Exhibit 99.1
SIRIUS SATELLITE RADIO INC.
(A Delaware corporation)
73,170,732 Shares of Common Stock
TERMS AGREEMENT
---------------
November 19, 2003
To: Sirius Satellite Radio Inc.
1221 Avenue of the Americas, 36th Floor
New York, New York 10020
Ladies and Gentlemen:
This is a Terms Agreement referenced in the Form Underwriting Agreement
attached hereto, as contemplated by the Registration Statement No. 333-108387.
The terms of the Form Underwriting Agreement are hereby incorporated herein. We
understand that Sirius Satellite Radio Inc., a Delaware corporation (the
"Company"), proposes to issue and sell 73,170,732 shares of its common stock,
par value $.001 per share (the "Underwritten Securities"). Subject to the terms
and conditions set forth or incorporated by reference herein, UBS Securities LLC
(the "Underwriter") offers to purchase the total aggregate number of
Underwritten Securities, and some or all of the Option Underwritten Securities
set forth below, to the extent any Underwritten Securities or Option
Underwritten Securities are purchased in accordance with the terms hereof.
The Underwritten Securities shall have the following terms:
Common Stock
------------
Title: Common Stock, par value $.001 per share.
Number of Shares: 73,170,732
Number of Option The Underwriter has an option to purchase up to
Underwritten Securities: an additional 10,975,610 shares of Underwritten
Securities (the "Option Underwritten
Securities") at the purchase price set forth
below, within 30 days from the Closing Date to
cover over-allotments.
Purchase price: $2.05 per share.
Listing requirements: Nasdaq National Market.
Lock-up provisions: For a period of 90 days from the date of this
Terms Agreement, the Company will not, without
the prior written consent of the Underwriter,
(1) 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 common stock or any
securities convertible into or exercisable or
exchangeable for common stock or (2) enter into
any swap or other arrangement that transfers to
another, in whole or in part, any of the
economic consequences of ownership of the
common stock, whether any such transaction
described in clause (1) or (2) above is to be
settled by delivery of common stock or such
other securities, in cash or otherwise, or (3)
file or cause to become effective a
registration statement relating to the offer
and sale of any shares of common stock or any
securities convertible into or exercisable or
exchangeable for common stock, other than
shares of stock that may be issued in
connection with the Company's long-term stock
incentive plan or 401(k) plan. The foregoing
sentence shall not apply to (a) the sale of any
Underwritten Securities to the Underwriter
pursuant to the Form Underwriting Agreement and
this Terms Agreement, (b) transactions relating
to shares of common stock or other securities
acquired in open market transactions after the
completion of the Public
Offering or (c) the issuance by the Company of
additional options under the Company's existing
stock option plans, provided that such options
are not exercisable during such 90-day period.
Comfort Letter: The Company shall cause the Accountant's
Comfort Letter and the Bring-down Comfort
Letter referenced in, respectively Section 5(g)
and Section 5(h) of the Form Underwriting
Agreement to be delivered, except that such
letters will be delivered by Ernst & Young LLP
in lieu of Arthur Andersen LLP.
Additional Representations of The Company represents and warrants to and
the Company: agrees with the Underwriter that there are no
contracts, agreements or understandings between
the Company and any person granting such person
the right to require the Company to file a
registration statement under the Securities Act
with respect to any securities of the Company
or to require the Company to include such
securities with the Underwritten Securities
registered pursuant to the Registration
Statement, other than the agreements granting
registration rights to affiliates of The
Blackstone Group L.P. and Apollo Management,
L.P.
Additional Covenants of the The Company covenants with the Underwriter
Company: whether or not the transactions contemplated in
this Agreement are consummated or this
Agreement is terminated, to pay or cause to be
paid all expenses incident to the performance
of its obligations under this Agreement,
including: (i) the cost of printing or
producing any Blue Sky or Legal Investment
memorandum in connection with the offer and
sale of the Underwritten Securities under state
securities laws and all expenses in connection
with the qualification of the Securities for
offer and sale under state securities laws as
provided in Section 3(f) of the Form
Underwriting Agreement, including filing fees
and the reasonable fees and disbursements of
counsel for the Underwriter in connection with
such qualification and in connection with the
Blue Sky or Legal Investment memorandum, (ii)
the cost of printing certificates representing
the Underwritten Securities, (iii) the costs
and charges of any transfer agent, registrar or
depositary, (iv) the document production
charges and expenses associated with printing
this Agreement and (v) 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. It is understood, however, that except
as provided in Sections 4, 6 and 7 of the Form
Underwriting Agreement, "Additional Covenants
of the Company" and "Additional Termination
Provisions" below, the Underwriter will pay all
of its costs and expenses, including fees and
disbursements of its counsel, stock transfer
taxes payable on resale of any of the
Underwritten Securities by it and any
advertising expenses connected with any offers
it may make.
Additional Conditions of The obligations of the Underwriter to purchase
Underwriter's Obligations: and pay for the Underwritten Securities
pursuant this Terms Agreement are subject to
the following further conditions: subsequent to
execution and delivery of this Terms 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 the Underwriter's judgment, is material and
adverse and that makes it, in the Underwriter's
judgment, impracticable to market the
Underwritten Securities on the terms and in the
manner contemplated in the Prospectus.
Additional Termination The Underwriter may terminate this Terms
Provisions: Agreement, by notice to the Company at any time
at or prior to the Closing Date if (i) trading
is suspended or materially limited on, or by,
as the case may be, any of the Chicago Board of
Options Exchange, the Chicago Mercantile
Exchange or the Chicago Board of Trade, (ii) a
material disruption in securities settlement,
payment or clearance services in the United
States shall have occurred, or (iii) there
shall have occurred any outbreak or escalation
of hostilities, or any change in financial
markets or any calamity or crisis that, in the
Underwriter's judgment, is material and adverse
and which, singly or together with any other
event specified in this clause (iii), makes it,
in the Underwriter's judgment, impracticable or
inadvisable to proceed with the offer, sale or
delivery of the Underwritten Securities on the
terms and in the manner
contemplated in the Prospectus.
If this Terms Agreement shall be terminated by
the Underwriter 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 Terms Agreement, or if for
any reason the Company shall be unable to
perform its obligations under this Terms
Agreement, the Company will reimburse the
Underwriter for all out-of-pocket expenses
(including the fees and disbursements of its
counsel) reasonably incurred by the Underwriter
in connection with this Terms Agreement or the
offering contemplated hereunder.
Additional Indemnification The Company agrees to indemnify and hold
Provisions: harmless each affiliate of the Underwriter
within the meaning of Rule 405 under the 1933
Act.
Other Terms: This Terms Agreement may be signed in
counterparts, each of which shall be an
original, with the same effect as if the
signatures thereto and hereto were upon the
same instrument.
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 Underwriter shall be directed to UBS
Securities LLC, 299 Park Avenue, New York, New
York 10171, Attention: Capital Markets; notices
to the Company shall be directed to the Company
at 1221 Avenue of the Americas, 36th Floor, New
York, New York 10020, Attention: Patrick L.
Donnelly, Executive Vice President, General
Counsel and Secretary.
Closing Date and location: November 24, 2003
10:00 a.m.
Cravath, Swaine & Moore LLP
Worldwide Plaza
825 Eighth Avenue
New York, NY 10019-7475
Please accept this offer by signing a copy of this Terms Agreement in
the space set forth below and returning the signed copy to us.
Very truly yours,
UBS SECURITIES LLC
by
/s/ Kathryn Bueker
--------------------------------
Kathryn Bueker
Director
By
/s/ James Runice
---------------------------------
James Runcie
Executive Director
Accepted:
SIRIUS SATELLITE RADIO INC.
by
/s/ Patrick L. Donnelly
--------------------------------
Patrick L. Donnelly
Executive Vice President,
General Counsel and Secretary
SIRIUS SATELLITE RADIO INC.
(a Delaware corporation)
$500,000,000
Debt Securities, Preferred Stock, Common Stock and Warrants
FORM OF UNDERWRITING AGREEMENT
Dated as of January 3, 2002
TABLE OF CONTENTS
SECTION 1. Representations and Warranties..................................................................4
(a) Representations and Warranties by the Company...................................................4
(1) Compliance with Registration Requirements..............................................4
(2) Incorporated Documents.................................................................5
(3) Independent Accountants................................................................5
(4) Financial Statements...................................................................5
(5) No Material Adverse Change in Business.................................................6
(6) Good Standing of the Company...........................................................6
(7) Good Standing of Subsidiaries..........................................................6
(8) Capitalization.........................................................................7
(9) Authorization of this Underwriting Agreement and Terms Agreement.......................7
(10) Authorization of Common Stock..........................................................7
(11) Authorization of Preferred Stock.......................................................7
(12) Authorization of Senior Debt Securities and/or Subordinated Debt Securities............7
(13) Authorization of the Indentures........................................................8
(14) Authorization of Warrants..............................................................8
(15) Authorization of Warrant Agreement.....................................................9
(16) Authorization of Underlying Securities.................................................9
(17) Descriptions of the Underwritten Securities, Underlying Securities, Indentures
and Warrant Agreement.................................................................10
(18) Absence of Defaults and Conflicts.....................................................10
(19) Absence of Labor Dispute..............................................................11
(20) Absence of Proceedings................................................................11
(21) Accuracy of Exhibits..................................................................11
(22) Absence of Further Requirements.......................................................11
(23) Possession of Intellectual Property...................................................11
(24) Possession of Licenses and Permits....................................................12
(25) Title to Property.....................................................................12
(26) Commodity Exchange Act................................................................13
(27) Investment Company Act................................................................13
(28) Environmental Laws....................................................................13
(b) Officers' Certificates.........................................................................14
SECTION 2. Sale and Delivery to Underwriters; Closing.....................................................14
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Page
(a) Underwritten Securities........................................................................14
(b) Option Underwritten Securities.................................................................14
(c) Payment........................................................................................14
(d) Denominations; Registration....................................................................15
SECTION 3. Covenants of the Company.......................................................................15
(a) Compliance with Securities Regulations and Commission Requests.................................15
(b) Filing of Amendments...........................................................................16
(c) Delivery of Registration Statements............................................................16
(d) Delivery of Prospectuses.......................................................................16
(e) Continued Compliance with Securities Laws......................................................16
(f) Blue Sky Qualifications........................................................................17
(g) Earnings Statement.............................................................................17
(h) Reservation of Securities......................................................................17
(i) Use of Proceeds................................................................................17
(j) Listing........................................................................................17
(k) Restriction on Sale of Securities..............................................................17
(l) Reporting Requirements.........................................................................18
SECTION 4. Payment of Expenses............................................................................18
(a) Expenses.......................................................................................18
(b) Termination of Agreement.......................................................................18
SECTION 5. Conditions of Underwriters, Obligations........................................................19
(a) Effectiveness of Registration Statement........................................................19
(b) Opinion of General Counsel for Company.........................................................19
(c) Opinion of Counsel for Company.................................................................19
(d) Opinion of Regulatory Counsel for Company......................................................19
(e) Opinion of Counsel for Underwriters............................................................20
(f) Officers' Certificate..........................................................................20
(g) Accountant's Comfort Letter....................................................................20
(h) Bring-down Comfort Letter......................................................................20
(i) Ratings........................................................................................21
(j) Approval of Listing............................................................................21
(k) No Objection...................................................................................21
(l) Lock-up Agreements.............................................................................21
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Page
(m) Over-Allotment Option..........................................................................21
(n) Additional Documents...........................................................................22
(o) Termination of Terms Agreement.................................................................22
SECTION 6. Indemnification................................................................................22
(a) Indemnification of Underwriters................................................................22
(b) Indemnification of Company, Directors and Officers.............................................24
(c) Actions against Parties; Notification..........................................................24
(d) Settlement without Consent if Failure to Reimburse.............................................24
SECTION 7. Contribution...................................................................................25
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.................................26
SECTION 9. Termination....................................................................................26
(a) Underwriting Agreement.........................................................................26
(b) Terms Agreement................................................................................26
(c) Liabilities....................................................................................27
SECTION 10. Default by One or More of the Underwriters.....................................................27
SECTION 11. Notices........................................................................................28
SECTION 12. Parties........................................................................................28
SECTION 13. GOVERNING LAW AND TIME.........................................................................28
SECTION 14. Effect of Headings.............................................................................28
Exhibit A Form of Terms Agreement ..........................................................................A-1
Exhibit B Form of Opinion of Patrick L. Donnelly, Esq.
