<PAGE>
As filed with the Securities and Exchange Commission on May 18, 2000
Registration No. 333-33964
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Post-Effective Amendment
No. 1
to
FORM S-1
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
US Unwired Inc.
(Exact Name of Corporation as Specified in Its Charter)
Louisiana 4812 72-1457316
(State or other (Primary Standard Industrial (I.R.S. Employer
jurisdiction of Classification Code Number) Identification No.)
incorporation or
organization)
One Lakeshore Drive, Suite 1900
Lake Charles, Louisiana 70629
(800) 673-2200
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
Thomas G. Henning
General Counsel and Secretary
US Unwired Inc.
One Lakeshore Drive, Suite 1900
Lake Charles, Louisiana 70629
(337) 436-9000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
----------------
Copies to:
Anthony J. Correro, III Bryant B. Edwards
Louis Y. Fishman Latham & Watkins
Correro Fishman Haygood Phelps 633 West Fifth Street, Suite 4000
Walmsley & Casteix, L.L.P. Los Angeles, California 90071-2007
201 St. Charles Avenue, 46th Floor Telephone: (213) 485-1234
New Orleans, Louisiana 70170-4600 Facsimile: (213) 891-8763
Telephone: (504) 586-5252
Facsimile: (504) 586-5250
Approximate date of commencement of proposed sale to the public: As soon as
practicable following the effectiveness of this Registration Statement.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [_]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act of 1933, please check the
following box and list the Securities Act registration number of the earlier
effective registration statement for the same offering: [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act of 1933, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering: [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act of 1933, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [X] Registration No. 333-33964
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box: [_]
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<PAGE>
Introductory Note
This Post-Effective Amendment No. 1 to Form S-1 is filed pursuant to Rule
462(d) of the Securities Act of 1933, as amended, solely for the purpose of
adding exhibits to the Registration Statement on Form S-1, Registration No.
333-33964, which was declared effective by the Securities and Exchange
Commission on May 17, 2000.
<PAGE>
PART II
Item 16. Exhibits and Financial Statement Schedules.
(a)Exhibits
<TABLE>
<CAPTION>
Sequentially
Exhibit Numbered
Number Description of Exhibit Pages
------- ---------------------- ------------
<C> <S> <C>
1.1+ Underwriting Agreement dated May 17, 2000 among US
Unwired Inc., Donaldson, Lufkin & Jenrette Securities
Corporation, Credit Suisse First Boston, First Union
Securities, Inc., DLJdirect Inc. and the Selling
Stockholders named in Schedule II thereto, acting
severally.
10.29 Second Amendment to Shareholders Agreement dated as of
May 16, 2000 among US Unwired Inc., The 1818 Fund III,
L.P., TCW Leveraged Income Trust, L.P., TCW Leveraged
Income Trust II, L.P., TCW Shared Opportunity Fund II,
L.P., TCW Shared Opportunity Fund IIB, LLC, TCW Shared
Opportunity Fund III, L.P., TCW/Crescent Mezzanine
Trust II, TCW/Crescent Mezzanine Partners II, L.P. and
Brown University Third Century Fund, and the
shareholders of US Unwired Inc. named therein
(supercedes Exhibit 10.29 to Amendment No. 2 to Form
S-1, Registration No. 333-33964, filed on May 11,
2000).
10.30 Mandatory conversion letter dated May 16, 2000 to US
Unwired Inc. from The 1818 Fund III, L.P.
10.31 Mandatory conversion letter dated May 16, 2000 to US
Unwired Inc. from TCW Leveraged Income Trust, L.P., TCW
Leveraged Income Trust II, L.P., TCW Shared Opportunity
Fund II, L.P., TCW Shared Opportunity Fund IIB, LLC,
TCW Shared Opportunity Fund III, L.P., TCW/Crescent
Mezzanine Trust II, TCW/Crescent Mezzanine Partners II,
L.P. and Brown University Third Century Fund.
</TABLE>
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+ Amended exhibit filed herewith.
II-1
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
undersigned registrant duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the city of Lake
Charles, State of Louisiana, on May 18, 2000.
US UNWIRED INC.
/s/ Robert W. Piper
By:
----------------------------------
Robert W. Piper
President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated on May 18, 2000.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ Robert W. Piper President, Chief Executive Officer and
______________________________________ Director (Principal Executive Officer)
Robert W. Piper
/s/ Jerry E. Vaughn Chief Financial Officer (Principal
______________________________________ Financial Officer)
Jerry E. Vaughn
/s/ Don Loverich Controller (Principal Accounting
______________________________________ Officer)
Don Loverich
/s/ William L. Henning, Jr. Chairman of the Board of Directors
______________________________________
William L. Henning, Jr.
/s/ William L. Henning, Sr. Director
______________________________________
William L. Henning, Sr.
/s/ Thomas G. Henning Director
______________________________________
Thomas G. Henning
/s/ John A. Henning Director
______________________________________
John A. Henning
Director
______________________________________
Lawrence C. Tucker
Director
______________________________________
Andrew C. Cowen
</TABLE>
II-2
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Sequentially
Exhibit Numbered
Number Description of Exhibit Pages
------- ---------------------- ------------
<C> <S> <C>
1.1+ Underwriting Agreement dated May 17, 2000 among US
Unwired Inc., Donaldson, Lufkin & Jenrette Securities
Corporation, Credit Suisse First Boston, First Union
Securities, Inc., DLJdirect Inc. and the Selling
Stockholders named in Schedule II thereto, acting
severally.
10.29 Second Amendment to Shareholders Agreement dated as of
May 16, 2000 among US Unwired Inc., The 1818 Fund III,
L.P., TCW Leveraged Income Trust, L.P., TCW Leveraged
Income Trust II, L.P., TCW Shared Opportunity Fund II,
L.P., TCW Shared Opportunity Fund IIB, LLC, TCW Shared
Opportunity Fund III, L.P., TCW/Crescent Mezzanine
Trust II, TCW/Crescent Mezzanine Partners II, L.P. and
Brown University Third Century Fund, and the
shareholders of US Unwired Inc. named therein
(supercedes Exhibit 10.29 to Amendment No. 2 to Form
S-1, Registration No. 333-33964, filed on May 11,
2000).
10.30 Mandatory conversion letter dated May 16, 2000 to US
Unwired Inc. from The 1818 Fund III, L.P.
10.31 Mandatory conversion letter dated May 16, 2000 to US
Unwired Inc. from TCW Leveraged Income Trust, L.P., TCW
Leveraged Income Trust II, L.P., TCW Shared Opportunity
Fund II, L.P., TCW Shared Opportunity Fund IIB, LLC,
TCW Shared Opportunity Fund III, L.P., TCW/Crescent
Mezzanine Trust II, TCW/Crescent Mezzanine Partners II,
L.P. and Brown University Third Century Fund.
</TABLE>
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+ Amended exhibit filed herewith.
<PAGE>
EXHIBIT 1.1
8,000,000 Shares
US UNWIRED INC.
Class A Common Stock
UNDERWRITING AGREEMENT
----------------------
May 17, 2000
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
CREDIT SUISSE FIRST BOSTON
FIRST UNION SECURITIES, INC.
DLJdirect Inc.
As representatives of the
several Underwriters
named in Schedule I hereto
c/o Donaldson, Lufkin & Jenrette
Securities Corporation
277 Park Avenue
New York, New York 10172
Dear Sirs:
US Unwired Inc., a Louisiana corporation (the "COMPANY"), proposes to issue
and sell 8,000,000 shares of its Class A Common Stock, $.01 par value (the "FIRM
SHARES") to the several underwriters named in Schedule I hereto (the
"UNDERWRITERS"). Those stockholders of the Company named in Schedule II hereto
(the "SELLING STOCKHOLDERS") severally propose to sell to the several
Underwriters an aggregate of not more than 1,200,000 shares of their Class A
Common Stock, $.01 par value (the "ADDITIONAL SHARES"), each Selling Stockholder
selling up to the amount set forth opposite such Selling Stockholder's name in
Schedule II hereto and in proportion to the respective amounts set forth in
Schedule II, if requested by the Underwriters as provided in Section 2 hereof.
The Firm Shares and the Additional Shares are hereinafter referred to
collectively as the "SHARES". The shares of common stock of the Company to be
outstanding after giving effect to the sales contemplated hereby are hereinafter
referred to as the "COMMON STOCK". The Company and the Selling Stockholders are
hereinafter sometimes referred to collectively as the "SELLERS".
1
<PAGE>
Section 1. Registration Statement and Prospectus. The Company has prepared
and filed with the Securities and Exchange Commission (the "COMMISSION") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively, the
"ACT"), a registration statement on Form S-1, including a prospectus, relating
to the Shares. The registration statement, as amended at the time it became
effective, including the information (if any) deemed to be part of the
registration statement at the time of effectiveness pursuant to Rule 430A under
the Act, is hereinafter referred to as the "REGISTRATION STATEMENT"; and the
prospectus in the form first used to confirm sales of Shares is hereinafter
referred to as the "PROSPECTUS". If the Company has filed or is required
pursuant to the terms hereof to file a registration statement pursuant to Rule
462(b) under the Act registering additional shares of Common Stock (a "RULE
462(b) REGISTRATION STATEMENT"), then, unless otherwise specified, any reference
herein to the term "Registration Statement" shall be deemed to include such Rule
462(b) Registration Statement.
Section 2. Agreements to Sell and Purchase and Lock-Up Agreements . On
the basis of the representations and warranties contained in this Agreement, and
subject to its terms and conditions, the Company agrees to issue and sell, and
each Underwriter agrees, severally and not jointly, to purchase from the Company
at a price per Share of $11.00 (the "PURCHASE PRICE") the number of Firm Shares
set forth opposite the name of such Underwriter in Schedule I hereto.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, each Selling Stockholder
agrees, severally and not jointly, to sell the number of Additional Shares set
forth opposite such Selling Stockholder's name in Schedule II hereto and the
Underwriters shall have the right to purchase, severally and not jointly, such
Additional Shares at the Purchase Price. Additional Shares may be purchased
solely for the purpose of covering over-allotments made in connection with the
offering of the Firm Shares. The Underwriters may exercise their right to
purchase Additional Shares in whole or in part from time to time by giving
written notice thereof to the Company within 30 days after the date of this
Agreement. You shall give any such notice on behalf of the Underwriters and
such notice shall specify the aggregate number of Additional Shares to be
purchased pursuant to such exercise and the date for payment and delivery
thereof, which date shall be a business day (i) no earlier than two business
days after such notice has been given (and, in any event, no earlier than the
Closing Date (as hereinafter defined)) and (ii) no later than ten business days
after such notice has been given. If any Additional Shares are to be
purchased, (A) each Underwriter, severally and not jointly, agrees to purchase
from the Selling Stockholders the number of Additional Shares (subject to such
adjustments to eliminate fractional shares as you may determine) which bears the
same proportion to the total number of Additional Shares to be purchased from
the Selling Stockholders as the number of Firm Shares set forth opposite the
name of such Underwriter in Schedule I bears to the total number of Firm Shares;
and (B) each Selling Stockholder, severally and not jointly, agrees to sell to
the Underwriters the number of Additional Shares (subject to such adjustments to
eliminate fractional shares as you may determine) which bears the same
proportion to the total number of Additional Shares to be sold to the
Underwriters as the number of Additional Shares set forth opposite the name of
such Selling Stockholder in Schedule II bears to the total number of Additional
Shares set forth in Schedule II.
2
<PAGE>
Each Seller hereby agrees not to (i) offer, pledge, sell, contract to sell,
sell any option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant to purchase, or otherwise transfer or
dispose of, directly or indirectly, any shares of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock or (ii) enter
into any swap or other arrangement that transfers all or a portion of the
economic consequences associated with the ownership of any Common Stock
(regardless of whether any of the transactions described in clause (i) or (ii)
is to be settled by the delivery of Common Stock, or such other securities, in
cash or otherwise), except to the Underwriters pursuant to this Agreement, for a
period of 180 days after the date of the Prospectus without the prior written
consent of Donaldson, Lufkin & Jenrette Securities Corporation. Notwithstanding
the foregoing, during such period (i) the Company may grant stock options
pursuant to the Company's existing stock option plan, (ii) the Company may issue
shares of Common Stock upon the exercise of an option or warrant or the
conversion of a security outstanding on the date hereof, including (without
limitation) the conversion of the Series A and Series B Preferred Stock of the
Company and (iii) the Company may issue shares of Common Stock in connection
with an acquisition. The Company agrees that, with respect to any shares of
Common Stock issued in connection with an acquisition pursuant to clause (iii),
it shall, concurrently with such issuance, deliver an agreement executed by the
holder or holders of such newly issued shares to the effect that such person or
persons will not, during the period commencing on the date such person acquired
the shares and ending 180 days after the date of the Prospectus, without the
prior written consent of Donaldson, Lufkin & Jenrette Securities Corporation,
(A) engage in any of the transactions described in the first sentence of this
paragraph or (B) make any demand for, or exercise any right with respect to, the
registration of any shares of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock. The Company also agrees not to
file any registration statement with respect to any shares of Common Stock or
any securities convertible into or exercisable or exchangeable for Common Stock
for a period of 180 days after the date of the Prospectus without the prior
written consent of Donaldson, Lufkin & Jenrette Securities Corporation, except
for any registration statement that is filed under Section 12(b) or 12(g) of the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), or on Form S-8
or pursuant to the demand of any stockholder entitled to make such a demand, or
in connection with an acquisition. In addition, each Selling Stockholder agrees
that, for a period of 180 days after the date of the Prospectus without the
prior written consent of Donaldson, Lufkin & Jenrette Securities Corporation, it
will not make any demand for, or exercise any right with respect to, the
registration of any shares of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock. The Company shall, prior to or
concurrently with the execution of this Agreement, use its best efforts to
obtain and deliver an agreement executed by (i) each Selling Stockholder, (ii)
each of the directors and officers of the Company who is not a Selling
Stockholder and (iii) each stockholder listed on Annex I hereto to the effect
that such person will not, during the period commencing on the date such person
signs such agreement and ending 180 days after the date of the Prospectus,
without the prior written consent of Donaldson, Lufkin & Jenrette Corporation,
(A) engage in any of the transactions described in the first sentence of this
paragraph or (B) make any demand for, or exercise any right with respect to, the
registration of any shares of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock.
3
<PAGE>
The Company and the Underwriters agree that up to 5.0% of the Firm Shares
to be purchased by the Underwriters (the "RESERVED SHARES") shall be reserved
for sale by the Underwriters to certain eligible directors, officers, employees,
customers, subscribers and persons having business relationships with the
Company, as part of the distribution of the Shares by the Underwriters, subject
to the terms of this Agreement, the applicable rules, regulations and
interpretations of the National Association of Securities Dealers, Inc. and all
other applicable laws, rules and regulations. To the extent that such Reserved
Shares are not orally confirmed for purchase by such eligible employees and
persons having business relationships with the Company by the end of the first
business day after the date of this Agreement, such Reserved Shares may be
offered to the public as part of the public offering contemplated hereby.
