Exhibit 1.1
XXX COMMUNICATIONS, INC.
(a Delaware corporation)
Exchangeable Subordinated Discount Debentures due 2020
(Exchangeable for Shares of Sprint PCS Stock or Cash with an Equal Value)
PURCHASE AGREEMENT
Dated: April 13, 2000
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Table of Contents
SECTION 1. Representations and Warranties......................2
(a) Representations and Warranties by the Company....................2
(i) Compliance with Registration Requirements...........2
(ii) Incorporated Documents..............................3
(iii) Independent Accountants.............................4
(iv) Financial Statements................................4
(v) No Material Adverse Change in Business..............4
(vi) Good Standing of the Company........................5
(vii) Good Standing of Subsidiaries.......................5
(viii) Capitalization......................................5
(ix) Authorization of Agreement..........................5
(x) Authorization of the Indenture......................5
(xi) Authorization of Securities.........................6
(xii) Description of the Securities and the Indenture.....6
(xiii) Absence of Defaults and Conflicts...................6
(xiv) Absence of Labor Dispute............................7
(xv) Absence of Proceedings..............................7
(xvi) Accuracy of Exhibits................................7
(xvii) Possession of Intellectual Property.................7
(xviii) Absence of Further Requirements.....................8
(xix) Possession of Licenses and Permits..................8
(xx) Title to Property...................................8
(xxi) Investment Company Act..............................8
(xxii) Environmental Laws..................................9
(b) Officers' Certificates...........................................9
SECTION 2. Sale and Delivery to Underwriters; Closing..........9
(a) Securities. 9
(b) Payment. ....................................................9
(c) Denominations; Registration.....................................10
SECTION 3. Covenants of the Company...........................10
(a) Compliance with Securities Regulations and Commission
Requests................................................10
(b) Filing of Amendments....................................11
(c) Delivery of Registration Statements.....................11
(d) Delivery of Prospectus..................................11
(e) Continued Compliance with Securities Laws...............11
(f) Blue Sky Qualifications.................................12
(g) Rule 158................................................12
(h) Use of Proceeds.........................................12
(i) Listing.................................................12
(j) Restriction on Sale of Securities.......................12
(k) Reporting Requirements..................................13
i
SECTION 4. Payment of Expenses................................13
(a) Expenses................................................13
(b) Termination of Agreement................................13
SECTION 5. Conditions of Underwriters' Obligations............13
(a) Effectiveness of Registration Statement.................13
(b) Opinion of Counsel for Company..........................14
(c) Opinion of Counsel for Underwriters.....................14
(d) Officers' Certificate...................................14
(e) Accountant's Comfort Letters............................14
(f) Bring-Down Comfort Letters..............................15
(g) Maintenance of Rating...................................15
(h) Conditions to Purchase of Option Securities.............15
(i) Additional Documents....................................16
(j) Termination of Agreement................................16
SECTION 6. Indemnification....................................16
(a) Indemnification of Underwriters.................................16
(b) Indemnification of Company, Directors and Officers..............17
(c) Actions against Parties; Notification...........................17
(d) Settlement without Consent if Failure to Reimburse..............18
SECTION 7. Contribution.......................................18
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery...........................................19
SECTION 9. Termination of Agreement...........................20
(a) Termination; General............................................20
(b) Liabilities. ...................................................20
SECTION 10. Default by One of the Underwriters.................21
SECTION 11. Notices............................................21
SECTION 12. Parties............................................21
SECTION 13. Governing Law And Time.............................22
SECTION 14. Effect of Headings.................................22
SECTION 15. Counterparts.......................................22
SCHEDULES
Schedule A - List of Underwriters...............................Sch A-1
Schedule B - Pricing Information................................Sch B-1
Schedule C - List of Subsidiaries...............................Sch C-1
ii
EXHIBITS
Exhibit A - Form of Opinion of Company's Counsel....................A-1
iii
XXX COMMUNICATIONS, INC.
(a Delaware corporation)
Exchangeable Subordinated Discount Debentures due 2020
(Exchangeable for Shares of Sprint PCS Stock or Cash with an Equal Value)
PURCHASE AGREEMENT
April 13, 2000
CREDIT SUISSE FIRST BOSTON CORPORATION
Eleven Madison Avenue
New York, New York 10010
XXXXXXX XXXXX & CO
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Xxx Communications, Inc., a Delaware corporation (the "Company"),
confirms its agreement with Credit Suisse First Boston Corporation and Xxxxxxx
Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (the
"Underwriters"), with respect to the issue and sale by the Company and the
purchase by the Underwriters of $1,643,617,000 aggregate original principal
amount at maturity of the Company's Exchangeable Subordinated Discount
Debentures due 2020 (the "Initial Securities") and all or any part of the
$234,802,000 aggregate original principal amount at maturity of the Exchangeable
Subordinated Discount Debentures due 2020 subject to the option described in
Section 2(b) hereof (the "Option Securities"). The Initial Securities and the
Option Securities are collectively referred to as the "Securities." The
Securities are to be issued pursuant to an indenture, dated as of June 27, 1995,
between the Company and The Bank of New York, as trustee (the "Trustee"), as
supplemented by the Third Supplemental Indenture, dated as of April 19, 2000,
between the Company and the Trustee (the indenture, as so supplemented, the
"Indenture").
The Company understands that the Underwriters propose to make a public
offering of the Securities as soon as the Underwriters deem advisable after this
Agreement has been executed and delivered.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (Nos. 333-82575, 000-00000-00
and 333-82575-02) and pre-effective amendment nos. 1, 2 and 3 thereto for the
registration of certain securities, including the Securities, under the
Securities Act of 1933, as amended (the "1933
Act"), including the related preliminary prospectus or prospectuses, and the
offering thereof from time to time in accordance with Rule 415 of the rules and
regulations of the Commission under the 1933 Act (the "1933 Act Regulations").
