisdiction over the Company, any of
its subsidiaries or their respective property;
(xiii) after due inquiry, such counsel does not know of any
legal or governmental proceedings pending or threatened to which the Company or
any of its subsidiaries is or could be a party or to which any of their
respective property is or could be subject, which might result, singly or in the
aggregate, in a Material Adverse Effect;
(xiv) to the best of such counsel's knowledge, neither the
Company nor any of its subsidiaries has violated any Environmental Law, any
provisions of ERISA, or any provisions of the Foreign Corrupt Practices Act or
the rules and regulations promulgated thereunder, except for such violations
which, singly or in the aggregate, would not have a Material Adverse Effect;
(xv) 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, the FCC and Applicable
PUCs, as are necessary to own, lease, license and operate its respective
properties and to conduct its business as currently being conducted and as
proposed to be conducted as described in the Offering Memorandum, 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, to the best of such
counsel's knowledge, 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,
subject to such qualifications as may be set forth in the Offering Memorandum;
and, to the best of such counsel's knowledge, no event has occurred (including
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, subject to such qualifications as may be set forth in
the Offering Memorandum; 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;
(xvi) the Company is not and, after giving effect to the
offering and sale of the Shares and the application of the net proceeds thereof
as described in the Offering Memorandum, will not be, an "investment company" as
such term is defined in the Investment Company Act of 1940, as amended;
(xvii) to the best of such counsel's knowledge after due
inquiry, 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
20
to any securities of the Company or to require the Company to include such
securities with the Shares registered pursuant to any Registration Statement,
except for the parties set forth in Schedule E hereto.
(xviii) no registration under the Act of the Shares is required
for the sale of the Shares to the Initial Purchasers as contemplated by this
Agreement or for the Exempt Resales assuming that (i) each Initial Purchaser is
a QIB, (ii) the accuracy of, and compliance with, the Initial Purchasers'
representations and agreements contained in Section 7 of this Agreement, (iii)
the accuracy of the representations of the Company set forth in Section 6(y) of
this Agreement;
(xix) such counsel has no reason to believe that, as of the
date of the Offering Memorandum or as of the Closing Date, the Offering
Memorandum and any information incorporated by reference therein, as amended or
supplemented, if applicable (except for the financial statements and other
financial data included therein, 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 the light of
the circumstances under which they were made, not misleading.
The opinion of Xxxxx & Xxxxxxx L.L.P. described in Section 9(e) above
shall be rendered to the Initial Purchasers at the request of the Company and
shall so state therein. In giving such opinion with respect to the matters
covered by Section 9(e), Xxxxx & Xxxxxxx L.L.P. may state that their opinion and
belief are based upon their participation in the preparation of the Offering
Memorandum and any amendments or supplements thereto and review and discussion
of the contents thereof, but are without independent check or verification
except as specified;
(f) The Initial Purchasers shall have received on the Closing Date an
opinion, dated the Closing Date, of Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx
(Illinois), counsel for the Initial Purchasers, in form and substance reasonably
satisfactory to the Initial Purchasers.
(g) The Initial Purchasers shall have received, at the time this
Agreement is executed and at the Closing Date, letters dated the date hereof or
the Closing Date, in the form and substance satisfactory to the Initial
Purchasers from Coopers & Xxxxxxx L.L.P., independent public accountants,
containing the information and statements of the type ordinarily included in
accountants' "comfort letters" to the Initial Purchasers with respect to the
Initial Purchasers with respect to the financial statements and certain
financial information contained in the Offering Memorandum.
(h) The Shares shall have been approved by the NASD for trading and
duly listed in PORTAL and the shares of Common Stock shall have been duly
authorized for listing on the Nasdaq National Market subject to notice of
official issuance.
(i) The Company shall have executed the Registration Rights
Agreement, the Deposit Agreement and the Deposit Account Agreement and the
Initial Purchasers shall have received original copies thereof, duly executed by
the Company.
21
(j) The Company shall not have failed at or prior to the Closing Date
to perform or comply with any of the agreements herein contained and required to
be performed or complied with by the Company at or prior to the Closing Date.
10. EFFECTIVENESS OF AGREEMENT AND TERMINATION. This Agreement may be
------------------------------------------
terminated at any time on or prior to the Closing Date by the Initial Purchasers
by written notice to the Company 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 the Initial Purchasers' judgment, is
material and adverse and, in the Initial Purchasers' judgment, makes it
impracticable to market the Securities on the terms and in the manner
contemplated in the Offering Memorandum, (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,
the Chicago Mercantile Exchange, the Chicago Board of Trade 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 the opinion of the Initial Purchasers 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, (v) the declaration of a banking moratorium by
either federal or New York or Maryland 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, any one or more of the Initial Purchasers
shall fail or refuse to purchase the Shares which it or they have agreed to
purchase hereunder on such date and the aggregate number of Shares which such
defaulting Initial Purchaser or Initial Purchasers, as the case may be, agreed
but failed or refused to purchase is not more than one-tenth of the aggregate
number of shares to be purchased on such date by all Initial Purchasers, each
non-defaulting Initial Purchaser shall be obligated severally, in the proportion
which the number of Shares set forth opposite its name in Schedule A bears to
the aggregate number of Shares which all the non-defaulting Initial Purchasers,
as the case may be, have agreed to purchase, or in such other proportion as the
Initial Purchasers may specify, to purchase the Shares which such defaulting
Initial Purchaser or Initial Purchasers, as the case may be, agreed but failed
or refused to purchase on such date; provided that in no event shall the
aggregate number of Shares which any Initial Purchaser 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 Shares without the written
consent of such Initial Purchaser. If on the Closing Date, any Initial
Purchaser or Initial Purchasers shall fail or refuse to purchase the Shares and
the aggregate number of Shares with respect to which such default occurs is more
than one-tenth of the aggregate number of Shares to be purchased by all Initial
Purchasers and arrangements satisfactory to the Initial Purchasers and the
Company for purchase of such Shares are not made within 48 hours after such
default, this Agreement will terminate without liability on the part of any non-
defaulting Initial Purchaser and the Company. In any such case which does not
result in termination of this Agreement, either you or the Company shall have
the right to postpone the Closing Date, but in no event for longer than seven
days, in order that the required changes, if any, in the Offering Memorandum or
any other documents or arrangements may be effected. Any action
22
taken under this paragraph shall not relieve any defaulting Initial Purchaser
from liability in respect of any default of any such Initial Purchaser under
this Agreement.