Section 3. Terms of Public Offering. The Sellers are advised by you that
the Underwriters propose (i) to make a public offering of their respective
portions of the Shares as soon after the execution and delivery of this
Agreement as in your judgment is advisable and (ii) initially to offer the
Shares upon the terms set forth in the Prospectus.
Section 4. Delivery and Payment. The Shares shall be represented by
definitive certificates and shall be issued in such authorized denominations and
registered in such names as Donaldson, Lufkin & Jenrette Securities Corporation
shall request no later than two business days prior to the Closing Date or the
applicable Option Closing Date (as defined below), as the case may be. The
Shares shall be delivered by or on behalf of the Sellers, with any transfer
taxes thereon duly paid by the respective Sellers, to Donaldson, Lufkin &
Jenrette Securities Corporation through the facilities of The Depository Trust
Company ("DTC"), for the respective accounts of the several Underwriters,
against payment to the Sellers of the Purchase Price therefor by wire transfer
of Federal or other funds immediately available in New York City. The
certificates representing the Shares shall be made available for inspection not
later than 9:30 A.M., New York City time, on the business day prior to the
Closing Date or the applicable Option Closing Date (as defined below), as the
case may be, at the office of DTC or its designated custodian (the "DESIGNATED
OFFICE"). The time and date of delivery and payment for the Firm Shares shall
be 9:00 A.M., New York City time, on May 23, 2000 or such other time on the same
or such other date as Donaldson, Lufkin & Jenrette Securities Corporation and
the Company shall agree in writing. The time and date of delivery and payment
for the Firm Shares are hereinafter referred to as the "CLOSING DATE". The
time and date of delivery and payment for any Additional Shares to be purchased
by the Underwriters shall be 9:00 A.M., New York City time, on the date
specified in the applicable exercise notice given by you pursuant to Section 2
or such other time on the same or such other date as Donaldson, Lufkin &
Jenrette Securities Corporation and the Company shall agree in writing. The
time and date of delivery and payment for any Additional Shares are hereinafter
referred to as the "OPTION CLOSING DATE".
The documents to be delivered on the Closing Date or any Option Closing
Date on behalf of the parties hereto pursuant to Section 9 of this Agreement
shall be delivered at the offices of Latham & Watkins, 885 Third Avenue, Suite
1000, New York, New York 10022 and the Shares shall be delivered at the
Designated Office, all on the Closing Date or such Option Closing Date, as the
case may be.
4
<PAGE>
Section 5. Agreements of the Company. The Company agrees with you:
(a) To advise you promptly and, if requested by you, to confirm such advice
in writing, (i) of any request by the Commission for amendments to the
Registration Statement or amendments or supplements to the Prospectus or for
additional information, (ii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of the suspension
of qualification of the Shares for offering or sale in any jurisdiction, or the
initiation of any proceeding for such purposes, (iii) when any amendment to the
Registration Statement becomes effective, (iv) if the Company is required to
file a Rule 462(b) Registration Statement after the effectiveness of this
Agreement, when the Rule 462(b) Registration Statement has become effective and
(v) of the happening of any event during the period referred to in Section 5(d)
below which makes any statement of a material fact made in the Registration
Statement or the Prospectus untrue or which requires any additions to or changes
in the Registration Statement or the Prospectus in order to make the statements
therein not misleading. If at any time the Commission shall issue any stop order
suspending the effectiveness of the Registration Statement, the Company will use
its best efforts to obtain the withdrawal or lifting of such order at the
earliest possible time.
(b) To furnish to you four signed copies of the Registration Statement as
first filed with the Commission and of each amendment to it, including all
exhibits, and to furnish to you and each Underwriter designated by you such
number of conformed copies of the Registration Statement as so filed and of each
amendment to it, without exhibits, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be
satisfactory to you, and to file the Prospectus in such form with the Commission
within the applicable period specified in Rule 424(b) under the Act; during the
period specified in Section 5(d) below, not to file any further amendment to the
Registration Statement and not to make any amendment or supplement to the
Prospectus of which you shall not previously have been advised or to which you
shall reasonably object after being so advised provided that such objections and
the rationale therefor shall have been delivered to the Company in writing and
counsel for the Company shall not have notified it in writing that such
amendment or supplement is nevertheless required by law despite such objections;
and, during such period, to prepare and file with the Commission, promptly upon
your reasonable request, any amendment to the Registration Statement or
amendment or supplement to the Prospectus which may be necessary or advisable in
connection with the distribution of the Shares by you, and to use its best
efforts to cause any such amendment to the Registration Statement to become
promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day
after the date of this Agreement and from time to time thereafter for such
period as in the opinion of counsel for the Underwriters a prospectus is
required by law to be delivered in connection with sales by an Underwriter or a
dealer, to furnish in New York City to each Underwriter and any dealer as many
copies of the Prospectus (and of any amendment or supplement to the Prospectus)
as such Underwriter or dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event shall occur
or condition shall exist as a result of which, in the opinion of counsel for the
Underwriters, it becomes necessary
5
<PAGE>
to amend or supplement the Prospectus in order to make the statements therein,
in the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if, in the opinion of counsel for the
Underwriters, it is necessary to amend or supplement the Prospectus to comply
with applicable law, forthwith to prepare and file with the Commission an
appropriate amendment or supplement to the Prospectus so that the statements in
the Prospectus, as so amended or supplemented, will not in the light of the
circumstances when it is so delivered, be misleading, or so that the Prospectus
will comply with applicable law, and to furnish to each Underwriter and to any
dealer as many copies thereof as such Underwriter or dealer may reasonably
request.
(f) Prior to any public offering of the Shares, to cooperate with you and
counsel for the Underwriters in connection with the registration or
qualification of the Shares for offer and sale by the several Underwriters and
by dealers under the state securities or Blue Sky laws of such jurisdictions as
you may reasonably request, to continue such registration or qualification in
effect so long as required for distribution of the Shares and to file such
consents to service of process or other documents as may be necessary in order
to effect such registration or qualification; provided, however, that the
Company shall not be required in connection therewith to qualify as a foreign
corporation in any jurisdiction in which it is not now so qualified or to take
any action that would subject it to general consent to service of process or
taxation other than as to matters and transactions relating to the Prospectus,
the Registration Statement, any preliminary prospectus or the offering or sale
of the Shares, in any jurisdiction in which it is not now so subject.
(g) To mail and make generally available to its stockholders as soon as
practicable an earnings statement covering the twelve-month period ending June
30, 2001 that shall satisfy the provisions of Section 11(a) of the Act and Rule
158 of the Commission thereunder, and to advise you in writing when such
statement has been so made available.
(h) During the period of three years after the date of this Agreement, to
furnish to you as soon as available copies of all reports or other
communications furnished to the record holders of Common Stock or furnished to
or filed with the Commission or any national securities exchange on which any
class of securities of the Company is listed and such other publicly available
information concerning the Company and its subsidiaries as you may reasonably
request.
(i) Whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, to pay or cause to be paid all
expenses incident to the performance of the Sellers' obligations under this
Agreement, including: (i) the fees, disbursements and expenses of the Company's
counsel, the Company's accountants and any Selling Stockholder's counsel (in
addition to the Company's counsel) in connection with the registration and
delivery of the Shares under the Act and all other fees and expenses in
connection with the preparation, printing, filing and distribution of the
Registration Statement (including financial statements and exhibits), any
preliminary prospectus, the Prospectus and all amendments and supplements to any
of the foregoing, including the mailing and delivering of copies thereof to the
Underwriters and dealers in the quantities specified herein, (ii) all costs and
expenses related to the transfer and delivery of the Shares to the Underwriters,
including any transfer or other taxes payable thereon, (iii) all costs of
printing or producing this Agreement and any other agreements or documents in
connection with the offering, purchase, sale or delivery of the Shares, (iv) all
expenses in
6
<PAGE>
connection with the registration or qualification of the Shares for offer and
sale under the securities or Blue Sky laws of the several states and all costs
of printing or producing any Preliminary and Supplemental Blue Sky Memoranda in
connection therewith (including the filing fees and fees and disbursements of
counsel for the Underwriters in connection with such registration or
qualification and customary memoranda relating thereto), (v) the filing fees and
disbursements of counsel for the Underwriters in connection with the review and
clearance of the offering of the Shares by the National Association of
Securities Dealers, Inc., (vi) all fees and expenses in connection with the
preparation and filing of the registration statement on Form 8-A relating to the
Common Stock and all costs and expenses incident to the listing of the Shares on
the Nasdaq National Market, (vii) the cost of printing certificates representing
the Shares, (viii) the costs and charges of any transfer agent, registrar and/or
depositary, and (ix) all other costs and expenses incident to the performance of
the obligations of the Company and the Selling Stockholders hereunder for which
provision is not otherwise made in this Section. The Selling Stockholders shall
pay (or, if the Company pays, shall promptly reimburse it for) the fees,
disbursements and expenses of any Selling Stockholder's counsel; any incremental
additional expenses incurred in connection with the registration or
qualification of the Additional Shares for offer and sale under the securities
or Blue Sky laws of the several states; the registration fee paid to the
Commission with respect to the Additional Shares; and the underwriting discounts
and commissions applicable to the Additional Shares. Except for the provisions
of the immediately preceding sentence, the provisions of this Section shall not
supersede or otherwise affect any agreement that the Company and the Selling
Stockholders may otherwise have for allocation of such expenses among
themselves.
(j) To use its best efforts to list for quotation the Shares on the Nasdaq
National Market and to maintain the listing of the Shares on the Nasdaq National
Market for a period of three years after the date of this Agreement.
(k) To use its best efforts to do and perform all things required or
necessary to be done and performed under this Agreement by the Company prior to
the Closing Date or any Option Closing Date, as the case may be, and to satisfy
all conditions precedent to the delivery of the Shares.
(l) If the Registration Statement at the time of the effectiveness of this
Agreement does not cover all of the Shares, to file a Rule 462(b) Registration
Statement with the Commission registering the Shares not so covered in
compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of
this Agreement and to pay to the Commission the filing fee for such Rule 462(b)
Registration Statement at the time of the filing thereof or to give irrevocable
instructions for the payment of such fee pursuant to Rule 111(b) under the Act.
Section 6. Representations and Warranties of the Company. The Company
represents and warrants to each Underwriter that:
(a) The Registration Statement has become effective (other than any Rule
462(b) Registration Statement to be filed by the Company after the effectiveness
of this Agreement); any Rule 462(b) Registration Statement filed after the
effectiveness of this Agreement will become effective no later than 10:00 P.M.,
New York City time, on the date of this Agreement; and no stop
7
<PAGE>
order suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or to the knowledge of
the Company threatened by the Commission.
(b) (i) The Registration Statement (other than any Rule 462(b)
Registration Statement to be filed by the Company after the effectiveness of
this Agreement), when it became effective, did not contain and, as amended, if
applicable, will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, (ii) the Registration Statement (other than
any Rule 462(b) Registration Statement to be filed by the Company after the
effectiveness of this Agreement) and the Prospectus comply and, as amended or
supplemented, if applicable, will comply in all material respects with the Act,
(iii) if the Company is required to file a Rule 462(b) Registration Statement
after the effectiveness of this Agreement, such Rule 462(b) Registration
Statement and any amendments thereto, when they become effective (A) will not
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading and (B) will comply in all material respects with the Act and (iv)
the Prospectus does not contain and, as amended or supplemented, if applicable,
will not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that the
representations and warranties set forth in this paragraph do not apply to
statements or omissions in the Registration Statement or the Prospectus based
upon information relating to any Underwriter furnished to the Company in writing
by such Underwriter through you expressly for use therein.
(c) Each preliminary prospectus filed as part of the registration statement
as originally filed or as part of any amendment thereto, or filed pursuant to
Rule 424 under the Act, complied when so filed in all material respects with
Section 10(a) of the Act, and did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, except that the representations and warranties
set forth in this paragraph do not apply to statements or omissions in any
preliminary prospectus based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter through you expressly
for use therein.
(d) Each of the Company and its subsidiaries has been duly incorporated or
formed, as the case may be, is validly existing as a corporation, limited
liability company or partnership, as the case may be, in good standing under the
laws of its jurisdiction of incorporation or formation, as the case may be, and
has the corporate or other power and authority to carry on its business as
described in the Prospectus and to own, lease and operate its properties, and
each is duly qualified and is in good standing as a foreign corporation, limited
liability company or partnership, as the case may be, authorized to do business
in each jurisdiction in which the nature of its business or its ownership or
leasing of property requires such qualification, except where the failure to be
so qualified would not have a material adverse effect on the business,
prospects, financial condition or results of operations of the Company and its
subsidiaries, taken as a whole (a "Material Adverse Effect").
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(e) There are no outstanding subscriptions, rights, warrants, options,
calls, convertible securities, commitments of sale or liens granted or issued by
the Company or any of its subsidiaries relating to or entitling any person to
purchase or otherwise to acquire any shares of the capital stock of the Company
or any of its subsidiaries, except as otherwise disclosed in the Registration
Statement.
(f) All the outstanding shares of capital stock of the Company (including
the Additional Shares to be sold by the Selling Stockholders) have been duly
authorized and validly issued and are fully paid, non-assessable and not subject
to any preemptive or similar rights; and the Shares to be issued and sold by the
Company have been duly authorized and, when issued and delivered to the
Underwriters against payment therefor as provided by this Agreement, will be
validly issued, fully paid and non-assessable, and the issuance of such Shares
will not be subject to any preemptive or similar rights.
(g) The entities listed on Schedule III hereto are the only subsidiaries,
direct or indirect, of the Company. For purposes of this Agreement, a
subsidiary of the Company means any corporation, association or other business
entity of which the Company owns or controls, directly or indirectly, more than
50% of the voting power with respect to the election of directors, managers or
trustees thereof, and any partnership of which the Company or a subsidiary of
the Company is the sole general partner or the managing general partner or of
which the only general partners are the Company and one or more of its
subsidiaries. All of the outstanding shares of capital stock of, or other
ownership interests in each of the Company's subsidiaries have been duly
authorized and validly issued and are fully paid and non-assessable, and except
as set forth in the Prospectus, are owned by the Company, directly or indirectly
through one or more subsidiaries, free and clear of any security interest,
claim, lien, encumbrance or adverse interest of any nature.
(h) The authorized capital stock of the Company conforms as to legal
matters to the description thereof contained in the Prospectus.
(i) Neither the Company nor any of its subsidiaries is in violation of its
respective charter, by-laws, operating agreement or partnership agreement or in
default in the performance of any obligation, agreement, covenant or condition
contained in any indenture, loan agreement, mortgage, lease or other agreement
or instrument that is material to the Company and its subsidiaries, taken as a
whole, to which the Company or any of its subsidiaries is a party or by which
the Company or any of its subsidiaries or their respective property is bound.
