EXHIBIT 1.2
Underwriting Agreement
Sprint Corporation
70,000,000 Shares of PCS Common Stock, Series 1, $1.00 par value per share
August 7, 2001
New York, New York
August 7, 2001
XX Xxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxxx Xxxxx & Co.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
UBS Warburg LLC
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
As Representatives of the several Underwriters
named in Schedule II hereto,
Dear Sirs and Mesdames:
Sprint Corporation, a Kansas corporation (the "Company"),
proposes to sell to the several underwriters named in Schedule II hereto (the
"Underwriters"), for whom you (the "Representatives") are acting as
representatives, an aggregate of 20,434,782 shares (the "Company Shares") of its
PCS Common Stock, Series 1, $1.00 par value per share (the "PCS Common Stock")
and NAB Nordamerika Beteiligungs Holding GmbH (the "Selling Stockholder"),
proposes to sell to the Underwriters, for whom you are acting as
Representatives, an aggregate of 49,565,218 shares of PCS Common Stock (the
"Selling Stockholder Shares"; the Company Shares and the Selling Stockholder
Shares collectively referred to as the "Firm Shares") to be issued by the
Company to the Selling Stockholder upon conversion of shares of PCS Common
Stock, Series 3, $1.00 par value per share (the "Series 3 PCS Shares") of the
Company and with respect to shares of Class A Common Stock, $0.50 par value per
share, of the Company (the "Class A Common Shares") held by the Selling
Stockholder (such Series 3 PCS Shares and Class A Common Shares held by the
Selling Stockholder being referred to as the "Conversion Shares"), each of the
Company and the Selling Stockholder selling the amount set forth opposite its
name in Schedule I hereto.
The Company and the Selling Stockholder also propose to sell
to the several Underwriters not more than an additional 3,065,217 and
7,434,782shares, respectively, of PCS Common Stock (the "Additional Shares") if
and to the extent that you, as Representatives, shall have determined to
exercise, on behalf of the Underwriters, the right to purchase such shares of
PCS Common Stock granted to the Underwriters in Section 2 hereof. The Firm
Shares and the Additional Shares are hereinafter collectively referred to as the
"Shares". The shares of PCS Common Stock of the Company, together with all other
classes and series of common stock of the Company, are hereinafter referred to
as the "Common Stock".
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement, including a prospectus,
relating to the Shares (Commission file no. 333-65402). 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 Securities Act of 1933, as amended
(the "Securities Act"), is hereinafter referred to as the "Registration
Statement"; the prospectus included in such Registration Statement, as
supplemented to reflect the terms of the Offering of the Shares, as first filed
with the Commission pursuant to and in accordance with Rule 424(b) under the
Securities Act, including all material incorporated by reference therein, is
hereinafter referred to as the "Prospectus". If the Company has filed an
abbreviated registration statement to register additional Shares pursuant to
Rule 462(b) under the Securities Act (the "Rule 462 Registration Statement"),
then any reference herein to the term "Registration Statement" shall be deemed
to include such Rule 462 Registration Statement. Any reference herein to the
Registration Statement, any preliminary prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), on or before the effective date of
the Registration Statement or the issue date of such preliminary prospectus or
the Prospectus, as the case may be; and any reference herein to the terms
"amend," "amendment" or "supplement" with respect to the Registration Statement,
any preliminary prospectus or the Prospectus shall be deemed to refer to and
include the filing of any document under the Exchange Act after the effective
date of the Registration Statement or the issue date of any preliminary
prospectus or the Prospectus, as the case may be, deemed to be incorporated
therein by reference.
1. Representations and Warranties of the Company. The Company
represents and warrants to and agrees with the Underwriters and the Selling
Stockholder that:
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or, to
the knowledge of the Company, threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant
to the Exchange Act and incorporated by reference in the Prospectus
complied or will comply when so filed in all material respects with the
Exchange Act and the applicable rules and regulations of the Commission
thereunder, (ii) the Registration Statement and any amendments thereto,
as of their respective effective dates, did not contain or, as the case
may be, 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, (iii) the
Registration Statement and any of the amendments thereto, as of their
respective effective dates, and the Prospectus, as of its issue date
and, as amended or supplemented, if applicable, as of the Closing Date
(as defined in Section 5 hereof), complied or will comply in all
material respects with the Trust Indenture Act of 1939, the Securities
Act and the applicable rules and regulations of the Commission
thereunder and (iv) the Prospectus, as of its issue date and, as
amended or supplemented, if applicable, as of the Closing Date does not
and will not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading,
except that the representations and warranties set forth in this
paragraph do not apply to (i) statements or omissions in the
Registration Statement or the Prospectus or any amendment or supplement
thereto based upon information relating to any Underwriter furnished to
the Company in writing by such Underwriter through you expressly for
use therein or relating to the Selling Stockholder furnished to the
Company in writing by the Selling Stockholder expressly for use therein
or (ii) those exhibits to the Registration Statement that constitute
the Statement of Eligibility (Form T-1) of the Trustee.
(c) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described
in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business
or its ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be in good
standing would not reasonably be expected to have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(d) Each subsidiary of the Company that would be a
"significant subsidiary" of the Company within the meaning of Rule 1-02
under Regulation S-X promulgated by the Commission, substituting five
percent for ten percent in the conditions specified therein and
substituting "proportionate share of the total net revenue (after
intercompany eliminations)" for "equity in the income from continuing
operations before income taxes, extraordinary items and cumulative
effect of a change in accounting principle" and "such revenue" for
"such income" in clause (3) of such definition (each a "Material
Subsidiary"), has been duly incorporated or otherwise organized, is
validly existing as a corporation, limited liability company, or
partnership, as the case may be, in good standing under the laws of the
jurisdiction of its incorporation or organization, has the corporate,
limited liability company, or partnership, as the case may be, power
and authority to own its property and to conduct its business as
described in the Prospectus and is duly qualified to transact business
and is in good standing in each jurisdiction in which the conduct of
its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified
or be in good standing would not reasonably be expected to have a
material adverse effect on the Company and its subsidiaries, taken as a
whole; all of the outstanding shares of capital stock of each
subsidiary of the Company have been duly and validly authorized and
issued, are fully paid and non-assessable and, except as otherwise set
forth or incorporated by reference in the Prospectus, are owned
directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims.
(e) This Agreement has been duly authorized, executed and
delivered by the Company, and the Company has, and on the Closing Date
will have, the corporate power to enter into this Agreement and perform
its obligations hereunder.
(f) The authorized equity capitalization of the Company is as
set forth in the Prospectus under the captions "Authorized Capital
Stock" and "Capitalization", and the Shares conform in all material
respects to the description thereof contained in the Prospectus.
(g) All outstanding shares of Common Stock, including the
Conversion Shares, have been duly authorized and are validly issued,
fully paid and non-assessable.
(h) The Company Shares have been duly authorized and, when
issued, delivered and paid for in accordance with the terms of 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
other rights to subscribe for the Shares pursuant to the Company's
Articles of Incorporation or the Kansas General Corporation Code.
(i) The Selling Stockholder Shares have been duly authorized
and, when issued upon conversion of the Conversion Shares and delivered
in accordance with the terms of 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 other rights to subscribe for the
Shares pursuant to the Company's Articles of Incorporation or the
Kansas General Corporation Code.
(j) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement (i)
will not violate any provision of the articles of incorporation or
by-laws of the Company and (ii) will not violate any provision of law
applicable to the Company or any of its subsidiaries, any agreement or
other instrument binding upon the Company or any of its subsidiaries or
any judgment, order or decree of any governmental body, agency or court
having jurisdiction over the Company or any subsidiary, except in each
case set forth in this clause (ii) for violations that would not
reasonably be expected to have a material adverse effect on the Company
and its subsidiaries, taken as a whole, or the Company's ability to
perform its obligations hereunder; and no consent, approval,
authorization or order of, or qualification with, any governmental body
or agency is required for the execution, delivery or performance of
this Agreement by the Company, except such as may be required by the
securities or Blue Sky laws of the various states in connection with
the offer and sale of the Shares.