Such registration statement has been declared effective by the Commission, and
the Indenture has been duly qualified under the Trust Indenture Act of 1939, as
amended (the "1939 Act"). Such registration statement, including the exhibits
and schedules thereto, if any, in the form in which it became effective, is
herein called the "Registration Statement"; and the final base prospectus
contained in the Registration Statement and the final prospectus supplement
relating to the offering of the Securities, in the form first furnished to the
Underwriters by the Company for use in connection with the offering of the
Securities, are collectively referred to herein as the "Prospectus"; provided,
however, that all references to the "Registration Statement" and the
"Prospectus" shall also be deemed to include all documents incorporated therein
by reference pursuant to the Securities Exchange Act of 1934, as amended (the
"1934 Act"), prior to the execution and delivery of this Agreement; and
provided, further, that if the Company files a registration statement with the
Commission pursuant to Section 462(b) of the 1933 Act Regulations (the "Rule
462(b) Registration Statement"), then after such filing, all references to
"Registration Statement" shall also be deemed to include the Rule 462(b)
Registration Statement. A "preliminary prospectus" shall be deemed to refer to
any prospectus used in connection with the offer and sale of the Securities that
omitted information to be included upon pricing in a form of prospectus filed
with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations and was
used after the Registration Statement became effective but prior to the
execution and delivery of this Agreement. For purposes of this Agreement, all
references to the Registration Statement, any preliminary prospectus, the
Prospectus or any amendment or supplement to any of the foregoing shall be
deemed to include the copy filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval system ("XXXXX").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the 1934 Act which is incorporated by reference in the
Registration Statement, such preliminary prospectus or the Prospectus, as the
case may be.
SECTION 1.........Representations and Warranties.
(a) Representations and Warranties by the Company. The Company represents and
warrants to the Underwriters as of the date hereof and as of the Closing Time
(as defined in Section 2(b) hereof) (in each case, a "Representation Date"), and
agrees with the Underwriters, as follows:
(i) Compliance with Registration Requirements. The Company meets the
requirements for use of Form S-3 under the 1933 Act. Each of the
Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act and
2
no stop order suspending the effectiveness of the Registration
Statement or any Rule 462(b) Registration Statement has been issued
under the 1933 Act and no proceedings for that purpose have been
instituted or are pending or, to the knowledge of the Company, are
contemplated by the Commission, and any request on the part of the
Commission for additional information has been complied with.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments thereto
became effective and at each Representation Date, the Registration
Statement, the Rule 462(b) Registration Statement and any amendments
thereto complied and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and the 1939
Act and the rules and regulations of the Commission under the 1939 Act
(the "1939 Act Regulations"), and did not and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading. Neither the Prospectus nor any amendments or
supplements thereto, at the time the Prospectus or any amendments or
supplements thereto were issued and at the Closing Time, included or
will include an untrue statement of a material fact or omitted or will
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading. The representations and warranties in this subsection
shall not apply to statements in or omissions from the Registration
Statement (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto) made in reliance upon and in
conformity with information furnished to the Company in writing by any
Underwriter expressly for use in the Registration Statement (or such
amendment thereto) or the Prospectus (or such amendment or supplement
thereto).
Each preliminary prospectus and the prospectus filed as part
of the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the 1933 Act
Regulations and each preliminary prospectus and the Prospectus
delivered to the Underwriters for use in connection with this offering
was identical in all material respects to the electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX,
except to the extent permitted by Regulation S-T.
(ii) Incorporated Documents. The documents incorporated or deemed to be
incorporated by reference in the Registration Statement and the
Prospectus, when they became effective or at the time they were or
hereafter are filed with the Commission, complied and will comply in
all material respects with the requirements of the 1933 Act and the
1933 Act Regulations or the 1934 Act and the rules and regulations of
the Commission thereunder (the "1934 Act Regulations"), as applicable,
and, when read together with the other information in the Prospectus,
at the time the Registration Statement became effective, at the time
the Prospectus was issued and at Closing Time, did not and will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading.
3
(iii) Independent Accountants. The accountants who certified the financial
statements and supporting schedules of the Company and its
subsidiaries, of Xxx Communications PCS, L.P. ("PCS") and its
subsidiaries and of TCA Cable TV, Inc. ("TCA") and its subsidiaries
included in the Registration Statement and the Prospectus are
independent public accountants with respect to the Company and its
subsidiaries as required by the 1933 Act and the 1933 Act Regulations.
(iv) Financial Statements. The financial statements of the Company
included in the Registration Statement and the Prospectus, together
with the related schedules and notes, present fairly the financial
position of the Company and its consolidated subsidiaries at the
dates indicated and the statement of operations, stockholders' equity
and cash flows of the Company and its consolidated subsidiaries for
the periods specified; said financial statements have been prepared
in conformity with generally accepted accounting principles ("GAAP")
applied on a consistent basis throughout the periods involved. The
financial statements of PCS included in the Registration Statement
and the Prospectus, together with the related schedules and notes,
present fairly the financial position of PCS and its consolidated
subsidiaries at the dates indicated and the statement of operations,
stockholders' equity and cash flows of PCS and its consolidated
subsidiaries for the periods specified; said financial statements
have been prepared in conformity with GAAP applied on a consistent
basis throughout the periods involved. The financial statements of
TCA included in the Registration Statement and the Prospectus,
together with the related schedules and notes, present fairly the
financial position of TCA and its consolidated subsidiaries at the
date indicated and the statement of operations, stockholders' equity
and cash flows of TCA and its subsidiaries for the period specified;
said financial statements have been prepared in conformity with GAAP.
The supporting schedules, if any, included in the Registration
Statement and the Prospectus present fairly in accordance with GAAP
the information required to be stated therein. The pro forma
financial statements of the Company and its consolidated subsidiaries
and the related notes thereto included in the Registration Statement
and the Prospectus present fairly the information shown therein, have
been prepared in accordance with the Commission's rules and guidelines
with respect to pro forma financial statements and have been properly
compiled on the bases described therein, and the assumptions used in
the preparation thereof are reasonable and the adjustments used
therein are appropriate to give effect to the transactions and
circumstances referred to therein.
(v) No Material Adverse Change in Business. Since the respective dates
as of which information is given in the Registration Statement and
the Prospectus, except as otherwise stated therein, (A) there has
been no material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business
(a "Material Adverse Effect"), (B) there have been no transactions
entered into by the Company or any of its subsidiaries, other than
those in the ordinary course of business, which are material with
respect to the Company and its subsidiaries considered as one
enterprise and (C) there has been no dividend or distribution of any
kind declared, paid or made by the Company on any class of its capital
stock.
4
(vi) Good Standing of the Company. The Company has been duly organized and
is validly existing as a corporation in good standing under the laws of
the State of Delaware and has corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the Prospectus and to enter into and perform its
obligations under this Agreement; and the Company is duly qualified as
a foreign corporation to transact business and is in good standing in
each other jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in
good standing would not result in a Material Adverse Effect.