(j) The execution, delivery and performance of this Agreement by the
Company, the compliance by the Company with all the provisions hereof and the
consummation of the transactions contemplated hereby will not (i) require any
consent, approval, authorization or other order of, or qualification with, any
court or governmental body or agency (except such under the Act as have already
been obtained and such as may be required under the securities or Blue Sky laws
of the various states), (ii) conflict with or constitute a breach of any of the
terms or provisions of, or a default under, the charter, by-laws, operating
agreement or partnership agreement of the Company or any of its subsidiaries or
any indenture, loan agreement, mortgage, lease or other agreement or instrument
that is material to the Company and its subsidiaries, taken as a whole, to
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which the Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries or their respective property is bound, (iii) violate
or conflict with any applicable law or any rule, regulation, judgment, order or
decree of any court or any governmental body or agency having jurisdiction over
the Company, any of its subsidiaries or their respective property or (iv) result
in the suspension, termination or revocation of any Authorization (as defined
below) of the Company or any of its subsidiaries or any other impairment of the
rights of the holder of any such Authorization.
(k) There are no legal or governmental proceedings pending or to the
knowledge of the Company threatened to which the Company or any of its
subsidiaries is or is to the knowledge of the Company threatened to be a party
or to which any of their respective property is or could be subject that are
required to be described in the Registration Statement or the Prospectus and are
not so described; nor are there any statutes, regulations, contracts or other
documents that are required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement that are not
so described or filed as required.
(l) Neither the Company nor any of its subsidiaries has violated any
foreign, federal, state or local law or regulation relating to the protection of
human health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("Environmental Laws"), any provisions of the
Employee Retirement Income Security Act of 1974, as amended, or any provisions
of the Foreign Corrupt Practices Act, or the rules and regulations promulgated
thereunder, except for such violations which, singly or in the aggregate, would
not have a Material Adverse Effect.
(m) Each of the Company and its subsidiaries has such permits, licenses,
consents, exemptions, franchises, authorizations and other approvals (each,
subject to the exception set forth in this sentence, an "Authorization") of, and
has made all filings with and notices to, all governmental or regulatory
authorities and self-regulatory organizations and all courts and other
tribunals, including, without limitation, under any applicable Environmental
Laws, as are necessary to own, lease, license and operate its respective
properties and to conduct its business, except where the failure to have any
such Authorization or to make any such filing or notice would not, singly or in
the aggregate, have a Material Adverse Effect. Each such Authorization is valid
and in full force and effect and each of the Company and its subsidiaries is in
compliance with all the terms and conditions thereof and with the rules and
regulations of the authorities and governing bodies having jurisdiction with
respect thereto; and no event has occurred (including, without limitation, the
receipt of any notice from any authority or governing body) which allows or,
after notice or lapse of time or both, would allow, revocation, suspension or
termination of any such Authorization or results or, after notice or lapse of
time or both, would result in any other impairment of the rights of the holder
of any such Authorization; and such Authorizations contain no restrictions that
are burdensome to the Company or any of its subsidiaries; except where such
failure to be valid and in full force and effect or to be in compliance, the
occurrence of any such event or the presence of any such restriction would not,
singly or in the aggregate, have a Material Adverse Effect.
(n) There are no costs or liabilities associated with Environmental Laws
(including, without limitation, any capital or operating expenditures required
for clean-up, closure of properties
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or compliance with Environmental Laws or any Authorization, any related
constraints on operating activities and any potential liabilities to third
parties) which would, singly or in the aggregate, have a Material Adverse
Effect.
(o) This Agreement has been duly authorized, executed and delivered by the
Company.
(p) Ernst & Young LLP are independent public accountants with respect to
the Company and its subsidiaries as required by the Act.
(q) The consolidated financial statements included in the Registration
Statement and the Prospectus (and any amendment or supplement thereto), together
with related schedules and notes, present fairly the consolidated financial
position, results of operations and changes in financial position of the Company
and its subsidiaries on the basis stated therein at the respective dates or for
the respective periods to which they apply; such statements and related
schedules and notes have been prepared in accordance with generally accepted
accounting principles consistently applied throughout the periods involved,
except as disclosed therein; the supporting schedules, if any, included in the
Registration Statement present fairly in accordance with generally accepted
accounting principles the information required to be stated therein; and the
other financial and, as applicable, statistical information and data set forth
in the Registration Statement and the Prospectus (and any amendment or
supplement thereto) are, in all material respects, accurately presented and
prepared on a basis consistent with such financial statements and the books and
records of the Company.
(r) The Company is not and, after giving effect to the offering and sale of
the Shares and the application of the proceeds thereof as described in the
Prospectus, will not be, an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended.
(s) Except for (i) registration rights granted in favor of certain holders
of Class B common stock of the Company pursuant to the shareholder agreement
dated September 24, 1999 (the "Shareholder Agreement") and (ii) registration
rights granted in favor of The 1818 Fund III, L.P. and its affiliates in
connection with the issuance of 500,000 shares of the Company's Series A Senior
Redeemable Preferred Stock to The 1818 Fund III, L.P. on October 29, 1999 for
$50 million and in favor of Trust Company of the West and its affiliates in
connection with the issuance of 50,000 shares of the Company's Series B Senior
Redeemable Preferred Stock to Trust Company of the West or its affiliates on
February 15, 2000 for $5 million (the "Preferred Stock Offerings"), there are no
contracts, agreements or understandings between the Company and any person
granting such person the right to require the Company to file a registration
statement under the Act with respect to any securities of the Company or to
require the Company to include such securities with the Shares registered
pursuant to the Registration Statement.
(t) Since the respective dates as of which information is given in the
Prospectus other than as set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this Agreement), (i)
there has not occurred any material adverse change or any development involving
a prospective material adverse change in the condition, financial or otherwise,
or the earnings, business, management or operations of the Company and its
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subsidiaries, taken as a whole, (ii) there has not been any material adverse
change or any development involving a prospective material adverse change in the
capital stock or in the long-term debt of the Company or any of its subsidiaries
and (iii) neither the Company nor any of its subsidiaries has incurred any
material liability or obligation, direct or contingent, not in the ordinary
course of business.
(u) Each certificate signed by any officer of the Company in connection
with the transactions contemplated by this Agreement and delivered to the
Underwriters or counsel for the Underwriters shall be deemed to be a
representation and warranty by the Company to the Underwriters as to the matters
covered thereby.
(v) The Company and its subsidiaries have good and marketable title to all
real property and good and marketable title to all personal property owned by
them which is material to the business of the Company and its subsidiaries, in
each case free and clear of all liens and defects, except such as are described
in the Prospectus or such as do not materially affect the value of such property
and do not interfere with the use made and proposed to be made of such property
by the Company and its subsidiaries; and any real property and buildings held
under lease by the Company and its subsidiaries are held by them under valid,
subsisting and enforceable leases with such exceptions as are not material and
do not interfere with the use made and proposed to be made of such property and
buildings by the Company and its subsidiaries, in each case except as described
in the Prospectus.
(w) The Company and its subsidiaries own or possess, or can acquire on
reasonable terms, all patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other proprietary or confidential
information, systems or procedures), trademarks, service marks and trade names
("intellectual property") currently employed by them in connection with the
business now operated by them except where the failure to own or possess or
otherwise be able to acquire such intellectual property would not, singly or in
the aggregate, have a Material Adverse Effect; and neither the Company nor any
of its subsidiaries has received any notice of infringement of or conflict with
asserted rights of others with respect to any of such intellectual property
which, singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would have a Material Adverse Effect.
(x) The Company and each of its subsidiaries are insured by insurers of
recognized financial responsibility against such losses and risks and in such
amounts as are prudent and customary in the businesses in which they are
engaged; and neither the Company nor any of its subsidiaries (i) has received
notice from any insurer or agent of such insurer that substantial capital
improvements or other material expenditures will have to be made in order to
continue such insurance or (ii) has any reason to believe that it will not be
able to renew its existing insurance coverage as and when such coverage expires
or to obtain similar coverage from similar insurers at a cost that would not
have a Material Adverse Effect.
(y) Except as disclosed in the Prospectus, no relationship, direct or
indirect, exists between or among the Company or any of its subsidiaries on the
one hand, and the directors, officers, stockholders, other affiliates, customers
or suppliers of the Company or any of its
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<PAGE>
subsidiaries on the other hand, which would be required by the Act to be
described in the Prospectus.
(z) There is no (i) significant unfair labor practice complaint, grievance
or arbitration proceeding pending or, to the best knowledge of the Company,
threatened against the Company or any of its subsidiaries before the National
Labor Relations Board or any state or local labor relations board, (ii) strike,
labor dispute, slowdown or stoppage pending or, to the best knowledge of the
Company, threatened against the Company or any of its subsidiaries or (iii)
union representation question existing with respect to the employees of the
Company or any of its subsidiaries, except in the case of clauses (i), (ii) and
(iii) for such actions which, singly or in the aggregate, would not have a
Material Adverse Effect. To the best knowledge of the Company, no collective
bargaining organizing activities are taking place with respect to the Company or
any of its subsidiaries.
(aa) The Company and each of its subsidiaries maintains a system of
internal accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(bb) All material tax returns required to be filed by the Company and each
of its subsidiaries in any jurisdiction have been filed, other than those
filings being contested in good faith, and all material taxes, including
withholding taxes, penalties and interest, assessments, fees and other charges
due pursuant to such returns or pursuant to any assessment received by the
Company or any of its subsidiaries have been paid, other than those being
contested in good faith and for which adequate reserves have been provided.
(cc) The Company and each of its subsidiaries validly holds the Federal
Communication Commission ("FCC") licenses set forth opposite each entity's name
on Schedule 6(cc) attached hereto (the "PCS Licenses"). The PCS Licenses are in
full force and effect and are not subject to any conditions other than those
conditions listed thereon and those conditions generally applicable to entities
holding similar licenses issued by the FCC. The PCS Licenses constitute all of
the licenses, permits, consents or authorizations required by the FCC to permit
operation of a PCS system in each of the markets indicated opposite each license
on Schedule 6(cc). The PCS Licenses expire on April 28, 2007. The five-year
buildout periods for the PCS Licenses expire on April 28, 2002 and the ten-year
buildout periods expire on April 28, 2007. All applicable administrative and
judicial appeal, review and reconsideration periods of the orders granting the
PCS Licenses have expired, without the timely filing of any such appeal or
request for review or reconsideration and without the FCC having instituted
review of the grant of the PCS Licenses on its own motion.
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(dd) The Company validly holds the FCC licenses listed on Schedule 6(dd)
attached hereto (the "Cellular Licenses"). The Cellular Licenses are in full
force and effect and are not subject to any conditions other than those
conditions listed thereon and those conditions generally applicable to entities
holding similar licenses issued by the FCC. The Cellular Licenses constitute
all of the licenses, permits, consents or authorizations required by the FCC to
permit operation of the Company's cellular telephone system, as identified in
the Prospectus. The Cellular Licenses expire on the dates set forth opposite
each license listed on Schedule 6(dd). All applicable administrative and
judicial appeal, review and reconsideration periods of the orders granting the
Cellular Licenses have expired, without the timely filing of any such appeal or
request for review or reconsideration and without the FCC having instituted
review of the grant of the Cellular Licenses on its own motion.
(ee) There are no judgments, decrees or orders issued by the FCC that could
result in suspension, revocation, material impairment, termination prior to its
expiration date, non-renewal or adverse modification of the PCS Licenses or the
Cellular Licenses, or that could have a Material Adverse Effect upon, or cause
material disruption to, the PCS operations pursuant to the PCS Licenses or the
cellular operations pursuant to the Cellular Licenses. To the best of the
Company's knowledge, there is no complaint, investigation, action or proceeding
pending or threatened relative to the PCS Licenses relating to the PCS
operations or the Cellular Licenses relating to the cellular operations,
including, without limitation, any Notice of Violation, Notice of Apparent
Liability or Order to Show Cause, other than proceedings that affect the PCS or
the cellular telephone industry generally, that could result in a suspension,
revocation, material impairment, termination prior to its expiration date, non-
renewal or adverse modification of the PCS Licenses or the Cellular Licenses or
which could have a Material Adverse Effect upon, or cause material disruption
to, the Company's PCS or cellular operations.
(ff) The Company and each of its subsidiaries has, or has timely filed
applications for, all permits, licenses, franchises and other authorizations
("permits") of governmental or regulatory authorities (including, as
appropriate, the state public utilities commissions of Alabama, Arkansas,
Florida, Louisiana, Mississippi and Texas) necessary to engage in the wireless
and competitive local exchange businesses currently conducted by the Company,
except where the failure to hold such permits would not have a Material Adverse
Effect; and there is no reason to believe that any governmental body or agency
is considering limiting, suspending or revoking any such permit, except where
the limitation, suspension or revocation of such permits would not have a
Material Adverse Effect. All such permits are valid and in full force and
effect, except where the limitation, suspension or revocation of such permits
would not have a Material Adverse Effect.
(gg) All fees required by the FCC in connection with the PCS Licenses,
including any and all down payments or installment payments required by FCC
rules to be paid as of the date hereof have been timely and fully paid.
(hh) The Company and each of its subsidiaries validly holds all FCC
licenses necessary for the operation of its paging system, as described in the
Prospectus (the "Paging Licenses"). The Paging Licenses are in full force and
effect and are not subject to any conditions other than those conditions listed
thereon and those conditions generally applicable to entities holding similar
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licenses issued by the FCC. The Paging Licenses constitute all of the licenses,
permits, consents or authorizations required by the FCC to permit operation of
the paging system, as described in the Prospectus.
(ii) There does not exist any FCC complaint, investigation, action or
proceeding pending or threatened relative to the Paging Licenses, including,
without limitation, any Notice of Violation, Notice of Apparent Liability or
Order to Show Cause, other than proceedings that affect the paging industry
generally, that could result in a denial of any of the Paging Licenses, or
suspension, revocation, material impairment, termination prior to its expiration
date, non-renewal or adverse modification of any of the Paging Licenses or which
could have a Material Adverse Effect upon, or cause material disruption to, the
Company's paging operations.
(jj) LA Unwired was qualified to participate in the FCC's PCS license
auctions as a "Small Business," as defined by FCC Rules, and is qualified to
hold the licenses for LA Unwired's PCS operations according to the rules of the
FCC. The Company's investment in LA Unwired does not violate the rules of the
FCC.
(kk) To the Company's best knowledge, Sprint Spectrum L.P. and SprintCom,
Inc. validly hold the FCC licenses set forth on Schedule 6(kk) (the "Sprint PCS
Licenses"). To the Company's best knowledge, the Sprint PCS Licenses are in
full force and effect and are not subject to any conditions other than those
conditions listed thereon and those conditions generally applicable to entities
holding similar licenses issued by the FCC. The Sprint PCS Licenses, together
with the PCS Licenses, constitute all of the licenses, permits, consents or
authorizations required by the FCC to permit operation of the PCS operations of
the Company and its subsidiaries, including the Company's planned PCS network
buildout, as described in the Prospectus. To the Company's best knowledge, all
applicable administrative and judicial appeal, review and reconsideration
periods of the orders granting the Sprint PCS Licenses have expired, without the
timely filing of any such appeal or request for review or reconsideration and
without the FCC having instituted review of the grant of the Sprint PCS Licenses
on its own motion.