(k) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from
that set forth in the Prospectus.
(l) There are no legal or governmental proceedings pending or,
to the knowledge of the Company, threatened to which the Company or any
of its subsidiaries is a party or to which any of the properties of the
Company or any of its subsidiaries is subject that are required to be
described in the Registration Statement or the Prospectus and are not
so described or any statutes, regulations, contracts or other documents
that are required to be described in the Registration Statement or the
Prospectus that are not described as required. There are no contracts
or other documents required to be filed as exhibits to the Registration
Statement that are not filed as required.
(m) The Prospectus, and any supplement thereto, 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 Securities
Act, complied when so filed in all material respects with the
Securities Act and the applicable rules and regulations of the
Commission thereunder.
(n) 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.
(o) The Company and its subsidiaries possess all licenses,
certificates, permits and other authorizations issued by the
appropriate federal, state or foreign regulatory authorities necessary
to conduct their respective businesses material to the Company and its
subsidiaries, taken as a whole, and neither the Company nor any such
subsidiary has received any notice of proceedings relating to the
revocation or modification of any such certificate, authorization or
permit which, singly or in the aggregate, could reasonably be expected
to have a material adverse effect on the Company and its subsidiaries,
taken as a whole, whether or not arising from transactions in the
ordinary course of business.
(p) The Company and its subsidiaries (i) are in compliance
with any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (ii) have received all permits,
licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) are
in compliance with all terms and conditions of any such permit, license
or approval, except, in the case of all matters set forth in clauses
(i), (ii) and (iii), as set forth in the Prospectus and except where
such noncompliance with Environmental Laws, failure to receive required
permits, licenses or other approvals or failure to comply with the
terms and conditions of such permits, licenses or approvals could not
reasonably be expected to, singly or in the aggregate, have a material
adverse effect on the Company and its subsidiaries, taken as a whole.
(q) There are no costs or liabilities known to the Company
associated with Environmental Laws (including, without limitation, any
capital or operating expenditures required for clean-up, closure of
properties or compliance with Environmental Laws or any permit, license
or approval, any related constraints on operating activities and any
potential liabilities to third parties) which could reasonably be
expected to, singly or in the aggregate, have a material adverse effect
on the Company and its subsidiaries, taken as a whole.
(r) There are no contracts, agreements or understandings
between the Company and any person granting such person the right to
require the Company to register any securities pursuant to the
Registration Statement, except such rights as have been both (i)
referred to or
incorporated by reference in the Prospectus and (ii) waived or
satisfied.
(s) Ernst & Young LLP and Deloitte & Touche LLP, whose reports
on the consolidated financial statements of the Company and its
subsidiaries are filed with the Commission as part of the Registration
Statement and Prospectus, are each independent public accountants with
respect to the Company as required by the Securities Act.
(t) The audited and unaudited financial statements and
schedules included in the Registration Statement and the Prospectus
present fairly in all material respects the consolidated financial
position of the Company and its subsidiaries as of the dates indicated
and the consolidated results of operations and cash flows of the
Company and its subsidiaries for the periods specified; such financial
statements and schedules have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis
during the periods involved.
(u) The Company, after giving effect to the offering and sale
of the Shares and the application of the proceeds from the shares that
it sells as described in the Prospectus, will not direct an aggregate
of 10% or more of the net proceeds of the offering of the Shares to
National Association of Securities Dealers, Inc. members participating
in the distribution of the Shares.
(v) As of the date hereof, the Company does not believe that
it is, or has been, a "United States real property holding corporation"
within the meaning of Section 897(c)(2) of the Internal Revenue Code of
1986, as amended (the "Code"), during the five-year period ending on
the date hereof, although it has not determined or established whether
it will be a United States real property holding corporation in the
future.
2. Representations and Warranties of the Selling Stockholder. The Selling
Stockholder represents and warrants to and agrees with each of the Underwriters
that:
(a) This Agreement has been duly authorized, executed and
delivered by or on behalf of the Selling Stockholder.
(b) The execution and delivery by the Selling Stockholder of,
and the performance by the Selling Stockholder of its obligations
under, this Agreement, the Letter to the Transfer Agent (as defined
below) and the power of attorney appointing certain individuals as the
Selling Stockholder's attorneys in fact to execute and deliver this
Agreement and the documents and certificates contemplated hereby (the
"Power of Attorney") will not violate (i) any provision of the
certificate of incorporation or by-laws (or equivalent constituent
documents) of the Selling Stockholder, or (ii) except in each case for
violations that would not materially and adversely affect the
consummation by the Selling Stockholder of the transactions
contemplated by this Agreement, any provision of law applicable to the
Selling Stockholder, any agreement or other instrument binding upon
such Selling Stockholder or any property of such Selling Stockholder or
to which the Selling Stockholder is a party or any judgment, order or
decree of any governmental body, agency or court having jurisdiction
over the Selling Stockholder; and no consent, approval, authorization
or order of, or qualification with, any governmental body or agency is
required for the execution, delivery or performance of this Agreement,
the Letter to the Transfer Agent and the Power of Attorney by the
Selling Stockholder, except such as may be required by the securities
or Blue Sky laws of the various states in connection with the offer and
sale of the Shares.
(c) The Selling Stockholder has, and on the Closing Date will
have, the corporate power to enter into this Agreement, the Letter to
the Transfer Agent and the Power of Attorney, to sell, transfer and
deliver the Shares to be sold by the Selling Stockholder and perform
its obligations under this Agreement, the Letter to the Transfer Agent
or the Power of Attorney.
(d) The Selling Stockholder has delivered a letter to UMB
Bank, n.a., (the "transfer agent"), substantially in the form attached
as Exhibit A hereto (the "Letter to the Transfer Agent"), and the
Selling Stockholder has received the transfer agent's signed
acknowledgment of such letter and has not received any notice that the
transfer agent does not intend to comply with the instructions therein.
(e) The Selling Stockholder will be, as of the Closing Date,
the record owner of the Shares to be sold by the Selling Stockholder
and is not aware of any "adverse claims" (within the meaning of Section
8-105 of the Uniform Commercial Code as adopted by the State of New
York (the "UCC") that may be asserted against the Selling Stockholder
with respect to such Shares.
(f) The Registration Statement, when it became effective, did
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 required to be stated therein or necessary to make the
statements therein not misleading and the Prospectus does not contain
and, at the Closing Date, the Prospectus as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, except that the representations and warranties set forth in
this paragraph apply only to statements or omissions in the
Registration Statement or Prospectus based upon information relating to
the Selling Stockholder furnished to the Company in writing by the
Selling Stockholder expressly for use therein.
(g) The sale of the Selling Stockholder Shares pursuant to
this Agreement is not prompted by any material, non-public information
in the Selling Stockholder's possession concerning the Company that
would cause such sale to constitute a violation by the Selling
Stockholder of Rule 10b-5 promulgated under the Exchange Act.
(h) The Selling Stockholder has not taken, and will not take,
directly or indirectly, any action designed to, or which might
reasonably be expected to, cause or result in any stabilization or
manipulation of the price of any security of the Company to facilitate
the sale of the Shares pursuant to the distribution contemplated by
this Agreement and, other than as permitted by the Securities Act, the
Selling Stockholder has not distributed and will not distribute any
prospectus or other offering material in connection with the offering
and sale of the Shares.