(vii) Good Standing of Subsidiaries. Each "significant subsidiary" of
the Company (as such term is defined in Rule 1-02 of Regulation S-X)
(each a "Subsidiary" and, collectively, the "Subsidiaries") has been
duly organized and is validly existing as a corporation or limited
liability company in good standing under the laws of the jurisdiction
of its incorporation or organization, as the case may be, has
corporate or other power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus
and is duly qualified as a foreign corporation to transact business
and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result in a
Material Adverse Effect; except as otherwise disclosed in the
Registration Statement, all of the issued and outstanding capital
stock of each such Subsidiary owned by the Company, directly or
through subsidiaries, has been duly authorized and validly issued,
is fully paid and non-assessable and is owned free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or
equity; none of the outstanding shares of capital stock of any
Subsidiary was issued in violation of the preemptive or similar rights
of any securityholder or such Subsidiary. The only subsidiaries of
the Company are (a) the subsidiaries listed on Schedule C hereto and
(b) certain other subsidiaries which, considered in the aggregate as
a single Subsidiary, do not constitute a "significant subsidiary" as
defined in Rule 1-02 of Regulation S-X.
(viii) Capitalization. The shares of outstanding capital stock of the Company
have been duly authorized and validly issued and are fully paid and
non-assessable; none of the outstanding shares of capital stock of the
Company was issued in violation of the preemptive or other similar
rights of any securityholder of the Company.
(ix) Authorization of Agreement. This Agreement has been duly authorized,
executed and delivered by the Company.
(x) Authorization of the Indenture. The Indenture has been duly authorized,
executed and delivered by the Company and, assuming due authorization,
execution and delivery by the Trustee, constitutes a valid and binding
agreement of the Company, enforceable against the Company in accordance
with its terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or
similar laws affecting enforcement of creditors' rights generally and
except as enforcement thereof is subject to general principles of
equity (regardless of whether enforcement is considered in a
5
proceeding in equity or at law). The Indenture has been duly qualified
under the
1939 Act.
(xi) Authorization of Securities. The Securities have been duly
authorized by the Company for issuance and sale and, at the Closing
Time, will have been duly executed by the Company and, when
authenticated, issued and delivered in the manner provided for in
the Indenture and delivered against payment of the purchase price
therefor as provided in this Agreement, will constitute valid and
binding obligations of the Company, enforceable against the Company
in accordance with their terms, except as the enforcement thereof may
be limited by bankruptcy, insolvency (including, without limitation,
all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors' rights
generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law). The Securities will
be in the form contemplated by, and each registered holder thereof
will be entitled to the benefits of, the Indenture.
(xii) Description of the Securities and the Indenture. The Securities and the
Indenture as of each Representation Date, conform and will conform, as
applicable, in all material respects to the respective statements
relating thereto contained in the Prospectus and will be in
substantially the respective forms filed or incorporated by reference,
as the case may be, as exhibits to the Registration Statement.
(xiii) Absence of Defaults and Conflicts. Neither the Company nor any of its
subsidiaries is in violation of its charter or by-laws or other constitutive
documents or in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture, mortgage,
deed of trust, loan or credit agreement, note, lease or other agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which it or any of them may be bound, or to which any of the property or assets
of the Company or any of its subsidiaries is subject (collectively, "Agreements
and Instruments") except for such defaults that would not result in a Material
Adverse Effect; and the execution, delivery and performance by the Company of
this Agreement, the Indenture and the Securities and the consummation of the
transactions contemplated in this Agreement and in the Registration Statement
(including the issuance and sale of the Securities and the use of the proceeds
from the sale of the Securities as described in the Prospectus under the caption
"Use of Proceeds") and compliance by the Company with its obligations under this
Agreement and under the Indenture and the Securities do not and will not,
whether with or without the giving of notice or passage of time or both,
conflict with or constitute a breach of, or default or Repayment Event (as
defined below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to, the Agreements and Instruments (except for such
conflicts, breaches or defaults or liens, charges or encumbrances that would not
result in a Material Adverse Effect), nor will such action result in any
violation of the provisions of the charter or by-laws or other constitutive
documents of the Company or any of its subsidiaries or any applicable law,
statute, rule, regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign
6
having jurisdiction over the Company or any of its subsidiaries or any of their
assets, properties or operations. As used herein, a "Repayment Event" means any
event or condition which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such holder's behalf) the
right to require the repurchase, redemption or repayment of all or a portion of
such indebtedness by the Company or any of its subsidiaries.
(xiv) Absence of Labor Dispute. No labor dispute with the employees of the
Company or any of its subsidiaries exists or, to the knowledge of the
Company, is imminent which, individually or in the aggregate, may
reasonably be expected to result in a Material Adverse Effect.
(xv) Absence of Proceedings. There is no action, suit, proceeding, inquiry or
investigation before or brought by any court or governmental agency or body,
domestic or foreign, now pending, or, to the knowledge of the Company,
threatened, against or affecting the Company or any of its subsidiaries, which
is required to be disclosed in the Registration Statement (other than as
disclosed therein), or which, individually or in the aggregate, might reasonably
be expected to result in a Material Adverse Effect, or which, individually or in
the aggregate, might reasonably be expected to materially and adversely affect
the properties or assets thereof or the consummation of the transactions
contemplated in this Agreement or the performance by the Company of its
obligations hereunder; the aggregate of all pending legal or governmental
proceedings to which the Company or any of its subsidiaries is a party or of
which any of their respective property or assets is the subject which are not
described in the Registration Statement, including ordinary routine litigation
incidental to the business, could not reasonably be expected to result in a
Material Adverse Effect.
(xvi) Accuracy of Exhibits. There are no contracts or documents which are
required to be described in the Registration Statement, the Prospectus
or the documents incorporated by reference therein or to be filed as
exhibits thereto which have not been so described and filed as
required.
