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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________________________________________
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): August 23, 1995
WORLDCOM, INC.
(F/K/A LDDS COMMUNICATIONS, INC.)
(Exact Name of Registrant as Specified in its Charter)
Georgia 0-11258 58-1521612
(State or Other (Commission File (I.R.S. Employer
Jurisdiction of Number) Identification Number)
Incorporation)
515 East Amite Street
Jackson, Mississippi 39201-2702
(Address of Principal Executive Office)
Registrant's telephone number, including area code: (601) 360-8600
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ITEM 5. OTHER EVENTS
On August 23, 1995, Metromedia Company ("Metromedia") converted its
Series 1 $2.25 Cumulative Senior Perpetual Convertible Preferred Stock (the
"Series 1 Preferred Stock") of WorldCom, Inc. ("WorldCom"), a Georgia
corporation formerly known as LDDS Communications, Inc., into 21,876,976 shares
of WorldCom common stock and exercised warrants to acquire 3,106,976 shares of
WorldCom common stock and immediately sold its position of 30,849,548 shares of
WorldCom common stock in a public offering. In connection with the preferred
stock conversion, WorldCom made a one-time non-recurring payment of $15.0
million to Metromedia, representing a discount to the minimum nominal dividends
that would have been payable on the Series 1 Preferred Stock prior to the
September 15, 1996 optional call date of approximately $26.6 million (which
amount includes an annual dividend requirement of $24.5 million plus accrued
dividends to such call date). Metromedia offered the shares immediately
through an underwriting by Donaldson, Lufkin & Jenrette Securities Corporation,
as representative for the several underwriters. The Company did not receive
any proceeds from the sale of the shares, but did receive approximately $33.7
million in proceeds from the exercise of the warrants, which will be used to
repay certain existing bank debt. John W. Kluge, Chairman of WorldCom, and the
two other directors elected by Metromedia, Silvia Kessel and Stuart Subotnick,
currently remain as directors of WorldCom.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
Exhibit 1.1 Underwriting Agreement dated August 17, 1995 between
WorldCom, Inc., Metromedia Company (the "Selling
Shareholder") and Donaldson, Lufkin & Jenrette
Securities Corporation ("DLJ") for itself and on
behalf of several underwriters named in Schedule I
thereto.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Dated: August 29, 1995
WORLDCOM, INC.
By: /s/ Scott D. Sullivan
-------------------------------------------
Scott D. Sullivan
Treasurer and Chief Financial Officer
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INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
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Exhibit 1.1 Underwriting Agreement dated August 17, 1995 between
WorldCom, Inc., Metromedia Company (the "Selling
Shareholder") and Donaldson, Lufkin & Jenrette
Securities Corporation ("DLJ") for itself and on
behalf of several underwriters named in Schedule I
thereto.
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30,855,983 Shares
WORLDCOM, INC.
Common Stock
($.01 par value)
UNDERWRITING AGREEMENT
August 17, 1995
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
As representative of the
several underwriters
named in Schedule I hereto
c/o Donaldson, Lufkin & Jenrette
Securities Corporation
140 Broadway
New York, New York 10005
Ladies and Gentlemen:
WorldCom, Inc., a Georgia corporation (the "Company"), and
Metromedia Company, a Delaware general partnership (the "Selling Shareholder"),
confirm their agreement with each other and Donaldson, Lufkin & Jenrette
Securities Corporation ("DLJ"), for itself and on behalf of the several
underwriters named in Schedule I hereto (the "Underwriters") as their
representative, as follows:
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1. The Shares. Subject to the terms and conditions
herein set forth, the Selling Shareholder proposes to sell to the Underwriters
an aggregate of 30,855,983 shares (the "Shares") of Common Stock, $.0l par
value per share, of the Company (the "Common Stock").
2. 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-3 (No. 33-67340),
including a prospectus relating to the Shares. The registration statement, as
amended at the time it became effective or, if a post-effective amendment is
filed with respect thereto, as amended by such post-effective amendment at the
time of its effectiveness, including in each case the registration statement
filed pursuant to Rule 462(b) under the Act (the "Rule 462 Registration
Statement") and all documents incorporated or deemed to be incorporated by
reference therein, financial statements and exhibits and the information (if
any) contained in a prospectus that is deemed to be a part of the registration
statement at the time of its effectiveness pursuant to Rule 434 under the Act,
is hereinafter referred to as the "Registration Statement," and the prospectus
(including any prospectus subject to completion meeting the requirements of
Rule 434(c) under the Act provided by the Company with any term sheet meeting
the requirements of Rule 434(c) as the prospectus provided to meet the
requirement of Section 10(a) of the Act), together with the prospectus
supplement relating to the sale of the Shares (the "Prospectus Supplement"), in
the form first used to confirm sales of the Shares, whether or not filed with
the Commission pursuant to Rule 424(b) under the Act, and including all
documents incorporated or deemed to be incorporated by reference therein, is
hereinafter referred to as the "Prospectus." As used herein, the term
"Incorporated
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Documents" means the documents that at the time are incorporated by reference
in the registration statement, the Registration Statement, any prospectus, the
Prospectus or any amendment or supplement thereto.
3. Agreements to Sell and Purchase. On the basis of the
representations and warranties contained in this Agreement, and subject to the
terms and conditions hereof, (i) the Selling Shareholder agrees to sell to the
Underwriters the Shares at a price per Share of $30.25, less an underwriting
discount of $1.00 per share; and (ii) each Underwriter agrees, severally and
not jointly, to purchase from the Selling Shareholder, at the price per Share
as set forth above, the number of Shares set forth opposite its name on
Schedule I hereto.
The Selling Shareholder agrees not to offer, sell, contract to
sell, grant any option to purchase, or otherwise dispose of any Common Stock or
any securities convertible into or exercisable or exchangeable for Common Stock
or in any other manner transfer all or a portion of the economic consequences
associated with the ownership of Common Stock, except to the Underwriters
pursuant to this Agreement, for a period of 90 days after the date of the
Prospectus without the prior written consent of DLJ, which consent will not be
unreasonably withheld.
4. Delivery and Payment. Delivery to the Underwriters
of and payment for the Shares shall be made at 10:00 A.M., New York City time,
on Wednesday, August 23, 1995 (such time and date being referred to as the
"Closing Date") at the office of Skadden, Arps, Slate, Meagher & Flom, 919
Third Avenue, New York, New York. The Closing Date and the location of
delivery of and the form of payment for the Shares may be varied by agreement
between the Underwriters and the Selling Shareholder upon written notice
delivered at least two business days prior thereto to the Company.
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Certificates for the Shares shall be registered in such names
and issued in such denominations as you shall request in writing not later than
9:30 A.M., New York City time, on the second business day prior to the Closing
Date and shall be made available to you for inspection not later than 9:30
A.M., New York City time, on the business day next preceding the Closing Date.
Certificates in definitive form evidencing the Shares shall be delivered to you
on the Closing Date with any transfer taxes payable in connection with the
transfer thereof duly paid by the Selling Shareholder, for the account of the
Underwriters against payment therefor by certified or official bank check or
checks payable in federal or similar same day funds to the order of the Selling
Shareholder or wire transfer to an account or accounts designated by the
Selling Shareholder not later than 9:30 A.M., New York City time, on the
business day next preceding the Closing Date.
5. Agreements of the Company. The Company agrees with
the Underwriters and the Selling Shareholders that:
(a) The Company will file the Rule 462 Registration
Statement prior to 10:00 A.M. New York City time on August 18, 1995.
The Company will comply fully and in a timely manner with the
applicable provisions of Rule 424 and Rule 434 under the Act.