3. Agreements to Sell and Purchase. Upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, each of the Company and the Selling Stockholder, severally
and not jointly, hereby agrees to sell to the several Underwriters, and each
Underwriter agrees, severally and not jointly, to purchase from the Company and
the Selling Stockholder at $23.8875 a share (the "Purchase Price") the number of
Firm Shares (subject to such adjustments to eliminate fractional shares as you
may determine) set forth in Schedule II hereto opposite the name of such
Underwriter.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, each of the Company and the
Selling Stockholder, severally and not jointly, agrees to sell to the
Underwriters the Additional Shares, and the Underwriters shall have a one-time
right to purchase, severally and not jointly, from each of the Company and the
Selling Stockholder, 3,065,217 and 7,434,782 Additional Shares, respectively, at
the Purchase Price. If you, on behalf of the Underwriters, elect to exercise
such option, you shall so notify each of the Company and the Selling Stockholder
in writing at least three business days in advance of the Option Closing Date
and not later than 30 days after the date of this Agreement, which notice shall
be irrevocable and shall specify the number of Additional Shares to be purchased
by the Underwriters and the date on which such Additional Shares are to be
purchased. Such date may be the same as the Closing Date (as defined below) but
not earlier than the Closing Date nor later than ten business days after the
date of such notice. Additional Shares may be purchased as provided in Section 5
hereof solely for the purpose of covering over-allotments made in connection
with the offering of the Firm Shares. If any Additional Shares are to be
purchased, each Underwriter agrees, severally and not jointly, to purchase from
each of the Company and the Selling Stockholder, the number of Additional Shares
(subject to such adjustments to eliminate fractional shares as you may
determine) that bears the same proportion to the total number of Additional
Shares to be purchased as the number of Firm Shares set forth in Schedule II
hereto opposite the name of such Underwriter bears to the total number of Firm
Shares.
Each of the Company and the Selling Stockholder, severally and not
jointly, hereby agrees that, without the prior written consent of any two of
X.X. Xxxxxx Securities Inc., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
and UBS Warburg LLC on behalf of the Underwriters, it will not, during the
period ending 90 days after the date of the Prospectus, (i) offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant to purchase, lend, or
otherwise transfer or dispose of, directly or indirectly, any shares of any
series of PCS Common Stock or any securities convertible into or exercisable or
exchangeable for shares of any series of PCS Common Stock or (ii) enter into any
swap or other arrangement that transfers to another, in whole or in part, any of
the economic consequences of ownership of PCS Common Stock, whether any such
transaction described in clause (i) or (ii) above is to be settled by delivery
of PCS Common Stock or such other securities, in cash or otherwise. The
foregoing sentence shall
not apply to (A) the Shares to be sold hereunder, (B) any transaction pursuant
to any employee or director benefit plan in effect on the date of the Prospectus
or the registration of any such transaction, (C) issuances of PCS Common Stock
upon conversion of outstanding shares of Preferred Stock -- Seventh Series,
Convertible, or upon exercise of outstanding warrants to purchase PCS Common
Stock, (D) issuances of PCS Common Stock pursuant to the Company rights plan in
effect on the date of the Prospectus, (E) issuances of PCS Common Stock or
securities convertible into or exchangeable for PCS Common Stock in connection
with acquisitions, or mergers or in connection with strategic or other
significant investments; provided that in each case set forth in this clause (E)
the recipient of such PCS Common Stock or securities convertible into or
exchangeable for PCS Common Stock agrees to be bound for any remaining portion
of such 90 day period on the above terms (except that recipients of PCS Common
Stock or securities convertible into or exchangeable for PCS Common Stock in
connection with the acquisition by the Company of a company whose shares are
publicly traded need not so agree), (F) registrations of PCS Common Stock for,
or issuances of PCS Common Stock to, Comcast Corporation, Xxx Communications,
Inc. and Liberty PCS Trust or any affiliate upon any exercise of their equity
purchase rights or registration rights, (G) issuances, or registrations, of
shares of PCS Common Stock which are issuable to France Telecom ("FT"), Deutsche
Telekom AG or any affiliate ("DT") or third parties in respect of the shares of
the Company's Class A Common Stock and PCS Common Stock, Series 3 held by FT and
DT as of the date of this Agreement, (H) the issuance of equity units, corporate
units, purchase contracts or purchase contract shares (as defined in the
Prospectus) in the offering being conducted concurrently with this offering, (I)
treasury units or corporate units (as defined in the Prospectus) to be created
or recreated upon substitution of pledged securities or (J) transfers by the
Selling Stockholder of PCS Common Stock to one or a limited number of special
purpose vehicles or other financial intermediaries or financial institutions
pursuant to Section 5(a)(ii)(B) of the Offering Process Agreement among FT, DT,
the Selling Stockholder and Sprint, dated as of February 20, 2001, provided any
such entity agrees to be bound for any remaining portion of such 90 day period
on the above terms.
4. Terms of Public Offering. The Company and the Selling Stockholder
are advised by you that the Underwriters propose to make a public offering of
their respective portions of the Shares as set forth in the Prospectus. The
Company and the Selling Stockholder are further advised by you that the Shares
are to be offered to the public initially at $24.50 per Share (the "Public
Offering Price") and to certain dealers selected by you at a price that
represents a concession not in excess of $0.37 per Share under the Public
Offering Price.
5. Payment and Delivery. Payment for the Firm Shares shall be made to
the Company and the Selling Stockholder in Federal or other funds immediately
available in New York City against delivery of such Firm Shares for the
respective accounts of the several Underwriters at 10:00 a.m., New York City
time, on August 10, 2001, or at such other time on the same or such other date,
not more than five business days later, as shall be designated in writing by
you. The time and date of such payment are hereinafter referred to as the
"Closing Date".
Payment for any Additional Shares shall be made to the Company and the
Selling Stockholder in Federal or other funds immediately available in New York
City against delivery of such Additional Shares for the respective
accounts of the several Underwriters at 10:00 a.m., New York City time, on the
date specified in the notice described in Section 2 or at such other time on the
same or on such other date, in any event not later than September , 2001, as
shall be designated in writing by you. The time and date of such payment are
hereinafter referred to as the "Option Closing Date".
Certificates for the Selling Stockholder Shares and the Additional
Shares of the Selling Stockholder shall be as contemplated in the Letter to the
Transfer Agent. The certificates evidencing the Selling Stockholder Shares and
the Additional Shares of the Selling Stockholder shall be delivered to you on
the Closing Date or the Option Closing Date, as the case may be, for the
respective accounts of the several Underwriters, with any transfer taxes payable
in connection with the transfer of the Shares to the Underwriters duly paid,
against payment of the Purchase Price therefor.
6. Conditions to the Obligations of the Underwriters, the Company and
the Selling Stockholder. The several obligations of the Company and the Selling
Stockholder to sell the Shares to the Underwriters and the several obligations
of the Underwriters to purchase and pay for the Shares on the Closing Date are
subject to the condition that the Registration Statement shall have been
declared effective by the Commission prior to the Closing Date and that 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 at the Closing Date. The obligation of the Selling Stockholder to
sell the Shares to the Underwriters shall also be subject to the accuracy of the
representations and warranties on the part of the Company contained herein as of
the Closing Date, the accuracy of the statements by the Company made in any
certificates delivered to the Selling Stockholder pursuant to the provisions
hereof and to the conditions set forth in Sections 6(b), (c), (d), (g), (i), (j)
and (k) below.
The several obligations of the Underwriters to purchase and pay for the
Shares on the Closing Date are subject to the accuracy of the representations
and warranties on the part of the Company and the Selling Stockholder contained
herein as of the Closing Date, the accuracy of the statements by the Company and
the Selling Stockholder made in any certificates pursuant to the provisions
hereof, the performance by the Company and the Selling Stockholder of their
respective obligations hereunder and to the following additional conditions:
(a) Subsequent to the execution and delivery of this Agreement
and prior to the Closing Date there shall not have occurred any change,
or any development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or operations of
the Company and its subsidiaries, taken as a whole, from that set forth
in the Prospectus (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement) that, in your judgment, is
material and adverse and that makes it, in your judgment, impracticable
to market the Shares on the terms and in the manner contemplated in the
Prospectus.
(b) The Underwriters and the Selling Stockholder shall have
received on the Closing Date a certificate, dated the Closing Date and
signed by an executive officer of the Company to the effect that the
representations and warranties of the Company contained in this
Agreement are true and correct as if made on the Closing Date and that
the Company has complied with all of the agreements and satisfied all
of the conditions on its part to be performed or satisfied hereunder on
or before the Closing Date.