(xvii) Possession of Intellectual Property. Except as disclosed in the
Prospectus, the Company and its subsidiaries own or possess, or can acquire on
reasonable terms, adequate patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or procedures),
trademarks, service marks, trade names or other intellectual property
(collectively, "Intellectual Property") necessary to carry on the business now
operated by them, other than those the absence of which would not have a
Material Adverse Effect, and neither the Company nor any of its subsidiaries has
received any notice or is otherwise aware of any infringement of or conflict
with asserted rights of others with respect to any Intellectual Property or of
any facts or circumstances which would render any Intellectual Property invalid
or inadequate to protect the interest of the Company or any of its subsidiaries
therein, and which infringement or conflict (if the subject of any unfavorable
decision, ruling or finding) or invalidity or inadequacy, singly or in the
aggregate, would result in a Material Adverse Effect.
7
(xviii) Absence of Further Requirements. No filing with, or authorization,
approval, consent, license, order, registration, qualification or
decree of, any court or governmental authority or agency is necessary
or required for the performance by the Company of its obligations
hereunder, in connection with the offering, issuance or sale of the
Securities under this Agreement or the consummation of the transactions
contemplated by this Agreement or for the due execution, delivery or
performance of the Indenture by the Company, except such as have been
already obtained or as may be required under the 1933 Act or the 1933
Act Regulations or state securities laws, the laws of a foreign
jurisdiction or the by-laws and rules of the NASD and except for the
qualification of the Indenture under the 1939 Act.
(xix) Possession of Licenses and Permits. The Company and its subsidiaries
possess such permits, licenses, approvals, consents and other authorizations
(collectively, "Governmental Licenses") issued by the appropriate federal,
state, local or foreign regulatory agencies or bodies necessary to conduct the
business now operated by them other than those the absence of which would not
have a Material Adverse Effect; the Company and its subsidiaries are in
compliance with the terms and conditions of all such Governmental Licenses,
except where the failure so to comply would not, singly or in the aggregate,
have a Material Adverse Effect; all of the Governmental Licenses are valid and
in full force and effect, except when the invalidity of such Governmental
Licenses or the failure of such Governmental Licenses to be in full force and
effect would not have a Material Adverse Effect; and neither the Company nor any
of its subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which, singly or in
the aggregate, if the subject of an unfavorable decision, ruling or finding,
would result in a Material Adverse Effect.
(xx) Title to Property. The Company and its subsidiaries have good and
marketable title to all material real property owned by the Company and its
subsidiaries and good title to all other properties owned by them, in each case,
free and clear of all mortgages, pledges, liens, security interests, claims,
restrictions or encumbrances of any kind except such as (a) are described in the
Prospectus or (b) do not, singly or in the aggregate, materially affect the
value of such property and do not interfere with the use made and proposed to be
made of such property by the Company or any of its subsidiaries; and all of the
leases and subleases material to the business of the Company and its
subsidiaries, considered as one enterprise, and under which the Company or any
of its subsidiaries holds properties described in the Prospectus, are in full
force and effect, and neither the Company nor any subsidiary has any notice of
any material claim of any sort that has been asserted by anyone adverse to the
rights of the Company or any subsidiary under any of the leases or subleases
mentioned above, or affecting or questioning the rights of the Company or such
subsidiary to the continued possession of the leased or subleased premises under
any such lease or sublease.
(xxi) Investment Company Act. The Company is not, and upon the issuance and
sale of the Securities as herein contemplated and the application of
the net proceeds therefrom 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 (the "1940 Act").
8
(xxii) Environmental Laws. Except as described in the Registration Statement and
except as would not, singly or in the aggregate, result in a Material Adverse
Effect, (A) neither the Company nor any of its subsidiaries is in violation of
any federal, state, local or foreign statute, law, rule, regulation, ordinance,
code, policy or rule of common law or any judicial or administrative
interpretation thereof, including any judicial or administrative order, consent,
decree or judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including, without
limitation, laws and regulations relating to the release or threatened release
of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous
substances, petroleum or petroleum products (collectively, "Hazardous
Materials") or to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of Hazardous Materials (collectively,
"Environmental Laws"), (B) the Company and its subsidiaries have all permits,
authorizations and approvals required under any applicable Environmental Laws
and are each in compliance with their requirements, (C) there are no pending or
threatened administrative, regulatory or judicial actions, suits, demands,
demand letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against the
Company or any of its subsidiaries and (D) there are no events or circumstances
that might reasonably be expected to form the basis of an order for clean-up or
remediation, or an action, suit or proceeding by any private party or
governmental body or agency, against or affecting the Company or any of its
subsidiaries relating to Hazardous Materials or any Environmental Laws.
(b) Officer's Certificates. Any certificate signed by any officer of the Company
delivered to the Underwriters or to counsel for the Underwriters in connection
with the offering of the Securities shall be deemed a representation and
warranty by the Company to the Underwriters as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriter; Closing.
(a) Securities. On the basis of the representations, warranties and agreements
herein contained and subject to the terms and conditions herein set forth, the
Company agrees to sell to the Underwriters, and the Underwriters agree to
purchase from the Company, at the price per Security set forth in Schedule B,
the number of Securities set forth in Schedule A opposite the name of such
Underwriter.
(b) Option Securities. In addition, on the basis of the representations,
warranties and agreements herein contained and subject to the terms and
conditions herein set forth, the Company hereby grants an option to the
Underwriters, severally and not jointly, to purchase from it any or all of the
Option Securities at the same price as is to be paid by the Underwriters for the
Initial Securities plus, in the case of the Option Securities, accrued original
issue discount and accrued cash interest, if any, from the Closing Time to the
Date of Delivery. The option hereby granted will expire 30 days after the date
hereof and may be exercised in whole or in part from time to time only for the
purpose of covering over-allotments which may be made in connection with the
offering and distribution of the Initial Securities upon notice by the
Underwriters to the Company setting forth the principal amount at maturity of
Option Securities
9
as to which the several Underwriters are then exercising the option and the time
and date of payment and delivery for such Option Securities. Any such time and
date of delivery for the Option Securities (a "Date of Delivery") shall be
determined by the Underwriters, but shall not be later than seven full business
days after the exercise of said option, nor in any event prior to the Closing
Time. If the option is exercised as to all or any portion of the Option
Securities, each of the Underwriters, acting severally and not jointly, will
purchase that proportion of the total principal amount at maturity of Option
Securities then being purchased which the principal amount at maturity of
Initial Securities set forth in Schedule A opposite the name of such Underwriter
bears to the total principal amount at maturity of Initial Securities, subject
in each case to such adjustments as Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated in its discretion shall make to eliminate any sales
or purchases of fractional interests in the Securities.