Executive Vice President, General Counsel and
Secretary of the Company .......................................................................B-1
Exhibit C Form of Opinion of Simpson Thacher & Bartlett ....................................................C-1
Exhibit D Form of Opinion of Wiley, Rein & Fielding ........................................................D-1
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SIRIUS SATELLITE RADIO INC.
(a Delaware corporation)
Common Stock, Warrants to Purchase Common Stock,
Preferred Stock, Warrants to Purchase Preferred Stock,
Debt. Securities and Warrants to Purchase Debt Securities
FORM OF UNDERWRITING AGREEMENT
As of January 3, 2002
[Names of Underwriters]
c/o [Managing Underwriter]
[Address]
Ladies and Gentlemen:
Sirius Satellite Radio Inc., a Delaware corporation (the "Company"),
proposes to issue and sell up to $500,000,000 aggregate initial public offering
price of its (i) shares of common stock, par value $.001 per share (the "Common
Stock"), (ii) warrants to purchase shares of Common Stock (the "Common Stock
Warrants"), (iii) shares of preferred stock, par value $.001 per share (the
"Preferred Stock"), (iv) warrants to purchase shares of Preferred Stock (the
"Preferred Stock Warrants"), (v) senior or subordinated debt securities (the
"Debt Securities"), or (vi) warrants to purchase Debt Securities (the "Debt
Security Warrants"), or any combination thereof, from time to time, in or
pursuant to one or more offerings on terms to be determined at the time of sale.
The Preferred Stock will be issued in one or more series and each
series of Preferred Stock may vary, as applicable, as to the title, specific
number of shares, rank, stated value, liquidation preference, dividend rate or
rates (or method of calculation), dividend payment dates, redemption provisions,
sinking fund requirements, conversion provisions (and terms of the related
Underlying Securities (as defined below)) and any other variable terms as set
forth in the applicable certificate of designations (each, the "Certificate of
Designations") relating to such series of Preferred Stock.
The Debt Securities will be issued in one or more series as senior
indebtedness (the "Senior Debt Securities") under an indenture, dated as of
September 15, 1999 (the "Senior Indenture"), between the Company and the trustee
or, as the case may be, trustees named therein (the "Senior Trustees" and each,
a "Senior Trustee"), or as subordinated indebtedness (the "Subordinated Debt
Securities") under an indenture, dated as of September 15, 1999 (the
"Subordinated Indenture" and, collectively with the Senior Indenture, the
"Indentures", and each, an "Indenture"), between the Company and the trustee or,
as the case may be, trustees named therein (the "Subordinated Trustees" and each
a "Subordinated Trustee" and, collectively with the Senior Trustee or Senior
Trustees, the "Trustees", and each, a "Trustee"). Each series of Debt Securities
may vary, as applicable, as to title, aggregate principal amount, rank, interest
rate
or formula and timing of payments thereof, stated maturity date, redemption
and/or repayment provisions, security, sinking fund requirements, conversion
provisions (and terms of the related Underlying Securities) and any other
variable terms established by or pursuant to the applicable Indenture.
Each issue of Common Stock Warrants, Preferred Stock Warrants and Debt
Security Warrants (collectively, the "Warrants") will be issued pursuant to a
separate warrant agreement (each, a "Warrant Agreement") between the Company and
the warrant agent identified therein (each, a "Warrant Agent"). The Warrants may
vary, as applicable, as to, among other terms, title, type, specific number,
exercise dates or periods, exercise price(s), expiration date(s) and terms of
the related Underlying Securities.
As used herein, "Securities" shall mean the Common Stock, Common Stock
Warrants, Preferred Stock, Preferred Stock Warrants, Senior Debt Securities,
Subordinated Debt Securities, Debt Security Warrants, or any combination
thereof, initially issuable by the Company and "Underlying Securities" shall
mean the Common Stock, Preferred Stock, Senior Debt Securities or Subordinated
Debt Securities issuable upon exercise of the Warrants, as applicable, or upon
conversion of the Preferred Stock, Senior Debt Securities or Subordinated Debt
Securities, as applicable.
Whenever the Company determines to make an offering of Securities
through an underwriter or an underwriting syndicate, the Company will enter into
an agreement (each, a "Terms Agreement") providing for the sale of such
Securities to, and the purchase and offering thereof by, such underwriter or
underwriters (the "Underwriters", which term shall include any Underwriter
substituted pursuant to Section 10 hereof). The Terms Agreement relating to the
offering of Securities shall (i) contain deletions from, modifications of, and
additions to, the provisions of this Form of Underwriting Agreement agreed to by
the Company and the Underwriters and (ii) specify the number or aggregate
principal amount, as the case may be, of Securities to be initially issued (the
"Initial Underwritten Securities"), the name of each Underwriter participating
in such offering (subject to substitution as provided in Section 10 hereof) and
the name of any Underwriter acting as manager or co-manager in connection with
such offering, the number or aggregate principal amount, as the case may be, of
Initial Underwritten Securities which each such Underwriter severally agrees to
purchase, whether such offering is on a fixed or variable price basis and, if on
a fixed price basis, the initial offering price, the price at which the Initial
Underwritten Securities are to be purchased by the Underwriters, the form, time,
date and place of delivery and payment of the Initial Underwritten Securities
and any other material variable terms of the Initial Underwritten Securities, as
well as the material variable terms of any related Underlying Securities. In
addition, if applicable, such Terms Agreement shall specify whether the Company
has agreed to grant to the Underwriters an option to purchase additional
Securities to cover over-allotments, if any, and the number or aggregate
principal amount, as the case may be, of Securities subject to such option (the
"Option Underwritten Securities"). As used herein, the term "Underwritten
Securities" shall include the Initial Underwritten Securities and all or any
portion of any Option Underwritten Securities, as applicable. The Terms
Agreement, which shall be substantially in the form of Exhibit A hereto, may
take the form of an exchange of any standard form of written telecommunication
between the Company and the Underwriters or, if applicable, the
representation(s) of the Underwriters.
2
Each offering of Underwritten Securities through a sole Underwriter or through
an underwriting syndicate will be governed by this Underwriting Agreement, as
supplemented by the applicable Terms Agreement.
The Company has filed with the Securities and Exchange Commission (the
"Commission") registration statements on Form S-3 (No. 333-86003 and No.
333-64344), each as amended by any pre-effective amendments or post-effective
amendments thereto, for the registration of the Securities and the Underlying
Securities under the Securities Act of 1933, as amended (the "1933 Act"), 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 statements have been declared effective by the
Commission and each Indenture has been duly qualified under the Trust Indenture
Act of 1939, as amended (the "1939 Act"), and the Company has filed such
post-effective amendments thereto as may be required prior to the execution of
the applicable Terms Agreement and each such post-effective amendment has been
declared effective by the Commission. Such registration statements (as so
amended, if applicable), including the information, if any, deemed to be a part
thereof pursuant to Rule 430A(b) of the 1933 Act Regulations (the "Rule 430A
Information") or Rule 434(d) of the 1933 Act Regulations (the "Rule 434
Information"), are referred to herein as the "Registration Statement"; and the
final prospectus and the final prospectus supplement relating to the offering of
the Underwritten Securities, in the forms first furnished to the Underwriters by
the Company for use in connection with the offering of the Underwritten
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 of the applicable Terms Agreement; provided,
further, that if the Company files a registration statement with the Commission
pursuant to Rule 462(b) of the 1933 Act Regulations (the "Rule 462(b)
Registration Statement"), then all references to "Registration Statement" shall
also be deemed to include the Rule 462(b) Registration Statement; and provided,
further, that if the Company elects to rely upon Rule 434 of the 1933 Act
Regulations, then all references to "Prospectus" shall also be deemed to include
the final or preliminary prospectus and the applicable term sheet or abbreviated
term sheet (the "Term Sheet"), as the case may be, in the forms first furnished
to the Underwriters by the Company in reliance upon Rule 434 of the 1933 Act
Regulations, and all references to the date of the Prospectus shall mean the
date of the Term Sheet. A "preliminary prospectus" shall be deemed to refer to
(i) any prospectus used before the Registration Statement became effective and
(ii) any prospectus that omitted, as applicable, the Rule 430A Information, the
Rule 434 Information or other 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 such effectiveness and prior to the initial
delivery of the Prospectus to the Underwriters by the Company. For purposes of
this Underwriting Agreement, all references to the Registration Statement,
Prospectus, Term Sheet or preliminary prospectus or to any amendment or
supplement to any of the foregoing shall be deemed to include any copy filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("EDGAR").
All references in this Underwriting Agreement to financial statements
and schedules and other information which is "contained," "included" or "stated"
(or other references of like
3
import) in the Registration Statement, Prospectus or preliminary prospectus
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, Prospectus or preliminary prospectus, as the case may be, prior to
the execution of the applicable Terms Agreement; and all references in this
Underwriting Agreement to amendments or supplements to the Registration
Statement, Prospectus or preliminary prospectus shall be deemed to include the
filing of any document under the 1934 Act which is incorporated by reference in
the Registration Statement, Prospectus or preliminary prospectus, as the case
may be, after the execution of the applicable Terms Agreement.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company . The Company
represents and warrants to each Underwriter named in the applicable Terms
Agreement, as of the date thereof, as of the Closing Time (as defined below)
and, if applicable, as of each Date of Delivery (as defined below) (in each
case, a "Representation Date"), as follows:
(1) Compliance with Registration Requirements. The Company
meets the requirements for use of Form S-3 under the 1933 Act. The
Registration Statement has become effective under the 1933 Act and no
stop order suspending the effectiveness of the 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. In addition, each Indenture has been duly qualified under the
1939 Act.
At the respective times the Registration Statement and any
post-effective amendments thereto (including the filing of the
Company's most recent Annual Report on Form 10-K with the Commission
(the "Annual Report on Form 10-K")) became effective and at each
Representation Date, the Registration Statement and any amendments
thereto complied and will comply in all material respects with the
requirements of the 1933 Act, the 1933 Act Regulations, the 1939 Act,
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. At the date of the Prospectus, at the Closing Time and at
each Date of Delivery, if any, neither the Prospectus nor any
amendments and supplements thereto 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.