(b) It will advise you and the Selling Shareholder
promptly and, if requested by you, confirm such advice in writing, (i)
if and when the Prospectus is sent for filing pursuant to Rule 424
under the Act (including any term sheet within the meaning of Rule 434
under the Act), when the Rule 462 Registration Statement is filed and
becomes effective, and when any post-effective amendment to the
Registration Statement becomes effective, (ii) of the receipt of any
comments from the Commission that
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relate to the Registration Statement or requests by the Commission for
amendments to the Registration Statement or amendments or supplements
to the Prospectus or for additional information, (iii) 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 purpose by the Commission or any state
securities commission or other regulatory authority, and (iv) of the
happening of any event during the period referred to in paragraph (e)
below which makes any statement of a material fact made in the
Registration Statement (as amended or supplemented from time to time)
untrue or which requires the making of any additions to or changes in
the Registration Statement (as amended or supplemented from time to
time) in order to make the statements therein not misleading or that
makes any statement of a material fact made in the Prospectus (as
amended or supplemented from time to time) untrue or which requires
the making of any additions to or changes in the Prospectus (as
amended or supplemented from time to time) in order to make the
statements therein, in light of the circumstances under which they
were made, not misleading. If at any time the Commission shall issue
any stop order suspending the effectiveness of the Registration
Statement, or any state securities commission or other regulatory
authority shall issue an order suspending the qualification or
exemption of the shares under any State securities or Blue Sky laws,
the Company shall use every reasonable effort to obtain the withdrawal
or lifting of such order at the earliest possible time.
(c) It will furnish to you and the other Underwriters
such number of conformed copies of the Registration Statement as filed
with the Commission
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and of each amendment to it, without exhibits, as the Underwriters may
reasonably request.
(d) It will not file any amendment or supplement to the
Registration Statement or make any amendment or supplement to the
Prospectus (including the issuance or filing of any term sheet within
the meaning of Rule 434 under the Act) of which you shall not
previously have been advised and provided a copy of prior to the
filing thereof or to which you shall reasonably object; and it will
prepare and file with the Commission, promptly upon your reasonable
request, any amendment to the Registration Statement or supplement to
the Prospectus (including the issuance or filing of any term sheet
within the meaning of Rule 434 under the Act) which may be necessary
or advisable in connection with the distribution of the Shares by the
Underwriters, and will use its best efforts to cause the same to
become effective as promptly as possible.
(e) From time to time thereafter for such period as, in
the reasonable opinion of counsel for the Underwriters, a prospectus
is required by the Act to be delivered in connection with sales by the
Underwriters or a dealer, it will furnish to the Underwriters and each
dealer without charge as many copies of the Prospectus (and of any
amendment or supplement to the Prospectus) as the Underwriters or such
dealer may reasonably request for the purposes contemplated by the
Act. The Company consents to the use of the Prospectus and any
amendment or supplement thereto by the Underwriters or any dealer,
both in connection with the offering or sale of the Shares and for
such period of time thereafter as the Prospectus is required by the
Act to be delivered in connection therewith.
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(f) If during the period specified in paragraph (e) any
event shall occur as a result of which it becomes necessary to amend
or supplement the Prospectus in order to make the statements therein,
in the light of the circumstances existing as of the date the
Prospectus is delivered to a purchaser, not misleading, or if it is
necessary to amend or supplement the Prospectus to comply with the
Act, it will, as promptly as practicable, 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 existing as of the date
the Prospectus is so delivered, be misleading, and will comply with
the Act, and will furnish to the Underwriters and to such dealers as
the Underwriters shall specify without charge such number of copies
thereof as the Underwriters or such dealers may reasonably request.
(g) Prior to any public offering of the Shares, it will
cooperate with the Underwriters and counsel for the Underwriters in
connection with the registration or qualification of the Shares for
offer and sale by the Underwriters and by dealers under the state
securities or Blue Sky laws of such jurisdictions as the Underwriters
may reasonably request (provided, that the Company shall not be
obligated to qualify as a foreign corporation in any jurisdiction in
which it is not so qualified or to take any action that would subject
it to general consent to service of process in any jurisdiction in
which it is not now so subject). The Company will continue such
qualification in effect so long as required by law for distribution of
the Shares and will file such consents to service of process or other
documents as may be necessary in order to effect such registration or
qualification (provided, that the Company shall not be obligated to
take any
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action that would subject it to general consent to service of process
in any jurisdiction in which it is not now so subject).
(h) It will mail and make generally available to its
security holders as soon as reasonably practicable and for the time
period specified by Rule 158 under the Act a consolidated earnings
statement which shall satisfy the provisions of Section 11(a) of the
Act and Rule 158 thereunder.
(i) It will use every reasonable effort to do and perform
all things required to be done and performed under this Agreement by
it prior to or after the Closing Date and to satisfy all conditions
precedent to the delivery of the Shares to be satisfied by it.
6. Payment of Expenses. The Company agrees with you
that it will pay and be responsible for all costs, expenses and fees in
connection with (i) the printing, filing and distribution under the Act of the
Registration Statement (including financial statements and exhibits), each
Prospectus, preliminary prospectus and all amendments and supplements to any of
them, (ii) the registration with the Commission and the delivery of the Shares,
(iii) the registration or qualification of the Shares for offer and sale under
the securities or Blue Sky laws of the jurisdictions referred to in Section
5(g) hereof (including, in each case, any filing fees in connection therewith
and the reasonable fees and expenses of counsel (not to exceed $15,000)
relating to such registration or qualification), (iv) furnishing (including
postage, air freight charges and charges for counting and packaging) such
copies of the Registration Statement, Prospectus and preliminary prospectus,
and all amendments and supplements to any of them, as may be reasonably
requested for use in connection with the offering or sale of the Shares by the
Underwriters or by dealers to whom
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Shares may be sold, (v) any filing fees incurred in connection with the filing,
registration and clearance with the National Association of Securities Dealers,
Inc. in connection with the offering of the Shares (and excluding any expenses
of counsel for the Underwriters relating thereto), (vi) the printing of this
Agreement and any memoranda describing state securities or Blue Sky laws and
(vii) the performance by the Company of its other obligations under this
Agreement, the cost of its personnel and other internal costs, including
(without limitation) the cost of printing and engraving the certificates
representing the Shares, and all expenses incident to the sale and delivery of
the Shares to the Underwriters; provided, that the Company shall have no
liability or obligation with respect to any fees or expenses of counsel to the
Underwriters, except as provided in clause (iii) above, or for any costs of
personnel or other internal costs of the Underwriters or the Selling
Shareholder or for any taxes in connection with the transactions contemplated
hereby; and provided further, that the Underwriters agree to reimburse the
Company on the Closing Date for overtime printing expenses incurred in printing
the Prospectus Supplement. No provision of this Agreement shall be deemed to
increase any liability or obligation of the Company with respect to any costs,
fees, expenses, liabilities or obligations of the Selling Shareholder or its
controlling persons pursuant to that certain Registration Rights Agreement
between Resurgens Communications Group, Inc. and the Selling Shareholder dated
as of May 10, 1993 (the "Registration Rights Agreement"), or otherwise to
affect the Company adversely with respect thereto. Notwithstanding the
Registration Rights Agreement, the Selling Shareholder and the Company agree
that the fees and expenses of counsel for the Selling Shareholder in excess of
$50,000 shall be borne by the Selling Shareholder.
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7. Representations and Warranties.
(a) The Company represents and warrants to the
Underwriters and the Selling Shareholder as follows:
(i) The Company and the transactions contemplated
by this Agreement meet the requirements for using Form S-3 under the
Act. When the Registration Statement became effective, when the Rule
462 Registration Statement becomes effective and at the date of the
Prospectus Supplement, including at the date of any post-effective
amendment, the Registration Statement and the Rule 462 Registration
Statement complied and will comply in all material respects with the
provisions of the Act, and did not and will not 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 not misleading; the Prospectus (and any supplements or
amendments thereto) will at any such time comply in all material
respects with the Act and will not contain any untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading, except that the representations
and warranties contained in this paragraph (i) shall not apply to
statements in or omissions from the Registration Statement or the
Prospectus (or any supplement or amendment to them) based upon and
conforming with (a) any information relating to any Underwriter
furnished to the Company in writing by or on behalf of such
Underwriter expressly for use therein or (b) any Selling Shareholder
Information (as defined in Section 11 hereof). The Company
acknowledges for all
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purposes under this Agreement (including this paragraph and Section 8
hereof) that the statements set forth under the last paragraph on the
cover page of the Prospectus Supplement, the last two paragraphs on
the inside cover page of the Prospectus Supplement and the caption
"Underwriting" in the Prospectus constitute the only written
information (the "Underwriter Information") furnished to the Company
by or on behalf of any Underwriter for use in the Registration
Statement or the Prospectus (or any amendment or supplement to them)
and that the Underwriters shall not be deemed to have provided any
information (and therefore are not responsible for any statement or
omission) pertaining to any arrangement or agreement with respect to
any party other than the Underwriters. No contract or document of a
character required to be described in the Registration Statement, the
Prospectus or an Incorporated Document or to be filed as an exhibit to
the Registration Statement or an Incorporated Document is not
described or filed as required by applicable law.