(c) Payment. Payment of the purchase price for, and delivery of certificates
for, the Securities shall be made at the offices of Xxxxx & Wood LLP, or at such
other place as shall be agreed upon by the Underwriters and the Company, at 9:00
A.M. (Eastern time) on the [fourth] business day after the date hereof, or such
other time not later than ten business days after such date as shall be agreed
upon by the Underwriters and the Company (such time and date of payment and
delivery being herein called "Closing Time").
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the Underwriters of certificates for the Securities to be purchased by it.
(d) Denominations; Registration. Certificates for the Securities shall be in
such denominations and registered in such names as the Underwriters may request
in writing at least one full business day before the Closing Time. The
Securities will be made available for examination and packaging by the
Underwriters in The City of New York not later than 10:00 A.M. (Eastern time) on
the business day prior to the Closing Time.
SECTION 3. Covenants of the Company. The Company covenants with the
Underwriters as follows:
(a) Compliance with Securities Regulations and Commission Requests. Subject to
Section 3(b), the Company will notify the Underwriters immediately, and confirm
the notice in writing, (i) when any post-effective amendment to the Registration
Statement shall become effective, or any supplement to the Prospectus or any
amended Prospectus shall have been filed, (ii) of the receipt of any comments
from the Commission, (iii) of any request by the Commission for any amendment to
the Registration Statement or any amendment or supplement to the Prospectus or
for additional information and (iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or of any
order preventing or suspending the use of any preliminary prospectus, or of the
suspension of the qualification of the Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceedings for any of
such purposes. The Company will promptly effect the filings necessary pursuant
to Rule 424(b) and will take such steps as it deems necessary to ascertain
promptly whether the form of prospectus transmitted for filing under Rule 424(b)
was
10
received for filing by the Commission and, in the event that it was not, it will
promptly file such prospectus. The Company will use its reasonable best efforts
to prevent the issuance of any stop order and, if any stop order is issued, to
obtain the lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Company will give the Underwriters notice of
its intention to file or prepare any amendment to the Registration
Statement (including any filing under Rule 462(b)) or any amendment,
supplement or revision to either the prospectus included in the
Registration Statement at the time it became effective or to the
Prospectus, whether pursuant to the 1933 Act, the 1934 Act or
otherwise, will furnish the Underwriters with copies of any such
documents a reasonable amount of time prior to such proposed filing or
use, as the case may be, and will not file or use any such document to
which the Underwriters or counsel for the Underwriters shall object in
writing within three business days of receipt.
(c) Delivery of Registration Statements. The Company has furnished or will
deliver to the Underwriters and counsel for the Underwriters, without charge,
signed copies of the Registration Statement as originally filed and of each
amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) and signed copies of all consents and certificates of
experts, and will also deliver to the Underwriters, without charge, a conformed
copy of the Registration Statement as originally filed and of each amendment
thereto (without exhibits). The copies of the Registration Statement and each
amendment thereto furnished to the Underwriters will be identical in all
material respects to the electronically transmitted copies thereof filed with
the Commission pursuant to XXXXX, except to the extent permitted by Regulation
S-T.
(d) Delivery of Prospectus. The Company will furnish to the Underwriters,
without charge, during the period when the Prospectus is required to be
delivered under the 1933 Act or the 1934 Act, such number of copies of
the Prospectus (as amended or supplemented) as the Underwriters may
reasonably request. The Prospectus and any amendments or supplements
thereto furnished to the Underwriters will be identical in all material
respects to the electronically transmitted copies thereof filed with
the Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will comply with the
1933 Act and the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations
and the 1939 Act and the 1939 Act Regulations so as to permit the completion of
the distribution of the Securities as contemplated in this Agreement and in the
Prospectus. If at any time when a prospectus is required by the 1933 Act to be
delivered in connection with sales of the Securities any event shall occur or
condition shall exist as a result of which it is necessary, in the opinion of
counsel for the Underwriters or counsel for the Company, to amend the
Registration Statement or amend or supplement the Prospectus in order that the
Prospectus will not include any untrue statements of a material fact or omit to
state a material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the opinion of any
such counsel, at any such time to amend
11
the Registration Statement or amend or supplement the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations, the
Company will promptly prepare and file with the Commission, subject to Section
3(b), such amendment or supplement as may be necessary to correct such statement
or omission or to make the Registration Statement or the Prospectus comply with
such requirements, and the Company will furnish to the Underwriters, without
charge, such number of copies of such amendment or supplement as the
Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company will use its reasonable best efforts,
in cooperation with the Underwriters, to qualify the Securities for offering and
sale under the applicable securities laws of such states and other jurisdictions
as the Underwriters may designate and to maintain such qualifications in effect
for a period of not less than one year from the date of this Agreement;
provided, however, that the Company shall not be obligated to file any general
consent to service of process or to qualify as a foreign corporation or as a
dealer in securities in any jurisdiction in which it is not so qualified or to
subject itself to taxation in respect of doing business in any jurisdiction in
which it is not otherwise so subject. In each jurisdiction in which the
Securities have been so qualified, the Company will file such statements and
reports as may be required by the laws of such jurisdiction to continue such
qualification in effect for a period of not less than one year from the date of
this Agreement. The Company will also supply the Underwriters with such
information as is necessary for the determination of the legality of the
Securities for investment under the laws of such jurisdictions as the
Underwriters may request.
(g) Rule 158. The Company will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the
purposes of, and to provide the benefits contemplated by, the last
paragraph of Section 11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds received by it
from the sale of the Securities in the manner specified in the
Prospectus under "Use of Proceeds."
(i) Listing. The Company will use its commercially reasonable efforts to
have the Securities approved for listing, subject only to official
notice of issuance, on the New York Stock Exchange and to cause the
Securities to be registered under the 1934 Act.