The officer signing and delivering such certificate may rely
upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters and the Selling Stockholder shall have
received on the Closing Date an opinion of King & Spalding, outside
counsel for the Company, dated the Closing Date, to the effect that:
(i) the Registration Statement has become effective
under the Act, any required filing of the Prospectus, and any
supplements thereto, pursuant to Rule 424(b) has been made in
the manner and within the time period required by Rule 424(b),
and, to such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or
threatened;
(ii) the statements (A) in the Prospectus under the
captions "Description of Agreements with the Selling
Stockholder", "Certain Federal Income Tax Consequences" and
"Certain U.S. Federal Income Tax Consequences to Non-United
States Holders" and (B) in the Registration Statement in Item
15, in each case insofar as such statements constitute
summaries of the documents (or provisions thereof) or statutes
and regulations (or provisions thereof) referred to therein,
fairly present the information called for with respect to such
documents (or provisions thereof) and statutes and regulations
(or provisions thereof) and fairly summarize in all material
respects such documents (or provisions thereof) or statutes
and regulations (or provisions thereof);
(iii) 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; and
(iv) the Registration Statement, as of its effective
date, and the Prospectus, as of its issue date and, as amended
or supplemented, if applicable, as of the Closing Date,
complied as to form in all material respects with the
requirements of the Securities Act and the rules and
regulations thereunder (in each case other than (A) the
financial statements and notes thereto, the financial
statement schedules and the other financial and statistical
data included or incorporated by reference therein, (B) the
Statement of Eligibility (Form T-1) of the Trustee and (C) the
documents and other information incorporated by reference
therein, as to which we express no opinion).
In addition, such counsel shall state that although it does
not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement or
the Prospectus (except as set forth in paragraph (ii) above), nothing
has come to its attention that causes such counsel to believe that (a)
the
Registration Statement (other than (i) the financial statements and
notes thereto, the financial statement schedules and the other
financial and statistical data included or incorporated by reference
therein, (ii) the Statement of Eligibility (Form T-1) of the Trustee
and (iii) the documents and other information incorporated by reference
therein, as to which such counsel expresses no belief), as of its
effective date, contained an untrue statement of a material fact or
omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or (b) the
Prospectus (other than (i) the financial statements and notes thereto,
the financial statement schedules and the other financial and
statistical data included or incorporated by reference therein and (ii)
the documents and other information incorporated by reference therein,
as to which such counsel expresses no belief), as of its issue date or,
as amended or supplemented, if applicable, as of the Closing Date,
contained or contains an untrue statement of a material fact or omitted
or omits to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
(d) The Underwriters and the Selling Stockholder shall have
received on the Closing Date an opinion of Xxxxxx X. Xxxxx, Vice
President, Corporate Secretary and Associate General Counsel of the
Company, dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated in the
state of Kansas, is validly existing as a corporation in good
standing under the laws of the state of Kansas, has the
corporate power and authority to own its property and to
conduct its business as described in the Prospectus and is
duly qualified to transact business and is in good standing in
each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be
in good standing would not reasonably be expected to have a
material adverse effect on the Company and its subsidiaries,
taken as a whole;
(ii) each Material Subsidiary of the Company has been
duly incorporated or otherwise organized, is validly existing
as a corporation, limited liability company, or partnership,
as the case may be, in good standing under the laws of the
jurisdiction of its incorporation or organization, has the
corporate, limited liability company, or partnership, as the
case may be, power and authority to own its property and to
conduct its business as described in the Prospectus and is
duly qualified to transact business and is in good standing in
each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be
in good standing would not reasonably be expected to have a
material adverse effect on the Company and its subsidiaries,
taken as a whole;
(iii) the authorized equity capitalization of the
Company is as set forth in the Prospectus under the captions
"Authorized Capital Stock" and "Capitalization", and the PCS
Common Stock conforms in all material respects to the
description thereof contained in the Prospectus;
(iv) all outstanding shares of Common Stock,
including the Conversion Shares, have been duly authorized and
are validly issued, fully paid and non-assessable;
(v) the Company Shares and the Selling Stockholder
Shares have been duly authorized, and when issued and
delivered in accordance with the terms of this Agreement, and
with respect to the Selling Stockholder Shares, when issued
upon conversion of the Conversion Shares, will be validly
issued, fully paid and non-assessable, and the issuance of
such Shares will not be subject to any preemptive or other
rights to subscribe for the Shares pursuant to Sprint's
Articles of Incorporation or the Kansas General Corporation
Code;
(vi) this Agreement has been duly authorized,
executed and delivered by the Company and the Company has the
corporate power to enter into this Agreement and perform its
obligations hereunder;
(vii) the execution and delivery by the Company of,
and the performance by the Company of its obligations under,
this Agreement (i) will not violate any provision of the
articles of incorporation or by-laws of the Company and (ii)
to such counsel's knowledge, will not violate any provision of
law applicable to the Company or any of its subsidiaries, any
agreement or other instrument binding upon the Company or any
of its subsidiaries, or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over
the Company or any subsidiary, except in each case set forth
in this clause (ii) for violations that would not reasonably
be expected to have a material adverse effect on the Company
and its subsidiaries, taken as a whole, or the Company's
ability to perform its obligations hereunder; and no consent,
approval, authorization or order of, or qualification with,
any governmental body or agency is required for the execution,
delivery or performance of this Agreement by the Company,
except such as may be required by the securities or Blue Sky
laws of the various states in connection with the offer and
sale of the Shares;
(viii) to such counsel's knowledge, (a) there are no
legal or governmental proceedings pending or threatened to
which the Company or any of its subsidiaries is a party or to
which any of the properties of the Company or any of its
subsidiaries is subject that are required to be described in
the Registration Statement or the Prospectus and are not so
described, (b) there are no statutes, regulations, contracts
or other documents that are required to be described in the
Registration Statement or the Prospectus that are not
described as required and (c) there are no contracts or other
documents required to be filed as exhibits to the Registration
Statement that are not filed as required;
(ix) no filing with, or authorization, approval,
consent, license, order, registration, qualification or decree
of, the Federal Communications Commission is necessary or
required for
the due authorization, execution or delivery by the Company of
this Agreement or for the performance by the Company of the
transactions contemplated under the Prospectus or this
Agreement; and
(x) each document filed pursuant to the Exchange Act
and incorporated by reference in the Registration Statement
and the Prospectus (other than the financial statements and
notes thereto, the financial statement schedules and the other
financial and statistical data included or incorporated by
reference therein and the Statement of Eligibility (Form T-1)
of the Trustee, as to which such counsel expresses no
opinion), as of its filing date, complied as to form in all
material respects with the Exchange Act and the rules and
regulations of the Commission thereunder.
In addition, such counsel shall state that although he does
not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement or
the Prospectus, nothing has come to his attention that causes such
counsel to believe that (a) the Registration Statement (other than the
financial statements and notes thereto, the financial statement
schedules and the other financial and statistical data included or
incorporated by reference therein and the Statement of Eligibility
(Form T-1) of the Trustee, as to which such counsel expresses no
belief), as of its effective date, contained an untrue statement of a
material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading or (b) the Prospectus (other than the financial statements
and notes thereto, the financial statement schedules and the other
financial and statistical data included or incorporated by reference
therein, as to which such counsel expresses no belief), as of its issue
date or, as amended or supplemented, if applicable, as of the Closing
Date, contained or contains an untrue statement of a material fact or
omits to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
(e) The Underwriters shall have received on the Closing Date
an opinion of Cleary, Gottlieb, Xxxxx & Xxxxxxxx, special United States
counsel for Deutsche Telekom AG and the Selling Stockholder, and an
opinion of Xx. Xxxxxxx Xxxx, L.L.M., General Counsel of Deutsche
Telekom AG, both dated the Closing Date, in the form attached hereto as
Exhibits B-1 and C. The Company shall have received on the Closing Date
an opinion of Cleary, Gottlieb, Xxxxx & Xxxxxxxx in the form attached
hereto as Exhibit B-2.