(ii) The Incorporated Documents heretofore filed,
when they were filed (or, if any amendment with respect to any such
document was filed, when such amendment was filed), conformed in all
material respects with the requirements of the Exchange Act and the
rules and regulations thereunder, and any further Incorporated
Documents so filed will, when they are filed, conform in all material
respects with the requirements of the Exchange Act and the rules and
regulations thereunder; no such document when it was filed (or, if an
amendment with respect to any such document was filed, when such
amendment was filed) contained an
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untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they
were made, not misleading; and no such further document, when it is
filed, will contain an untrue statement of a material fact or will
omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they are made, not misleading.
(iii) The Company and each of its Material
Subsidiaries has been duly organized, each is validly existing as a
corporation in good standing under the laws of its jurisdiction of
organization (where such concept is applicable) and has the corporate
power and authority to carry on its business as it is currently being
conducted (and, in the case of the Company, to execute, deliver and
perform this Agreement) and to own, lease and operate its properties,
except where the failure to be in good standing or have such power
would not, singly or in the aggregate, reasonably be expected to have
a material adverse effect on the business, results of operations,
financial condition or prospects of the Company and its subsidiaries,
taken as a whole ("Material Adverse Effect"). Each of the Company and
its Material Subsidiaries is duly qualified and is in good standing as
a foreign corporation 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 or in good standing would not, singly or in the
aggregate, have a Material Adverse
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Effect. As used herein, "Material Subsidiary" means WorldCom Network
Services, Inc. and IDB WorldCom Services, Inc. The assets of the
Company and the Company's Material Subsidiaries (i) constitute at
least 80% of the total assets of the Company and its subsidiaries
considered as one enterprise and (ii) produced at least 80% of the
operating revenues of the Company and its subsidiaries considered as
one enterprise in the last fiscal year, in each case determined in
accordance with generally accepted accounting principles.
(iv) All of the issued and outstanding shares of
capital stock of, or other ownership interests in, each Material
Subsidiary of the Company have been duly authorized and validly
issued, and are owned, directly or through its subsidiaries, by the
Company. All such shares or other ownership interests in each
Material Subsidiary are fully paid and nonassessable, and are owned
free and clear of any security interest, mortgage, pledge, claim, lien
or encumbrance of any nature (each, a "Lien"). There are no
outstanding subscriptions, rights, warrants, options, calls,
convertible or exchangeable securities, commitments of sale, or Liens
related to or entitling any person to purchase or otherwise to acquire
any shares of the capital stock of, or other ownership interests in,
any such Material Subsidiary.
(v) The authorized, issued and outstanding
capital stock of the Company is as set forth in the Prospectus under
"Capitalization"; all the shares of issued and outstanding Common
Stock, including the Shares to be purchased by the Underwriters from
the Selling Shareholder,
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have been duly authorized and validly issued, are fully paid and
nonassessable and are not subject to any preemptive or similar rights;
and the capital stock of the Company, including without limitation the
Common Stock and the preferred stock of the Company, conforms in all
material respects to all statements relating thereto in the Prospectus
and the Registration Statement.
(vi) Neither the Company nor any of its subsidiaries
is in violation of or in default in the performance of any of its
charter or bylaws or, in any instance where such violation or default
would, singly or in the aggregate, have a Material Adverse Effect, any
bond, debenture, note or any other evidence of indebtedness or any
indenture, mortgage, deed of trust or other contract, lease or other
instrument to which the Company or any of its subsidiaries is a party
or by which any of them is bound, or to which any of the property or
assets of the Company or any of its subsidiaries is subject.
(vii) This Agreement has been duly and validly
executed and delivered by the Company, and constitutes a valid and
legally binding agreement of the Company, enforceable against the
Company in accordance with its terms.
(viii) The execution and delivery of this Agreement
by the Company, the performance of this Agreement by the Company and
the consummation of the transactions contemplated by this Agreement by
the Company will not (i) conflict with or result in a breach of any of
the terms or provisions of, or constitute a default
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or cause an acceleration of any obligation under, (A) any of the
respective charters or bylaws of the Company or any of its
subsidiaries or (B) any bond, note, debenture or other evidence of
indebtedness or any indenture, mortgage, deed of trust or other
contract, lease or other instrument to which the Company or any of its
subsidiaries is a party or by which any of them is bound, or to which
any of the property or assets of the Company or any of its
subsidiaries is subject, or (C) any order of any court or governmental
agency or authority entered in any proceeding to which the Company or
any of its subsidiaries was or is a party or by which any of them is
bound or (ii) violate or conflict with any applicable U.S. federal,
state or local or any foreign law, rule, administrative regulation or
ordinance (including, without limitation, with respect to the
Communications Act of 1934, as amended, and the published rules,
regulations and orders of the Federal Communications Commission) or
administrative or court decree applicable to the Company, any of its
subsidiaries or their respective properties, except in each case as
would not, singly or in the aggregate, have a Material Adverse Effect
and except for state securities laws or the by-laws and rules of the
National Association of Securities Dealers, Inc. or securities laws of
foreign countries.
(ix) Except as disclosed in the Registration
Statement or the Prospectus, there is no action, suit or proceeding
before or by any court or governmental agency or body, domestic or
foreign, pending against the Company or any of its subsidiaries which
is required to be disclosed in the Registration Statement or the
Prospectus or which could reasonably be expected
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to have, singly or in the aggregate, a Material Adverse Effect, or
materially and adversely to affect the performance of the Company's
obligations pursuant to this Agreement and, to the best of the
Company's knowledge, no such proceedings are contemplated or
threatened. No action has been taken with respect to the Company or
any of its subsidiaries, and no statute, rule or regulation or order
has been enacted, adopted or issued by any governmental agency which
suspends the effectiveness of the Registration Statement, prevents or
suspends the use of any preliminary prospectus or the Prospectus or
suspends the sale of the Shares in any jurisdiction referred to in
Section 5(g) hereof; no injunction, restraining order or order of any
nature by a federal or state court of competent jurisdiction has been
issued with respect to the Company or any of its subsidiaries which
would suspend the effectiveness of the Registration Statement, prevent
or suspend the use of any preliminary prospectus or the Prospectus or
suspend the sale of the Shares in any jurisdiction referred to in
Section 5(g) hereof; no action, suit or proceeding before any court or
arbitrator or any governmental body, agency or official (domestic or
foreign) is pending against or, to the knowledge of the Company,
threatened against the Company or any of its subsidiaries, which, if
adversely determined, could reasonably be expected to invalidate this
Agreement in any manner; and every request of the Commission, or any
securities authority or agency of any jurisdiction, made to the
Company for additional information (to be included in the Registration
Statement or the Prospectus or otherwise) has been complied with in
all material respects.
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(x) The firms of accountants that have
certified or shall certify the applicable consolidated
financial statements and supporting schedules of the Company
and other financial statements filed or to be filed with the
Commission as part of the Registration Statement and the
Prospectus or incorporated by reference therein are
independent public accountants with respect to the Company and
its subsidiaries, as required by the Act. The consolidated
financial statements and such other financial statements,
together with related schedules and notes, including the pro
forma financial information, set forth or incorporated by
reference in the Prospectus and the Registration Statement
comply as to form in all material respects with the
requirements of the Act. Such historical financial statements
fairly present the consolidated financial position of the
Company and its subsidiaries at the respective dates indicated
and the results of their operations and their cash flows for
the respective periods indicated, in accordance with
generally accepted accounting principles ("GAAP"), except as
otherwise expressly stated therein, as consistently applied
throughout such periods. The other financial and statistical
information and data included in the Prospectus and in the
Registration Statement are, in all material respects,
accurately presented and prepared on a basis consistent with
applicable financial statements and, where applicable, the
books and records of the Company. The pro forma financial
information has been accurately presented and prepared on a
basis consistent with applicable financial statements, except
for the pro forma adjustments specified therein, and give
effect to assumptions made on a reasonable basis.