(j) Restriction on Sale of Securities. Through the 45th day after the date of
this Agreement, the Company will not, without the consent of the Underwriters,
directly or indirectly, offer, sell, offer to sell, grant an option for the sale
of or otherwise dispose of any securities convertible into, exchangeable for or
repayable with shares of Sprint's PCS Common Stock - Series 1, par value $1.00
per share (the "Sprint PCS Stock"), of Sprint Corporation ("Sprint"); provided,
however, that the foregoing shall not prohibit the Company from satisfying its
obligations under the Top Up Right Agreement, dated May 26, 1998, among the
Company, France Telecom S.A., Deutsche Telekom AG, Tele-Communications, Inc. and
Comcast Corporation or from taking any of the foregoing actions in connection
with any exchange, redemption or repurchase of the Company's
12
14,375,000
Exchangeable Subordinated Debentures due 2029, the Company's 3%
Exchangeable Subordinated Debentures due 2030 or the Securities or in connection
with any tender offer or exchange offer for all or a portion of the outstanding
shares of Sprint's PCS Common Stock Series 2 or with respect to such securities.
(k) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934
Act, will file all documents required to be filed with the Commission
pursuant to the 1934 Act within the time periods required by the 1934
Act and the 1934 Act Regulations.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company will pay all expenses incident to the performance of
its obligations under this Agreement, including (i) the preparation, printing
and filing of the Registration Statement (including financial statements and
exhibits) as originally filed and of each amendment thereto, (ii) the
preparation, printing and delivery to the Underwriters of this Agreement, the
Indenture and such other documents as may be required in connection with the
offering, purchase, sale, issuance or delivery of the Securities, (iii) the
preparation, issuance and delivery of the Securities to the Underwriters, (iv)
the fees and disbursements of the Company's counsel, accountants and other
advisors, (v) the qualification of the Securities under securities laws in
accordance with the provisions of Section 3(f) hereof, including filing fees and
the reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation of the Blue Sky
Survey and any supplement thereto, (vi) the printing and delivery to the
Underwriters of copies of the Prospectus and any amendments or supplements
thereto, (vii) the preparation, printing and delivery to the Underwriters of
copies of the Blue Sky Survey and any supplement thereto, (viii) the fees and
expenses of the Trustee, including the fees and disbursements of counsel for the
Trustee in connection with the Indenture and the Securities, (ix) any fees
payable in connection with the rating of the Securities, and (x) the listing
fees and related expenses incurred with respect to the listing of the Securities
on the New York Stock Exchange.
(b) Termination of Agreement. If this Agreement is terminated by the
Underwriters in accordance with the provisions of Section 5 or Section
9(a)(i) hereof, the Company shall reimburse the Underwriters for all of
their out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriters.
SECTION 5. Conditions of Underwriter's Obligations. The obligations of the
Underwriters to purchase and pay for the Securities pursuant to this Agreement
are subject to the accuracy of the representations and warranties of the Company
contained in Section 1 hereof or in certificates of any officer of the Company
or any subsidiary of the Company delivered pursuant to the provisions hereof, to
the performance by the Company of its covenants and other obligations hereunder,
and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration Statement,
including any Rule 462(b) Registration Statement, has become effective and at
Closing Time no stop order suspending the effectiveness of the Registration
Statement shall have
13
been issued under the 1933 Act or proceedings therefor initiated or threatened
by the Commission, and any request on the part of the Commission for additional
information shall have been complied with to the reasonable satisfaction of
counsel to the Underwriters. A prospectus containing information relating to the
description of the Securities, the specific method of distribution and similar
matters shall have been filed with the Commission in accordance with Rule 424(b)
(or a post-effective amendment providing such information shall have been filed
and declared effective in accordance with the requirements of Rule 430A).
(b) Opinion of Counsel for Company. At Closing Time, the Underwriters shall
have received the favorable opinion, dated as of Closing Time, of Dow,
Xxxxxx & Xxxxxxxxx, PLLC, counsel for the Company, in form and
substance satisfactory to counsel for the Underwriters, to the effect
set forth in Exhibit A hereto.
(c) Opinion of Counsel for Underwriters. At Closing Time, the Underwriters
shall have received the favorable opinion, dated as of Closing Time, of
Xxxxx & Wood LLP, counsel for the Underwriters, in form and substance
satisfactory to the Underwriters with respect to the issuance and sale
of the Securities and other related matters as the Underwriters may
reasonably require. Such counsel may state that, insofar as such
opinion involves factual matters, they have relied, to the extent they
deem proper, upon certificates of officers of the Company and its
subsidiaries and certificates of public officials.
(d) Officers' Certificate. At Closing Time, there shall not have been, since the
date hereof or since the respective dates as of which information is given in
the Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, and the Underwriters shall have
received a certificate of the President or a Vice President of the Company and
of the chief financial officer, chief accounting officer or the Treasurer of the
Company, dated as of Closing Time, to the effect that (i) there has been no such
material adverse change, (ii) the representations and warranties in Section 1(a)
hereof are true and correct with the same force and effect as though expressly
made at and as of Closing Time, (iii) the Company has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied
at or prior to Closing Time, and (iv) no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceedings for that
purpose have been instituted or are pending or are contemplated by the
Commission.
(e) Accountant's Comfort Letters. At the date hereof, the Underwriters
shall have received letters from Deloitte & Touche LLP, in relation to
the Company, and KPMG LLP, in relation to TCA, each dated such date, in
form and substance satisfactory to the Underwriters, 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 the
Registration Statement and the Prospectus.
14
(f) Bring-down Comfort Letters. At Closing Time, the Underwriters shall
have received from Deloitte & Touche LLP and KPMG LLP letters, each
dated as of Closing Time, to the effect that they reaffirm the
statements made in the letter furnished pursuant to subsection (e) of
this Section, except that the "specified date" referred to shall be a
date not more than three business days prior to Closing Time.
(g) Maintenance of Rating. At Closing Time the Securities shall be rated at
least Baa3 by Xxxxx'x Investors Service Inc. and BBB by Standard & Poor's
Ratings Service, and the Company shall have delivered to the Underwriters a
letter, dated the Closing Time, from each such rating agency, or other evidence
satisfactory to the Underwriters, confirming that the Securities have such
ratings; and since the date of this Agreement, there shall not have occurred a
downgrading in the rating assigned to the Securities or any of the Company's
other debt securities by any "nationally recognized statistical rating agency,"
as that term is defined by the Commission for purposes of Rule 436(g)(2) under
the 1933 Act, and no such organization shall have publicly announced that it has
under surveillance or review, with possible negative implications, its rating of
the Securities or any of the Company's other debt securities.