(f) The Underwriters shall have received on the Closing Date
an opinion of Cravath, Swaine & Xxxxx, counsel for the Underwriters,
dated the Closing Date, covering the matters referred to in Section
6(d)(iii), Section 6(c)(ii) (but only as to the statements in the
Prospectus under the caption "Underwriters") and in Section 6(c)(iv)
above.
With respect to the last paragraph in Section 6(c)(iv) above,
King & Spalding and Cravath, Swaine & Xxxxx may state that their belief
is based upon their participation in the preparation of the
Registration Statement and Prospectus and any amendments or supplements
thereto and documents incorporated by reference and review and
discussion of the contents thereof, but are without independent check
or verification, except as specified. With respect to Section 6(e)
above, Cleary, Gottlieb, Xxxxx & Xxxxxxxx may rely, as to factual
matters, to the extent they deem appropriate, upon the representations
of the Selling Stockholder contained herein and in other documents and
instruments.
The opinions of King & Spalding described in Section 6(c),
Xxxxxx X. Xxxxx described in Section 6(d) and Cleary, Gottlieb, Xxxxx &
Xxxxxxxx described in Section 6(e) shall be rendered to the
Underwriters and, as applicable, the Selling Stockholder or the Company
at the request of the Company or the Selling Stockholder, as the case
may be, and shall so state therein.
(g) The Underwriters and the Selling Stockholder 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 reasonably satisfactory to the Underwriters and the
Selling Stockholder, from Ernst & Young LLP, independent public
accountants, with respect to the Company and Deloitte & Touche LLP,
independent public accountants, with respect to certain subsidiaries of
the Company, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial
information contained in or incorporated by reference into the
Registration Statement and the Prospectus; provided that the letters
delivered on the Closing Date shall use a "cut-off date" not earlier
than the date hereof.
(h) The Company and the Underwriters shall have received an
officer's certificate, substantially in the form of Exhibits D-1 and
D-2 and hereto of Deutsche Telekom AG and the Selling Stockholder,
respectively.
(i) The Underwriters and the Selling Stockholder shall have
received a certificate, substantially in the form attached as Exhibit E
hereto, of the Company relating to the ownership interests of the
Selling Stockholder in the Company under section 897(c)(2) of the Code,
as of the Closing Date.
(j) The Company and the Selling Stockholder shall have
received a certificate, substantially in the form attached as Exhibit F
hereto, of the Underwriters relating to certain selling procedures,
provided that this condition shall not be a condition to the several
obligations of the Underwriters.
(k) The Company shall have furnished to the Underwriters and
the Selling Stockholder such further information, certificates and documents as
the Underwriters and the Selling Stockholder may reasonably request.
The obligations of the Company to perform the actions required of the
Company under this Agreement on or before the Closing Date shall be subject to
(i) the receipt by the Company of the documents referred to in paragraphs
(h), (j) and (k) of this Section 6 and (ii) the delivery by the Selling
Stockholder to the transfer agent of the stock certificates representing the
Conversion Shares to be converted into Selling Stockholder Shares and sold in
the offering (excluding certificates for the Class A Common Shares) together
with completed stock powers substantially in the form attached as an exhibit to
the Letter to the Transfer Agent.
The several obligations of the Underwriters to purchase Additional
Shares hereunder are subject to the delivery to you on the 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 the Additional
Shares and other matters related to the issuance of the Additional Shares.
7. Covenants of the Company. In further consideration of the agreements
of the Underwriters herein contained, the Company covenants with each
Underwriter and (with respect to Section 7(b) and Section 7(f) only) each
Selling Stockholder as follows:
(a) To furnish to each of you without charge, one signed copy
of the Registration Statement (including exhibits thereto and documents
incorporated by reference) and to each other Underwriter a conformed
copy of the Registration Statement (without exhibits thereto but
including documents incorporated by reference) and, during the period
mentioned in paragraph (c) below, as many copies of the Prospectus, any
documents incorporated by reference, and any supplements and amendments
thereto as you may reasonably request.
(b) Before amending or supplementing the Registration
Statement or the Prospectus, to furnish to you and the Selling
Stockholder a copy of each such proposed amendment or supplement (other
than any document required to be filed pursuant to the Exchange Act)
and not to file any such proposed amendment or supplement (other than
any document required to be filed pursuant to the Exchange Act) to
which you reasonably object, and to file with the Commission within the
applicable period specified in Rule 424(b) under the Securities Act any
prospectus required to be filed pursuant to such Rule.
(c) If, during such period after the first date of the public
offering of the Shares as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall
occur or condition exist as a result of which it is necessary to amend
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, file with the
Commission and furnish, at its own expense, to the Underwriters, the
Selling Stockholder and to the dealers (whose names and addresses you
will furnish to the Company) to which Shares may have been sold by you
on behalf of the Underwriters and to any other dealers upon request,
either amendments or supplements to the Prospectus so that the
statements in the Prospectus as so amended or supplemented will not, in
the light of the circumstances when the Prospectus is delivered to a
purchaser, be misleading or so that the Prospectus, as amended or
supplemented, will comply with law; provided that, notwithstanding the
foregoing, the expense of preparing, filing and furnishing any such
amendment or supplement to the Prospectus nine months or more after the
first date of the public offering shall be borne by the Underwriters or
dealers that are required to deliver the Prospectus, as amended or
supplemented.
(d) To endeavor to qualify the Shares for offer and sale under
the securities or Blue Sky laws of such jurisdictions as you shall
reasonably request; provided, however, that the Company will not be
required to qualify, register or take other actions with respect to the
Shares in any jurisdiction where, in order to do so, the Company would
have to qualify to do business as a foreign corporation or to file a
general consent to service of process.
(e) To make generally available to the Company's security
holders and to you as soon as practicable, and in any event, not later
than eighteen months after the effective date of the Registration
Statement (as defined in Rule 158(c) under the Securities Act) an
earnings statement that satisfies the provisions of Section 11(a) of
the Securities Act and the rules and regulations of the Commission
thereunder.
(f) That upon the Selling Stockholder's and the Company's
receipt of the certificate of the Underwriters described in Section
6(j) of this Agreement, the Selling Stockholder shall be deemed to be
in compliance with Section 2.4(a) of the Amended and Restated
Stockholders' Agreement among FT, DT and the Company, dated as of
November 23, 1998, as amended by the Master Transfer Agreement between
and among FT, DT, the Selling Stockholder, Atlas Telecommunications,
S.A., the Company, Sprint Global Venture, Inc. and the JV Entities set
forth on Schedule II thereto, dated as of January 21, 2000, with
respect to the Shares offered and sold under the terms of this
Agreement.
8. Expenses. Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, the Company agrees to
pay or cause to be paid all expenses incident to the performance of their
obligations under this Agreement, including: (i) the fees, disbursements and
expenses of the Company's counsel and the Company's accountants in connection
with the registration and delivery of the Shares under the Securities Act and
all other fees or expenses in connection with the preparation and filing of the
Registration Statement, any preliminary prospectus, the Prospectus and
amendments and supplements to any of the foregoing, including all printing costs
associated therewith, and the mailing and delivering of copies thereof to the
Underwriters and dealers, in the quantities hereinabove specified, (ii) the cost
of printing or producing any Blue Sky or Legal Investment memorandum in
connection with the offer and sale of the Shares under state securities laws and
all expenses in connection with the qualification of the Shares for offer and
sale under state securities laws as provided in Section 7(d) hereof, including
filing fees and the reasonable fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky or Legal Investment memorandum (which shall not in any case exceed
$5,000 without the written consent of the Company), (iii) all filing fees and
the reasonable fees and disbursements of counsel to the Underwriters incurred in
connection with the review and qualification of the offering of the Shares by
the National Association of Securities Dealers,
Inc., (iv) the cost of printing certificates representing the Shares, (v) the
costs and charges of any transfer agent, registrar or depositary, (vi) the costs
and expenses of the Company relating to investor presentations on any "road
show" undertaken in connection with the marketing of the offering of the Shares,
including, without limitation, travel and lodging expenses of the
representatives and officers of the Company and the cost of any aircraft owned
by the Company or chartered by the Company in connection with the road show
(provided that the Underwriters will reimburse the Company for the air travel
expenses of the Underwriters on any such aircraft at commercial rates currently
in effect) and (vii) 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. Notwithstanding the foregoing, it is understood that the
Selling Stockholder will pay or cause to be paid (in the form of the difference
between the Purchase Price and the Public Offering Price) the underwriting
discount with respect to the Selling Stockholder Shares and any Additional
Shares sold by the Selling Stockholder, all costs and expenses related to the
transfer and delivery of the Selling Stockholder Shares and any Additional
Shares sold by the Selling Stockholder to the Underwriters, including any
transfer or other taxes payable on the transfer of the Selling Stockholder
Shares and any Additional Shares sold by the Selling Stockholder to the
Underwriters and all fees and disbursements of their respective legal counsel in
connection with the sale of the Selling Stockholder Shares and any Additional
Shares sold by the Selling Stockholder pursuant to this Agreement. It is
understood, however, that except as provided in this Section, Section 9 entitled
"Indemnity and Contribution", and the last paragraph of Section 11 below, the
Underwriters will pay all of their costs and expenses, including fees and
disbursements of their counsel, stock transfer taxes payable on resale of any of
the Shares by them and any advertising expenses connected with any offers they
may make.