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(xi) Except as disclosed in the Registration
Statement or the Prospectus, subsequent to the respective dates as of
which information is given in the Registration Statement and the
Prospectus, (i) neither the Company nor any of its subsidiaries has
incurred any liabilities or obligations, direct or contingent, which
are material to the Company and its subsidiaries, taken as a whole,
nor entered into any transaction not in the ordinary course of
business that is material to the Company and its subsidiaries, taken
as a whole, (ii) there has been no decision or judgment or material
development in any litigation adverse to the Company or any of its
subsidiaries, which, singly or in the aggregate, could have a Material
Adverse Effect and (iii) there has been no material adverse change in
the financial condition or in the results of operations or business of
the Company and its subsidiaries, taken as a whole (any of the above,
a "Material Adverse Change").
(xii) Except as otherwise set forth in the
Registration Statement or the Prospectus or as would not have a
Material Adverse Effect, (i) the Company and its subsidiaries possess
such licenses, certificates, authorizations, approvals, franchises,
trademarks, service marks, permits and other rights issued by local,
state, federal or foreign regulatory agencies or bodies (including,
without limitation, those required by the Federal Communications
Commission) (collectively, "Permits"), as are necessary to own, lease
and operate the properties and to conduct the businesses of the
Company and its subsidiaries; (ii) each of the Company and each of its
subsidiaries has fulfilled and performed all of its material
obligations
18
<PAGE> 19
with respect to such Permits; and (iii) neither the Company nor any of
its subsidiaries has received any notice of proceedings relating to
the revocation or modification of any such Permit and no such Permits
contain any restrictions that are materially burdensome to the Company
or any of its subsidiaries.
(xiii) All tax returns required to be filed by the
Company and its subsidiaries in any jurisdiction have been filed,
other than those filings that are being contested in good faith and
other than those filings the failure of which to make would not,
singly or in the aggregate, have a Material Adverse Effect, and all
taxes, including withholding taxes, penalties and interest,
assessments, fees and other governmental charges shown thereon due or
otherwise assessed in writing from such entities have been paid, other
than those being contested in good faith and for which adequate
reserves have been provided or those currently payable without penalty
or interest and other than those taxes the failure of which to pay
would not have, singly or in the aggregate, a Material Adverse Effect.
(xiv) Except for such violations which singly or in
the aggregate would not have a Material Adverse Effect, 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").
(xv) Except as otherwise set forth in the
Registration Statement or the Prospectus,
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<PAGE> 20
the Company and each of its subsidiaries has good and marketable
title, free and clear of all Liens, to all property and assets
described in the Registration Statement or the Prospectus as being
owned by it, except Liens for taxes not yet due and payable and Liens
which, singly and in the aggregate, would not have a Material Adverse
Effect and which secure indebtedness described in the Prospectus or
were entered into in the ordinary course of business in connection
with other leasing and financing transactions. All leases to which
the Company or any of its subsidiaries is a party are valid and
binding except where the failure to be valid and binding would not,
singly or in the aggregate, have a Material Adverse Effect, and no
default has occurred or is continuing thereunder which might singly or
in the aggregate have a Material Adverse Effect, and the Company and
its subsidiaries enjoy peaceful and undisturbed possession under all
such leases to which any of them is a party as lessee with such
exceptions as do not materially interfere with the use made by the
Company or such subsidiary.
(xvi) The Company and each subsidiary maintain
reasonable and customary insurance covering their properties,
operations, personnel and businesses or is self-insured as is
reasonable and customary under industry practices.
(xvii) Neither the Company nor any subsidiary is an
"investment company" or a company "controlled" by an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended.
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<PAGE> 21
(xviii) No holder of any security of the Company,
other than the Selling Shareholder, has any right to require
registration of shares of Common Stock or any other security of the
Company under the Registration Statement.
(xix) The Company and each of its subsidiaries
maintains a system of internal accounting controls sufficient to
provide reasonable assurance that (1) transactions are executed in
accordance with management's general or specific authorizations; (2)
transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting
principles and to maintain asset accountability; (3) access to assets
is permitted only in accordance with management's general or specific
authorization; and (4) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(xx) The Company and its subsidiaries possess the
patents, patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures),
trademarks, service marks and trade names (collectively, "Intellectual
Property") presently employed by them in connection with the
businesses now operated by them, except for failures to possess
Intellectual Property that, singly or in the aggregate, would not have
a Material Adverse Effect and, except as disclosed in the Registration
Statement or Prospectus, neither the Company nor any of the
subsidiaries has received any notice of infringement of or conflict
21
<PAGE> 22
with asserted rights of others with respect to the foregoing. The use
of such Intellectual Property in connection with the business and
operations of the Company and its subsidiaries does not, to the
Company's knowledge, infringe on the rights of any person, except for
infringements which, if proven, would not, singly or in the aggregate,
have a Material Adverse Effect or are disclosed in the Registration
Statement or the Prospectus.
(xxi) The Common Stock, including the Shares, is
included on the Nasdaq National Market.
(xxii) The Company has complied with all provisions
of Section 517.075, Florida Statutes (Chapter 92-198, Laws of
Florida).
(xxiii) Except as would not have a Material Adverse
Effect, the Company and its subsidiaries are in compliance with the
Communications Act of 1934, as amended, and with the published rules,
regulations and orders of the Federal Communications Commission
including, but not limited to, tariffs; except as, singly or in the
aggregate, would not have a Material Adverse Effect, the Company and
its subsidiaries have made all necessary filings with the Federal
Communications Commission to operate the businesses identified in the
Prospectus, as operated by them and are in compliance therewith.
(b) The Selling Shareholder represents and warrants to,
and agrees with, the Underwriters and the Company as follows:
22
<PAGE> 23
(i) The execution, delivery and performance
of this Agreement by the Selling Shareholder and the sale of
Shares, and the performance of this Agreement and the
consummation of the transactions contemplated by this
Agreement will not (i) conflict with or result in a breach of
any of the terms or provisions, or constitute a default or
cause an acceleration of any obligation under, (A) the
organizational documents of the Selling Shareholder or (B) any
bond, note, debenture or other evidence of indebtedness or any
indenture, mortgage, deed of trust or other material contract,
lease, or other instrument to which the Selling Shareholder is
a party or by which the Selling Shareholder is bound, or to
which any of the property or assets of the Selling Shareholder
is subject, or (C) any order of any court or governmental
agency or authority entered in any proceeding to which the
Selling Shareholder was or is a party or by which the Selling
Shareholder is bound or (ii) (solely with respect to actions
by the Selling Shareholder) violate or conflict with any
applicable U.S. federal, state or local law, rule,
administrative regulation or ordinance or administrative or
court decree applicable to the Selling Shareholder or its
property, except in each such case as would not, singly or in
the aggregate, have a material adverse effect on the business,
results of operations, financial condition or prospects of the
Selling Shareholders; provided, however, that no
representation or warranty is made with respect to U.S.
federal securities laws or the securities laws of any state or
other jurisdiction.
(ii) The Selling Shareholder has on the date
of this Agreement (except for the
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<PAGE> 24
pledge pursuant to that certain Credit Agreement dated as of April 11,
1994 between the Selling Shareholder and Chemical Bank, as amended)
and will have at the Closing Date good and marketable title to the
Shares to be sold by the Selling Shareholder to the Underwriters, free
and clear of any Lien other than pursuant to this Agreement; and upon
delivery to the Underwriters of the Shares to be sold by the Selling
Shareholder hereunder and payment of the purchase price therefor by
the Underwriters as herein contemplated, the Underwriters will receive
good and marketable title to the Shares purchased by them from the
Selling Shareholder, free and clear of any Lien other than any Lien
created by or resulting from the Underwriters.
(iii) All authorizations, approvals and consents
necessary for the execution, delivery and performance by the Selling
Shareholder of this Agreement, and the sale and delivery by the
Selling Shareholder to the Underwriters of the Shares to be sold by
the Selling Shareholder hereunder (other than such authorizations,
approvals or consents as may be necessary under the Act or state
securities laws or the by-laws and rules of the National Association
of Securities Dealers, Inc. in each case, as to which the Selling
Shareholder makes no representation or warranty) have been obtained
and are in full force and effect; and the Selling Shareholder has all
requisite right, power and authority to enter into and perform its
obligations under this Agreement and to sell, transfer and deliver the
Shares to be sold by the Selling Shareholder to the Underwriters
hereunder.