If the Company elects to rely upon Rule 434 of the 1933 Act
Regulations, the Company will comply with the requirements of Rule 434.
Notwithstanding the foregoing, the representations and warranties in
this subsection shall not apply to statements in or omissions from the
Registration Statement or the Prospectus 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 the
Prospectus.
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Each preliminary prospectus and 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 the offering
of Underwritten Securities will, at the time of such delivery, be
identical to any electronically transmitted copies thereof filed with
the Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
(2) 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 1934 Act and the
rules and regulations of the Commission thereunder (the "1934 Act
Regulations") and, when read together with the other information in
(including other information incorporated by reference therein) the
Prospectus, at the date of the Prospectus, at the Closing Time and at
each Date of Delivery, if any, did not and will not include an untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(3) Independent Accountants. The accountants who certified the
financial statements and any supporting schedules thereto included in
the Registration Statement and the Prospectus are independent public
accountants as required by the 1933 Act and the 1933 Act Regulations.
(4) Financial Statements. The financial statements of the
Company included in the Registration Statement and the Prospectus,
together with the related schedules and notes, as well as those
financial statements, schedules and notes of any other entity included
therein, present fairly the financial position of the Company and its
consolidated subsidiaries, or such other entity, as the case may be, at
the dates indicated and the statement of operations, stockholders'
equity and cash flows of the Company and its consolidated subsidiaries,
or such other entity, as the case may be, for the periods specified.
Such financial statements have been prepared in conformity with
generally accepted accounting principles ("GAAP") applied on a
consistent basis throughout the periods involved. 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 selected financial data and the
summary financial information included in the Prospectus present fairly
the information shown therein and have been compiled on a basis
consistent with that of the audited financial statements included in
the Registration Statement and the Prospectus. In addition, any pro
forma financial statements of the Company and its subsidiaries, or such
other entity, as the case may be, 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
5
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.
(5) 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 arising in the ordinary course of business, which are material
with respect to the Company and its subsidiaries considered as one
enterprise and (C) except for regular dividends on the Company's common
stock or preferred stock, in amounts per share that are consistent with
past practice or the applicable charter document or supplement thereto,
respectively, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital
stock.
(6) 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, or as contemplated under, this Underwriting
Agreement and the applicable Terms Agreement. 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 to so qualify or be
in good standing would not result in a Material Adverse Effect.
(7) Good Standing of Subsidiaries. Each of Satellite CD Radio,
Inc. and each "significant subsidiary" of the Company (as such term is
defined in Rule 1-02 of Regulation S-X promulgated under the 1933 Act)
(each, a "Subsidiary" and, collectively, the "Subsidiaries") has been
duly organized and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has
corporate 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 to so qualify or be in
good standing would not result in a Material Adverse Effect. Except as
otherwise stated in the Registration Statement and the Prospectus, all
of the issued and outstanding capital stock of each Subsidiary has been
duly authorized and is validly issued, fully paid and non-assessable
and is owned by the Company, directly or through subsidiaries, free and
clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equity. None of the outstanding shares of
6
capital stock of any Subsidiary was issued in violation of preemptive
or other similar rights of any securityholder of such Subsidiary.
(8) Capitalization. If the Prospectus contains a
"Capitalization" section, the authorized, issued and outstanding shares
of capital stock of the Company is as set forth in the column entitled
"Actual" under such section (except for subsequent issuances thereof,
if any, contemplated under this Underwriting Agreement, pursuant to
reservations, agreements or employee benefit plans referred to in the
Prospectus or pursuant to the exercise of convertible securities or
options referred to in the Prospectus). Such shares of capital stock
have been duly authorized and validly issued by the Company and are
fully paid and non-assessable, and none of such shares of capital stock
was issued in violation of preemptive or other similar rights of any
securityholder of the Company.
(9) Authorization of this Underwriting Agreement and Terms
Agreement. This Underwriting Agreement has been, and the applicable
Terms Agreement as of the date thereof will have been, duly authorized,
executed and delivered by the Company.
(10) Authorization of Common Stock. If the Underwritten
Securities being sold pursuant to the applicable Terms Agreement
include Common Stock, such Underwritten Securities have been, or as of
the date of such Terms Agreement will have been, duly authorized by the
Company for issuance and sale pursuant to this Underwriting Agreement
and such Terms Agreement. Such Underwritten Securities, when issued and
delivered by the Company pursuant to this Underwriting Agreement and
such Terms Agreement against payment of the consideration therefor
specified in such Terms Agreement, will be validly issued, fully paid
and non-assessable and will not be subject to preemptive or other
similar rights of any securityholder of the Company. No holder of such
Underwritten Securities is or will be subject to personal liability by
reason of being such a holder.
(11) Authorization of Preferred Stock. If the Underwritten
Securities being sold pursuant to the applicable Terms Agreement
include Preferred Stock, such Underwritten Securities have been, or as
of the date of such Terms Agreement will have been, duly authorized by
the Company for issuance and sale pursuant to this Underwriting
Agreement and such Terms Agreement. The applicable Preferred Stock,
when issued and delivered by the Company pursuant to this Underwriting
Agreement and such Terms Agreement against payment of the consideration
therefor, will be validly issued, fully paid and non-assessable and
will not be subject to preemptive or other similar rights of any
securityholder of the Company. No holder of such Preferred Stock is or
will be subject to personal liability by reason of being such a holder.
The applicable Certificate of Designations will be in full force and
effect prior to the Closing Time.
(12) Authorization of Senior Debt Securities and/or
Subordinated Debt Securities. If the Underwritten Securities being sold
pursuant to the applicable Terms Agreement include Senior Debt
Securities and/or Subordinated Debt Securities, such
7
Underwritten Securities have been, or as of the date of such Terms
Agreement will have been, duly authorized by the Company for issuance
and sale pursuant to this Underwriting Agreement and such Terms
Agreement. Such Underwritten Securities, when issued and authenticated
in the manner provided for in the applicable Indenture and delivered
against payment of the consideration therefor specified in such Terms
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 other similar
laws affecting the enforcement of creditors, rights generally or by
general equitable principles (regardless of whether enforcement is
considered in a proceeding in equity or at law), and except further as
enforcement thereof may be limited by requirements that a claim with
respect to any Debt Securities payable in a foreign or composite
currency (or a foreign or composite currency judgment in respect of
such claim) be converted into U.S. dollars at a rate of exchange
prevailing on a date determined pursuant to applicable law or by
governmental authority to limit, delay or prohibit the making of
payments outside the United States. Such Underwritten Securities will
be in the form contemplated by, and each registered holder thereof is
entitled to the benefits of, the applicable Indenture.
(13) Authorization of the Indentures. If the Underwritten
Securities being sold pursuant to the applicable Terms Agreement
include Senior Debt Securities and/or Subordinated Debt Securities or
if Preferred Stock is convertible into Debt Securities, each applicable
Indenture has been, or prior to the issuance of the Debt Securities
thereunder will have been, duly authorized, executed and delivered by
the Company and, upon such authorization, execution and delivery, will
constitute 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 other similar laws affecting
the enforcement of creditors' rights generally or by general equitable
principles (regardless of whether enforcement is considered in a
proceeding in equity or at law).
(14) Authorization of Warrants. If the Underwritten Securities
being sold pursuant to the applicable Terms Agreement include Warrants,
such Underwritten Securities have been, or as of the date of such Terms
Agreement will have been, duly authorized by the Company for issuance
and sale pursuant to this Underwriting Agreement and such Terms
Agreement. Such Underwritten Securities, when issued and authenticated
in the manner provided for the applicable Warrant Agreement and
delivered against payment of the consideration therefor specified in
such Terms Agreement, (A) will constitute valid and binding obligations
of the Company, entitled to the benefits provided by such Warrant
Agreement and enforceable against the Company in accordance with their
terms, except as enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally or by general
equitable principles (regardless of whether enforcement is
8
considered in a proceeding in equity or at law), and (B) will be in
the form contemplated by, and entitled to the benefits of, the Warrant
Agreement.
(15) Authorization of Warrant Agreement. If the Underwritten
Securities being sold pursuant to the applicable Terms Agreement
include Warrants, each applicable Warrant Agreement has been, or prior
to the issuance of such Underwritten Securities will have been, duly
authorized, executed and delivered by the Company and, upon such
authorization, execution and delivery, will constitute a valid and
binding agreement of the Company, enforceable against the Company in
accordance with its terms, except as enforcement thereof may be limited
by bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or other
similar laws affecting the enforcement of creditors, rights generally
or by general equitable principles (regardless of whether enforcement
is considered in a proceeding in equity or at law).
(16) Authorization of Underlying Securities. If the Underlying
Securities related to the Underwritten Securities being sold pursuant
to the applicable Terms Agreement include Common Stock or Preferred
Stock, such Underlying Securities have been, or as of the date of such
Terms Agreement will have been, duly authorized and reserved for
issuance by the Company upon exercise of the Common Stock Warrants or
Preferred Stock Warrants, as applicable, or upon conversion of the
related Preferred Stock, Senior Debt Securities or Subordinated Debt
Securities, as applicable. If the Underlying Securities include Common
Stock or Preferred Stock, such Underlying Securities, when issued upon
such exercise or conversion, as applicable, will be validly issued,
fully paid and non-assessable and will not be subject to preemptive or
other similar rights of any securityholder of the Company. No holder of
such Common Stock or Preferred Stock is or will be subject to personal
liability by reason of being such a holder. If the Underlying
Securities related to the Underwritten Securities being sold pursuant
to the applicable Terms Agreement include Senior Debt Securities and/or
Subordinated Debt Securities, such Underlying Securities have been, or
as of the date of such Terms Agreement will have been, duly authorized
for issuance by the Company upon the exercise of the Debt Security
Warrants or upon conversion of the related Preferred Stock. Such
Underlying Securities, when issued and authenticated in the manner
provided for in the applicable Indenture and delivered in accordance
with the terms of the Debt Security Warrants or the related Preferred
Stock, 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 other similar laws affecting
the enforcement of creditors' rights generally or by general equitable
principles (regardless of whether enforcement is considered in a
proceeding in equity or at law), and except further as enforcement
thereof may be limited by requirements that a claim with respect to any
Debt Securities payable in a foreign or composite currency (or a
foreign or composite currency judgment in respect of such claim) be
converted into U.S. dollars at a rate of exchange prevailing on a date
9
determined pursuant to applicable law or by governmental authority to
limit, delay or prohibit the making of payments outside the United
States.
(17) Descriptions of the Underwritten Securities, Underlying
Securities, Indentures and Warrant Agreement. The Underwritten
Securities being sold pursuant to the applicable Terms Agreement and
each applicable Indenture and Warrant Agreement, as of each
Representation Date, and any Underlying Securities, when issued and
delivered in accordance with the terms of the related Underwritten
Securities, will conform in all material respects to the statements
relating thereto contained in the Prospectus and will be in
substantially the form filed or incorporated by reference, as the case
may be, as an exhibit to the Registration Statement.