The provisions of this Section shall not supersede or otherwise affect
any agreement that the Company and the Selling Stockholder may otherwise have
for the allocation of such expenses among themselves.
9. Indemnity and Contribution. (a) The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating any
such action or claim) caused by any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or any amendment
thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information relating to (i) any
Underwriter furnished to the Company in writing by or on behalf of any
Underwriter through you expressly for use therein or (ii) the Selling
Stockholder furnished in writing by or on behalf of the Selling Stockholder
expressly for use therein; provided, however, that the foregoing indemnity
agreement with respect to any preliminary prospectus shall not inure to the
benefit of any Underwriter from whom the person asserting any such losses,
claims, damages or liabilities purchased Shares, or any person controlling
such Underwriter, if it shall be established that a copy of the Prospectus was
not sent or given by or on behalf of such Underwriter to such person, if
required by law so to have been delivered, at or prior to the written
confirmation of the sale of the Shares to such person, and if the Prospectus
would have cured the defect giving rise to such losses, claims, damages or
liabilities, unless such failure is the result of noncompliance by the Company
with Section 7(a) or Section 7(c).
(b) The Selling Stockholder agrees to indemnify and hold harmless the
Company and each Underwriter and each person, if any, who controls the Company
or any Underwriter within the meaning of either Section 15 of the Securities Act
or Section 20 of the Exchange Act, from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating any
such action or claim) caused by any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or any amendment
thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, but only with reference to information relating to the
Selling Stockholder furnished in writing by or on behalf of the Selling
Stockholder expressly for use in the Registration Statement, any preliminary
prospectus, the Prospectus or any amendments or supplements thereto and such
indemnification being limited to the amount of net proceeds received from the
sale of the Selling Stockholder's Shares by the Underwriters; provided, however,
that the foregoing indemnity agreement with respect to any preliminary
prospectus shall not inure to the benefit of any Underwriter from whom the
person asserting any such losses, claims, damages or liabilities purchased
Shares, or any person controlling such Underwriter, if it shall be established
that a copy of the Prospectus was not sent or given by or on behalf of such
Underwriter to such person, if required by law so to have been delivered, at or
prior to the written confirmation of the sale of the Shares to such person, and
if the Prospectus would have cured the defect giving rise to such losses,
claims, damages or liabilities, unless such failure is the result of
noncompliance by the Company with Section 7(a) or Section 7(c).
(c) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, the Selling Stockholder, the directors of the
Company, the officers of the Company who sign the Registration Statement and
each person, if any, who controls the Company or the Selling Stockholder within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any amendment thereof,
any preliminary prospectus or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto), or caused
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
but only with reference to information relating to such Underwriter furnished to
the Company in writing by or on behalf of such Underwriter through you expressly
for use in the Registration
Statement, any preliminary prospectus, the Prospectus or any amendments or
supplements thereto.
(d) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to Section 9(a), 9(b) or 9(c), such person (the "indemnified
party") shall promptly notify the person against whom such indemnity may be
sought (the "indemnifying party") in writing of the commencement thereof; but
the failure so to notify the indemnifying party (i) will not relieve such
indemnifying party from liability under paragraph (a), (b) or (c) above unless
and to the extent it did not otherwise learn of such action and such failure
results in the forfeiture by the indemnifying party of substantial rights and
defenses and (ii) will not, in any event, relieve the indemnifying party from
any obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a), (b) or (c) above. The indemnifying party,
upon request of the indemnified party, shall retain counsel reasonably
satisfactory to the indemnified party to represent the indemnified party and any
others the indemnifying party may designate in such proceeding and shall pay the
fees and disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for (i) the fees and expenses of more than one separate firm (in
addition to any local counsel) for all Underwriters and all persons, if any, who
control any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, (ii) the fees and expenses of
more than one separate firm (in addition to any local counsel) for the Company,
its directors, its officers who sign the Registration Statement and each person,
if any, who controls the Company within the meaning of either such Section and
(iii) the fees and expenses of more than one separate firm (in addition to any
local counsel) for the Selling Stockholder and all persons, if any, who control
the Selling Stockholder within the meaning of either such Section, and that all
such fees and expenses shall be reimbursed as they are incurred. In the case of
any such separate firm for the Underwriters and such control persons of any
Underwriters, such firm shall be designated in writing jointly by the
Representatives. 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 Stockholder and such control persons of the Selling Stockholder,
such firm shall be designated in writing by the Selling Stockholder. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. Notwithstanding the foregoing sentence, if at
any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as
contemplated by the second and third sentences of this paragraph, the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request, (ii) such request sets forth the terms of the proposed
settlement and (iii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding.
(e) To the extent the indemnification provided for in Section 9(a),
9(b) or 9(c) is unavailable to an indemnified party or insufficient in respect
of any losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party or parties on the other hand from the offering of the Shares
or (ii) if the allocation provided by clause 9(e)(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 9(e)(i) above but also the relative
fault of the indemnifying party or parties on the one hand and of the
indemnified party or parties on the other hand in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits
received by the Company and/or the Selling Stockholder, on the one hand, and the
Underwriters, on the other hand, in connection with the offering of the Shares
shall be deemed to be in the same respective proportions as the net proceeds
from the offering of the Shares (before deducting expenses) received by the
Company and the Selling Stockholder, respectively, and the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover of the Prospectus, bear to the aggregate Public
Offering Price of the Shares. The relative fault of the Company, the Selling
Stockholder and the Underwriters shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company, the Selling Stockholder or the Underwriters
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Underwriters'
respective obligations to contribute pursuant to this Section 9 are several in
proportion to the respective number of Shares they have purchased hereunder, and
not joint.
(f) The Company, the Selling Stockholder and the Underwriters agree
that it would not be just or equitable if contribution pursuant to this Section
9 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 that does
not take account of the equitable considerations referred to in Section 9(e).
The amount paid or payable by an indemnified
party as a result of the losses, claims, damages and liabilities referred to in
the immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 9, 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 that
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The remedies provided for in this
Section 9 are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law or in equity.
(g) The indemnity and contribution provisions contained in this Section
9 and the representations, warranties and other statements of the Company and
the Selling Stockholder contained in this Agreement shall remain operative and
in full force and effect regardless of (i) any termination of this Agreement,
(ii) any investigation made by or on behalf of any Underwriter or any person
controlling any Underwriter, the Selling Stockholder or any person controlling
the Selling Stockholder, or the Company, its officers or directors or any person
controlling the Company and (iii) acceptance of and payment for any of the
Shares. Notwithstanding the foregoing, the representations and warranties made
by the Company to the Selling Stockholder in Section 1 hereof shall terminate
and be of no further force or effect (i) upon the termination of this Agreement
or (ii) acceptance of any payment for any of the Shares.