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<PAGE> 25
(iv) The Selling Shareholder Information (as defined
in Section 11) does not, and will not on the Closing Date, include an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(v) The Selling Shareholder has not taken, and will
not take, directly or indirectly, any action designed to, or which
might reasonably be expected to, cause or result in stabilization or
manipulation of the price of any security of the Company to facilitate
the sale or resale of the Shares pursuant to the distribution
contemplated by this Agreement, and, other than as permitted by the
Act, the Selling Shareholder has not distributed and will not
distribute any Prospectus or other offering material in connection
with the offering and sale of the Shares.
(vi) At any time during the period described in
Section 5(e) hereof, if there is any change in the information
referred to in Section 7(b)(iv) above, the Selling Shareholder will
promptly notify the Underwriters and the Company of such change.
(vii) The Selling Shareholder acknowledges for all
purposes under this Agreement (including this paragraph and Section 8
hereof) that the Underwriter Information constitutes the only written
information furnished to the Company by or on behalf of the
Underwriters for use in the Registration Statement or the Prospectus
(or any amendment or supplement to them) and that the Underwriters
shall
25
<PAGE> 26
not be deemed to have provided any information (and therefore are not
responsible for any statement or omission) pertaining to any
arrangement or agreement with respect to any party other than the
Underwriters.
8. Indemnification.
(a) The Company (but only with respect to claims and
actions based on information other than any Selling Shareholder
Information (as defined in Section 11 hereof) or any Underwriter
Information) agrees to indemnify and hold harmless (i) the
Underwriters and (ii) each person, if any, who controls (within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act)
any of the Underwriters (any of the persons referred to in this clause
(ii) being hereinafter referred to as a "controlling person") (any
person referred to in clause (i) or (ii) may hereinafter be referred
to as an "Indemnified Person") to the fullest extent lawful, from and
against any and all losses, claims, damages, liabilities, actions and
expenses (including without limitation and as incurred, reimbursement
of all reasonable costs of investigating, preparing, pursuing, or
defending any claim or action, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, including
the reasonable fees and expenses of counsel to any Indemnified Person
in accordance with the provisions of this Section 8) directly or
indirectly caused by, related to, based upon or arising out of, or in
connection with any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the
Prospectus (including, in each case, any amendment or supplement
thereto) or any preliminary prospectus, or any omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make
26
<PAGE> 27
the statements therein (in the case of the Prospectus, in light of the
circumstances under which they were made) not misleading; provided,
however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent caused by (i) any
untrue statement or omission or alleged untrue statement or omission
made in reliance upon and in conformity with information relating to
any Underwriter furnished in writing to the Company by or on behalf of
such Underwriter expressly for use therein and (ii), with respect to
the sale of Shares by any Underwriter to any person, a failure by such
Underwriter to give a copy of the Prospectus to such person within the
time required by the Act (unless such failure was the result of the
Company's failure to furnish to such Underwriter sufficient copies of
the Prospectus on a timely basis) if, but only if, the untrue
statement or alleged untrue statement or omission or alleged omission
of a material fact was corrected in the Prospectus.
(b) The Selling Shareholder agrees to indemnify and hold
harmless each Indemnified Person to the fullest extent lawful, from
and against any and all losses, claims, damages, liabilities, actions
and expenses (including without limitation and as incurred,
reimbursement of all reasonable costs of investigating, preparing,
pursuing or defending any claim or action, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, including the reasonable fees and expenses of counsel to
any Indemnified Person in accordance with the provisions of this
Section 8) directly or indirectly caused by, related to, based upon or
rising out of, or in connection with any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement or the Prospectus (including, in each case, any
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<PAGE> 28
amendment or supplement thereto) or any preliminary prospectus, or any
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein (in
the case of the Prospectus, in light of the circumstances under which
they were made) not misleading, made in reliance upon or in conformity
with Selling Shareholder Information (as defined in Section 11
hereof); provided, however, that this indemnity agreement shall not
apply to any loss, liability, claim, damage or expense to the extent
caused, with respect to the sale of Shares by any Underwriter to any
person, by a failure by such Underwriter to give a copy of the
Prospectus to such person within the time required by the Act if, but
only if, the untrue statement or alleged untrue statement or omission
or alleged omission of a material fact was corrected in the
Prospectus. Notwithstanding the foregoing, the aggregate liability of
the Selling Shareholder pursuant to this paragraph (b) shall be
limited to an amount equal to the aggregate purchase price received by
the Selling Shareholder from the sale of the shares hereunder.
(c) In case any action or proceeding (including any
governmental investigation) shall be brought or asserted against any
of the Indemnified Persons with respect to which indemnity may be
sought against the Company or the Selling Shareholder, such
Indemnified Person shall promptly notify the parties against whom
indemnification is being sought (the "Indemnifying Persons") in
writing (provided, that the failure to give such notice shall not
relieve any of the Indemnifying Persons of its obligations or
liabilities pursuant to this Agreement except to the extent that such
failure results in the loss or compromise of any material rights or
defenses as finally determined by a court of competent jurisdiction).
Upon receiving such notice, the Company and
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<PAGE> 29
the Selling Shareholder shall be entitled to participate in any such
action or proceeding and to assume, at its sole expense, the defense
thereof, with counsel reasonably satisfactory to such Indemnified
Person (who shall not, except with the consent of the Indemnified
Person, be counsel to any Indemnifying Person) and, after written
notice from the Company to such Indemnified Person of its election so
to assume the defense thereof within 10 business days after receipt of
the notice from the Indemnified Person of such action or proceeding,
the Company or the Selling Shareholder shall not be liable to such
Indemnified Person hereunder for legal expenses of other counsel
subsequently incurred by such Indemnified Person in connection with
the defense thereof, other than reasonable costs of investigation,
unless (i) the Company or the Selling Shareholder agree in writing to
pay such fees and expenses, (ii) the Company or the Selling
Shareholder shall have failed promptly to assume such defense or to
employ counsel reasonably satisfactory to such Indemnified Person or
(iii) the named parties to any such action or proceeding (including
any impleaded parties) include both such Indemnified Person and an
Indemnifying Person or an affiliate of an Indemnifying Person, and
such Indemnified Person shall have been advised by counsel either (x)
that there may be one or more legal defenses available to such
Indemnified Person that are different from or additional to those
available to such Indemnifying Person or such affiliate or (y) a
conflict may exist between such Indemnified Person and such
Indemnifying Person or such affiliate (in which case, if such
Indemnified Person notifies the Company or the Selling Shareholder in
writing, the Company or the Selling Shareholder shall not have the
right to assume the defense thereof), it being understood, however,
that the Indemnifying Persons shall not, in connection with any one
such action or proceeding or separate
29
<PAGE> 30
but substantially similar or related actions or proceedings arising
out of the same general allegations or circumstances, be liable for
the reasonable fees and expenses of more than one separate firm of
attorneys (in addition to any local counsel) at any time for all such
Indemnified Persons. An Indemnifying Person shall not be liable for
any settlement of any such action or proceeding effected without the
prior written consent of such Indemnifying Person, but if settled with
the prior written consent of such Indemnifying Person, such
Indemnifying Person agrees to indemnify and hold harmless any
Indemnified Person from and against any loss, claim, damage, liability
or expense by reason of any such settlement. The Indemnifying Persons
shall not, without your prior written consent, settle or compromise or
consent to the entry of judgment in or otherwise seek to terminate any
pending or threatened action, claim, litigation or proceeding in
respect of which indemnification or contribution may be sought
hereunder (whether or not any Indemnified Person is a party thereto),
unless such settlement, compromise, consent or termination includes an
unconditional release of each Indemnified Person from all liability
arising out of such action, claim, litigation or proceeding.