(18) Absence of Defaults and Conflicts. Neither the Company
nor any of its Subsidiaries is in violation of its charter or by-laws
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 assets, properties or operations 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. The execution, delivery and performance of this Underwriting
Agreement, the applicable Terms Agreement and each applicable Indenture
and Warrant Agreement and any other agreement or instrument entered
into or issued or to be entered into or issued by the Company in
connection with the transactions contemplated hereby or thereby or in
the Registration Statement and the Prospectus and the consummation of
the transactions contemplated herein and in the Registration Statement
and the Prospectus (including the issuance and sale of the Underwritten
Securities and the use of the proceeds from the sale of the
Underwritten Securities as described under the caption "Use of
Proceeds" as well as the issuance of any Underlying Securities) and
compliance by the Company with its obligations hereunder and thereunder
have been duly authorized by all necessary corporate action and 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 assets,
properties or operations of the Company or any of its Subsidiaries
pursuant to, any Agreements and Instruments, nor will such action
result in any violation of the provisions of the charter or by-laws 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, 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.
10
(19) 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, and the Company is not aware of
any existing or imminent labor disturbance by the employees of any of
its or any Subsidiary's principal suppliers, manufacturers, customers
or contractors, which, in either case, may reasonably be expected to
result in a Material Adverse Effect.
(20) 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 and the Prospectus (other than as stated
therein), or which might reasonably be expected to result in a Material
Adverse Effect, or which might reasonably be expected to materially and
adversely affect the assets, properties or operations thereof or the
consummation of the transactions contemplated under the Prospectus,
this Underwriting Agreement, the applicable Terms Agreement or any
applicable Indenture or Warrant Agreement or the Performance by the
Company of its obligations hereunder and thereunder. 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
assets, properties or operations is the subject which are not described
in the Registration Statement and the Prospectus, including ordinary
routine litigation incidental to the business, could not reasonably be
expected to result in a Material Adverse Effect.
(21) 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.
(22) 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, domestic or foreign, is necessary or required for the due
authorization, execution and delivery by the Company of this
Underwriting Agreement or the applicable Terms Agreement or for the
performance by the Company of the transactions contemplated under the
Prospectus, this Underwriting Agreement, such Terms Agreement or any
applicable Indenture or Warrant Agreement, except such as have been
already made, obtained or rendered, as applicable.
(23) Possession of Intellectual Property. 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, 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
11
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.
(24) Possession of Licenses and Permits. Except as disclosed
in the Registration Statement, the Prospectus or the documents
incorporated by reference therein, the Company and its Subsidiaries
possess such permits, licenses, approvals, consents and other
authorizations (including, without limitation, all permits required for
the operation of the business of the Company and its Subsidiaries by
the FCC and each state and local authority that regulates the
activities of the Company) (collectively, "Governmental Licenses")
issued by the appropriate federal, state, local or foreign regulatory
agencies or bodies, other governmental authorities or self regulatory
organizations necessary to conduct the business now operated by them
except as would not result in 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, result in a Material Adverse
Effect; all of the Governmental Licenses are valid and in full force
and effect, except where the invalidity of such Governmental Licenses
or the failure of such Governmental Licenses to be in full force and
effect would not result in a Material Adverse Effect; and except as
disclosed in the Registration Statement, Prospectus or the documents
incorporated by reference therein, 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. To the
knowledge of the Company, except as described in the Registration
Statement, Prospectus or the documents incorporated by reference
therein, there exists no reason or cause that could justify the
variation, suspension, cancelation or termination of any such
Governmental Licenses held by the Company or any of its Subsidiaries
with respect to the construction or operation of their respective
businesses, which variation, suspension, cancelation or termination
could reasonably be expected to have a Material Adverse Effect.
(25) Title to Property. The Company and its Subsidiaries have
good and marketable title to all 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 (A)
as otherwise stated in the Registration Statement and the Prospectus or
(B) those which 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. 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 of its Subsidiaries has received any notice of any
material claim of any sort that has been
12
asserted by anyone adverse to the rights of the Company or any of its
Subsidiaries under any of the leases or subleases mentioned above, or
affecting or questioning the rights of the Company or such Subsidiaries
of the continued possession of the leased or subleased premises under
any such lease or sublease, except (A) as otherwise stated in the
Registration Statement and the Prospectus or (B) those which 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.
(26) Commodity Exchange Act. If the Underwritten Securities
being sold pursuant to the applicable Terms Agreement include Debt
Securities or if any related Underlying Securities include Debt
Securities, as the case may be, such Debt Securities, upon issuance,
will be excluded or exempted under, or beyond the purview of, the
Commodity Exchange Act, as amended (the "Commodity Exchange Act"), and
the rules and regulations of the Commodity Futures Trading Commission
under the Commodity Exchange Act (the "Commodity Exchange Act
Regulations").
(27) Investment Company Act. The Company is not, and upon the
issuance and sale of the Underwritten Securities as herein contemplated
and the application of the net proceeds therefrom as described in the
Prospectus will not be, an "investment company" within the meaning of
the Investment Company Act of 1940, as amended (the "1940 Act").
(28) Environmental Laws. Except as otherwise stated in the
Registration Statement and the Prospectus 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) neither the Company nor any of its Subsidiaries fails to
possess any permit, authorization or approval required under any
applicable Environmental Laws or to be 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
13
or affecting the Company or any of its Subsidiaries relating to
Hazardous Materials or any Environmental Laws.
(b) Officers' Certificates. Any certificate signed by any officer of
the Company or any of its Subsidiaries and delivered to any Underwriter or to
counsel for the Underwriters in connection with the offering of the Underwritten
Securities shall be deemed a representation and warranty by the Company to each
Underwriter as to the matters covered thereby on the date of such certificate
and, unless subsequently amended or supplemented, at each Representation Date
subsequent thereto.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Underwritten Securities. The several commitments of the
Underwriters to purchase the Underwritten Securities pursuant to the applicable
Terms Agreement shall be deemed to have been made on the basis of the
representations, warranties and agreements herein contained and shall be subject
to the terms and conditions herein set forth.
(b) Option Underwritten Securities. Subject to the terms and conditions
herein set forth, the Company may grant, if so provided in the applicable Terms
Agreement, an option to the Underwriters, severally and not jointly, to purchase
up to the number or aggregate principal amount, as the case may be, of the
Option Underwritten Securities set forth therein at a price per Option
Underwritten Security equal to the price per Initial Underwritten Security (plus
accrued interest as applicable), less an amount equal to any dividends or
distributions declared by the Company and paid or payable on the Initial
Underwritten Securities but not payable on the Option Underwritten Securities.
Such option, if granted, will expire 30 days after the date of such Terms
Agreement, 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 Underwritten Securities upon notice by
the Underwriters to the Company setting forth the number or aggregate principal
amount, as the case may be, of Option Underwritten Securities as to which the
several Underwriters are then exercising the option and the time, date and place
of payment and delivery for such Option Underwritten Securities. Any such time
and date of payment and delivery (each, 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, unless otherwise agreed upon by the Underwriters and the Company. If the
option is exercised as to all or any portion of the Option Underwritten
Securities, each of the Underwriters, severally and not jointly, will purchase
that proportion of the total number or aggregate principal amount, as the case
may be, of Option Underwritten Securities then being purchased which the number
or aggregate principal amount, as the case may be, of Initial Underwritten
Securities each such Underwriter has severally agreed to purchase as set forth
in such Terms Agreement bears to the total number or aggregate principal amount,
as the case may be, of Initial Underwritten Securities, subject to such
adjustments as the Underwriters in their discretion shall make to eliminate any
sales or purchases of a fractional number or aggregate principal amount, as the
case may be, of Option Underwritten Securities.
(c) Payment. Payment of the purchase price for, and delivery of, the
Initial Underwritten Securities shall be made at the offices of Cravath, Swaine
& Moore, 825 Eighth Avenue, New
14
York, NY 10019, 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 third (fourth,
if the pricing occurs after 4:30 P.M. (Eastern time) on any given day) business
day after the date of the applicable Terms Agreement (unless postponed in
accordance with the provisions of Section 10 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"). In addition, in the event that the Underwriters
have exercised their option, if any, to purchase any or all of the Option
Underwritten Securities, payment of the purchase price for, and delivery of such
Option Underwritten Securities, shall be made at the above-mentioned offices of
Cravath, Swaine & Moore, or at such other place as shall be agreed upon by the
Underwriters and the Company, on the relevant Date of Delivery as specified in
the notice from the Underwriters to the Company.
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 for the respective accounts of the Underwriters of the
Underwritten Securities to be purchased by them.
(d) Denominations; Registration. The Underwritten Securities or
certificates for the Underwritten Securities shall be in such denominations and
registered in such names as the Underwriters may request in writing at least one
full business day prior to the Closing Time or the relevant Date of Delivery, as
the case may be. The Underwritten Securities or certificates for the
Underwritten Securities will be made available for examination and packaging by
the Underwriters in The City of New York at a reasonable time prior to the
Closing Time or the relevant Date of Delivery, as the case may be.
SECTION 3. Covenants of the Company. The Company covenants with each
Underwriter participating in the offering of Underwritten Securities, as
follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Company, subject to Section 3(b), will comply with the requirements of Rule 430A
of the 1933 Act Regulations and/or Rule 434 of the 1933 Act Regulations, if and
as applicable, and will notify the Underwriters immediately, and confirm the
notice in writing, of (i) the effectiveness of any post-effective amendment to
the Registration Statement or the filing of any supplement or amendment to the
Prospectus, (ii) the receipt of any comments from the Commission, (iii) 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) 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 Underwritten 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 and will take such steps as it deems necessary to ascertain promptly
whether the Prospectus transmitted for filing under Rule 424 was received for
filing by the Commission and, in the event that it was not, it will promptly
file the Prospectus. The Company will make every reasonable effort 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.
15
(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) of the 1933 Act Regulations), any Term
Sheet 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 reasonably object.
(c) Delivery of Registration Statements. The Company has furnished or
will deliver to 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 or reproduced copies of all consents and certificates of experts, and
will also deliver to each of the Underwriters, without charge, a conformed copy
of the Registration Statement as originally filed and of each amendment thereto
(without exhibits). The Registration Statement and each amendment thereto
furnished to the Underwriters will be identical to any electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR, except
to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company will deliver to each
Underwriter, without charge, as many copies of each preliminary prospectus as
such Underwriter may reasonably request, and the Company hereby consents to the
use of such copies for purposes permitted by the 1933 Act. The Company will
furnish to each Underwriter, 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 such Underwriter may reasonably request.
The Prospectus and any amendments or supplements thereto furnished to the
Underwriters will be identical to any electronically transmitted copies thereof
filed with the Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will comply
with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act
Regulations so as to permit the completion of the distribution of the
Underwritten Securities as contemplated in this Underwriting Agreement and the
applicable Terms Agreement and in the Registration Statement and the Prospectus.
If at any time when the Prospectus is required by the 1933 Act or the 1934 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
reasonable opinion of counsel for the Underwriters or for the Company, to amend
the Registration Statement in order that the Registration Statement 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 or to amend or supplement the Prospectus in order that the Prospectus
will not include an untrue statement 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 such counsel, at any
16
such time to amend 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 best efforts, in
cooperation with the Underwriters, to qualify the Underwritten Securities and
any related Underlying Securities for offering and sale under the applicable
securities laws of such states and other jurisdictions (domestic or foreign) 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 the applicable Terms
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 Underwritten Securities or any related Underlying 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 such Terms
Agreement.