(h) The indemnity and contribution provisions contained in this Section
9 do not modify or supersede any agreement between the Company and the Selling
Stockholder. Notwithstanding Section 2(b) of the Offering Process Agreement,
dated as of February 20, 2001 among FT, DT, the Selling Stockholder and the
Company, the provisions of Section 1.7 of the Amended and Restated Registration
Rights Agreement (the "Registration Rights Agreement:), dated as of November 23,
1998, among FT, DT, the Selling Stockholder and the Company, as amended, shall
apply to this Agreement for the benefit of DT and the Selling Stockholder as if
the Selling Stockholder were selling the Selling Stockholder Shares and any
Additional Shares pursuant to Section 1.2 of the Registration Rights Agreement.
10. Termination. This Agreement shall be subject to termination by
notice given by you to the Company and the Selling Stockholder, if (a) after the
execution and delivery of this Agreement and prior to the Closing Date (i)
trading generally shall have been suspended or materially limited on the New
York Stock Exchange, (ii) trading of any securities of the Company shall have
been suspended on any exchange or in any over-the-counter market, (iii) a
general moratorium on commercial banking activities in New York shall have been
declared by either Federal or New York State authorities or (iv) there shall
have occurred any outbreak or escalation of hostilities or any calamity or
crisis that, in your judgment, is material and adverse and (b) in the case of
any of the events specified in clauses 10(a)(i) through 10(a)(iv), such event,
singly or together with any other such event, makes it, in your
judgment, impracticable to market the Firm Shares on the terms and in the manner
contemplated in the Prospectus.
11. Effectiveness; Defaulting Underwriters. This Agreement shall become
effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date or the Option Closing Date, as the case may be,
any one or more of the Underwriters shall fail or refuse to purchase Shares that
it has or they have agreed to purchase hereunder on such date, and the aggregate
number of Shares which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase is not more than one-tenth of the aggregate number
of the Shares to be purchased on such date, the other Underwriters shall be
obligated severally in the proportions that the number of Firm Shares set forth
opposite their respective names in Schedule II bears to the aggregate number of
Firm Shares set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as you may specify, to purchase the
Shares 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
Shares that any Underwriter has agreed to purchase pursuant to this Agreement be
increased pursuant to this Section 11 by an amount in excess of one-ninth of
such number of Shares 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, and arrangements satisfactory to you, the Company and
the Selling Stockholder for the purchase of such Firm Shares are not made within
36 hours after such default, this Agreement shall terminate without liability on
the part of any non-defaulting Underwriter, the Company or the Selling
Stockholder. In any such case either you, the Company or the Selling Stockholder
shall have the right to postpone the Closing Date, but in no event for longer
than seven days, in order that the required changes, if any, in the Registration
Statement and in the Prospectus or in any other documents or arrangements may be
effected. If, on the 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, the
non-defaulting Underwriters shall have the option to (i) terminate their
obligation hereunder to purchase Additional Shares or (ii) purchase not less
than the number of Additional Shares that such non-defaulting Underwriters would
have been obligated to purchase 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 such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, (i) because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement (other than
due to the failure by the Selling Stockholder or the Underwriters to satisfy
their respective conditions to the obligations of the Company described in the
second to last paragraph of Section 6), (ii) pursuant to Section 10 or (iii) if
for any reason the Company shall be unable to perform its obligations under this
Agreement (other than due to the failure by the Selling Stockholder or the
Underwriters to satisfy their respective conditions to the obligations of the
Company described in the second to last
paragraph of Section 6), the Company will reimburse the Underwriters or such
persons as have so terminated this Agreement with respect to themselves,
severally, for all out-of-pocket expenses (including the fees and disbursements
of their counsel) reasonably incurred by such persons in connection with this
Agreement or the offering contemplated hereunder.
If this Agreement shall be terminated by the Underwriters, or any of
them, (i) because of any failure or refusal on the part of the Selling
Stockholder to comply with the terms or to fulfill any of the conditions of this
Agreement, or if for any reason the Selling Stockholder shall be unable to
perform its obligations under this Agreement, the Selling Stockholder will
reimburse the Company and the Underwriters or such persons as have so terminated
this Agreement with respect to themselves, severally, for all out-of-pocket
expenses (including the fees and disbursements of their counsel) reasonably
incurred by such persons in connection with this Agreement or the offering
contemplated hereunder.
12. Guarantee of Deutsche Telekom AG. Deutsche Telekom AG agrees to
guarantee full payment and complete performance of any and all obligations of
its subsidiary, the Selling Stockholder, under this Agreement.
13. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
14. Notices. All communications under this Agreement will be in writing
and effective only on receipt, and, if sent to the Underwriters, will be mailed,
delivered or telefaxed to X.X. Xxxxxx Securities Inc., 00 Xxxx Xxxxxx, Xxx Xxxx,
XX 00000 (fax no. (000) 000-0000), attention Legal Department Xxxxxxx Lynch,
Pierce, Xxxxxx and Xxxxx Incorporated, 0 Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX
00000 (fax no. (000) 000-0000), attention Xxxx Xxxxxx, and UBS Warburg LLC, 000
Xxxx Xxxxxx, Xxx Xxxx, XX 00000 (fax no. (000) 000-0000), attention Legal
Department or if sent to the Company, will be mailed, delivered or telefaxed to
Sprint Corporation, 0000 Xxxxxxx Xxxxxxx Xxxxxxx, Xxxxxxxx, XX 00000, U.S.A.,
attention Corporate Secretary (fax no. (000) 000-0000), and if faxed, any such
notice shall be confirmed in writing, with a copy to King & Spalding, 0000
Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000, attention Xxxx X. Xxxxxxx, Esq. (fax
no. (000) 000-0000)or if sent to Deutsche Telekom AG or the Selling Stockholder,
will be mailed, delivered or telefaxed to Xxxxxxxxx-Xxxxx-Xxxxx 000, X-00000
Xxxx, Xxxxxxx attention Chief Executive Officer (fax. no. 00-000-000-0000) with
a copy to Cleary, Gottlieb, Xxxxx & Xxxxxxxx, Xxx Xxxxxxx Xxxxx, Xxx Xxxx, XX,
00000 U.S.A., attention Xxxxxx X. Xxxxx, Esq. (fax no. (000) 000-0000).
15. Governing Law; Dispute Resolution. (a) This Agreement shall be
governed by and construed in accordance with the laws of the State of New York
(regardless of the laws that might otherwise govern under applicable principles
of conflicts of law).