(d) The Underwriters agree, severally and not jointly, to
indemnify and hold harmless the Company, its directors and officers
who sign the Registration Statement, the directors and officers of the
Company, the Selling Shareholder, and any person controlling (within
the meaning of Section 15 of the Act or Section 20 of the Exchange
Act) the Company or the Selling Shareholder, to the same extent as the
foregoing indemnity from the Company and the Selling Shareholder to
each of the Indemnified Persons, but only with respect to claims and
actions
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<PAGE> 31
based on any Underwriter Information. In case any action or
proceeding (including any governmental investigation) shall be brought
or asserted against the Company, any of its directors, any such
officer, any such controlling person or the Selling Shareholder in
respect of which indemnity may be sought against any Underwriter
pursuant to the foregoing sentence, the Underwriter shall have the
rights and duties given to the Company (except that if the Company
shall have assumed the defense thereof, such Underwriter shall not be
required to do so, but may employ separate counsel therein and
participate in the defense thereof but the fees and expenses of such
counsel shall be at the expense of such Underwriter), and the Company,
its directors, any such officers and each such controlling person and
the Selling Shareholder shall have the rights and duties given to the
Indemnified Person by Section 8(c) above.
(e) If the indemnification provided for in this Section 8
is unavailable to an indemnified party in respect of any losses,
claims, damages, liabilities or expenses referred to herein, 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
expenses (i) in such proportion as is appropriate to reflect the
relative benefits received by the indemnifying party(ies), on the one
hand, and the indemnified party(ies), on the other hand, from the
offering of the Shares or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in
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<PAGE> 32
clause (i) above but also the relative fault of the indemnifying
party(ies) and the indemnified party, as well as any other relevant
equitable considerations. The relative fault of the Company and the
Selling Shareholder, on the one hand, and the Underwriters, on the
other, shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or
the omission to state a material fact related to information supplied
by the Company or the Selling Shareholder, on the one hand, or by the
Underwriters, on the other, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission. Notwithstanding the provisions of this
paragraph (e), the Selling Shareholder shall not be required to
contribute any amount under this paragraph (e) in excess of the amount
by which the aggregate purchase price received by the Selling
Shareholder from the sale of the Shares hereunder exceeds the
aggregate amount such Selling Shareholder has otherwise paid pursuant
hereto and to Section 8(b). The indemnity and contribution
obligations set forth herein of any party shall be in addition to any
liability or obligation such party may otherwise have to the other.
The Company, the Selling Shareholder and the Underwriters
agree that it would not be just and equitable if contribution pursuant
to this Section 8(e) were determined by pro rata allocation or by any
other method of allocation which does not take into account 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
32
<PAGE> 33
paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this Section
8, the Underwriters (and their related Indemnified Persons) shall not
be required to contribute, in the aggregate, any amount in excess of
the amount by which the total underwriting discount applicable to the
Shares purchased by the Underwriters exceeds the amount of any damages
which the Underwriters (and their related Indemnified Persons) have
otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute pursuant to this Section 8(e) are several in
proportion to the respective number of Shares purchased by each of the
Underwriters hereunder and not joint.
9. Conditions to Underwriters' Obligations. The several
obligations of the Underwriters to purchase the Shares pursuant to this
Agreement are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company
and the Selling Shareholder contained in this Agreement shall be true
and correct in all material respects on the Closing Date with the same
force and effect as if made on and as of the Closing Date. The
Company and the Selling Shareholder shall have performed or complied
in all material respects with all of their agreements herein contained
and required to be performed or complied with by them at or prior to
the Closing Date.
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<PAGE> 34
(b) The Rule 462 Registration Statement shall have been
filed and become effective no later than 10:00 A.M. on August 18,
1995. At the Closing Date, 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 threatened by the Commission, every request for
additional information on the part of the Commission shall have been
complied with in all material respects, and no stop order suspending
the sale of the Shares in any jurisdiction referred to in Section 5(g)
shall have been issued and no proceeding for that purpose shall have
been commenced or shall be pending or threatened.
(c) No action shall have been taken and no statute, rule
or regulation or order shall have been enacted, adopted or issued by
any governmental agency which would, as of the Closing Date, prevent
the sale of the Shares; no injunction, restraining order or order of
any nature by a U.S. federal or state court of competent jurisdiction
shall have been issued as of the Closing Date which would prevent the
sale of the Shares; except as disclosed in the Prospectus, on the
Closing Date, no action, suit or proceeding shall be pending against,
or, to the knowledge of the Company or the Selling Shareholder,
threatened against, the Company or any of its subsidiaries or the
Selling Shareholder before any court or arbitrator or any governmental
body, agency or official which, if adversely determined, would
interfere with or adversely affect the sale of the Shares or could
reasonably be expected to have a Material Adverse Effect, or in any
manner invalidate this Agreement or the sale of the Shares.
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<PAGE> 35
(d) Except as disclosed in the Registration Statement or the
Prospectus, (i) since the date of the latest balance sheet included in
or incorporated by reference into the Registration Statement and the
Prospectus, there shall not have been any material adverse change, or
any development involving a prospective material adverse change, in
the condition, financial or otherwise, or in the earnings, business,
or prospects, whether or not arising in the ordinary course of
business, of the Company and its subsidiaries taken as a whole, (ii)
since the date of the latest balance sheet included in or incorporated
by reference into the Registration Statement and the Prospectus, there
shall not have been any material adverse change, or any development
involving a prospective material adverse change, in the capital stock
or long-term debt, or material increase in short-term debt, of the
Company and its subsidiaries taken as a whole and (iii) the Company
and its subsidiaries shall have no liability or obligation, direct or
contingent, that is material to the Company and its subsidiaries,
taken as a whole, and is required to be disclosed on a balance sheet
in accordance with GAAP and which is not so disclosed on the latest
balance sheet included in or incorporated by reference in the
Registration Statement.
(e) You shall have received a certificate of the Company,
dated the Closing Date, executed in the name of and on behalf of the
Company by the Chief Executive Officer and the principal financial or
accounting officer of the Company, acting solely in their capacities
as officers of the Company, confirming the matters expressly relating
to the Company set forth in
35
<PAGE> 36
paragraphs (a), (b), (c) and (d) of this Section 9.
(f) All the representations and warranties of the Selling
Shareholder 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 the Underwriters shall have received a
certificate of the Selling Shareholder, dated the Closing Date,
executed by a Senior Executive Officer and its principal financial or
accounting officer, in their capacities as officers of the Selling
Shareholder, confirming the matters relating to the Selling
Shareholder set forth in paragraph (a) and the last clause of
paragraph (c) of this Section 9 and, to their knowledge, with respect
to the first two clauses of paragraph (c) of this Section 9.
(g) You shall have received the opinions (reasonably
satisfactory to the Underwriters and counsel for the Underwriters),
dated the Closing Date, of Bryan Cave LLP, counsel for the Company, in
the form set forth as Exhibit A hereto and P. Bruce Borghardt, General
Counsel-Corporate Development of the Company, in the form set forth as
Exhibit B hereto.
(h) You shall have received an opinion (satisfactory to
the Underwriters and counsel for the Underwriters), dated the Closing
Date, of counsel for the Selling Shareholder, to the effect that:
(i) the Selling Shareholder has the requisite power
and authority to enter into and perform this Agreement; this Agreement
has been duly and validly authorized by all necessary
36
<PAGE> 37
action by the Selling Shareholder and has been duly executed and
delivered by the Selling Shareholder; the transactions contemplated by
this Agreement have been duly and validly authorized by all necessary
action by the Selling Shareholder;
(ii) the Selling Shareholder has full legal right,
power and authority, and any approval required by law (other than any
approval imposed by the Act and applicable state securities and Blue
Sky laws), to sell, assign, transfer and deliver the Shares to be sold
by it in the manner provided in this Agreement;
(iii) to such counsel's knowledge, the Selling
Shareholder has good and marketable title to the Shares to be sold by
the Selling Shareholder to the Underwriters, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or
equity other than pursuant to this Agreement; and upon delivery to the
Underwriters of the Shares to be sold by the Selling Shareholder and
payment of the purchase price therefor by the Underwriters, the
Underwriters will receive good and marketable title to the Shares
purchased by it from the Selling Shareholder, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or
equity; and
(iv) neither the sale of the Shares nor the
performance of the Selling Shareholder's obligations pursuant to this
Agreement will (A) conflict with, result in a breach or violation of,
or constitute a default under the terms of any indenture or other
agreement or instrument of which such counsel has knowledge to which
the Selling Shareholder
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<PAGE> 38
is a party or bound, or any statute, rule or regulation of which such
counsel has knowledge to which the Selling Shareholder is subject, or
to which any of the properties of the Selling Shareholder is subject,
or any order of which such counsel has knowledge of any court or
governmental agency or body having jurisdiction over the Selling
Shareholder or any of its properties or (B) violate any of the
provisions of the partnership agreement of the Selling Shareholder as
in effect on the date of the opinion.