(ll) Since the date of the Prospectus, there have been no material changes
to the Company's PCS network buildout plan, as described in the Prospectus. The
proceeds from the sale of the Firm Shares, together with the other existing
financing sources described in the Prospectus, are sufficient to fund the entire
PCS network buildout plan as set forth in the Prospectus.
Section 7. Representations and Warranties of the Selling Stockholders.
Each Selling Stockholder represents and warrants to each Underwriter that:
(a) Such Selling Stockholder is the lawful owner of the Additional Shares
to be sold by such Selling Stockholder pursuant to this Agreement and has, and
on the Option Closing Date will have, good and clear title to such Additional
Shares, free of all restrictions on transfer, liens, encumbrances, security
interests, equities and claims whatsoever.
(b) The Additional Shares to be sold by such Selling Stockholder have been
duly authorized and are validly issued, fully paid and non-assessable.
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(c) Such Selling Stockholder has, and on the Option Closing Date will have,
full legal right, power and authority, and all authorization and approval
required by law, to enter into this Agreement, the Custody Agreement signed by
such Selling Stockholder and Thomas G. Henning, as Custodian, relating to the
deposit of the Additional Shares to be sold by such Selling Stockholder (the
"Custody Agreement") and the Power Of Attorney of such Selling Stockholder
appointing certain individuals as such Selling Stockholder's attorneys-in-fact
(the "Attorneys") to the extent set forth therein, relating to the transactions
contemplated hereby and by the registration statement and the Custody Agreement
(the "Power Of Attorney") and to sell, assign, transfer and deliver the
Additional Shares to be sold by such Selling Stockholder in the manner provided
herein and therein.
(d) This Agreement has been duly authorized, executed and delivered by or
on behalf of such Selling Stockholder.
(e) The Custody Agreement of such Selling Stockholder has been duly
authorized, executed and delivered by such Selling Stockholder.
(f) The Power Of Attorney of such Selling Stockholder has been duly
authorized, executed and delivered by such Selling Stockholder, and, pursuant to
such Power Of Attorney, such Selling Stockholder has, among other things,
authorized the Attorneys, or any one of them, to execute and deliver on such
Selling Stockholder's behalf this Agreement and any other document that they, or
any one of them, may deem necessary or desirable in connection with the
transactions contemplated hereby and thereby and to deliver the Shares to be
sold by such Selling Stockholder pursuant to this Agreement.
(g) Upon delivery of and payment for the Additional Shares to be sold by
such Selling Stockholder pursuant to this Agreement, good and clear title to
such Additional Shares will pass to the Underwriters, free of all restrictions
on transfer, liens, encumbrances, security interests, equities and claims
whatsoever, except those, if any, attributable to acts of the Underwriters.
(h) The execution, delivery and performance of this Agreement and the
Custody Agreement and Power Of Attorney of such Selling Stockholder by or on
behalf of such Selling Stockholder, the compliance by such Selling Stockholder
with all the provisions hereof and thereof and the consummation of the
transactions contemplated hereby and thereby will not (i) require any consent,
approval, authorization or other order of, or qualification with, any court or
governmental body or agency (except such as may be required under the securities
or Blue Sky laws of the various states), (ii) conflict with or constitute a
breach of any of the terms or provisions of, or a default under, the
organizational documents of such Selling Stockholder, if such Selling
Stockholder is not an individual, or any indenture, loan agreement, mortgage,
lease or other agreement or instrument to which such Selling Stockholder is a
party or by which such Selling Stockholder or any property of such Selling
Stockholder is bound or (iii) violate or conflict with any applicable law or any
rule, regulation, judgment, order or decree of any court or any governmental
body or agency having jurisdiction over such Selling Stockholder or any property
of such Selling Stockholder.
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(i) The information in the Registration Statement under the caption
"Principal And Selling Stockholders" which specifically relates to such Selling
Stockholder does not, and will not on the Option Closing Date, contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
(j) At any time during the period described in Section 5(d), if there is
any change in the information referred to in Section 7(i), such Selling
Stockholder will immediately notify you of such change.
(k) Each certificate signed by or on behalf of such Selling Stockholder and
delivered in connection with the transactions contemplated by this Agreement to
the Underwriters or counsel for the underwriters shall be deemed to be a
representation and warranty by such Selling Stockholder to the Underwriters as
to the matters covered thereby.
Section 8. Indemnification.
(a)
(i) The Company agrees to indemnify and hold harmless each
Underwriter, its directors, its officers and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, from and against any and all losses,
claims, damages, liabilities and judgments (including, without limitation,
any legal or other expenses incurred in connection with investigating or
defending any matter, including any action, that could give rise to any
such losses, claims, damages, liabilities or judgments) caused by any
untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement (or any amendment thereto), the Prospectus
(or any amendment or supplement thereto) or any preliminary prospectus, or
caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein
not misleading, except insofar as such losses, claims, damages, liabilities
or judgments are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information relating to (i) any
Underwriter furnished in writing to the Company by such Underwriter through
you expressly for use therein or (ii) any Selling Stockholder furnished in
writing to the Company by such Selling Stockholder for use therein;
provided, however, that the foregoing indemnity agreement with respect to
any preliminary prospectus shall not inure to the benefit of any
Underwriter who failed to deliver a Prospectus (as then amended or
supplemented, provided by the Company to the several Underwriters in the
requested quantity and on a timely basis to permit proper delivery on or
prior to the Closing Date) to the person asserting any losses, claims,
damages and liabilities and judgments caused by any untrue statement or
alleged untrue statement of a material fact contained in any preliminary
prospectus, or caused by any omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, if such material misstatement or
omission or alleged material misstatement or omission was cured in such
Prospectus as so amended or supplemented and such Prospectus
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was required by law to be delivered at or prior to the written confirmation
of sale to such person. In addition to the foregoing, in connection with
the offer and sale of the Reserved Shares, the Company agrees, promptly
upon a request in writing, to indemnify and hold harmless the Underwriters
from and against any and all losses, liabilities, claims, damages and
expenses incurred by them as a result of (A) the failure of purchasers of
the Reserved Shares (including eligible directors, officers, employees,
customers, subscribers and persons having business relationships with the
Company) to pay for and accept delivery of the Reserved Shares which, by
the end of the first business day following the date of this Agreement,
were subject to a properly confirmed application to purchase or (B) any
violation or alleged violation of the Act or any other federal or state law
or any liability based on common law, in each case, arising out of or
pertaining to any actions or inactions by the Company (or by the Company
jointly with any other person) relating to the manner in which the Reserved
Shares are sold, including without limitation any e-mails or other
communications by the Company (or by the Company jointly with any other
person) with customers or subscribers of the Company relating to the
Reserved Shares or possible opportunities to purchase Reserved Shares.
(ii) Each Selling Stockholder, severally and not jointly, agrees to
indemnify and hold harmless each Underwriter, its directors, its officers
and each person, if any, who controls any Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act to the same extent
as the foregoing indemnity from the Company to each Underwriter, but only
with respect to information relating to such Selling Stockholder furnished
in writing by or on behalf of such Selling Stockholder expressly for use in
the Registration Statement, the Prospectus or any preliminary prospectus;
provided, however, that the foregoing indemnity agreement with respect to
any preliminary prospectus shall not inure to the benefit of any
Underwriter who failed to deliver a Prospectus (as then amended or
supplemented, provided by the Company to the several Underwriters in the
requisite quantity and on a timely basis to permit proper delivery on or
prior to the Closing Date) to the person asserting any losses, claims,
damages and liabilities and judgments caused by any untrue statement or
alleged untrue statement of a material fact contained in any preliminary
prospectus, or caused by any omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, if such material misstatement or
omission or alleged material misstatement or omission was cured in such
Prospectus as so amended or supplemented and such Prospectus was required
by law to be delivered at or prior to the written confirmation of sale to
such person. Notwithstanding the foregoing, the aggregate liability of any
Selling Stockholder pursuant to this Section 8(a)(ii) shall be limited to
an amount equal to the total proceeds (before deducting underwriting
discounts and commissions and expenses) received by such Selling
Stockholder from the Underwriters for the sale of the Additional Shares
sold by such Selling Stockholder hereunder.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement and each person, if any, who controls the Company within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act, and each Selling
Stockholder and each person, if any, who controls such Selling
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Stockholder within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act to the same extent as the foregoing indemnity from the Sellers to
such Underwriter but only with reference to information relating to such
Underwriter furnished in writing to the Company by such Underwriter through you
expressly for use in the Registration Statement (or any amendment thereto), the
Prospectus (or any amendment or supplement thereto) or any preliminary
prospectus.
(c) In case any action shall be commenced involving any person in respect
of which indemnity may be sought pursuant to Section 8(a) or 8(b) (the
"indemnified party"), the indemnified party shall promptly notify the person
against whom such indemnity may be sought (the "indemnifying party") in writing
and the indemnifying party shall assume the defense of such action, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all fees and expenses of such counsel, as incurred (except that
in the case of any action in respect of which indemnity may be sought pursuant
to both Sections 8(a) and 8(b), the Underwriters shall not be required to assume
the defense of such action pursuant to this Section 8(c), but may employ
separate counsel and participate in the defense thereof, but the fees and
expenses of such counsel, except as provided below, shall be at the expense of
such Underwriters). Any indemnified party shall have the right to employ
separate counsel in any such action and participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of the indemnified
party unless (i) the employment of such counsel shall have been specifically
authorized in writing by the indemnifying party, (ii) the indemnifying party
shall have failed to assume the defense of such action or to employ counsel
reasonably satisfactory to the indemnified party or (iii) the named parties to
any such action (including any impleaded parties) include both the indemnified
party and the indemnifying party, and the indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party (in which case the indemnifying party shall not have the
right to assume the defense of such action on behalf of the indemnified party).
In any such case, the indemnifying party shall not, in connection with any one
action or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for (i) the fees and expenses of more than one separate firm of attorneys
(in addition to any local counsel) for all Underwriters, their officers and
directors and all persons, if any, who control any Underwriter within the
meaning of either Section 15 of the Act or Section 20 of the Exchange Act, (ii)
the fees and expenses of more than one separate firm of attorneys (in addition
to any local counsel) for the Company, its directors, its officers who sign the
Registration Statement and all persons, if any, who control the Company within
the meaning of either such Section and (iii) the fees and expenses of more than
one separate firm of attorneys (in addition to any local counsel) for all
Selling Stockholders and all persons, if any, who control any Selling
Stockholder within the meaning of either such Section, and all such fees and
expenses shall be reimbursed as they are incurred. In the case of any such
separate firm for the Underwriters, their officers and directors and such
control persons of any Underwriters, such firm shall be designated in writing by
Donaldson, Lufkin & Jenrette Securities Corporation. In the case of any such
separate firm for the Company and such directors, officers and control persons
of the Company, such firm shall be designated in writing by the Company. In
the case of any such separate firm for the Selling Stockholders and such
control persons of any Selling Stockholders, such firm shall be designated in
writing by the Selling Stockholders or, if they fail to do so, by the Attorneys.
The indemnifying party shall indemnify and hold harmless the indemnified party
from
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and against any and all losses, claims, damages, liabilities and judgments
by reason of any settlement of any action (i) effected with the written consent
of the indemnifying party or (ii) effected without its written consent if the
settlement is entered into more than twenty business days after the indemnifying
party shall have received a request from the indemnified party for reimbursement
for the fees and expenses of counsel (in any case where such fees and expenses
are at the expense of the indemnifying party) and, prior to the date of such
settlement, the indemnifying party shall have failed to comply with such
reimbursement request and shall not be contesting its reimbursement obligation
in good faith. No indemnifying party shall, without the prior written consent
of the indemnified party, effect any settlement or compromise of, or consent to
the entry of judgment with respect to, any pending or threatened action in
respect of which the indemnified party is or could have been a party and
indemnity or contribution may be or could have been sought hereunder by the
indemnified party, unless such settlement, compromise or judgment (i) includes
an unconditional release of the indemnified party from all liability on claims
that are or could have been the subject matter of such action and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of the indemnified party.
(d) To the extent the indemnification provided for in this Section 8 is
unavailable to an indemnified party or insufficient in respect of any losses,
claims, damages, liabilities or judgments referred to therein, and such
unavailability or insufficiency is otherwise than in accordance with the express
terms of Section 8(a) or 8(b), then each indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages,
liabilities and judgments (i) as between the Sellers, on the one hand and the
Underwriters on the other hand, in such proportion as is appropriate to reflect
the relative benefits received by the Sellers on the one hand and the
Underwriters on the other hand from the offering of the Shares or (ii) as
between the Company, on the one hand, and the Selling Stockholders, on the other
hand, or if the allocation provided by clause 8(d)(i) above is not permitted by
applicable law as between the Sellers, on the one hand, and the Underwriters, on
the other hand, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause 8(d)(i) above but also the relative
fault of the respective Sellers on the one hand and the Underwriters on the
other hand in connection with the statements or omissions which resulted in such
losses, claims, damages, liabilities or judgments, as well as any other relevant
equitable considerations. The relative benefits received by the respective
Sellers on the one hand and the Underwriters on the other hand shall be deemed
to be in the same proportion as the total net proceeds from the offering (after
deducting underwriting discounts and commissions, but before deducting expenses)
received by the respective Sellers, and the total underwriting discounts and
commissions received by the Underwriters, bear to the total price to the public
of the Shares, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault of the respective Sellers on the one hand and
the Underwriters on the other hand shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company or the Selling Stockholders or the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Sellers and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 8(d) were determined by pro
rata allocation (even if the Underwriters were
20
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treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by an indemnified
party as a result of the losses, claims, damages, liabilities or judgments
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses incurred
by such indemnified party in connection with investigating or defending any
matter, including any action, that could have given rise to such losses, claims,
damages, liabilities or judgments. Notwithstanding the provisions of this
Section 8, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Shares underwritten by it
and distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Section 8(d) are several in proportion to the
respective number of Shares purchased by each of the Underwriters hereunder and
not joint. The Selling Stockholders' obligations to contribute pursuant to this
Section 8(d) are several in proportion to the respective number of Additional
Shares sold by them and not joint.
(e) The remedies provided for in this Section 8 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
(f) Each Selling Stockholder hereby designates US Unwired, One Lakeshore
Drive, Suite 1900, Lake Charles, Louisiana 70629, as its authorized agent, upon
which process may be served in any action which may be instituted in any state
or federal court in the State of New York by any Underwriter, any director or
officer of any Underwriter or any person controlling any Underwriter asserting a
claim for indemnification or contribution under or pursuant to this Section 8,
and each Selling Stockholder will accept the jurisdiction of such court in such
action, and waives, to the fullest extent permitted by applicable law, any
defense based upon lack of personal jurisdiction or venue. A copy of any such
process shall be sent or given to such Selling Stockholder, at the address for
notices specified in Section 12 hereof.