(b) Each of the Company, Deutsche Telekom AG and the Selling
Stockholder irrevocably consents and agrees that any legal action, suit or
proceeding by the Underwriters or any person controlling any of the Underwriters
(a "Specified Party") with respect to their rights, obligations or liabilities
under or arising out of or in connection with this Agreement shall be brought by
such party only in the United States District Court for the Southern District of
New York or, in the event (but only in the event)
such court does not have subject matter jurisdiction over such action, suit or
proceeding, in the courts of the State of New York sitting in the Borough of
Manhattan, New York City, and each of the Company, Deutsche Telekom and
the Selling Stockholder hereby irrevocably waives any claim that such proceeding
has been brought in an inconvenient forum and irrevocably accepts and submits to
the jurisdiction of each of the aforesaid courts in personam, with respect to
any such action, suit or proceeding (including, without limitation, claims for
interim relief, counterclaims, actions with multiple defendants and actions in
which such party is impled), it being understood that this provision inures to
the benefit only of Specified Parties and no third parties. Each of the
Underwriters, the Company, Deutsche Telekom AG and the Selling Stockholder
hereto irrevocably and unconditionally waives any right that it may have to a
jury trial in any legal action, suit or proceeding with respect to, or arising
out of or in connection with this Agreement. Each of Deutsche Telekom AG and the
Selling Stockholder hereby irrevocably designates CT Corporation System (in such
capacity, the "Process Agent"), with an office at 000 Xxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, as its designee, appointee and agent to receive, for and on its
behalf service of process in such jurisdiction in any legal action or
proceedings with respect to this Agreement, and such service shall be deemed
complete upon delivery thereof to the Process Agent, provided that in the case
of any such service upon the Process Agent, the party effecting such service
shall also deliver a copy thereof to Deutsche Telekom AG and the Selling
Stockholder in the manner provided in Section 14. Each of Deutsche Telekom AG
and the Selling Stockholder hereby confirm that they have paid in full the fee
charged by the Process Agent to act as such for the five year period beginning
on the date hereof and each shall take all such action as may be necessary to
continue said appointment in full force and effect or to appoint another agent
so that Deutsche Telekom AG and the Selling Stockholder will at all times during
such period have an agent for service of process for the above purposes in New
York, New York. In the event of the transfer of all or substantially all of the
assets and business of the Process Agent to any other corporation by
consolidation, merger, sale of assets or otherwise, such other corporation shall
be substituted hereunder for the Process Agent with the same effect as if named
herein in place of CT Corporation System. Each of the Company, Deutsche Telekom
AG and the Selling Stockholder further irrevocably consents to the service of
process out of any of the aforementioned courts in any such action or proceeding
by the mailing of copies thereof by registered airmail, postage prepaid, to such
party at its address set forth in this Agreement, with copies to counsel as
specified under Section 14, such service of process to be effective upon
acknowledgment of receipt of such registered mail. Nothing herein shall affect
the right of the Underwriters or any person controlling the Underwriters to
serve process in any other manner permitted by applicable law. Each of the
Company, Deutsche Telekom AG, the Underwriters and the Selling Stockholder
expressly acknowledges that the foregoing waivers are intended to be irrevocable
under the laws of the State of New York and of the United States of America.
16. Waiver of Immunity. (a) Each of Deutsche Telekom AG and the Selling
Stockholder agrees that, to the extent that it or any of its property is or
becomes entitled at any time to any immunity on the grounds of sovereignty or
otherwise based upon its status as an agency or instrumentality of government
from any legal action, suit or proceeding or from set off or counterclaim
relating to this Agreement, from the jurisdiction of any competent court
described in Section 15(b), from service of process, from attachment prior to
judgment, from attachment in aid of
execution of a judgment, from execution pursuant to a judgment or an arbitral
award or from any other legal process in any jurisdiction, it, for itself and
its property expressly, irrevocably and unconditionally waives, and agrees not
to plead or claim, any such immunity with respect to such matters arising with
respect to this Agreement or the subject matter hereof or thereof (including any
obligation for the payment of money). Each of Deutsche Telekom AG and the
Selling Stockholder agrees that the waiver in this provision is irrevocable and
is not subject to withdrawal in any jurisdiction or under any statute, including
the Foreign Sovereign Immunities Act, 28 U.S.C. (P) 1602 et seq. The foregoing
waiver shall constitute a present waiver of immunity at any time any action is
initiated against Deutsche Telekom AG or the Selling Stockholder with respect to
this Agreement.
17. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
Very truly yours,
Sprint Corporation
By:____________________________
Name:
Title:
Deutsche Telekom AG
By:____________________________
Name:
Title:
NAB Nordamerika Beteiligungs
Holding GmbH
By:____________________________
Name:
Title:
Accepted as of the date hereof
X.X. Xxxxxx Securities Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
UBS Warburg LLC
Acting severally on behalf
of themselves and the
several Underwriters named
in Schedule II hereto.
By: X.X. Xxxxxx Securities Inc.
By:___________________________
Name:
Title:
By: Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
By:___________________________
Name:
Title:
By: UBS Warburg LLC
By:___________________________
Name:
Title:
By:___________________________
Name:
Title:
SCHEDULE I
--------------------------------------------------------------------------------
Number of
Number of Firm Additional Shares
Seller Shares to be Sold to be Sold
------ ----------------- ----------
--------------------------------------------------------------------------------
Sprint Corporation
--------------------------------------------------------------------------------
NAB Nordamerika
Beteiligungs Holding GmbH
--------------------------------------------------------------------------------
SCHEDULE II
--------------------------------------------------------------------------------
Number of
Number of Firm Shares
Firm Shares To Be Purchased
To Be Purchased from the Selling
Underwriter from the Company Stockholder
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
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EXHIBIT A
[FORM OF LETTER TO THE TRANSFER AGENT]
EXHIBIT B-1
[FORM OF CLEARY, GOTTLIEB, XXXXX & XXXXXXXX U.S. LAW OPINION]
EXHIBIT B-2
[FORM OF CLEARY, GOTTLIEB, XXXXX & XXXXXXXX
Reliance Letter to the Company]
EXHIBIT C
[FORM OF DT IN-HOUSE OPINION]
EXHIBIT D-1
[FORM OF DEUTSCHE TELEKOM AG OFFICER'S CERTIFICATE]
EXHIBIT D-2
[FORM OF THE SELLING STOCKHOLDER OFFICER'S CERTIFICATE]
EXHIBIT E
[FORM OF TAX CERTIFICATE]
AFFIDAVIT PURSUANT TO INTERNAL REVENUE CODE SECTION 1445
AND PURSUANT TO THE REQUIREMENTS OF TREASURY REGULATION
SECTION 1.897-2(g), (h)(4)
The undersigned, being a duly authorized officer of Sprint Corporation
(the "Company"), hereby affirms that, to the best of the undersigned's knowledge
and belief:
1. The Company is not and has not been a United States real property
holding corporation (as defined in Section 897(c)(2)of the Internal Revenue Code
of 1986, as amended (the "Code")) during the five-year period ending on the date
hereof. Accordingly, as of the date hereof, the PCS Common Stock of the Company
does not constitute a United States real property interest within the meaning of
Section 897(c) of the Code;
2. The Company's U.S. employer identification number is ___________.
3. The Company's address is 0000 Xxxxxxx Xxxxxxx Xxxxxxx, Xxxxxxxx,
Xxxxxx 00000.
Under penalties of perjury, the undersigned declares that to the best
of the undersigned's knowledge and belief, this affidavit is true, correct, and
complete, and that the undersigned has the authority to execute this affidavit
on behalf of the Company.
Date: ________________ __________________________________
Name:
Title:
EXHIBIT F
Offering Procedures Certificate
-------------------------------
Reference is made to the Underwriting Agreement (the "Underwriting Agreement")
dated as of [ ], 2001, by and among Deutsche Telekom AG, NAB Nordamerika
Beteiligungs Holding GmbH, the several underwriters named in Schedule II thereto
(the "Underwriters") and Sprint Corporation, a Kansas corporation (the
"Company"). Capitalized terms used and not defined in this Certificate shall
have the meaning given such terms in the Underwriting Agreement.
As Representatives of the Underwriters, we hereby certify that the Underwriters
have conducted the offering of Selling Stockholder Shares described in the
Underwriting Agreement (the "Offering") with the following restrictions:
(i) the Underwriters did not knowingly sell more than [ ] Selling
Stockholder Shares to any one person in the Offering without receiving the
consent of an authorized representative of the Company, unless such person was a
recognized institutional investor;
(ii) the Underwriters did not knowingly sell more than [ ] Selling
Stockholder Shares to any one person in the Offering without receiving the
consent of an authorized representative of the Company; and
(iii) the Underwriters did not knowingly sell any Selling Stockholder Shares in
the Offering to any one person that had a current Schedule 13D under the
Securities Exchange Act of 1934 disclosing beneficial ownership in the Company
on file with the Securities and Exchange Commission (the "SEC") as of the close
of business on [insert date of the last business day before pricing] (the
"Determination Date") without receiving the consent of an authorized
representative of the Company. For purposes of this paragraph (iii), the
knowledge of the Underwriters was determined solely by checking filings
available to the general public on the SEC's XXXXX system as of the close of
business on the Determination Date.
Acting severally on behalf of themselves and the several Underwriters set forth
in Schedule II of the Underwriting Agreement:
By: UBS Warburg LLC
By:
------------------------
Name:
Title:
By:
------------------------
Name:
Title:
Date:
-----------------------