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of
the Company, counsel for the Company, representatives of the
independent public accountants for the Company, representatives of the
Selling Shareholder, representatives of the Underwriters and counsel
for the Underwriters at which the contents of the Registration
Statement, the Prospectus and related matters were discussed and,
although such counsel is not passing upon, and does not assume any
responsibility for, the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus,
on the basis of the foregoing, no facts have come to such counsel's
attention that have led such counsel to believe that the Selling
Shareholder Information in the Registration Statement (as amended or
supplemented, if applicable), at the time such Registration Statement
or any post-effective amendment became effective, contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading or that the Selling
38
<PAGE> 39
Shareholder Information in the Prospectus as amended or supplemented,
as of its date and the Closing Date, contained an untrue statement of
a material fact or omitted 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, except that such counsel need
not express an opinion or belief with respect to the financial
statements, schedules and other financial information included therein
or excluded therefrom or included or excluded from the exhibits to the
Registration Statement.
(i) The Underwriters shall have received on the Closing
Date an opinion, dated the Closing Date, of Skadden, Arps, Slate,
Meagher & Flom ("Skadden Arps"), counsel for the Underwriter, in form
and substance reasonably satisfactory to the Underwriters.
(j) Skadden Arps shall have been furnished with such
documents (including, without limitation, evidence reasonably
satisfactory to it of the release of the security interest of Chemical
Bank in shares of Common Stock pledged to it by the Selling
Shareholder in connection with that certain Credit Agreement dated as
of April 11, 1994 between the Selling Shareholder and Chemical Bank,
as amended) and opinions as they may reasonably require for the
purpose of enabling them to review or pass upon the matters referred
to in this Section 9 and in order to evidence the accuracy,
completeness or satis-faction in all material respects of any of the
representations, warranties or conditions herein contained.
39
<PAGE> 40
(k) The Underwriters shall have received letters on and
as of the date hereof as well as on and as of the Closing Date (in the
latter case constituting an affirmation of the statements set forth in
the former, based on limited procedures), in form and substance
satisfactory to the Underwriters, from Arthur Andersen LLP, Deloitte &
Touche LLP and Ernst & Young LLP, independent public accountants, with
respect to the financial statements and certain financial information
contained and incorporated by reference in the Registration Statement
and the Prospectus.
(l) Prior to the Closing Date, the Company and the
Selling Shareholder shall have furnished to the Underwriters or caused
to be furnished to the Underwriters such further information,
certificates and documents as the Underwriters may reasonably request.
(m) Prior to the Closing Date, the Selling Shareholder
shall have converted into or exercised for Common Stock all securities
described on the cover of the Prospectus Supplement as being converted
or exercised.
(n) The Company and the Selling Shareholder shall not
have failed at or prior to the Closing Date to perform or comply in
all material respects with any of the agreements herein contained and
required to be performed or complied with by the Company and the
Selling Shareholder at or prior to the Closing Date.
10. Effective Date of Agreement, Defaults and
Termination. This Agreement shall become effective upon the execution of this
Agreement.
40
<PAGE> 41
This Agreement may be terminated at any time prior to
the Closing Date by the Underwriters by written notice to the Company
and the Selling Shareholder if any of the following has occurred: (i)
subsequent to the date of this Agreement, any material adverse change,
or any development involving a prospective material adverse change, in
the condition, financial or otherwise, or in the earnings, business or
prospects of the Company or any of its subsidiaries, which would, in
the Underwriters' judgment, make it impracticable or inadvisable to
market the Shares, or to enforce contracts for the sale of the Shares,
(ii) any outbreak or escalation of hostilities or other national or
international calamity or crisis or material adverse change in the
financial markets of the United States or elsewhere, if the effect of
such outbreak, escalation, calamity, crisis or change in such
financial markets would, in the Underwriters' judgment, make it
impracticable or inadvisable to market the Shares or to enforce
contracts for the sale of the Shares, (iii) any suspension of trading
generally in securities on the New York Stock Exchange or in the
NASDAQ National Market or limitation on prices for securities on any
such exchange or market, (iv) any declaration of a general banking
moratorium by federal or New York state authorities, (v) the
enactment, publication, decree or other promulgation of any federal or
state statute, regulation, rule or order of any court or other
governmental authority (any of the foregoing, a "Regulation Event")
which, in the Underwriters' judgment, materially and adversely
affects, or will materially and adversely affect, the business or
operations of the Company or any Subsidiary other than a Regulation
Event which is the result of a Regulation Event pending as of the date
hereof and (vi) the taking of any action by any federal, state or
local government or agency in respect of its monetary or fiscal
affairs that in the Underwriters' judgment has a material adverse
effect on the financial markets in the United States, and would, in
the Underwriters' judgment, make it
41
<PAGE> 42
impracticable or inadvisable to market the Shares or to enforce contracts for
the sale of the Shares.
If on the Closing Date, any of the Underwriters shall fail or
refuse to purchase the Shares which it has agreed to purchase hereunder on such
date, each non-defaulting Underwriter shall be obligated, in the proportion
which the number of Shares set forth opposite its name in Schedule I hereto
bears to the total number of Shares which all the non-defaulting Underwriters
have agreed to purchase, or in such other proportion as you may specify, to
purchase the Shares that such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase on such date. In such case, either you or the
Selling Shareholder may postpone the Closing Date for not longer than seven (7)
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. Any
action taken under this paragraph shall not relieve a defaulting Underwriter
from liability in respect of any default of any such Underwriter under this
Agreement.
The indemnities and contribution provisions and the other
agreements, representations and warranties of the Company and the Selling
Shareholder and of the 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 the Underwriters
or by or on behalf of the Company or the Selling Shareholder or the officers or
directors of the Company or the Selling Shareholder or any controlling person
of the Company or the Selling Shareholder, (ii) acceptance of the Shares and
payment for them hereunder and (iii) termination of this Agreement.
42
<PAGE> 43
Notwithstanding any termination of this Agreement, the Company
shall be liable for all expenses which it agrees to pay pursuant to Section 6
hereof.
Except as otherwise provided, this Agreement has been and is
made solely for the benefit of and shall be binding upon the Company, the
Selling Shareholder, the Underwriters, any indemnified party referred to herein
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 terms "successors and assigns" shall not
include a purchaser of any of the Shares from the Underwriters merely because
of such purchase.
11. Further Agreements of the Selling Shareholder. The
Selling Shareholder agrees with the Underwriters and the Company:
(a) To pay or cause to be paid its own underwriting
discounts and commissions, and all of its costs, fees and expenses
incident to the performance of this Agreement, including any taxes,
other than any fees and expenses borne by the Company pursuant to the
Registration Rights Agreement, as modified by Section 6 hereof.
(b) To take all reasonable actions in cooperation with
the Company and the Underwriters to do and perform all things to be
done by the Selling Shareholder pursuant to this Agreement prior to
the Closing Date or reasonably requested by the Company in connection
herewith and to satisfy all conditions precedent to the delivery of
the Shares pursuant to this Agreement.
(c) prior to any public offering of the Shares, the
Selling Shareholder will cooperate with the Underwriters and counsel
for the Underwriters in
43
<PAGE> 44
connection with the registration or qualification of the Shares for
offer and sale by the Underwriters and by dealers under the securities
or Blue Sky laws of such jurisdictions as the Underwriters may
reasonably request, and will continue such qualification in effect so
long as reasonably 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 Selling Shareholder shall not be required
to take any action that would subject the Selling Shareholder to the
general service of process in any jurisdiction where it is not now so
subject.
(d) The Selling Shareholder agrees to deliver to the
Underwriters prior to or at the Closing Date a properly completed and
executed United States Treasury Department Form W-9 (or other form as
may be required by law).