(g) Earnings Statement. 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) Reservation of Securities. If the applicable Terms Agreement
specifies that any related Underlying Securities include Common Stock or
Preferred Stock, the Company will reserve and keep available at all times, free
of preemptive or other similar rights, a sufficient number of shares of Common
Stock and/or Preferred Stock, as applicable, for the purpose of enabling the
Company to satisfy any obligations to issue such Underlying Securities upon
exercise of the related Warrants, as applicable, or upon conversion of the
Preferred Stock, Senior Debt Securities or Subordinated Debt Securities, as
applicable.
(i) Use of Proceeds. The Company will use the net proceeds received by
it from the sale of the Underwritten Securities in the manner specified in the
Prospectus under "Use of Proceeds".
(j) Listing. The Company will use its best efforts to effect the
listing of the Underwritten Securities and any related Underlying Securities,
prior to the Closing Time, on any national securities exchange or quotation
system if and as specified in the applicable Terms Agreement.
(k) Restriction on Sale of Securities. Between the date of the
applicable Terms Agreement and the Closing Time or such other date specified in
such Terms Agreement, the
17
Company will not, without the prior written consent of the Underwriters,
directly or indirectly, issue, sell, offer or contract to sell, grant any option
for the sale of, or otherwise dispose of, the securities specified in such Terms
Agreement.
(l) 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 Underwriting Agreement or the
applicable Terms 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 Underwriting Agreement, any Terms
Agreement, the Indentures, any Warrant Agreement and such other documents as may
be required in connection with the offering, purchase, sale, issuance or
delivery of the Underwritten Securities or any related Underlying Securities,
(iii) the preparation, issuance and delivery of the Underwritten Securities and
any related Underlying Securities and any certificates for the Underwritten
Securities or such Underlying Securities to the Underwriters, including any
transfer taxes and any stamp or other duties payable upon the sale, issuance or
delivery of the Underwritten Securities to the Underwriters, (iv) the fees and
disbursements of the Company's counsel, accountants and other advisors or agents
(including transfer agents and registrars), as well as the fees and
disbursements of the Trustees and any Warrant Agent, and their respective
counsel, (v) the qualification of the Underwritten Securities and any related
Underlying Securities under state 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, printing and delivery of a Blue Sky survey, and
any amendment thereto, (vi) the preparation, printing, filing and delivery to
the Underwriters of copies of each preliminary prospectus, any Term Sheet, and
the Prospectus and any amendments or supplements thereto, (vii) the fees charged
by nationally recognized rating organizations for the rating of the Underwritten
Securities and any related Underlying Securities, if applicable, (viii) the fees
and expenses incurred with respect to the listing of the Underwritten Securities
and any related Underlying Securities, if applicable, (ix) the filing fees
incident to, and the reasonable fees and disbursements of counsel to the
Underwriters in connection with, the review, if any, by the National Association
of Securities Dealers, Inc. (the "NASD") of the terms of the sale of the
Underwritten Securities and any related Underlying Securities, and (x) the fees
and expenses of any Underwriter acting in the capacity of a "qualified
independent underwriter" (as defined in Section 2(1) of Schedule E of the bylaws
of the NASD), if applicable.
(b) Termination of Agreement. If the applicable Terms Agreement is
terminated by the Underwriters in accordance with the provisions of Section 5 or
Section 9(b)(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.
18
SECTION 5. Conditions of Underwriters, Obligations. The obligations of
the Underwriters to purchase and pay for the Underwritten Securities pursuant to
the applicable Terms 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 of its Subsidiaries
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 under the 1933 Act and no stop order suspending the effectiveness of
the Registration Statement shall have been issued under the 1933 Act and no
proceedings for that purpose shall have been instituted or be pending 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 Underwritten Securities and any related
Underlying Securities, the specific method of distribution and similar matters
shall have been filed with the Commission in accordance with Rule 424(b)(1),
(2), (3), (4) or (5), as applicable (or any required post-effective amendment
providing such information shall have been filed and declared effective in
accordance with the requirements of Rule 430A), or, if the Company has elected
to rely upon Rule 434 of the 1933 Act Regulations, a Term Sheet including the
Rule 434 Information shall have been filed with the Commission in accordance
with Rule 424(b)(7).
(b) Opinion of General Counsel for Company. At Closing Time, the
Underwriters shall have received the favorable opinion, dated as of Closing
Time, of Patrick L. Donnelly, General Counsel for the Company, or other counsel
satisfactory to the Underwriters, in form and substance satisfactory to counsel
for the Underwriters, together with signed or reproduced copies of such letter
for each of the other Underwriters, to the effect set forth in Exhibit B hereto
and to such further effect as counsel to the Underwriters may reasonably
request.
(c) Opinion of Counsel for Company. At Closing Time, the Underwriters
shall have received the favorable opinion, dated as of Closing Time, of Simpson
Thacher & Bartlett, counsel for the Company, or other counsel satisfactory to
the Underwriters, in form and substance satisfactory to counsel for the
Underwriters, together with signed or reproduced copies of such letter for each
of the other Underwriters, to the effect set forth in Exhibit C hereto and to
such further effect as counsel to the Underwriters may reasonably request. In
giving such opinion, such counsel may rely, as to all matters governed by the
laws of jurisdictions other than the law of the State of New York, the federal
law of the United States and the General Corporation Law of the State of
Delaware, upon the opinions of counsel satisfactory to the Underwriters. Such
counsel may also state that, insofar as such opinion involves factual matters,
they have relied, to the extent they deem proper, upon certificates of officers
of the Company and its Subsidiaries and certificates of public officials.
(d) Opinion of Regulatory Counsel for Company. At Closing Time, the
Underwriters shall have received the favorable opinion, dated as of Closing
Time, of Wiley, Rein & Fielding, regulatory counsel for the Company, in form and
substance satisfactory to counsel for the
19
Underwriters, together with signed or reproduced copies of such letter for each
of the other Underwriters, to the effect set forth in Exhibit D hereto and to
such further effect as counsel to the Underwriters may reasonably request.
(e) Opinion of Counsel for Underwriters. At Closing Time, the
Underwriters shall have received the favorable opinion, dated as of Closing
Time, of Cravath, Swaine & Moore, counsel for the Underwriters, together with
signed or reproduced copies of such letter for each of the other Underwriters,
with respect to the matters set forth in the following parts of Exhibit C:
Sections (1), (4) to (12) (as applicable) (solely as to the extent that
execution and delivery are matters of the Delaware General Corporation Law or
New York law), (13) (solely as to the information in the Prospectus under
"Description of the Underwritten Securities" and "Description of the Underlying
Securities", if any, or any caption purporting to describe any such Securities),
(19), (23) and the penultimate paragraph of Exhibit C hereto. In giving such
opinion, such counsel may rely, as to all matters governed by the laws of
jurisdictions other than the law of the State of New York, the federal law of
the United States and the General Corporation Law of the State of Delaware, upon
the opinions of counsel satisfactory to the Underwriters. Such counsel may also
state that, insofar as such opinion involves factual matters, they have relied,
to the extent they deem proper, upon certificates of officers of the Company and
its Subsidiaries and certificates of public officials.
(f) Officers' Certificate. At Closing Time, there shall not have been,
since the date of the applicable Terms 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, 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 or chief accounting
officer 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) are true and correct with the same force and effect
as though expressly made at and as of the 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 the 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, are pending or, to the
best of such officer's knowledge, are threatened by the Commission.
(g) Accountant's Comfort Letter. At the time of the execution of the
applicable Terms Agreement, the Underwriters shall have received from Arthur
Andersen LLP a letter dated such date, in form and substance satisfactory to the
Underwriters, together with signed or reproduced copies of such letter for each
of 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 and the documents incorporated
by reference therein.
(h) Bring-down Comfort Letter. At Closing Time, the Underwriters shall
have received from Arthur Andersen LLP a letter, dated as of Closing Time, to
the effect that they reaffirm the
20
statements made in the letter furnished pursuant to subsection (g) of this
Section 5, except that the specified date referred to shall be a date not more
than three business days prior to the Closing Time.
(i) Ratings. At Closing Time and at any relevant Date of Delivery,
unless the Underwritten Securities being sold pursuant to the applicable Terms
Agreement relate solely to Common Stock or Common Stock Warrants, the
Underwritten Securities shall have the ratings accorded by any "nationally
recognized statistical rating organization", as defined by the Commission for
purposes of Rule 436(g)(2) of the 1933 Act Regulations, if and as specified in
the applicable Terms Agreement, and the Company shall have delivered to the
Underwriters a letter, dated as of such date, from each such rating
organization, or other evidence satisfactory to the Underwriters, confirming
that the Underwritten Securities have such ratings. Since the time of execution
of such Terms Agreement, there shall not have occurred a downgrading in, or
withdrawal of, the rating assigned to the Underwritten Securities or any of the
Company's other securities by any such rating organization, and no such rating
organization shall have publicly announced that it has under surveillance or
review its rating of the Underwritten Securities or any of the Company's other
securities.
(j) Approval of Listing. At Closing Time, the Underwritten Securities
shall have been approved for listing, subject only to official notice of
issuance, if and as specified in the applicable Terms Agreement.
(k) No Objection. If the Registration Statement or an offering of
Underwritten Securities has been filed with the NASD for review, the NASD shall
not have raised any objection with respect to the fairness and reasonableness of
the underwriting terms and arrangements.
(l) Lock-up Agreements. On the date of the applicable Terms Agreement,
the Underwriters shall have received, in form and substance satisfactory to it,
each lock-up agreement, if any, specified in such Terms Agreement as being
required to be delivered by the persons listed therein.
(m) Over-Allotment Option. In the event that the Underwriters are
granted an over-allotment option by the Company in the applicable Terms
Agreement and the Underwriters exercise their option to purchase all or any
portion of the Option Underwritten Securities, the representations and
warranties of the Company contained herein and the statements in any
certificates furnished by the Company or any of its Subsidiaries hereunder shall
be true and correct as of each Date of Delivery, and, at the relevant Date of
Delivery, the Underwriters shall have received:
(1) A certificate, dated such Date of Delivery, of the
President or a Vice President of the Company and the chief financial
officer or chief accounting officer of the Company, confirming that the
certificate delivered at the Closing Time pursuant to Section 5(f)
hereof remains true and correct as of such Date of Delivery.
21
(2) The favorable opinions relating to the Option Underwritten
Securities and otherwise to the same effect as the opinions required by
Sections 5(b)-(d) hereof each in form and substance satisfactory to
counsel for the Underwriters, dated such Date of Delivery.
(3) The favorable opinion of Cravath, Swaine & Moore, counsel
for the Underwriters, dated such Date of Delivery, relating to the
Option Underwritten Securities and otherwise to the same effect as the
opinion required by Section 5(e) hereof.
(4) A letter from Arthur Andersen LLP, in form and substance
satisfactory to the Underwriters and dated such Date of Delivery,
substantially in the same form and substance as the letter furnished to
the Underwriters pursuant to Section 5(h) hereof, except that the
"specified date" on the letter furnished pursuant to this paragraph
shall be a date not more than three business days prior to such Date of
Delivery.
(5) Since the time of execution of such Terms Agreement, there
shall not have occurred a downgrading in, or withdrawal of, the rating
assigned to the Underwritten Securities or any of the Company's other
securities by any such rating organization, and no such rating
organization shall have publicly announced that it has under
surveillance or review its rating of the Underwritten Securities or any
of the Company's other securities.