Section 9. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase the Firm Shares under this Agreement
are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company contained in this
Agreement shall be true and correct on the Closing Date with the same force and
effect as if made on and as of the Closing Date.
(b) If the Company is required to file a Rule 462(b) Registration Statement
after the effectiveness of this Agreement, such Rule 462(b) Registration
Statement shall have become effective by 10:00 P.M., New York City time, on the
date of this Agreement; and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been commenced or shall be pending before or contemplated by
the Commission.
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(c) You shall have received on the Closing Date a certificate dated the
Closing Date, signed by Robert W. Piper and Jerry E. Vaughn, in their capacities
as the President and Chief Finance Officer of the Company, respectively,
confirming the matters set forth in Sections 6(t), 9(a) and 9(b) and that the
Company has complied with all of the agreements and satisfied all of the
conditions herein contained and required to be complied with or satisfied by the
Company on or prior to the Closing Date.
(d) Since the respective dates as of which information is given in the
Prospectus other than as set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this Agreement), (i)
there shall not have occurred any change or any development involving a
prospective change in the condition, financial or otherwise, or the earnings,
business, management or operations of the Company and its subsidiaries, taken as
a whole, (ii) there shall not have been any change or any development involving
a prospective change in the capital stock or in the long-term debt of the
Company or any of its subsidiaries and (iii) neither the Company nor any of its
subsidiaries shall have incurred any liability or obligation, direct or
contingent, the effect of which, in any such case described in clause 9(d)(i),
9(d)(ii) or 9(d)(iii), in your judgment, is material and adverse and, in your
judgment, makes it impracticable to market the Shares on the terms and in the
manner contemplated in the Prospectus.
(e) All the representations and warranties of each Selling Stockholder
contained in this Agreement shall be true and correct on the Closing Date with
the same force and effect as if made on and as of the Closing Date and you shall
have received on the Closing Date a certificate dated the Closing Date from each
Selling Stockholder to such effect and to the effect that such Selling
Stockholder has complied with all of the agreements and satisfied all of the
conditions herein contained and required to be complied with or satisfied by
such Selling Stockholder on or prior to the Closing Date.
(f) You shall have received on the Closing Date an opinion (satisfactory to
you and counsel for the Underwriters), dated the Closing Date, of Correro
Fishman Haygood Phelps Walmsley & Casteix, L.L.P., counsel for the Company, to
the effect set forth in subsections (i) through (xvii) below and making the
statements described in the paragraph that follows subsection (xxiii) below; and
of Correro Fishman Haygood Phelps Walmsley & Casteix, L.L.P., as counsel for the
Company, or of counsel (reasonably satisfactory to you) for the Selling
Stockholders, to the effect set forth in subsections (xviii) through (xxiii)
below:
(i) each of the Company and its subsidiaries listed in Schedule III
(for purposes of Section 9(f), the "subsidiaries") has been duly
incorporated or formed, as the case may be, is validly existing as a
corporation, partnership or limited liability company, as the case may be,
in good standing under the laws of Louisiana and has the corporate or other
power and authority to carry on its business as described in the Prospectus
and to own, lease and operate its properties, as described therein;
(ii) each of the Company and its subsidiaries is duly qualified and is
in good standing as a foreign corporation, partnership or limited liability
company, as the case may be, authorized to do business in each jurisdiction
in which the nature of its business or its
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ownership or leasing of property requires such qualification, except where
the failure to be so qualified would not have a Material Adverse Effect;
(iii) all the outstanding shares of capital stock of the Company
(including the Additional Shares to be sold by the Selling Stockholders)
have been duly authorized and validly issued and are fully paid, non-
assessable and not subject to any preemptive or similar rights arising by
statute or pursuant to the Company's articles of incorporation or bylaws
or, to such counsel's knowledge, by contract or otherwise;
(iv) the Firm Shares to be issued by the Company hereunder have
been duly authorized and, when issued and delivered to the Underwriters
against payment therefor as provided by this Agreement, will be validly
issued, fully paid and non-assessable, and the issuance of such Firm Shares
will not be subject to any preemptive or similar rights arising by statute
or pursuant to the Company's articles of incorporation or bylaws or, to
such counsel's knowledge, by contract or otherwise;
(v) all of the outstanding shares of capital stock of or other
ownership interest in each of the Company's subsidiaries have been duly
authorized and validly issued and are fully paid and non-assessable, and
except as described in the Prospectus are owned by the Company, directly or
indirectly through one or more subsidiaries, free and clear of any security
interest, claim, lien, encumbrance or adverse interest of any nature;
(vi) this Agreement has been duly authorized, executed and
delivered by the Company;
(vii) the authorized capital stock of the Company conforms as to
legal matters to the description thereof contained in the Prospectus;
(viii) the Registration Statement has become effective under the Act,
no stop order suspending its effectiveness has been issued and no
proceedings for that purpose are, to such counsel's knowledge, pending
before or contemplated by the Commission;
(ix) the statements under the captions "Certain Relationships and
Related Transactions", "Sprint PCS Agreements", "Management-1999 Equity
Incentive Plan", "Certain Indebtedness", "Description of Capital Stock" and
"Underwriting" in the Prospectus and Items 14 and 15 of Part II of the
Registration Statement, insofar as such statements constitute a summary of
the legal matters, contracts or legal proceedings referred to therein (but
not factual matters), fairly present the information called for with
respect to such legal contracts, documents and legal proceedings;
(x) to such counsel's knowledge, (i) neither the Company nor any of
its subsidiaries is in violation of its respective articles of
incorporation, by-laws, operating agreement or partnership agreement, (ii)
and neither the Company nor any of its subsidiaries is in default in the
performance of any obligation, agreement, covenant or condition contained
in any indenture, loan agreement, mortgage, lease or other agreement or
instrument known to us that is material to the Company and its
subsidiaries, taken as a
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whole, to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries or their respective property
is bound;
(xi) the execution, delivery and performance of this Agreement by the
Company, the compliance by the Company with all the provisions hereof and
the consummation of the transactions contemplated hereby will not (A)
require any consent, approval, authorization or other order of, or
qualification with, any court or governmental body or agency (except such
under the Act as have already been obtained and such as may be required
under the securities or Blue Sky laws of the various states), (B) conflict
with or constitute a breach of any of the terms or provisions of, or a
default under, the articles of incorporation, by-laws, operating agreement
or partnership agreement of the Company or any of its subsidiaries or any
indenture, loan agreement, mortgage, lease or other agreement or instrument
know by such counsel that is material to the Company and its subsidiaries,
taken as a whole, to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries or their
respective property is bound, (C) violate or conflict with any applicable
Louisiana or federal law or any rule, regulation, judgment, order or decree
known to us of any court or any governmental body or agency having
jurisdiction over the Company, any of its subsidiaries or their respective
property or (D) result in the suspension, termination or revocation of any
Authorization (other than any Authorization relating to taxation or any
communications matters including without limitation matters regulated by
the Federal Communications Commission, the Communications Act of 1934 or
the Louisiana Public Service Commission) of the Company or any of its
subsidiaries known to us or any other impairment of the rights of the
holder of any such Authorization;
(xii) such counsel does not know of any legal or governmental
proceedings pending or threatened to which the Company or any of its
subsidiaries is a party or to which any of their respective property is
subject that are required to be described in the Registration Statement or
the Prospectus and are not so described, or of any statutes, regulations,
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not so described or filed as required;
(xiii) to such counsel's knowledge, neither the Company nor any of
its subsidiaries has violated any Environmental Law, any provisions of the
Employee Retirement Income Security Act of 1974, as amended, or any
provisions of the Foreign Corrupt Practices Act, or the rules and
regulations promulgated thereunder, except, in each case, for such
violations which, singly or in the aggregate, would not have a Material
Adverse Effect;
(xiv) to such counsel's knowledge, each of the Company and its
subsidiaries has such Authorizations of, and has made all filings with and
notices to, all governmental or regulatory authorities and self-regulatory
organizations and all courts and other tribunals, including, without
limitation, under any applicable Environmental Laws, as are necessary to
own, lease, license and operate its respective properties and to conduct
its business (excluding, in each case, those relating to taxation or any
communications matters
24
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(including without limitation matters regulated by the Federal
Communications Commission, the Communications Act of 1934 or the Louisiana
Public Service Commission)), except where the failure to have any such
Authorization or to make any such filing or notice would not, singly or in
the aggregate, have a Material Adverse Effect. To such counsel's knowledge,
(i) each such Authorization (excluding, in each case, those relating to
taxation or any communication matters (including without limitation matters
regulated by the Federal Communications Commission, the Communications Act
of 1934 or the Louisiana Public Service Commission)) is valid and in full
force and effect and each of the Company and its subsidiaries is in
compliance with all the terms and conditions thereof and with the rules and
regulations of the authorities and governing bodies having jurisdiction
with respect thereto; (ii) no event has occurred (including, without
limitation, the receipt of any notice from any authority or governing body)
which allows or, after notice or lapse of time or both, would allow,
revocation, suspension or termination of any such Authorization (other than
any Authorization relating to federal taxation law or any communications
matters including without limitation matters regulated by the Federal
Communications Commission, the Communications Act of 1934 or the Louisiana
Public Service Commission) or results or, after notice or lapse of time or
both, would result in any other impairment of the rights of the holder of
any such Authorization; and (iii) such Authorizations (other than any
Authorization relating to federal taxation law or any communications
matters including without limitation matters regulated by the Federal
Communications commission, the Communications Act of 1934 or the Louisiana
Public Service Commission) contain no restrictions that are burdensome to
the Company or any of its subsidiaries; except where such failure to be
valid and in full force and effect or to be in compliance, the occurrence
of any such event or the presence of any such restriction would not, singly
or in the aggregate, have a Material Adverse Effect;
(xv) the Company is not and, after giving effect to the offering
and sale of the Shares and the application of the proceeds thereof as
described in the Prospectus, will not be, an "investment company" as such
term is defined in the Investment Company Act of 1940, as amended;
(xvi) to such counsel's knowledge, there are no contracts,
agreements or understandings between the Company and any person granting
such person the right to require the Company to file a registration
statement under the Act with respect to any securities of the Company or to
require the Company to include such securities with the Shares registered
pursuant to the Registration Statement, except for registration rights
granted in favor of certain holders of Class B common stock of the Company
pursuant to the Shareholder Agreement and registration rights granted in
favor of The 1818 Fund III, L.P. and its affiliates and Trust Company of
the West and its affiliates in connection with the Preferred Stock
Offerings;
(xvii) the Registration Statement and the Prospectus and any
supplement or amendment thereto (except for the financial statements, notes
and schedules and other financial data included in the Registration
Statement, the Prospectus, or any supplement or
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<PAGE>
amendment thereto, as to which no opinion need be expressed) comply as to
form with the Act;
(xviii) each Selling Stockholder is the owner of record of the
Additional Shares to be sold by such Selling Stockholder pursuant to this
Agreement and has good and clear title to such Additional Shares, which
Additional Shares are transferable by the Selling Stockholders to the
Underwriters in accordance with this Agreement, free of all restrictions on
transfer, liens, encumbrances, security interests, equities and claims
whatsoever;
(xix) each Selling Stockholder has full legal right, power and
authority, and all authorization and approval required by law, to enter
into this Agreement and the Custody Agreement and the Power of Attorney of
such Selling Stockholder and to sell, assign, transfer and deliver the
Additional Shares to be sold by such Selling Stockholder in the manner
provided herein and therein; and this Agreement has been duly authorized,
executed and delivered by the Selling Stockholders;
(xx) the Custody Agreement of each Selling Stockholder has been duly
authorized, executed and delivered by such Selling Stockholder and is a
valid and binding agreement of such Selling Stockholder;
(xxi) the Power of Attorney of each Selling Stockholder has been duly
authorized, executed and delivered by such Selling Stockholder and is a
valid and binding instrument of such Selling Stockholder;
(xxii) upon delivery of and payment for the Additional Shares to be
sold by each Selling Stockholder pursuant to this Agreement, good and clear
title to such Additional Shares will pass to the Underwriters, free of all
restrictions on transfer, liens, encumbrances, security interests, equities
and claims whatsoever, except those, if any, attributable to acts of the
Underwriters; and
(xxiii) the execution, delivery and performance of this Agreement and
the Custody Agreement and Power of Attorney of each Selling Stockholder by
such Selling Stockholder, the compliance by such Selling Stockholder with
all the provisions hereof and thereof and the consummation of the
transactions contemplated hereby and thereby will not (A) require any
consent, approval, authorization or other order of, or qualification with,
any court or governmental body or agency (except such under the Act as have
already been obtained and such as may be required under the securities or
Blue Sky laws of the various states) pursuant to any statute or regulation
or, to such counsel's knowledge, any judgment, order or decree, (B)
conflict with or constitute a breach of any of the terms or provisions of,
or a default under, the organizational documents of such Selling
Stockholder, if such Selling Stockholder is not an individual, or any
indenture, loan agreement, mortgage, lease or other agreement or instrument
known to such counsel to which such Selling Stockholder is a party or by
which any property of such Selling Stockholder is bound or (C) violate or
conflict with any applicable law, rule or regulation or any judgment, order
or decree known to such counsel of any court or any governmental body or
agency having jurisdiction over such Selling Stockholder or any property of
such Selling Stockholder.
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In addition, the opinion of Correro Fishman Haygood Phelps Walmsley &
Casteix, L.L.P. will state that although such counsel has not checked the
accuracy and completeness of, or otherwise verified, and is not passing upon and
assumes no responsibility for the accuracy or completeness of, the statements
contained in the Registration Statement or Prospectus, or any amendment or
supplement thereto, except to the limited extent stated in subsections (ix) and
(xvii) above, in the course of such counsel's review and discussion of the
contents of the Registration Statement and Prospectus and any amendment or
supplement thereto with certain officers and employees of the Company and its
independent accountants, but without independent check or verification, no facts
have come to such counsel's attention which cause such counsel to believe (A)
that at the time the Registration Statement became effective or on the date of
this Agreement, the Registration Statement and the Prospectus included therein
(except for the financial statement, notes and schedules and other financial
data as to which such counsel need not express any belief) contained any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading and
(B) that the Prospectus, as amended or supplemented, if applicable (except for
the financial statement, notes and schedules and other financial data as to
which such counsel need not express any belief) contains any untrue statement of
a material fact or omits to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
The opinion of Correro Fishman Haygood Phelps Walmsley & Casteix, L.L.P.
described in Section 9(f) above shall be rendered to you at the request of the
Company and shall so state therein and shall be limited to the laws of the
United States of America and those of the state of Louisiana. The opinion of
counsel (if any) for the Selling Stockholders described in Section 9(f) above
shall be rendered to you at the request of the Selling Stockholders and shall so
state therein and shall be limited to the laws of the United States of America
and those of the State of Louisiana.