(h) Conditions to Purchase of Option Securities. In the event that the
Underwriters exercise their option provided in Section 2(b) hereof to
purchase all or any portion of the Option Securities, the
representations and warranties of the Company contained herein and the
statements in any certificates furnished by the Company or any
subsidiary of the Company hereunder shall be true and correct as of
each Date of Delivery and, at the relevant Date of Delivery, the
Underwriters shall have received:
(i) Officers' Certificate. A certificate, dated such Date of
Delivery, of the President or a Vice President of the Company
and of the chief financial, chief accounting officer or the
Treasurer of the Company confirming that the certificate
delivered at Closing Time pursuant to Section 5(d) hereof
remains true and correct as of such Date of Delivery;
(ii) Opinion of Counsel for Company. The favorable opinion of
Dow, Xxxxxx & Xxxxxxxxx, PLLC, counsel for the Company, in
form and substance satisfactory to counsel for the
Underwriters, dated such Date of Delivery, relating to the
Option Securities to be purchased on such Date of Delivery and
otherwise to the same effect as the opinion required by
Section 5(b) hereof;
(iii) Opinion of Counsel for Underwriters. The favorable
opinion of Xxxxx & Wood LLP, counsel for the Underwriters,
dated such Date of Delivery, relating to the Option Securities
to be purchased on such Date of Delivery and otherwise to the
same effect as the opinion required by Section 5(c) hereof;
and
(iv) Bring-down Comfort Letters. Letters from Deloitte &
Touche LLP and KPMG LLP, in form and substance satisfactory to
the Underwriters and dated such Date of Delivery,
substantially the same in form and substance as the letters
furnished to the Underwriters pursuant to Section 5(f) hereof,
except that the
15
"specified date" in the letter furnished pursuant to this paragraph shall be a
date not more than three business days prior to such Date of Delivery.
(i) Additional Documents. At Closing Time counsel for the Underwriters
shall have been furnished with such documents and opinions as they may
require for the purpose of enabling them to pass upon the issuance and
sale of the Securities as herein contemplated, or in order to evidence
the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all
proceedings taken by the Company in connection with the issuance and
sale of the Securities as herein contemplated shall be satisfactory in
form and substance to the Underwriters and counsel for the
Underwriters.
(j) Termination of Agreement. If any condition specified in this Section
shall not have been fulfilled when and as required to be fulfilled at
the Closing Time (or, with respect to the Underwriters' exercise of the
over-allotment option for the purchase of Option Securities on a Date
of Delivery after the Closing Time, the obligations of the Underwriters
to purchase the Option Securities on such Date of Delivery), this
Agreement may be terminated by the Underwriters by notice to the
Company at any time at or prior to Closing Time (or such Date of
Delivery, as applicable), and such termination shall be without
liability of any party to any other party except as provided in Section
4 and except that Sections 6, 7 and 8 shall survive any such
termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriter. The Company agrees to indemnify and hold
harmless each Underwriter and each person, if any, who controls any such
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the Rule
434 Information, if applicable, or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary
to make the statements therein not misleading or arising out of any
untrue statement or alleged untrue statement of a material fact
included in any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission referred to
under (i) above; provided that (subject to Section 6(d) below) any such
settlement is effected with the written consent of the Company; and
16
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by the
Underwriters), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, referred to under (i) above,
to the extent that any such expense is not paid under (i) or (ii)
above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by such
Underwriter expressly for use in the Registration Statement (or any amendment
thereto), or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) and provided, further, that this indemnity agreement shall
not inure to the benefit of such Underwriter or any person controlling such
Underwriter on account of any loss, claim, damage, liability or action arising
from the sale of Securities to any person by such Underwriter if such
Underwriter failed to send or give a copy of an amendment or supplement to the
Prospectus to that person and the untrue statement or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact in
the Prospectus was corrected in said amendment or supplement and the delivery
thereof was required by law and would have constituted a complete defense to the
claim of that person, unless such failure resulted from non-compliance by the
Company with Section 3(a) or (b). For purposes of the second proviso to the
immediately preceding sentence, the term Prospectus shall not be deemed to
include the documents incorporated by reference therein, and no Underwriter
shall be obligated to send or give any supplement or amendment to any document
incorporated by reference in a preliminary prospectus or supplement thereto or
the Prospectus to any person.
(b) Indemnification of Company, Directors and Officers. Each Underwriter
severally agrees to indemnify and hold harmless the Company, its directors, each
of its officers who signed the Registration Statement and each person, if any,
who controls the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act against any and all loss, liability, claim, damage
and expense described in the indemnity contained in subsection (a) of this
Section, as incurred, but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions, made in the Registration Statement
(or any amendment thereto), or any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by such Underwriter expressly for
use in the Registration Statement (or any amendment thereto) or such preliminary
prospectus or the Prospectus (or any amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party shall give
notice as promptly as reasonably practicable to each indemnifying party of any
action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by the Underwriters, and,
in the case of parties indemnified pursuant to Section
17
6(b) above, counsel to the indemnified parties shall be selected by the Company.
An indemnifying party may participate at its own expense in the defense of any
such action. If it so elects within a reasonable time after receipt of notice,
an indemnifying party, jointly with any other indemnifying parties receiving
such notice, may assume the defense of such action with counsel chosen by it and
approved by the indemnified parties defendant in such action, unless such
indemnified parties reasonably object to such assumption on the ground that
there may be legal defenses available to them which are different from or in
addition to those available to such indemnifying party. If an indemnifying party
assumes the defense of such action, the indemnifying parties shall not be liable
for any fees and expenses of counsel for the indemnified parties thereafter in
connection with such action. In no event shall the indemnifying parties be
liable for fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 6 or Section 7 hereof (whether or not the indemnified parties
are actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim and
(ii) does not include a statement as to or an admission of fault, culpability or
a failure to act by or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 90 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 45 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
SECTION 7. Contribution. If the indemnification provided for in Section 6 hereof
is for any reason unavailable to or insufficient to hold harmless an indemnified
party in respect of any losses, liabilities, claims, damages or expenses
referred to therein, then the Company and the Underwriters shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other hand from the offering of the Securities
pursuant to this Agreement or (ii) if the allocation provided by clause (i) is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and of the Underwriters on the
other hand in connection with the statements or omissions which resulted in such
losses, liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
18
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the Securities
pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Securities
pursuant to this Agreement (before deducting expenses) received by the Company
and the total underwriting discount or commission received by the Underwriters,
in each case as set forth on the cover of the Prospectus, bear to the aggregate
initial public offering price of the Securities as set forth on such cover.