(n) Additional Documents. At Closing Time and at each Date of Delivery,
counsel for the Underwriters shall have been furnished with such documents and
opinions as they may reasonably require for the purpose of enabling them to pass
upon the issuance and sale of the Underwritten 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 Underwritten Securities as herein contemplated shall be satisfactory
in form and substance to the Underwriters and to counsel for the Underwriters.
(o) Termination of Terms Agreement. If any condition specified in this
Section 5 shall not have been fulfilled when and as required to be fulfilled,
the applicable Terms Agreement (or, with respect to the Underwriters' exercise
of any applicable over-allotment option for the purchase of Option Underwritten
Securities on a Date of Delivery after the Closing Time, the obligations of the
Underwriters to purchase the Option Underwritten Securities on such Date of
Delivery) may be terminated by the Underwriters by notice to the Company at any
time at or prior to the 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 1, 6, 7 and 8 shall
survive any such termination and remain in full force and effect.
Section 6. Indemnification.
(a) Indemnification of Underwriters. The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act as follows:
22
(1) 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
430A Information and the Rule 434 Information deemed to be a part
thereof, 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;
(2) 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 any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided
that (subject to Section 6(d) below) any such settlement is effected
with the written consent of the Company; and
(3) 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, 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 any
Underwriter expressly for use in the Registration Statement (or any amendment
thereto), including the Rule 430A Information and the Rule 434 Information
deemed to be a part thereof, if applicable, or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto); and provided, further, that
the Company will not be liable to an Underwriter with respect to any preliminary
prospectus to the extent that the Company shall sustain the burden of proving
that any such loss, liability, claim, damage or expense resulted from the fact
that such Underwriter, in contravention of a requirement of the Underwriting
Agreement or applicable law, sold Securities to a person to whom such
Underwriter failed to send or give, at or prior to the Closing Time, a copy of
the Prospectus, as then amended or supplemented if (i) the Company has
previously furnished copies thereof (sufficiently in advance of the Closing Time
to allow for distribution by the Closing Time) to the Underwriters and the loss,
liability, claim, damage or expense of such Underwriter resulted from an untrue
statement or omission or alleged untrue statement or omission of a material fact
contained in or omitted from the preliminary prospectus which was corrected in
the Prospectus as, if applicable, amended
23
or supplemented prior to the Closing Time and (ii) such failure to give or send
such Prospectus by the Closing Time to the party or parties asserting such loss,
liability, claim, damage or expense would have constituted the sole defense to
the claim asserted by such 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), including the Rule 430A Information and
the Rule 434 Information deemed to be a part thereof, if applicable, 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 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; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. 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
24
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 45 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 30 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 each indemnifying party 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
Underwritten Securities pursuant to the applicable Terms 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 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.
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
Underwritten Securities pursuant to the applicable Terms Agreement shall be
deemed to be in the same respective proportions as the total net proceeds from
the offering of such Underwritten Securities (before deducting expenses)
received by the Company and the total underwriting discount received by the
Underwriters, in each case as set forth on the cover of the Prospectus, or, if
Rule 434 is used, the corresponding location on the Term Sheet bear to the
aggregate initial public offering price of such Underwritten 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 the Underwriters 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 (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to 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
25
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 Underwritten 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 1933 Act) 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 number or aggregate principal amount, as the case may be, of
Initial Underwritten Securities set forth opposite their respective names in the
applicable Terms Agreement, and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Underwriting Agreement or the applicable Terms Agreement or in certificates of
officers of the Company or any of its subsidiaries submitted pursuant hereto or
thereto shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or controlling person, or
by or on behalf of the Company, and shall survive delivery of and payment for
the Underwritten Securities.
SECTION 9. Termination.
(a) Underwriting Agreement. This Underwriting Agreement (excluding the
applicable Terms Agreement) may be terminated for any reason at any time by the
Company or by the Underwriters upon the giving of 30 days' prior written notice
of such termination to the other party hereto.
(b) Terms Agreement. The Underwriters may terminate the applicable
Terms Agreement, by notice to the Company, at any time at or prior to the
Closing Time or any relevant Date of Delivery, if (i) there has been, since the
time of execution of such Terms 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, whether or not arising in the ordinary course of business, or (ii)
there has occurred any material adverse change in the financial markets in the
United States or, if the Underwritten Securities or any
26
related Underlying Securities include Debt Securities denominated or payable in,
or indexed to, one or more foreign or composite currencies, in the international
financial markets, or 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 Underwritten Securities or to enforce
contracts for the sale of the Underwritten Securities, or (iii) trading in any
securities of the Company has been suspended or materially limited by the
Commission or the Nasdaq National Market or if trading generally on the New York
Stock Exchange or the American Stock Exchange or in the Nasdaq National Market
has been suspended or materially limited, or minimum or maximum prices for
trading have been fixed, or maximum ranges for prices have been required, by
either of said exchanges or by such system or by order of the Commission, the
NASD or any other governmental authority, or (iv) a banking moratorium has been
declared by either Federal or New York authorities or, if the Underwritten
Securities or any related Underlying Securities include Debt Securities
denominated or payable in, or indexed to, one or more foreign or composite
currencies, by the relevant authorities in the related foreign country or
countries.
(c) Liabilities. If this Underwriting Agreement or the applicable Terms
Agreement is terminated pursuant to this Section 9, 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 1, 6, 7 and 8 shall survive such
termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more
of the Underwriters shall fail at the Closing Time or the relevant Date of
Delivery, as the case may be, to purchase the Underwritten Securities which it
or they are obligated to purchase under the applicable Terms Agreement (the
"Defaulted Securities"), then the non-defaulting Underwriters shall have the
right, within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, 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
Underwriters shall not have completed such arrangements within such 24-hour
period, then:
(a) if the number or aggregate principal amount, as the case may be, of
Defaulted Securities does not exceed 10% of the number or aggregate principal
amount, as the case may be, of Underwritten Securities to be purchased on such
date pursuant to such Terms Agreement, the non-defaulting Underwriters shall be
obligated, severally and not jointly, to purchase the full amount thereof in the
proportions that their respective underwriting obligations under such Terms
Agreement bear to the underwriting obligations of all non-defaulting
Underwriters, or
(b) if the number or aggregate principal amount, as the case may be, of
Defaulted Securities exceeds 10% of the number or aggregate principal amount, as
the case may be, of Underwritten Securities to be purchased on such date
pursuant to such Terms Agreement, such Terms Agreement (or, with respect to the
Underwriters' exercise of any applicable over-allotment option for the purchase
of Option Underwritten Securities on a Date of Delivery after the Closing Time,
the obligations of the Underwriters to purchase, and the Company to sell, such
27
Option Underwritten Securities on such Date of Delivery) shall terminate without
liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any
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 the applicable Terms 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 Underwritten
Securities, as the case may be, either the Underwriters 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 [ ], attention of [ ]; and notices to the
Company shall be directed to it at Sirius Satellite Radio Inc., 1221 Avenue of
the Americas, 36th Floor, New York, NY 10020, attention of Patrick L. Donnelly.
SECTION 12. Parties. This Underwriting Agreement and the applicable
Terms Agreement shall each inure to the benefit of and be binding upon the
Company and, upon execution of such Terms Agreement, any Underwriters and their
respective successors. Nothing expressed or mentioned in this Underwriting
Agreement or such Terms 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 Underwriting Agreement or such Terms Agreement or any provision
herein or therein contained. This Underwriting Agreement and such Terms
Agreement and all conditions and provisions hereof and thereof are intended to
be for the sole and exclusive benefit of the parties hereto and thereto 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 Underwritten Securities from
any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS UNDERWRITING AGREEMENT AND ANY
APPLICABLE TERMS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK. 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.
28
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this Underwriting Agreement, along with all counterparts, will become a binding
agreement between the Underwriters and the Company in accordance with its terms.
Very truly yours,
SIRIUS SATELLITE RADIO INC.
By:
--------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
[Names of Underwriters]
By: [Managing Underwriter]
By:
-------------------------
Authorized Signatory
29
Exhibit A
SIRIUS SATELLITE RADIO INC.
(a Delaware corporation)
[13]
TERMS AGREEMENT
[ ]
To: Sirius Satellite Radio Inc.
1221 Avenue of the Americas, 36th Fl.
New York, NY 10020
Ladies and Gentlemen:
We understand that Sirius Satellite Radio Inc., a Delaware corporation
(the "Company"), proposes to issue and sell [ shares of its common stock,
par value $.001 per share (the "Common Stock")] [ shares of its preferred
stock, par value $.001 per share (the "Preferred Stock")] [$ aggregate
principal amount of its [senior] [subordinated] debt securities (the "Debt
Securities")] [ warrants (the "Common Stock Warrants") to purchase common
stock, par value $.001 per share] [ warrants (the "Preferred Stock
Warrants") to purchase preferred stock, par value $.001 per share] [
warrants (the "Debt Security Warrants") to purchase $ aggregate principal amount
of [senior] [subordinated] debt securities] ([such securities also being
hereinafter referred to as] the "[Initial] Underwritten Securities"). Subject to
the terms and conditions set forth or incorporated by reference herein, we [the
underwriters named below (the "Underwriters")] offer to purchase [, severally
and not jointly,] the [[number [principal] [amount] of] Underwritten Securities
[opposite their names set forth below] at the purchase price set forth below [,
and a proportionate share of Option Underwritten Securities set forth below, to
the extent any are purchased].
[Number]
[Principal Amount]
Underwriter of [Initial] Underwritten Securities
- --------------------------------------------------------------------------------
Total
---------------
[$]
---------------
---------------
A-1
The Underwritten Securities shall have the following terms:
[Common Stock]
Title:
Number of shares:
Number of Option Underwritten Securities:
Initial public offering price per share: $
Purchase price per share: $
Listing requirements:
Black-out provisions:
Lock-up provisions:
Other terms and conditions:
Closing date and location:
[Preferred Stock]
Title:
Rank:
Ratings:
Number of shares:
Number of Option Underwritten Securities:
Dividend rate (or formula) per share: $
Dividend payment dates:
Stated value: $
Liquidation preference per share: $
Redemption provisions:
Sinking fund requirements:
Conversion provisions:
Listing requirements:
Black-out provisions:
Lock-up provisions:
Initial public offering price per share: $____ plus accumulated dividends, if
any, from ____
Purchase price per share: $____ plus accumulated dividends, if any, from ____
Other terms and conditions:
Closing date and location:
A-2
[Debt Securities]
Title:
Rank:
Ratings:
Aggregate principal amount:
Denominations:
Currency of payment:
Interest rate or formula:
Interest payment dates:
Regular record dates:
Stated maturity date:
Redemption provisions:
Sinking fund requirements:
Conversion provisions:
Listing requirements:
Black-out provisions:
Fixed or Variable Price Offering: [Fixed] [Variable] Price Offering
If Fixed Price Offering, initial public offering price per share: % of the
principal amount, plus accrued interest [amortized original issue discount], if
any, from _______________.
Purchase price per share: ____% of principal amount, plus accrued interest
[amortized original issue discount], if any, from _______________.