(g) You shall have received on the Closing Date an opinion (satisfactory to
you and counsel for the Underwriters), dated the Closing Date, of Lukas, Nace,
Gutierrez & Sachs, Chartered, special communications counsel for the Company, to
the effect that:
(i) the statements in the Prospectus under the captions "Risk Factors-
Risks Related to the Wireless Telecommunications Industry" and "Business,"
insofar as such statements constitute a summary of Communications Act of
1934, as amended, and the rules and regulations of the FCC promulgated
thereunder (the "Communications Act"), are accurate in all material
respects and fairly summarize all matters referred to therein;
(ii) the Company holds the PCS Licenses, the Cellular Licenses and the
Paging Licenses (together, the "Licenses"). The Licenses are in full force
and effect and are not subject to any conditions other than those
conditions listed on the Licenses and those conditions generally applicable
to entities holding similar licenses issued by the FCC. All applicable
administrative and judicial appeal, review and reconsideration periods of
the FCC's grant of the Licenses have expired, without the timely filing of
any such appeal or request for review or reconsideration and without the
FCC having instituted review of the grant of the Licenses on its own
motion;
27
<PAGE>
(iii) the Licenses (along with the Sprint PCS Licenses) provide all
necessary FCC certificates, orders, permits, licenses, authorizations,
consents or approvals required by the FCC for the Company to construct and
operate a wireless communications network in the respective markets
designated in the Licenses and to conduct its business in the manner
described in the Prospectus;
(iv) the Company has made all reports, filings and registrations
with, and paid all fees required by the FCC, including any and all down
payments or installment payments, except where such failure would not have
Material Adverse Effect on the Company's operations as a whole;
(v) to such counsel's knowledge, (a) there is no unsatisfied
adverse FCC order, decree or ruling outstanding against the Company, or any
of the Licenses; (b) there is no litigation, proceeding (including any
rulemaking proceeding), complaint, inquiry or investigation against the
Company or in respect of any of the Licenses, pending or threatened before
the FCC (including any pending judicial review of such an action by the
FCC), including without limitation, any Notice of Violation, Notice of
Apparent Liability or Order to Show Cause, except for proceedings affecting
the wireless industry generally to which the Company is not a specified
party; (c) the Company has not received any notice of proceedings relating
to the violation, revocation or modification of any of the Licenses,
certificates, orders, permits, licenses, authorizations, consents or
approvals or the qualification or rejection of any FCC filing, the effect
of which, singly or in the aggregate, would have a Material Adverse Effect
upon, or cause material disruption to, the Company's operations, taken as a
whole;
(vi) to such counsel's knowledge, the Company is not in violation
of, or in default under, the Communications Act, the effect of which,
singly or in the aggregate, would have a Material Adverse Effect on the
Company or the Licenses, taken as a whole;
(vii) the execution and delivery of the Transaction Documents and the
performance of the Company of their obligations thereunder, will not
violate the Communications Act or, to our such counsel's knowledge, the
terms of any order, writ, judgment, award, injunction or decree of the
FCC;
(viii) except to the extent that prior FCC approval is required in
connection with the exercise of creditors' rights in the event of a
default, no consent or approval by the FCC is required for the execution
delivery or performance of the Transaction Documents by the Company or for
the consummation of the transactions described therein;
(ix) To such counsel's knowledge, LA Unwired was qualified to
participate in the FCC's PCS license auctions as a "Small Business," as
defined by FCC Rules, and is qualified to hold the licenses for LA
Unwired's PCS operations according to the FCC's rules. The Company's
ownership interest in LA Unwired does not violate the FCC's rules;
(x) to such counsel's knowledge, (i) the Sprint PCS Licenses are in
full force and effect and are not subject to any conditions other than
those conditions listed thereon
28
<PAGE>
and those conditions listed thereon and those conditions generally
applicable to entities holding similar licenses issued by the FCC; (ii) all
applicable administrative and judicial appeal, review and reconsideration
periods of the Sprint PCS Licenses have expired, without the timely filing
of any such appeal or request for review or reconsideration and without the
FCC having instituted review of the grant of the Sprint PCS Licenses on its
own motion;
(xi) LEC Unwired, LLC has, or has timely filed applications for, all
permits of governmental or regulatory authorities (including, if
appropriate, the state public utilities commissions of Alabama, Arkansas,
Florida, Louisiana, Mississippi and Texas) necessary to engage in the
competitive local exchange businesses currently conducted by LEC Unwired,
LLC, except where the failure to hold such permits would not have a
Material Adverse Effect. There is no action, suit, proceeding (including
any rulemaking proceeding), complaint or investigation against LEC Unwired,
LLC, or in respect of any of its licenses, pending or threatened (including
any pending judicial review of such an action) except for proceedings
affecting the industry generally to which LEC Unwired, LLC is not a
specific party. No judgment, order, decree or ruling has been entered
against LEC Unwired, LLC in any court or before or by any governmental
authority that would have a Material Adverse Effect.
(xii) Pursuant to Section 332(c)(3) of the Communications Act of
1934, as amended, state and local governments are not authorized to
regulate the entry of or rates charged by any commercial mobile radio
service. Accordingly, the Company is not required to apply for state or
local authority to operate its cellular, paging or PCS systems, nor are the
states in which the Company does business authorized to regulate the rates
charged by the Company.
(h) You shall have received on the Closing Date an opinion (satisfactory to
you and counsel for the Underwriters), dated the Closing Date, of Jones, Walker,
Waechter, Poltevent, Carrere & Denegre LLP, tax counsel for the Company, to the
effect that the statements under the caption "Important United States Federal
Tax Consequences of Our Common Stock to Non-U.S. Holders" in the Prospectus,
insofar as such statements constitute a summary of the legal matters, documents
or proceedings referred to therein, fairly present in all material respects such
legal matters, documents and proceedings.
(i) The Underwriters shall have received on the Closing Date an opinion,
dated the Closing Date, of Latham & Watkins, counsel for the Underwriters, in
form and substance reasonably satisfactory to the Underwriters.
(j) In making statements of the type set forth in the paragraph that
follows Section 9(f)(xxiii) above, Correro Fishman Haygood Phelps Walmsley &
Casteix, L.L.P. and Latham & Watkins may state that their opinion and belief are
based upon their participation in the preparation of the Registration Statement
and Prospectus and any amendments or supplements thereto and review and
discussion of the contents thereof, but are without independent check or
verification except as specified.
29
<PAGE>
(k) You shall have received on the Closing Date an opinion (reasonably
satisfactory to you and counsel for the Underwriters), dated the Closing Date,
of Swidler Berlin Shereff Friedman LLP, special New York counsel to the Company,
to the effect that:
(i) the Custody Agreement of each Selling Stockholder is a valid and
binding agreement of such Selling Stockholder, enforceable in accordance
with its terms (A) except as enforcement of rights to indemnity and
contribution thereunder may be limited by federal or state securities laws
or principles of public policy and (B) subject to the qualification that
the enforceability of each of the Selling Stockholders' respective
obligations thereunder may be limited by bankruptcy, fraudulent conveyance,
insolvency, reorganization, moratorium and other laws relating to or
affecting creditors' rights generally and by general equitable principles
(whether considered in a proceeding at law or in equity); and
(ii) the Power of Attorney of each Selling Stockholder is a valid and
binding instrument of such Selling Stockholder, enforceable in accordance
with its terms (A) except as enforcement of rights to indemnity and
contribution thereunder may be limited by federal or state securities laws
or principles of public policy and (B) subject to the qualification that
the enforceability of each of the Selling Stockholders' respective
obligations thereunder may be limited by bankruptcy, fraudulent conveyance,
insolvency, reorganization, moratorium and other laws relating to or
affecting creditors' rights generally and by general equitable principles
(whether considered in a proceeding at law or in equity).
The opinion of Swidler Berlin Shereff Friedman, LLP described in
Section 9(k) above shall (A) be rendered to you and the Company at the
request of the Company and shall so state therein, (B) be limited to the
laws of the state of New York and (C) be subject to other customary
limitations and exceptions.
(l) You shall have received, on each of the date hereof and the Closing
Date, a letter dated the date hereof or the Closing Date, as the case may be, in
form and substance satisfactory to you, from Ernst & Young LLP, independent
public accountants, containing the information and statements of the type
ordinarily included in accountants' "comfort letters" to Underwriters with
respect to the financial statements and certain financial information contained
in the Registration Statement and the Prospectus.
(m) The Company shall have delivered to you the agreements specified in
Section 2 hereof which agreements shall be in full force and effect on the
Closing Date.
(n) The Shares shall have been duly listed for quotation on the Nasdaq
National Market.
(o) The Company and the Selling Stockholders shall not have failed on or
prior to the Closing Date to perform or comply with any of the agreements herein
contained and required to be performed or complied with by the Company or the
Selling Stockholders, as the case may be, on or prior to the Closing Date.
(p) You shall have received on the Option Closing Date, a certificate of
any Selling Stockholder who is not a U.S. Person (as defined under applicable
U.S. federal tax legislation) to the effect that such Selling Stockholder is not
a U.S. Person, which certificate may be in the form of
30
<PAGE>
a properly completed and executed United States Treasury Department Form W-8 (or
other applicable form or statement specified by Treasury Department regulations
in lieu thereof).
The several obligations of the Underwriters to purchase any Additional
Shares hereunder are subject to the delivery to you on the applicable Option
Closing Date of such documents as you may reasonably request with respect to the
good standing of the Company, the due authorization and issuance of such
Additional Shares and other matters related to the issuance of such Additional
Shares.
Section 10. Effectiveness of Agreement and Termination. This Agreement
shall become effective upon the execution and delivery of this Agreement by the
parties hereto.
This Agreement may be terminated at any time on or prior to the Closing
Date by you by written notice to the Sellers if any of the following has
occurred: (i) any outbreak or escalation of hostilities or other national or
international calamity or crisis or change in economic conditions or in the
financial markets of the United States or elsewhere that, in your judgment, is
material and adverse and, in your judgment, makes it impracticable to market the
Shares on the terms and in the manner contemplated in the Prospectus, (ii) the
suspension or material limitation of trading in securities or other instruments
on the New York Stock Exchange, the American Stock Exchange, the Chicago Board
of Options Exchange or the Nasdaq National Market or limitation on prices for
securities or other instruments on any such exchange or the Nasdaq National
Market, (iii) the suspension of trading of any securities of the Company on any
exchange or in the over-the-counter market, (iv) the enactment, publication,
decree or other promulgation of any federal or state statute, regulation, rule
or order of any court or other governmental authority which in your opinion
materially and adversely affects, or will materially and adversely affect, the
business, prospects, financial condition or results of operations of the Company
and its subsidiaries, taken as a whole, (v) the declaration of a banking
moratorium by either federal or New York State authorities or (vi) the taking of
any action by any federal, state or local government or agency in respect of its
monetary or fiscal affairs which in your opinion has a material adverse effect
on the financial markets in the United States.
If on the Closing Date or on an Option Closing Date, as the case may be,
any one or more of the Underwriters shall fail or refuse to purchase the Firm
Shares or Additional Shares, as the case may be, which it has or they have
agreed to purchase hereunder on such date and the aggregate number of Firm
Shares or Additional Shares, as the case may be, which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not more
than one-tenth of the total number of Firm Shares or Additional Shares, as the
case may be, to be purchased on such date by all Underwriters, each non-
defaulting Underwriter shall be obligated severally, in the proportion which the
number of Firm Shares set forth opposite its name in Schedule I bears to the
total number of Firm Shares which all the non-defaulting Underwriters have
agreed to purchase, or in such other proportion as you may specify, to purchase
the Firm Shares or Additional Shares, as the case may be, which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date; provided that in no event shall the number of Firm Shares or Additional
Shares, as the case may be, which any Underwriter has agreed to purchase
pursuant to Section 2 hereof be increased pursuant to this Section 10 by an
amount in excess of one-ninth of such number of Firm Shares or Additional
Shares, as the case may be, without the written consent of such
31
<PAGE>
Underwriter. If on the Closing Date any Underwriter or Underwriters shall fail
or refuse to purchase Firm Shares and the aggregate number of Firm Shares with
respect to which such default occurs is more than one-tenth of the aggregate
number of Firm Shares to be purchased by all Underwriters and arrangements
satisfactory to you and the Company for purchase of such Firm Shares are not
made within 48 hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting Underwriter, the Company or the
Selling Stockholders. In any such case which does not result in termination of
this Agreement, either you or the Company shall have the right to postpone the
Closing Date, but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and the Prospectus or
any other documents or arrangements may be effected. If, on an Option Closing
Date, any Underwriter or Underwriters shall fail or refuse to purchase
Additional Shares and the aggregate number of Additional Shares with respect to
which such default occurs is more than one-tenth of the aggregate number of
Additional Shares to be purchased on such date, the non-defaulting Underwriters
shall have the option to (i) terminate their obligation hereunder to purchase
such Additional Shares or (ii) purchase not less than the number of Additional
Shares that such non-defaulting Underwriters would have been obligated to
purchase on such date in the absence of such default. Any action taken under
this paragraph shall not relieve any defaulting Underwriter from liability in
respect of any default of any such Underwriter under this Agreement.
Section 11. Agreements of the Selling Stockholders. Each Selling
Stockholder agrees with you and the Company:
(a) To pay or to cause to be paid all transfer taxes payable in connection
with the transfer of the Additional Shares to be sold by such Selling
Stockholder to the Underwriters.
(b) To do and perform all things to be done and performed by such Selling
Stockholder under this Agreement prior to the Closing Date and to satisfy all
conditions precedent to the delivery of the Additional Shares to be sold by such
Selling Stockholder pursuant to this Agreement.
Section 12. Miscellaneous. Notices given pursuant to any provision of
this Agreement shall be addressed as follows: (i) if to the Company, to US
Unwired Inc., One Lakeshore Drive, Suite 1900, Lake Charles, Louisiana 70629,
Attention: General Counsel, (ii) if to the Selling Stockholders, to William L.
Henning, Sr. or Thomas G. Henning c/o US Unwired Inc., One Lakeshore Drive,
Suite 1900, Lake Charles, Louisiana 70629 and (iii) if to any Underwriter or to
you, to you c/o Donaldson, Lufkin & Jenrette Securities Corporation, 277 Park
Avenue, New York, New York 10172, Attention: Syndicate Department, or in any
case to such other address as the person to be notified may have requested in
writing.
The respective indemnities, contribution agreements, representations,
warranties and other statements of the Company, the Selling Stockholders and the
several Underwriters set forth in or made pursuant to this Agreement shall
remain operative and in full force and effect, and will survive delivery of and
payment for the Shares, regardless of (i) any investigation, or statement as to
the results thereof, made by or on behalf of (A) any Underwriter, (B) the
officers or directors of any Underwriter, (C) any person controlling any
Underwriter, (D) the Company, (E) the officers or
32
<PAGE>
directors of the Company, (F) any person controlling the Company or (G) any
Selling Stockholder or any person controlling such Selling Stockholder, (ii)
acceptance of the Shares and payment for them hereunder and (iii) termination of
this Agreement.