11. MISCELLANEOUS. Notices given pursuant to any provision of this
-------------
Agreement shall be addressed as follows: (i) if to the Company to Omnipoint
Corporation, 0 Xxxxxxxx Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxx 00000,
Attention: Xxxxxxx X. Xxxxxx and (ii) if to the Initial Purchasers, Xxxxxxxxx,
Xxxxxx & 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 and the Initial Purchasers 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 Securities
regardless of (i) any investigation, or statement as to the results thereof,
made by or on behalf of the Initial Purchasers, the officers or directors of the
Initial Purchasers, any person controlling the Initial Purchasers, the Company,
the officers or directors of the Company, or any person controlling the Company,
(ii) acceptance of the Securities and payment for them hereunder and (iii)
termination of the Agreement.
If for any reason the Shares are not delivered by or on behalf of the
Company as provided herein (other than as a result of any termination of this
Agreement pursuant to Section 10), the Company agrees to reimburse the Initial
Purchasers 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 Company also agrees to reimburse the Initial
Purchasers and their officers, directors and each person, if any, who controls
such Initial Purchasers 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 its rights under Section 8).
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Company, the Initial
Purchasers, the Initial Purchasers' directors and officers, any controlling
persons referred to herein, the directors of the Company and their respective
successors and assigns, all as and to the extent provided in this Agreement, and
no other person shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" shall not include a purchaser of
any of the Securities from the Initial Purchasers 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.
23
Please confirm that the foregoing correctly sets forth the agreement
among the Company, and the Initial Purchasers.
Very truly yours,
OMINIPOINT CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President and
Chief Financial Officer
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
BANCAMERICA XXXXXXXXX XXXXXXXX
BEAR, XXXXXXX & CO. INC.
XXXXX XXXXXX INC.
As representatives of the several Initial Purchasers
By: XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
By: /s/ Xxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Director
24
SCHEDULE A
Number of
Initial Purchaser Depositary Shares
------------------- -----------------
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation 3,757,814
BancAmerica Xxxxxxxxx Xxxxxxxx 931,937
Bear, Xxxxxxx & Co. Inc. 661,375
Xxxxx Xxxxxx Inc. 661,375
Xxxxx & Company Incorporated 208,333
Xxxxxx Brothers Inc. 83,333
Xxxxxxx Xxxxx & Associates, Inc. 83,333
Credit Suisse First Boston Corporation 56,250
Xxxxx & Company 56,250
---------
Total 6,500,000
=========
25
SCHEDULE B
SUBSIDIARIES
26
SCHEDULE C
SCHEDULE OF EXCEPTIONS
1. As of February 17, 1998, (i) all capital stock of Omnipoint
Holdings, II, LLC, (ii) 95.6% of the capital stock of Omnipoint Communications
Inc., and (iii) all capital stock of Omnipoint NY MTA License, LLC were pledged
under the Permanent Credit Facility.
2. As of July 25, 1997, all capital stock of Omnipoint MB Holdings,
LLC ("OMB"), Omnipoint Communications MB Operations LLC, and each of the license
subsidiaries of OMB were pledged under the Ericsson MB Facility.
3. As of July 25, 1997, all capital stock of Omnipoint Philadelphia
Holdings, LLC ("OPCS"), Omnipoint Communications Enterprises, L.P., and each of
the license subsidiaries of OPCS were pledged under the Ericsson Philadelphia
Facility.
4. As of January 30, 1998, all capital stock of Omnipoint Midwest
Holdings, LLC ("OMWH"), Omnipoint Communications Midwest Operations, LLC, and
each of the license subsidiaries of OMWH were pledged under the NT Midwest
Facility.
5. Omnipoint Technologies, Inc. has an employee option plan.
27
SCHEDULE D
Omnipoint Communications Services, LLC
Omnipoint Communications, Inc.
Omnipoint Technologies, Inc.
Omnipoint Communications Enterprises, L.P.
Omnipoint Communications MB Operations, LLC
Omnipoint Communications Midwest Operations, LLC
28
SCHEDULE E
Holders of Common Stock issued upon conversion of the Class B Common
Stock and the Class C Common Stock, the Common Stock Purchase Warrants to
Purchase 625,000 shares of Common Stock, dated November 22, 1995, and the Common
Stock Purchase Warrants to Purchase 375,000 shares of Common Stock, dated
November 22, 1995, have demand and piggy back registration rights.
29
EXHIBIT A
FORM OF REGISTRATION RIGHTS AGREEMENT
[INTENTIONALLY OMITTED.]
30