Form:
Other terms and conditions:
Closing date and location:
[Common Stock] [Preferred Stock] [Debt Security] Warrants
Title:
Type:
Number:
Warrant Agent:
Issuable jointly with [Common Stock] [Preferred Stock] [Debt Securities]:
[Yes] [No]
Number of [Common Stock] [Preferred Stock][Debt Security] Warrants issued with
each [share of Common Stock] [share of Preferred Stock] [$ __________principal
amount of Debt Securities]:
A-3
Date(s) from which or period(s) during which [Common Stock] [Preferred Stock]
[Debt Security] Warrants are exercisable:
Date(s) on which [Common Stock] [Preferred Stock] [Debt Security] Warrants
expire:
Exercise price (s):
Initial public offering price: $
Purchase price: $
Title of Underlying Securities:
[Number of shares] [Principal amount] purchasable upon exercise of one [Common
Stock] [Preferred Stock] [Debt Security] Warrant:
Terms of Underlying Securities:
Other terms and conditions:
Closing date and location:
All of the provisions contained in the document attached as Annex I
hereto entitled "SIRIUS SATELLITE RADIO INC.-- Common Stock, Warrants to
Purchase Common Stock, Preferred Stock, Warrants to Purchase Preferred Stock,
Debt Securities and Warrants to Purchase Debt Securities--Form of Underwriting
Agreement as of September 23, 1999", are hereby incorporated by reference in
their entirety herein and shall be deemed to be a part of this Terms Agreement
to the same extent as if such provisions had been set forth in full herein.
Terms defined in such document are used herein as therein defined.
Please accept this offer no later than _____ o'clock P.M. (New York
City time) on _______________ by signing a copy of this Terms Agreement in the
space set forth below and returning the signed copy to us.
Very truly yours,
By
--------------------------------------
Authorized Signatory
[Acting on behalf of itself
and the other named Underwriters.]
Accepted:
SIRIUS SATELLITE RADIO INC.
By
---------------------------------------
Name:
Title:
A-4
Exhibit B
FORM OF OPINION OF
PATRICK L. DONNELLY, ESQ.
TO
BE DELIVERED PURSUANT TO
SECTION 5(b)
(1) The District of Columbia, the State of New York and the State of
Michigan [others] are the only jurisdictions in which the Company is required to
be qualified as a foreign corporation to transact business, whether by reason of
the ownership or leasing of property or the conduct of business as of the date
hereof, except where the failure so to qualify or to be in good standing would
not result in a 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").
(2) Satellite CD Radio, Inc. (the "Subsidiary") has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of the State of Delaware, has corporate 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 the District of Columbia and in the State of New
York, which are the only jurisdictions in which the Subsidiary is required to be
qualified, 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; all of the issued and
outstanding capital stock of the Subsidiary has been duly authorized and validly
issued, is fully paid and nonassessable and, to my knowledge, is owned by the
Company free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity other than liens in favor of the Collateral Agent
(as defined in the Amended and Restated Pledge Agreement dated as of May 15,
1999 (the "Pledge Agreement")) pursuant to the Pledge Agreement for its benefit,
the benefit of the trustee of the Company's 15% Senior Secured Discount Notes
due 2007 (the "Discount Notes"), the benefit of the trustee of the Company's
14-1/2% Senior Secured Notes due 2009 (the "Notes") and the ratable benefit of
the holders of Discount Notes and Notes; none of the outstanding shares of
capital stock of the Subsidiary was issued in violation of the preemptive rights
provisions in (a) the Subsidiary's certificate of incorporation or by-laws or
(b) the Delaware General Corporation Law.
[include equivalent opinion for other Subsidiaries, if any]
(3) The execution, delivery and performance of the Company's Amended
and Restated Contract with Space Systems/Loral Inc. (the "Loral Satellite
Contract") by the Company and compliance by the Company with its obligations
under the Loral Satellite Contract do not and will not, whether with or without
the giving of notice or lapse of time or both, conflict with or constitute a
breach of, or default or Repayment Event (as defined in the Underwriting
Agreement) under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or its Subsidiaries
pursuant to, any contract,
B-1
indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any
other agreement or instrument, described in the Prospectus, to which the Company
or 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 its Subsidiaries is
subject (except for such conflicts, breaches or defaults or liens, charges or
encumbrances that would not have a Material Adverse Effect), nor will such
action result in any violation of the provisions of the charter or by-laws of
the Company or its Subsidiaries, or any applicable law, statute, rule,
regulation, judgment, order, writ or decree, known to me, of any government,
government instrumentality or court of the State of Delaware, the State of New
York or the United States, having jurisdiction over the Company or its
Subsidiaries or any of their respective properties, assets or operations.
In addition, although I have not undertaken to investigate or verify
independently, and am not passing upon and do not assume any responsibility for,
the accuracy, completeness or fairness of the contents of the Prospectus, in
connection with the preparation of the Prospectus, I have participated in
conferences with representatives of and counsel to the Underwriters and with
certain officers and employees of, and independent certified public accountants
for, the Company, at which conferences the contents of the Prospectus and
related matters were discussed, and based upon this participation (and relying
as to factual matters to the extent I deemed reasonable on officers and
employees of the Company), advise you that no facts have come to my attention
that would lead me to believe that the Prospectus or any amendment or supplement
thereto (except for financial statements and schedules and other financial data
included or incorporated by reference in or omitted from those documents, as to
which I make no statement), at the time the Prospectus was issued, at the time
any amended or supplemented Prospectus was issued or at the Closing Time (as
defined in the Underwriting Agreement), included or includes an untrue statement
of a material fact or omitted or omits to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
In rendering his opinion, such counsel may rely, as to matters of facts
(but not as to legal conclusions), to the extent he deems proper, on
certificates of public officials. The opinion shall not state that it is to be
governed or qualified by, or that it is otherwise subject to, any treatise,
written policy or other document relating to legal opinions, including, without
limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
The opinion shall contain assumptions, limitations, qualifications and
exceptions normally included by counsel in transactions of this kind.
B-2
Exhibit C
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(c)
(1) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
(2) The Company 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, or as
contemplated under, the Underwriting Agreement and the applicable Terms
Agreement.
(3) The Company is duly qualified as a foreign corporation to transact
business and is in good standing in the District of Columbia, the State of New
York and the State of Michigan [others].
(4) The Underwriting Agreement and the applicable Terms Agreement have
been duly authorized, executed and delivered by the Company.
(5) [Include if the Underwritten Securities being sold pursuant to the
applicable Terms Agreement include Common Stock --] The Underwritten Securities
have been duly authorized by the Company for issuance and sale pursuant to the
Underwriting Agreement and the applicable Terms Agreement. The Underwritten
Securities, when issued and delivered by the Company pursuant to the
Underwriting Agreement and such Terms Agreement against payment of the
consideration therefor specified in such Terms Agreement, will be validly
issued, fully paid and non-assessable and will not be subject to preemptive or
other similar rights of any securityholder of the Company. No holder of the
Underwritten Securities is or will be subject to personal liability by reason of
being such a holder. The form of certificate used to evidence the Underwritten
Securities is in due and proper form and complies with the applicable statutory
requirements, with any applicable requirements of the charter or by-laws of the
Company and with the requirements of the Nasdaq National Market.
(6) [Include if the Underwritten Securities being sold pursuant to the
applicable Terms Agreement include Preferred Stock] The Underwritten Securities
have been duly authorized by the Company for issuance and sale pursuant to the
Underwriting Agreement and the applicable Terms Agreement. The applicable
Preferred Stock, when issued and delivered by the Company pursuant to the
Underwriting Agreement and such Terms Agreement against payment of the
consideration therefor specified in such Terms Agreement, will be validly
issued, fully paid and non-assessable and will not be subject to preemptive or
other similar rights of any securityholder of the Company. No holder of such
Preferred Stock is or will be subject to personal liability by reason of being
such a holder. The form of certificate used to evidence the Preferred Stock is
in due and proper form and complies with the applicable statutory requirements,
with any applicable requirements of the charter or by-laws of the Company and
with the requirements of the Nasdaq National Market.
C-1
(7) [Include if the Underwritten Securities being sold pursuant to the
applicable Terms Agreement include Senior Debt Securities and/or Subordinated
Debt Securities -] The Underwritten Securities have been duly authorized by the
Company for issuance and sale pursuant to the Underwriting Agreement and the
applicable Terms Agreement. The Underwritten Securities, when issued and
authenticated in the manner provided for in the applicable Indenture and
delivered against payment of the consideration therefor specified in such Terms
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 other similar laws affecting the enforcement of creditors' rights
generally or by general equitable principles (regardless of whether enforcement
is considered in a proceeding in equity or at law), and except further as
enforcement thereof may be limited by requirements that a claim with respect to
any Debt Securities payable in a foreign or corporate currency (or a foreign or
composite currency judgment in respect of such claim) be converted into U.S.
dollars at a rate of exchange prevailing on a date determined pursuant to
applicable law or by governmental authority to limit, delay or prohibit the
making of payments outside the United States. The Underwritten Securities are in
the form contemplated by, and each registered holder thereof is entitled to the
benefits of, the applicable Indenture.
(8) [Include if the Underwritten Securities being sold pursuant to the
applicable Terms Agreement include Senior Debt Securities and/or Subordinated
Debt Securities or if Preferred Stock is convertible into Debt Securities --]
The [Each] applicable Indenture has been duly authorized, executed and delivered
by the Company and (assuming due authorization, execution and delivery thereof
by the applicable 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 other similar laws affecting the enforcement of creditors' rights
generally or by general equitable principles (regardless of whether enforcement
is considered in a proceeding in equity or at law).
(9) [Include if the Underwritten Securities being sold pursuant to the
applicable Terms Agreement include Warrants --] The Underwritten Securities have
been duly authorized by the Company for issuance and sale pursuant to the
Underwriting Agreement and the applicable Terms Agreement. The Underwritten
Securities, when issued and authenticated in the manner provided for in the
applicable Warrant Agreement and delivered against payment of the consideration
therefor specified in such Terms Agreement, will constitute valid and binding
obligations of the Company, entitled to the benefits provided by such Warrant
Agreement and enforceable against the Company in accordance with their terms,
except as enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally or by general equitable principles (regardless of
whether enforcement is considered in a proceeding in equity or at law).
(10) [Include if the Underwritten Securities being sold pursuant to the
applicable Terms Agreement include Warrants --] The [Each] applicable Warrant
Agreement has been duly
C-2
authorized, executed and delivered by the Company and (assuming due
authorization, execution and delivery thereof by the applicable Warrant Agent)
constitutes a valid and binding agreement of the Company, enforceable against
the Company in accordance with its terms, except as enforcement thereof may be
limited by bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally or by general
equitable principles (regardless of whether enforcement is considered in a
proceeding in equity or at law).
(11) [Include if the Underlying Securities related to the Underwritten
Securities being sold pursuant to the applicable Terms Agreement include Common
Stock or Preferred Stock] The Underlying Securities have been duly authorized
and reserved for issuance by the Company [upon exercise of the [Common Stock]
[Preferred Stock] Warrants] [upon conversion of the related [Preferred Stock]
[Senior Debt Securities] [Subordinated Debt Securities]]. The Underlying
Securities, when issued upon such [exercise] [conversion], will be validly
issued, fully paid and non-assessable and will not be subject to preemptive or
other similar rights of any securityholder of the Company. No holder of the
Underlying Securities is or will be subject to personal liability by reason of
being such a holder. [Include if the Underlying Securities related to the
Underwritten Securities being sold pursuant to the applicable Terms Agreement
include Senior Debt Securities and/or Subordinated Debt Securities --] The
Underlying Securities have been duly authorized for issuance by the Company
[upon exercise of the Debt Security Warrants] [upon conversion of the related
Preferred Stock]. The Underlying Securities, when issued and authenticated in
the manner provided for in the applicable Indenture and delivered in accordance
with the terms of the [Debt Security Warrants] [related [Preferred Stock]], 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 other similar
laws affecting the enforcement of creditors' rights generally or by general
equitable principles (regardless of whether enforcement is considered in a
proceeding in equity or at law), and except further as enforcement thereof may
be limited by requirements that a claim with respect to any Debt Securities
payable in a foreign or composite currency (or a foreign or composite currency
judgment in respect of such claim) be converted into U.S. dollars at a rate of
exchange prevailing on a date determined pursuant to applicable law or by
governmental authority to limit, delay or prohibit the making of payments
outside the United States.