If for any reason the Shares are not delivered by or on behalf of any
Seller as provided herein (other than as a result of any termination of this
Agreement pursuant to Section 10), such Seller agrees (and if such Seller is a
Selling Stockholder, such Seller and the Company agree, jointly and severally)
to reimburse the several Underwriters for all out-of-pocket expenses (including
the fees and disbursements of counsel) incurred by them by reason thereof.
Notwithstanding any termination of this Agreement, the Company shall be liable
for all expenses which it has agreed to pay pursuant to Section 5(i) hereof.
The Seller or Sellers against whom any action is taken to enforce their
obligations under this Agreement also agree, severally and not jointly, to
reimburse the several Underwriters, their directors and officers and any persons
controlling any of the Underwriters for any and all fees and expenses
(including, without limitation, the fees and disbursements of counsel) incurred
by them in connection with successfully enforcing their rights hereunder against
such Seller or Sellers (including, without limitation, pursuant to Section 8
hereof). The Underwriters against whom any action is taken to enforce their
obligations under this Agreement agree, severally and not jointly, to reimburse
the Company, and its officers, managers, directors and each person, if any, who
controls the Company within the meaning of Section 15 of the Act or Section 20
of the Exchange Act and the Selling Stockholders for any and all fees and
expenses (including without limitation the fees and expenses of counsel)
incurred by them in connection with successfully enforcing their rights under
this Agreement (including without limitation their rights under Section 8).
Except as otherwise expressly provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Company, the Selling
Stockholders, the Underwriters, the Underwriters' directors and officers, any
controlling persons referred to herein, the Company's directors and the
Company's officers who sign the Registration Statement and their respective
successors and assigns, all as and to the extent provided in this Agreement, and
no other person shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" shall not include a purchaser of
any of the Shares from any of the several Underwriters merely because of such
purchase.
This Agreement shall be governed and construed in accordance with the laws
of the State of New York.
This Agreement may be signed in various counterparts which together shall
constitute one and the same instrument.
33
<PAGE>
Please confirm that the foregoing correctly sets forth the agreement among
the Company, the Selling Stockholders and the several Underwriters.
Very truly yours,
US UNWIRED INC.
By: /s/ Thomas G. Henning
--------------------------------
Title: Secretary
THE SELLING STOCKHOLDERS NAMED IN SCHEDULE II
HERETO, ACTING SEVERALLY
By: /s/ Thomas G. Henning
--------------------------------
Attorney-in-fact
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
CREDIT SUISSE FIRST BOSTON
FIRST UNION SECURITIES, INC.
DLJdirect INC.
Acting severally on behalf of
themselves and the several
Underwriters named in
Schedule I hereto
By: DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By:/s/ Steven D. Smith
----------------------------------
S-1
<PAGE>
SCHEDULE I
Underwriters Number of Firm Shares
to be Purchased
Donaldson, Lufkin & Jenrette Securities
Corporation 2,472,000
Credit Suisse First Boston 2,472,000
First Union Securities, Inc 1,236,000
DLJdirect Inc 100,000
Allen & Company Incorporated 80,000
Chase Securities Inc 80,000
Deutsche Bank Securities Inc 80,000
A.G. Edwards & Sons, Inc 80,000
Lehman Brothers Inc 80,000
Merrill Lynch, Pierce, Fenner & Smith Incorporated 80,000
Morgan Stanley & Co. Incorporated 80,000
Prudential Securities Incorporated 80,000
Salomon Smith Barney Inc 80,000
Advest, Inc 40,000
Robert W. Baird & Co. Incorporated 40,000
George K. Baum & Company 40,000
J.C. Bradford & Co 40,000
The Chapman Company 40,000
Fahnestock & Co. Inc 40,000
First Albany Corporation 40,000
Gabelli & Company, Inc 40,000
Gerard Klauer Mattison & Co., Inc 40,000
Gruntal & Co., L.L.C 40,000
Hoak Breedlove Wesneski & Co 40,000
Johnston, Lemon & Co. Incorporated 40,000
EDWARD D. JONES & CO., L.P 40,000
Kaufman Bros., L.P 40,000
C.L. King & Associates, Inc 40,000
Lebenthal & Co., Inc 40,000
Legg Mason Wood Walker, Incorporated 40,000
Ormes Capital Markets, Inc 40,000
Raymond James & Associates, Inc 40,000
Sanders Morris Harris 40,000
Sands Brothers & Co., Ltd 40,000
Santander Securities 40,000
Stephens Inc 40,000
C.E. Unterberg, Towbin 40,000
Wachovia Securities, Inc 40,000
---------
Total 8,000,000
<PAGE>
SCHEDULE II
SELLING STOCKHOLDERS
Name Number of Additional Shares Being Sold
Thomas D. Henning 352,800
Joyce Spates 175,200
James D. Spates 175,200
Scobee Family Partnership 248,400
Henry R. Scobee 248,400
---------
Total 1,200,000
<PAGE>
SCHEDULE III
SUBSIDIARIES
Louisiana Unwired, LLC
Unwired Telecom Corp.
LEC Unwired, LLC
Command Connect, LLC
Texas Unwired
<PAGE>
SCHEDULE 6(cc)
PCS LICENSES
LOUISIANA UNWIRED, LLC
- ----------------------
<TABLE>
<CAPTION>
Type of Call Sign Location Expiration
License Date
- --------------------------------------------------------------------------------------
<S> <C> <C> <C>
PCS KNLF 928 Alexandria, LA 4/28/07
- --------------------------------------------------------------------------------------
PCS KNLG 891 Lake Charles, LA 4/28/07
- --------------------------------------------------------------------------------------
PCS KNLG 894 Monroe, LA 4/28/07
- --------------------------------------------------------------------------------------
PCS KNLG 900 Shreveport, LA 4/28/07
- --------------------------------------------------------------------------------------
PCS KNLG 885 *Bartlesville, OK 4/28/07
- --------------------------------------------------------------------------------------
PCS KNLG 886 *Coffeyville, LS 4/28/07
- --------------------------------------------------------------------------------------
PCS KNLG 887 Columbus-Starkville, MS 4/28/07
- --------------------------------------------------------------------------------------
PCS KNLG 888 Eldorado, Magnolia, Camden, AR 4/28/07
- --------------------------------------------------------------------------------------
PCS KNLG 890 *Hutchinson, KS 4/28/07
- --------------------------------------------------------------------------------------
PCS KNLG 892 Longview-Marshall, TX 4/28/07
- --------------------------------------------------------------------------------------
PCS KNLG 895 Natchez, MS 4/28/07
- --------------------------------------------------------------------------------------
PCS KNLG 896 Paris, TX 4/28/07
- --------------------------------------------------------------------------------------
PCS KNLG 897 Pine Bluff, AR 4/28/07
- --------------------------------------------------------------------------------------
PCS KNLG 898 *Pueblo, CO 4/28/07
- --------------------------------------------------------------------------------------
PCS KNLG 899 *Salina, KS 4/28/07
- --------------------------------------------------------------------------------------
PCS KNLG 901 Texarkana, TX 4/28/07
- --------------------------------------------------------------------------------------
PCS KNLG 902 *Topeka, KS 4/28/07
- --------------------------------------------------------------------------------------
PCS KNLG 903 Tupelo-Corinth, MS 4/28/07
- --------------------------------------------------------------------------------------
PCS KNLG 904 Tuscaloosa, AL 4/28/07
- --------------------------------------------------------------------------------------
PCS KNLG 905 *Wichita, KS 4/28/07
- --------------------------------------------------------------------------------------
PCS KNLG 893 *Manhattan-Junction City, KS 4/28/07
- --------------------------------------------------------------------------------------
PCS KNLG 889 *Emporia, KS 4/28/07
- --------------------------------------------------------------------------------------
</TABLE>
*These licenses will be sold to Cameron Communications Corporation upon approval
from the FCC.
<PAGE>
SCHEDULE 6(dd)
CELLULAR LICENSES
Unwired Telecom Corp.
- ---------------------
<TABLE>
<CAPTION>
Type of Call Sign Location Expiration
License Date
- -----------------------------------------------------------------------------------
<S> <C> <C> <C>
Cellular KNKA631 Lake Charles, LA - MSA 10/01/06
- -----------------------------------------------------------------------------------
Cellular KNKN803 Beauregard, LA - RSA 10/01/00
- -----------------------------------------------------------------------------------
Cellular KNKN920 DeSoto, LA - RSA 10/01/00
- -----------------------------------------------------------------------------------
</TABLE>
<PAGE>
SCHEDULE 6(kk)
SPRINT PCS LICENSES
<PAGE>
<TABLE>
<CAPTION>
Annex I
<S> <C>
Frank E. Austin, III Cust./Katherine Anna Henning
Michael Bennett Thomas D. Henning
Jack Blanchard Thomas G. Henning
Sandra Britnell, Trustee of William L. Thomas G. Henning Exempt Trust No. 1
Henning
Grantor Retained Annuity Trust Cust./Travis Guy Henning
Sandra Britnell, William L. Henning
Trustee of Lena B. Henning Grantor
Retained Annuity Trust William L. Henning, Jr.
Brown University Third Century Fund William L. Henning, Jr. Exempt Trust No. 1
Paul J. Clifton Cust./William Thomas Henning, II
Graydon H. Cook Kris Hickingbottom
Gwyneth A. Cook Odis R. Hill
Thaddus S. Cook Jane Kytle
Andrew Cowen G. Tim Lawrence
Joseph L. Duhon Scott J. LeBato
Henco Partnership Don Loverich
Cust./Daniel Lovejoy Henning Donald A. Matz
Cust./Grant Thomas Henning Brenda S. McElveen
Cust./Hillary Elizabeth Henning Alan T. Neuhoff
John A. Henning Austin P. Neuhoff
John A. Henning Exempt Trust No. 1 Bryon W. Neuhoff
Cust./John Allen Henning, Jr. Thomas H. Neuhoff, Jr.
Cust./John David Henning Olas & Co.
T/A Dewitt T. Walker Conv.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
DeWitt Thomas Walker, Trustee and Smith-Pine Island Group
Grantor
James D. Spates
Robert Piper
Joyce P. Spates
Rinan Financial Limited Partnership
Stephenson-Pine Island Group, L.P.
H. Evens Scobee, Trustee
Jeanelle Roy Scobee TCW/Crescent Mezzanine Partners II, L.P.
Grantor Retained Annuity Trust
TCW/Crescent Mezzanine Trust II
H. Evans Scobee, Trustee
Henry Rice Scobee Jr. TCW Leveraged Income Trust, L.P.
Grantor Retained Annuity Trust
TCW Leveraged Income Trust II, L.P.
Henry Rice Scobee, Jr.
TCW Shared Opportunity Fund II, L.P.
The Scobee Family Partnership
TCW Shared Opportunity Fund II B, LLC
Shearman Corporation
TCW Shared Opportunity Fund III, L.P.
James S. Shearman
The 1818 Fund III, L.P.
John Thomas Shearman
Michelle N. Thomas
Martha A. Shearman
Lawrence C. Tucker
Thomas B. Shearman, Jr.
Jerry Vaughn
Thomas B. Shearman, III
Dewitt Thomas Walker Trust U/A 12/18/95
Walker Ward Shearman Dewitt Thomas Walker, Trustee
William Hugh Shearman Walker-Pine Island Group, L.P.
Carl Smith
</TABLE>
<PAGE>
EXHIBIT 10.29
SECOND AMENDMENT TO SHAREHOLDERS AGREEMENT
This Second Amendment to Shareholders Agreement ("Second Amendment") is
entered into as of May 16, 2000 among US Unwired Inc., a Louisiana corporation
(the "Company"); The 1818 Fund III, L.P., a Delaware limited partnership (the
"Fund"); TCW/Crescent Mezzanine Partners II, L.P., TCW/Crescent Mezzanine Trust
II, TCW Shared Opportunity Fund II, L.P., TCW Shared Opportunity Fund IIB, LLC,
TCW Shared Opportunity Fund III, L.P., TCW Leveraged Income Trust II, L.P., TCW
Leveraged Income Trust, L.P., each of which is a Delaware entity, and Brown
University Third Century Fund (collectively, the "TCW Entities"); and the
shareholders of the Company listed on the signature pages hereto.
RECITALS
--------
A. The Company, the Fund and the shareholders of the Company listed on
the signature pages hereto entered into that certain Shareholders
Agreement (the "Shareholders Agreement") dated as of October 29, 1999.
B. The parties to the Shareholders Agreement and the TCW Entities entered
into that certain First Amendment to Shareholders Agreement ("First
Amendment") dated as of February 15, 2000.
C. The Company has filed a Registration Statement on Form S-1, No.
333-33964 (the "Registration Statement"), with the Securities and
Exchange Commission ("SEC") relating to an initial public offering of
the Class A Common Stock, par value $.01 per share, of the Company
(the "IPO").
D. The parties to the Shareholders Agreement desire to amend the
Shareholders Agreement, as previously amended by the First Amendment
(as so amended, the "Amended Shareholders Agreement"), effective at
the time the SEC declares the Registration Statement to be effective
(the "Effective Time"), to delete from the Shareholders Agreement the
provisions of Sections 3.1, 3.2 and 3.3, and to amend the provisions
of Section 3.4.
NOW, THEREFORE, in consideration of the mutual promises and agreements set
forth herein, the parties hereto agree as follows:
1. At the Effective Time, Sections 3.1, 3.2 and 3.3 of the Shareholders
Agreement shall be deleted in their entirety from the Shareholders Agreement and
Section 3.4 of the Shareholders Agreement shall be amended to read in its
entirety as follows:
<PAGE>
"3.4 Company Actions. So long as the Purchaser and its
Affiliates hold, in the aggregate, at least 50% of the shares of
Common Stock issued or issuable upon conversion of the Preferred Stock
(whether or not the shares of Preferred Stock have been converted),
Purchaser may designate two (2) individuals (each a "Purchaser Company
Director" and together, the "Purchaser Company Directors") to be
nominated for election (or reelection as the case may be) as directors
of the Company. So long as the Purchaser and its Affiliates hold, in
the aggregate, at least 25% of the shares of Common Stock issued or
issuable upon conversion of the Preferred Stock (whether or not the
shares of Preferred Stock have been converted), Purchaser may
designate one (1) Purchaser Company Director. The Company shall cause
any Purchaser Company Director to be included in the slate of nominees
recommended by the Board to the Company's shareholders for election as
directors, and the Company shall use its best efforts to cause the
election of such nominee, including voting all shares for which the
Company holds proxies (unless otherwise directed by the shareholder
submitting such proxy) or is otherwise entitled to vote, in favor of
the election of such person. If, at any time when Purchaser has the
ownership required to designate a Purchaser Company Director, a
vacancy is created on the Board by reason of incapacity, death,
removal or resignation of such Purchaser Company Director, the Company
shall take all action necessary to cause the election of the
individual designated by the Purchaser to fill such vacancy."