The relative fault of the Company on the one hand and the Underwriters
on the other hand shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or by such Underwriter and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any 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 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the aggregate original principal amount at maturity of Securities
set forth opposite their respective names in Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery. All
representations, warranties and agreements contained in this Agreement or in
certificates of
19
officers of the Company or any of its subsidiaries submitted pursuant hereto,
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of the Underwriters or controlling person, or
by or on behalf of the Company, and shall survive delivery of the Securities to
the Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Underwriters may terminate this Agreement, by
notice to the Company, at any time at or prior to Closing Time (i) if there has
been, since the time of execution of this Agreement or since the respective
dates as of which information is given in the Prospectus, any material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries considered as
one enterprise or of Sprint and its subsidiaries considered as one enterprise,
in each case whether or not arising in the ordinary course of business, (ii) if
there has occurred any material adverse change in the financial markets in the
United States or the international financial markets, any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which is
such as to make it, in the judgment of the Underwriters, impracticable to market
the Securities or to enforce contracts for the sale of the Securities, (iii) if
trading in any securities of the Company or in the Sprint PCS Stock has been
suspended or limited by the Commission or the New York Stock Exchange, or if
trading generally on the American Stock Exchange or the New York Stock Exchange
or in the Nasdaq National Market has been suspended or limited, or minimum or
maximum prices for trading have been fixed, or maximum ranges for prices have
been required, by any of said exchanges or by such system or by order of the
Commission, the National Association of Securities Dealers, Inc. or any other
governmental authority or (iv) if a banking moratorium has been declared by
either federal or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except as
provided in Section 4 hereof, and provided further that Sections 6, 7 and 8
shall survive such termination and remain in full force and effect.
20
SECTION 10. Default by One of the Underwriters. If one of the Underwriters shall
fail at Closing Time or the relevant Date of Delivery, as the case may be, to
purchase the Securities which it is obligated to purchase under this Agreement
(the "Defaulted Securities"), then the non-defaulting Underwriter shall have the
right, within 24 hours thereafter, to make arrangements for it, or any other
underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein set
forth; if, however, the non-defaulting Underwriter shall not have completed such
arrangements within such 24-hour period, then this Agreement (or, with respect
to the Underwriters' exercise of the over-allotment option for the purchase of
Option Securities on a Date of Delivery after the Closing Time, the obligations
of the Underwriters to purchase, and the Company to sell, such Option Securities
on such Date of Delivery) shall terminate without liability on the part of such
non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve the defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in (i) a
termination of this Agreement or (ii) in the case of a Date of Delivery after
the Closing Time, a termination of the obligations of the Underwriters and the
Company with respect to the related Option Securities, as the case may be,
either the non-defaulting Underwriter or the Company shall have the right to
postpone the Closing Time or the relevant Date of Delivery, as the case may be,
for a period not exceeding seven days in order to effect any required changes in
the Registration Statement or the Prospectus or in any other documents or
arrangements.
SECTION 11. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by
any standard form of telecommunication. Notices to the Underwriters shall be
directed to Credit Suisse First Boston Corporation, Eleven Xxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, attention of Investment Banking Department-Transaction
Advisory Group and to Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, Xxxxx Xxxxx, Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
attention of Xxxxxx Xxxxxxxx, Managing Director; and notices to the Company
shall be directed to it at 0000 Xxxx Xxxxx Xxxxx, Xxxxxxx, Xxxxxxx 00000,
attention of Xxxxxx X. Xxxxxx.
SECTION 12. Parties. This Agreement shall inure to the benefit of and be binding
upon the Underwriters and the Company and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the Underwriters and the
Company and their respective successors and the controlling persons and officers
and directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriters and the Company and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Securities from any Underwriter shall be deemed to
be a successor by reason merely of such purchase.
21
SECTION 13. Governing Law and Time. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE
TO AGREEMENTS MADE AND TO BE PERFORMED WHOLLY IN SUCH STATE. SPECIFIED TIMES
OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
SECTION 15. Counterparts. This Agreement may be executed in one or
more counterparts and, if executed in more than one counterpart, the
executed counterparts hereof shall constitute a single instrument.
22
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Underwriters and the Company in accordance with its terms.
Very truly yours,
XXX COMMUNICATIONS, INC.
By: /s/ Xxxxxx X. Xxxxxxx /s/Xxxxxx X. Xxxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President and
Treasurer
CONFIRMED AND ACCEPTED, as of the date first above written:
CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/Xxxx X. Xxxxxxx
--------------------------------
Name:Xxxx X. Xxxxxxx
Title:Managing Director
XXXXXXX XXXXX & CO
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
By: /s/Xxxxxxxx Xxxxxxx
-------------------------------
Name:Xxxxxxxx Xxxxxxx
Title:Vice President
Sch A-1
SCHEDULE A
Original Principal Amount
at Maturity of Initial
Name of Underwriter Securities
------------------- -------------------------
Credit Suisse First Boston Corporation.............................$821,808,000
Xxxxxxx Xxxxx, Xxxxxx Xxxxxx & Xxxxx
Incorporated............................ $821,809,000
--------------
Total.............................................................$1,643,617,000
=============
Sch A-1
SCHEDULE B
Pricing Information
XXX COMMUNICATIONS, INC.
Exchangeable Subordinated Discount Debentures due 2020
1. The initial public offering price per Security shall be
$425.89.
2. The purchase price per Security to be paid by the Underwriters
shall be $415.23, being an amount equal to the initial public
offering price set forth above less a $10.647 underwriting
discount per Security; provided that the purchase price per
Security for any Option Securities purchased upon the exercise
of the over-allotment option described in Section 2(b) shall
be increased by an amount per Security equal to accrued
original issue discount and accrued cash interest, if any, on
each Security from the Closing Time to the Date of Delivery.
3. The cash interest rate on the Securities shall be 1.0% per
annum.
4. The Securities shall be redeemable at the option of the
Company, subject to purchase by the Company and exchangeable
at the option of the holder thereof, as set forth in the terms
of the Securities.
Sch B-1
SCHEDULE C
List of Subsidiaries
Xxx Communications Hampton Roads, Inc.
Xxx Communications Las Vegas, Inc.
Cox Classic Cable, Inc.
CoxCom, Inc.
Cox Teleport Partners, Inc.
Sch B-1