(12) The Underwritten Securities being sold pursuant to the applicable
Terms Agreement and the [each] applicable [Indenture] [Warrant Agreement]
conform, and any Underlying Securities, when issued and delivered in accordance
with the terms of the related Underwritten Securities, will conform, in all
material respects to the statements relating thereto contained in the Prospectus
and are in substantially the form filed or incorporated by reference, as the
case may be, as an exhibit to the Registration Statement.
(13) The information in the Prospectus under "Description of
Underwritten Securities" and "Description of Underlying Securities", if any, or
any caption purporting to describe any such Securities, "Certain Federal Income
Tax Considerations" and " ", in the Annual Report on Form 10-K under
" " and in the Registration Statement under Item 15, to the
C-3
extent that it constitutes matters of law, summaries of legal matters or the
Company's charter, bylaws or legal proceedings, or legal conclusions, has been
reviewed by us and is correct in all material respects.
(14) To the best of our knowledge, neither the Company nor any of its
subsidiaries is in violation of its charter or by-laws and no default by the
Company or any of its subsidiaries exists in the due performance or observance
of any material obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other agreement or
instrument that is described or referred to in the Registration Statement or the
Prospectus or filed or incorporated by reference as an exhibit to the
Registration Statement.
(15) The execution, delivery and performance of the Underwriting
Agreement, the applicable Terms Agreement and the [each] applicable [Indenture]
[Warrant Agreement] and any other agreement or instrument listed on Schedule A
hereto and the consummation of the transactions contemplated in the Underwriting
Agreement and such Terms Agreement and in the Registration Statement and the
Prospectus (including the issuance and sale of the Underwritten Securities and
the use of the proceeds from the sale of the Underwritten Securities as
described under the caption "Use of Proceeds" and the issuance of any Underlying
Securities) and compliance by the Company with its obligations thereunder 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
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any assets, properties or operations of the Company or any of
its subsidiaries pursuant to, any contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease or any other agreement or instrument,
known to us, 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 assets, properties
or operations of the Company or any of its subsidiaries is subject, nor will
such action result in any violation of the provisions of the charter or by-laws
of the Company or any of its subsidiaries or any applicable law, statute, rule,
regulation, judgment, order, writ or decree, known to us, of any government,
government instrumentality or court, domestic or foreign, having jurisdiction
over the Company or any of its subsidiaries or any of their assets, properties
or operations.
(16) To the best of our knowledge, there is not pending or threatened
any action, suit, proceeding, inquiry or investigation to which the Company or
any of its subsidiaries is a party or to which the assets, properties or
operations of the Company or any of its subsidiaries is subject, before or by
any court or governmental agency or body, domestic or foreign, which might
reasonably be expected to result in a 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") or which might reasonably be expected to materially and adversely
affect the assets, properties or operations thereof or the consummation of the
transactions contemplated under the Underwriting Agreement, the applicable Terms
Agreement or the (any] applicable [Indenture] [Warrant Agreement] or the
performance by the Company of its obligations thereunder.
C-4
(17) All descriptions in the Prospectus of contracts and other
documents to which the Company or its subsidiaries are a party are accurate in
all material respects. To the best of our knowledge, there are no franchises,
contracts, indentures, mortgages, loan agreements, notes, leases or other
instruments required to be described or referred to in the Prospectus or to be
filed as exhibits to the Registration Statement other than those described or
referred to therein or filed or incorporated by reference as exhibits thereto,
and the descriptions thereof or references thereto are correct in all material
respects.
(18) To the best of our knowledge, there are no statutes or regulations
that are required to be described in the Prospectus that are not described as
required.
(19) The Registration Statement (including any Rule 462(b) Registration
Statement) has been declared effective under the 1933 Act. Any required filing
of the Prospectus pursuant to Rule 424(b) has been made in the manner and within
the time period required by Rule 424(b). To the best of our knowledge, no stop
order suspending the effectiveness of the Registration Statement (or such Rule
462(b) Registration Statement) has been issued under the 1933 Act and no
proceedings for that purpose have been initiated or are pending or threatened by
the Commission.
(20) The Registration Statement (including any Rule 462(b) Registration
Statement) and the Prospectus, excluding the documents incorporated by reference
therein, and each amendment or supplement to the Registration Statement
(including any Rule 462(b) Registration Statement) and Prospectus, excluding the
documents incorporated by reference therein, as of their respective effective or
issue dates (other than the financial statements and supporting schedules
included therein or omitted therefrom and each Trustee's Statement of
Eligibility on Form T-1 (the "Form T-1s"), as to which we express no opinion),
complied as to form in all material respects with the requirements of the 1933
Act and the 1933 Act Regulations.
(21) The documents incorporated by reference in the Prospectus (other
than the financial statements and supporting schedules therein or omitted
therefrom, as to which we express no opinion), when they became effective or
were filed with the Commission, as the case may be, complied as to form in all
material respects with the requirements of the 1933 Act or the 1934 Act, as
applicable, and the rules and regulations of the Commission thereunder.
(22) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign, is necessary or required for the due
authorization, execution or delivery by the Company of the Underwriting
Agreement or the applicable Terms Agreement or for the performance by the
Company of the transactions contemplated under the Prospectus, the Underwriting
Agreement, such Terms Agreement or the [any] applicable [Indenture] [Warrant
Agreement], other than (x) under the 1933 Act, the 1933 Act Regulations, the
1939 Act and the 1939 Act Regulations, which have already been made, obtained or
rendered, as applicable and (y) as required by any state securities or Blue Sky
laws of the various states, as to which state laws we express no opinion. For
the purposes of this opinion, the term "governmental authority" means the
government of, or any executive, legislative, judicial, administrative or
regulatory body of, the State of Delaware, the State of New York or the United
States of America [others, as applicable]
C-5
(23) [Include if the Underwritten Securities being sold pursuant to the
applicable Terms Agreement include Debt Securities or if any related Underlying
Securities include Debt Securities --] The [Each] applicable Indenture has been
duly qualified under the 1939 Act.
(24) [Include if the Underwritten Securities being sold pursuant to the
applicable Terms Agreement include Debt Securities or if any related Underlying
Securities include Debt Securities --] The [Underwritten] [Underlying]
Securities, upon issuance, will be excluded or exempted under, or beyond the
purview of, the Commodity Exchange Act, as amended (the "Commodity Exchange
Act"), and the rules and regulations of the Commodity Futures Trading Commission
under the Commodity Exchange Act (the "Commodity Exchange Act Regulations").
(25) The Company is not, and upon the issuance and sale of the
Underwritten Securities as herein contemplated and the application of the net
proceeds therefrom as described in the Prospectus will not be required to
register as an "investment company" within the meaning of the Investment Company
Act of 1940, as amended (the "1940 Act") and the rules and regulations of the
Commission under the statute.
Nothing has come to our attention that would lead us to believe that
the Registration Statement (including any Rule 462(b) Registration Statement) or
any post-effective amendment thereto (except for financial statements and
supporting schedules and other financial data included therein or omitted
therefrom and for the Form T-1s, as to which we make no statement), at the time
the Registration Statement (including any Rule 462(b) Registration Statement) or
any post-effective amendment thereto (including the filing of the Company's
Annual Report on Form 10-K with the Commission) became effective or at the date
of the applicable Terms Agreement, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that the Prospectus
or any amendment or supplement thereto (except for financial statements and
supporting schedules and other financial data included therein or omitted
therefrom, as to which we make no statement), at the time the Prospectus was
issued, at the time any such amended or supplemented prospectus was issued or at
the Closing Time, included or includes an untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
In rendering such opinion, such counsel may rely as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public officials. Such
opinion shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating to
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991). The opinion shall contain assumptions,
limitations, qualifications and exceptions normally included by counsel in
transactions of this kind.
C-6
Exhibit D
FORM OF OPINION OF WILEY, REIN & FIELDING,
REGULATORY COUNSEL TO THE COMPANY,
TO BE DELIVERED PURSUANT TO
SECTION 5(d)
(1) (a) The execution, delivery and performance of the Underwriting
Agreement, the consummation of the transactions contemplated therein and in the
Prospectus and compliance by the Company with its obligations thereunder do not
violate (i) the Federal Communications Act of 1934, as amended (the
"Communications Act"), (ii) any rules or regulations of the Federal
Communications Commission ("FCC") applicable to the Company or its Subsidiary,
(iii) to the best of such counsel's knowledge, any decree from any court, and
(b) no consent, approval, authorization or order of or filing with the FCC, is
necessary for the execution, delivery and performance of the Underwriting
Agreement except for consents, approvals, authorizations or orders of or
qualifications as have already been obtained and except to the extent that the
failure to obtain such consents, approvals, authorizations or orders or to
qualify with the FCC would not, individually or in the aggregate, have a
material adverse effect on the prospects, condition (financial or otherwise) or
in the earnings, business or operations of the Company and its subsidiaries,
taken as a whole.
(2) Except as described in the Prospectus, (a) each of the Company and
its Subsidiary has made all reports and filings, and paid all fees, required by
the FCC and the State Authorities, and have all certificates, orders, permits,
licenses, authorizations, consents and approvals of and from, and have made all
filings and registrations, with the FCC and the State Authorities necessary to
own, lease, license and use its properties and assets and to conduct the
business now operated by them or intended to be operated by them in the manner
described in the Prospectus; and (b) to the best of such counsel's knowledge,
neither the Company nor any of its subsidiaries has received any notice of
proceedings relating to the violation, revocation or modification of any such
certificates, orders, permits, licenses, authorizations, consents or approvals,
or the qualification or rejection of any such filing or registration, the effect
of which, singly or in the aggregate, would have a material adverse effect on
the prospects, condition, financial or otherwise, earnings, operations or
business of the Company and its subsidiaries now operated by them or intended to
be operated by them in the manner described in the Prospectus taken as a whole.
(3) To the best of such counsel's knowledge after due inquiry (A) no
adverse judgment, decree or order of the FCC or of any State Authority has been
issued against the Company or its subsidiary and (B) no litigation, proceeding,
inquiry or investigation has been commenced or threatened against the Company or
its subsidiary before or by the FCC or any State Authority which, if decided
adversely to the Company's interest, would have a material adverse effect on the
Company and its subsidiary, taken as a whole.
(4) The statements in the Prospectus under the captions [ ], insofar as
such statements constitute a summary of the legal matters, documents or
proceedings referred to therein, fairly summarize the matters referred to
therein.
D-1
In rendering their opinion, counsel may rely, as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public officials. The
opinion shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating to
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991). The opinion shall contain assumptions,
limitations, qualifications and exceptions normally included by counsel in
transactions of this kind.
D-2