If the Effective Time has not occurred on or before June 30, 2000, or if the
Effective Time has by then occurred but the closing of the IPO has not occurred
by June 30, 2000, then in either of those events this Second Amendment shall be
null and void.
2. Except as expressly amended by this Second Amendment, the terms and
provisions of the Amended Shareholders Agreement shall continue in full force
and effect.
3. This Second Amendment may be executed in counterparts.
2
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment to
be executed and delivered individually or by the respective officers or partners
hereunto duly authorized as of the date above written.
US UNWIRED INC.
By /s/ Authorized Officer
-------------------------------------
Name:
--------------------------
Title:
-------------------------
THE 1818 FUND III, L.P.
By: Brown Brothers Harriman & Co.,
its general partner
By: /s/ Lawrence C. Tucker
-------------------------------
Name: Lawrence C. Tucker, Partner
Title: Brown Brothers Harriman & Co.
-------------------------
/s/ William L. Henning, Sr.
---------------------------------------
William L. Henning, Sr.
/s/ William L. Henning, Jr.
---------------------------------------
William L. Henning, Jr.
/s/ John A. Henning
---------------------------------------
John A. Henning
/s/ Thomas G. Henning
---------------------------------------
Thomas G. Henning
3
<PAGE>
TCW Leveraged Income Trust, L.P.
By: TCW Investment Management Company, as Investment Advisor
By: /s/ Jean-Marc Chapus
-----------------------------------------------------------
Name: Jean-Marc Chapus
Title: Managing Director
By: TCW Advisors (Bermuda), Ltd., as general partner
By: /s/ Mark L. Attanasio
-----------------------------------------------------------
Name: Mark L. Attanasio
Title: Group Managing Director
4
<PAGE>
TCW Leveraged Income Trust II, L.P.
By: TCW Investment Management Company, as Investment Advisor
By: /s/ Jean-Marc Chapus
---------------------------------------------------------------
Name: Jean-Marc Chapus
Title: Managing Director
By: TCW (LINC II), L.P., as general partner
By: TCW Advisors (Bermuda), Ltd., as its general partner
By: /s/ Mark L. Attanasio
---------------------------------------------------------------
Name: Mark L. Attanasio
Title: Group Managing Director
5
<PAGE>
TCW Shared Opportunity Fund III, L.P.
By: TCW Asset Management Company,
its Investment Advisor
By: /s/ Mark L. Attanasio
---------------------------------------------
Name: Mark L. Attanasio
Title: Group Managing Director
By: /s/ Jean-Marc Chapus
---------------------------------------------
Name: Jean-Marc Chapus
Title: Managing Director
6
<PAGE>
Shared Opportunity Fund IIB, LLC
By: TCW Asset Management Company,
its Investment Advisor
By: /s/ Mark L. Attanasio
-------------------------------------------
Name: Mark L. Attanasio
Title: Group Managing Director
By: /s/ Jean-Marc Chapus
-------------------------------------------
Name: Jean-Marc Chapus
Title: Managing Director
7
<PAGE>
TCW Shared Opportunity Fund II, L.P.
By: TCW Investment Management Company,
its Investment Advisor
By: /s/ Mark L. Attanasio
-------------------------------------
Name: Mark L. Attanasio
Title: Group Managing Director
By: /s/ Jean-Marc Chapus
-------------------------------------
Name: Jean-Marc Chapus
Title: Managing Director
8
<PAGE>
TCW/Crescent Mezzanine Partners II, L.P.
TCW/Crescent Mezzanine Trust II
By: TCW/Crescent Mezzanine II, L.P.
its general partner or managing owner
By: TCW/Crescent Mezzanine, L.L.C.
its general partner
By: /s/ Jean-Marc Chapus
------------------------------------------
Name: Jean-Marc Chapus
Title: President
9
<PAGE>
BROWN UNIVERSITY THIRD CENTURY FUND
By: /s/ Mark L. Attanasio
------------------------------------------
Name: Mark Attanasio,
its Investment Advisor
10
<PAGE>
EXHIBIT 10.30
May 16, 2000
US UNWIRED INC.
One Lakeshore Drive, Suite 1900
Lake Charles, Louisiana 70629
Dear Sir or Madam:
The undersigned holder (the "Holder") of Senior Redeemable Convertible
Preferred Stock, Series A (the "Series A Preferred Stock"), of US Unwired Inc.
(the "Company") hereby confirms with you the following:
(1) The Holder has this day received the Notice of Mandatory
Conversion that is annexed as Exhibit A. The Holder waives any other notice
requirement applicable to the mandatory conversion described in Exhibit A (the
"Mandatory Conversion"). The Holder agrees that the Mandatory Conversion is
conditional, as described in Exhibit A, and that the Notice will be deemed
rescinded if the specified conditions have not occurred by June 30, 2000.
(2) The Holder confirms that it holds the number of shares of Series A
Preferred Stock set forth in Schedule 1 to Exhibit A (the "Converted Shares"),
and that the Holder is entitled to receive by reason of the Mandatory Conversion
the whole number of shares of Class B Common Stock, par value $.01 per share
("Class B Common Stock"), of the Company that is set forth in Schedule 1 to
Exhibit A (the "Conversion Shares"), plus payment in cash for any fraction of a
share that is set forth in Schedule 1 to Exhibit A, which payment shall be based
upon the initial public offering price per share of the Class A Common Stock,
par value $.01 per share, of the Company being sold in the Company's initial
public offering ("IPO").
(3) The Holder will deliver to the Company certificates representing
the Converted Shares, against delivery to the Holder of one certificate
representing the Conversion Shares, at the time and place (in New York City) of
the closing of the IPO, of which the Company will give the Holder at least 24
hours advance notice. The Holder and the Company agree that the certificate for
the Conversion Shares need not be deposited with a bank or trust company
pursuant to Article III(K), Section 10(d) of the Company's Articles of
Incorporation. Such certificate will contain the restrictive legend that is set
forth in Section 6.5 of the Securities Purchase Agreement dated October 29,
1999, between the Company and the Holder, and a legend that refers to Article
III(F) of the Company's Articles of Incorporation. The Holder agrees that a
check representing any fractional interest shown in Schedule 1 to Exhibit A may
be mailed to it at its address of record in due course following delivery of the
Conversion Shares.
<PAGE>
Please confirm this letter by signing in the place provided.
Sincerely yours,
THE 1818 FUND III, L.P.
By: /s/ Lawrence C. Tucker
________________________________
Authorized Signatory
We confirm the foregoing
US UNWIRED INC.
By: /s/ Authorized Officer
__________________________
<PAGE>
Exhibit A
US UNWIRED INC.
Notice of Mandatory Conversion
TO: The holders of the Senior Redeemable Convertible Preferred Stock, Series A
(the "Series A Preferred Stock") of US Unwired Inc. (the "Company")
PLEASE TAKE NOTICE that, subject to the conditions precedent set forth
below, US UNWIRED INC. hereby exercises its right to require the Mandatory
Conversion (as such term is defined in Article III(K), Section 10(a), of its
Articles of Incorporation) of all of the shares of its Series A Preferred Stock.
The Mandatory Conversion Date will be the date of the closing of the
Company's initial public offering (the "IPO Closing") pursuant to the certain
Underwriting Agreement among the Company, the underwriters listed in Schedule I
thereto, and the selling stockholders listed in Schedule II thereto.
The number of shares of Series A Preferred Stock to be converted (the
"Converted Shares"), the number of shares of Class B Common Stock, par value
$.01 per share, of the Company into which they are to be converted (the
"Conversion Shares"), and any fractional interest of a holder in a Conversion
Share are shown in Schedule I annexed.
The Mandatory Conversion is subject to the conditions precedent that the
IPO Closing shall have occurred on or before June 30, 2000 and that the initial
public offering price of the shares of Class A Common Stock, par value $.01, of
the Company being sold in the IPO is not less than the price at which the
Internal Rate of Return (as such term is defined in Article III(K) of the
Company's Articles of Incorporation) of the holder of the Series A Preferred
Stock would be at least 20% per annum on the Mandatory Conversion Date.
Notice dated May 15, 2000.
US UNWIRED INC.
Lake Charles, Louisiana
<PAGE>
SCHEDULE 1
<TABLE>
<CAPTION>
"Converted Shares" "Conversion Shares" Fractional
Holder of Series A Preferred Stock of Class B Common Stock Interest
- -------------------------- --------------------------- ----------------------- -----------
<S> <C> <C> <C>
The 1818 Fund III, L.P. 500,000 10,038,418 0.0791
</TABLE>
NOTE: The number of "Conversion Shares" assumes that no action is taken that
would require a further adjustment of the Conversion Price under Article III(K),
Section 8(d), of the Company's Articles of Incorporation.
<PAGE>
EXHIBIT 10.31
May 16, 2000
US UNWIRED INC.
One Lakeshore Drive, Suite 1900
Lake Charles, Louisiana 70629
Dear Sir or Madam:
The undersigned holders (the "Holders") of Senior Redeemable
Convertible Preferred Stock, Series B (the "Series B Preferred Stock"), of US
Unwired Inc. (the "Company") hereby confirm with you the following:
(1) The Holders have this day received the Notice of Mandatory
Conversion that is annexed as Exhibit A. The Holders waive any other notice
requirement applicable to the mandatory conversion described in Exhibit A (the
"Mandatory Conversion"). The Holders agree that the Mandatory Conversion is
conditional, as described in Exhibit A, and that the Notice will be deemed
rescinded if the specified conditions have not occurred by June 30, 2000.
(2) Each of the Holders confirms that it holds the number of shares of
Series B Preferred Stock set forth opposite its name in Schedule 1 to Exhibit A
(the "Converted Shares"), and that such Holder is entitled to receive by reason
of the Mandatory Conversion the whole number of shares of Class A Common Stock,
par value $.01 per share ("Class A Common Stock"), of the Company that is set
forth opposite its name in Schedule 1 to Exhibit A (the "Conversion Shares"),
plus payment in cash for any fraction of a share that is set forth opposite its
name in Schedule 1 to Exhibit A, which payment shall be based upon the initial
public offering price per share of the Class A Common Stock being sold in the
Company's initial public offering ("IPO").
(3) The Holders will deliver to the Company certificates representing
the Converted Shares, against delivery to each of the Holders of one certificate
representing the Conversion Shares of such Holder, at the time and place (in New
York City) of the closing of the IPO, of which the Company will give the Holders
at least 24 hours advance notice. The Holders and the Company agree that the
certificates for the Conversion Shares need not be deposited with a bank or
trust company pursuant to Article III(L), Section 10(d) of the Company's
Articles of Incorporation. Such certificates will contain the restrictive
legend that is set forth in Section 6.5 of the Securities Purchase Agreement
dated February 15, 2000, between the Company and the Holders, and a legend that
refers to Article III(F) of the Company's Articles of Incorporation. Each of
the Holders agrees that a check representing its fractional interest (if any)
shown in Schedule 1 to Exhibit A may be mailed to it at its address of record in
due course following delivery of the Conversion Shares.
<PAGE>
Please confirm this letter by signing in the place provided.
Sincerely yours,
TCW Leveraged Income Trust, L.P.
TCW Leveraged Income Trust II, L.P.
TCW Shared Opportunity Fund II, L.P.
TCW Shared Opportunity Fund IIB, LLC
TCW Shared Opportunity Fund III, L.P.
TCW/Crescent Mezzanine Trust II
TCW/Crescent Mezzanine Partners II, L.P.
Brown University Third Century Fund
By: /s/ Mark Attanasio
_________________________________
Authorized Signatory
We confirm the foregoing
US UNWIRED INC.
By: /s/ Authorized Signatory
________________________
<PAGE>
Exhibit A
US UNWIRED INC.
Notice of Mandatory Conversion
------------------------------
TO: The holders of the Senior Redeemable Convertible Preferred Stock, Series B
(the "Series B Preferred Stock") of US Unwired Inc. (the "Company")
PLEASE TAKE NOTICE that, subject to the conditions precedent set forth
below, US UNWIRED INC. hereby exercises its right to require the Mandatory
Conversion (as such term is defined in Article III(L), Section 10(a), of its
Articles of Incorporation) of all of the shares of its Series B Preferred Stock.
The Mandatory Conversion Date will be the date of the closing of the
Company's initial public offering (the "IPO Closing") pursuant to the certain
Underwriting Agreement among the Company, the underwriters listed in Schedule I
thereto, and the selling stockholders listed in Schedule II thereto.
The number of shares of Series B Preferred Stock to be converted (the
"Converted Shares"), the number of shares of Class A Common Stock, par value
$.01 per share ("Class A Common Stock"), of the Company into which they are to
be converted (the "Conversion Shares"), and any fractional interest of a holder
in a Conversion Share are shown in Schedule I annexed.
The Mandatory Conversion is subject to the conditions precedent that the
IPO Closing shall have occurred on or before June 30, 2000 and that the initial
public offering price of the shares of Class A Common Stock being sold in the
IPO is not less than the price at which the Internal Rate of Return (as such
term is defined in Article III(K) of the Company's Articles of Incorporation) of
the holder of the Senior Redeemable Convertible Preferred Stock, Series A, of
the Company would be at least 20% per annum on the Mandatory Conversion Date.
Notice dated May 15, 2000.
US UNWIRED INC.
Lake Charles, Louisiana
<PAGE>
SCHEDULE 1
<TABLE>
<CAPTION>
Holder "Converted Shares" of "Conversion Shares" of Fractional
Series B Preferred Stock Class A Common Stock Interest
- -------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
TCW Leveraged Income Trust, 3,958.33 79,470 .743
L.P.
- -------------------------------------------------------------------------------------------------------
TCW Leveraged Income Trust 3,958.33 79,470 .743
II, L.P.
- -------------------------------------------------------------------------------------------------------
TCW Shared Opportunity Fund 5,833.33 117,114 .811
II, L.P.
- -------------------------------------------------------------------------------------------------------
TCW Shared Opportunity Fund 2,500.00 50,192 .090
IIB, LLC
- -------------------------------------------------------------------------------------------------------
TCW Shared Opportunity Fund 12,500.00 250,960 .452
III, L.P.
- -------------------------------------------------------------------------------------------------------
TCW/Crescent Mezzanine Trust 4,063.34 81,579 .011
II
- -------------------------------------------------------------------------------------------------------
TCW/Crescent Mezzanine 16,770.00 336,688 .542
Partners II, L.P.
- -------------------------------------------------------------------------------------------------------
Brown University Third Century 416.67 8,365 .415
Fund
- -------------------------------------------------------------------------------------------------------
</TABLE>
NOTE: The number of "Conversion Shares" assumes that no action is taken that
would require a further adjustment of the Conversion Price under Article III(L),
Section 8(d), of the Company's Articles of Incorporation.