(e) The Selling Shareholder acknowledges for all purposes
under this Agreement (including Section 8 hereof) and the Registration
Rights Agreement (including Section 1.6 thereof) that the first
paragraph on the cover page of the Prospectus Supplement other than
the phrase ", which conducts business under the name 'LDDS
WorldCom,'", the statements set forth in the Prospectus Supplement
under the caption "Prospectus Supplement Summary -- The Offering --
Concurrent Events" limited to "In connection with the Offering,
Metromedia will exercise the Metromedia Warrants to acquire 3,106,976
shares of WorldCom Common Stock and will convert the Series 1
Preferred Shares into 21,876,976 shares of WorldCom Common Stock
pursuant to the terms of the Series 1 Preferred Stock. Metromedia
will receive a one-time, non-recurring payment of $15.0 million" and
the second paragraph therein, but only insofar
44
<PAGE> 45
as it is a statement of the current intent of John W. Kluge and the
directors referred to therein, the first two paragraphs on the cover
page of the prospectus contained in the Registration Statement at the
time it became effective other than the phrase "other than . . . fees
and expenses of counsel . . . to the Selling Stockholder" and the
statements set forth under the captions "Selling Stockholder" and
"Plan of Distribution" other than the phrase "other than . . . fees
and expenses of counsel . . . to the Selling Stockholder" in the
prospectus contained in the Registration Statement at the time it
became effective have been furnished by the Selling Shareholder in
writing expressly for use in the Registration Statement and the
Prospectus (such information constituting the "Selling Shareholder
Information").
(f) The Selling Shareholder hereby agrees to indemnify
and hold harmless (in the manner and the same extent as set forth in
Section 1.6(a) of the Registration Rights Agreement) the Company, and
each director of the Company, each officer of the Company, and each
other person who controls the Company within the meaning of the Act,
as contemplated by Section 1.6(b) of the Registration Rights
Agreement.
12. Miscellaneous. Notices given pursuant to any
provision of this Agreement shall be addressed as follows: (a) if to the
Company, to it at 515 East Amite Street, Jackson, MS 39201, Attention: Chief
Financial Officer with a copy to WorldCom, Inc. at 10777 Sunset Office Drive,
Suite 330, St. Louis, MO 63127, Attention: P. Bruce Borghardt, (b) if to the
Underwriter, to Donaldson, Lufkin & Jenrette Securities Corporation, 140
Broadway, New York, New York 10005, Attention: Syndicate Department, in each
case, with a copy to Skadden, Arps, Slate, Meagher & Flom at 300 South Grand
Avenue, Suite 3400, Los Angeles, California 90071, Attention: Nicholas P.
Saggese, (c) if to the Selling Shareholder, to it
45
<PAGE> 46
at Metromedia Company, One Meadowlands Plaza, East Rutherford, N.J. 07073,
Attention: General Counsel, with a copy to Paul, Weiss, Rifkind, Wharton &
Garrison, 1285 Avenue of the Americas, New York, N.Y. 10019 Attention: James
M. Dubin, or in any case to such other address as the person to be notified may
have requested in writing.
13. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK AS
APPLIED TO CONTRACTS MADE AND PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK.
46
<PAGE> 47
This Agreement may be signed in various counterparts which
together shall constitute one and the same instrument. Please confirm that the
foregoing correctly sets forth the agreement among the Company, the Selling
Shareholder and the Underwriters.
Very truly yours,
WORLDCOM, INC.
By: /s/ Scott D. Sullivan
Name: Scott D. Sullivan
Title: Treasurer, Chief
Financial Officer
METROMEDIA COMPANY
a Delaware general partnership
By: /s/ Silvia Kessel
Name: Silvia Kessel
Title: Senior Vice President
The foregoing Underwriting Agreement
is hereby confirmed and accepted
as of the date first above written.
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
Acting on behalf of itself
and the several Underwriters
named in Schedule I hereto.
By: /s/ Warren C. Woo
Name: Warren C. Woo
Title: Managing Director
47
<PAGE> 48
SCHEDULE I
<TABLE>
<CAPTION>
Number of Shares of
Common Stock to be purchased
----------------------------
<S> <C>
Donaldson, Lufkin & Jenrette Securities 27,405,983
Corporation
Lehman Brothers 460,000
Bear, Stearns & Co., Inc. 460,000
Deutsche Morgan Grenfell/C.J. Lawrence Inc. 460,000
Lazard Freres & Co. LLC 460,000
Advest, Inc. Co. 230,000
First Manhattan Co. 230,000
Furman Selz Incorporated 230,000
Ladenburg, Thalmann & Co. Inc. 230,000
Legg Mason Wood Walker Incorporated 230,000
The Robinson-Humphrey Company, Inc. 230,000
Tucker Anthony Incorporated 230,000
----------
Total 30,855,983
==========
</TABLE>
48
<PAGE> 49
EXHIBIT A
OPINION OF BRYAN CAVE LLP
(i) the Company (A) is a corporation validly existing under
the laws of the State of Georgia, and (B) has the corporate power and authority
to own, lease and operate its material properties and to conduct its business
in all material respects as described in the prospectus;
(ii) the authorized Common Stock of the Company conforms as
to legal matters in all material respects to the description thereof contained
under Item 5(b) of the Company's Current Report on Form 8-K dated August 14,
1995 (filed August 14, 1995); provided that no opinion is rendered with respect
to the authorization, validity of issuance or assessability of, or number of
shares of, any capital stock of the Company;
(iii) the Registration Statement has become effective under
the Act; any required filing of the prospectus, and any supplements thereto,
pursuant to Rule 424(b) have been made in the manner and within the time period
required by Rule 424(b); and, to the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings therefor are pending or have been initiated or threatened in
writing by the Commission;
(iv) no authorization, approval, consent or order of any U.S.
court or Federal governmental authority or agency that such counsel would, in
its experience, recognize as directly applicable to the Company, is required to
be obtained by the Company in connection with the sale by the Selling
Shareholder of the Shares to the Underwriters, except (a) such as may be
required under the Act and (b) such as may be required by the NASD or under the
state securities or Blue Sky laws or regulations of any jurisdiction in the
United States in connection with the purchase and distribution of the Shares by
the Underwriters; and
(v) neither the sale of the Shares nor the performance of the
Company's obligations pursuant to the Underwriting Agreement will, to the
knowledge of such counsel, violate any of the provisions of the Amended and
Restated Articles of Incorporation or bylaws of the Company as in effect on the
date of the opinion.
Such counsel need not express any opinion or belief as to the
financial statements, schedules and other financial, statistical or accounting
data included in, or incorporated by reference into, the Registration Statement
or the Prospectus. In addition, such counsel need not express any opinion or
belief as to matters subject to the jurisdiction of the Federal Communications
Commission, state public utility commissions, or any other communications or
similar regulatory authorities. Such counsel may acknowledge that such counsel
does not assume responsibility for the accuracy, completeness or fairness of
any statements in the Registration Statement or any prospectus.
Such counsel may note that the phrase "to our knowledge" in
paragraph (v) means that, during the course of our representation of the
Company in connection herewith, we have
<PAGE> 50
requested information from the Company concerning the matters referred to, but
no information has come to the attention of any lawyers in such firm devoting
substantive attention to this transaction which has given us actual knowledge
of the existence or absence of facts to the contrary; that such counsel has not
undertaken any independent investigation of such factual matters, and that no
inference should be drawn to the contrary from the fact of its representation
of the Company.
Such opinion may contain such other qualifications or
acknowledgements as may be reasonably appropriate and may rely on the opinions
of local counsel with respect to matters of Georgia law.
<PAGE> 51
EXHIBIT B
Opinion of P. Bruce Borghardt
the Company and each of its Material Subsidiaries (A) is a
corporation validly existing and, if such concept is applicable, in good
standing under the laws of its state of incorporation, and (B) has the
corporate power and authority to own, lease and operate its material properties
and to conduct its business in all material respects as described in the
Prospectus;
(i) the Company and each of its Material
Subsidiaries is duly qualified and, if such concept is applicable, in good
standing as a foreign corporation 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 and in good standing would not have, singly or in the aggregate, a
Material Adverse Effect;
(ii) the Company has the corporate power to enter
into and perform this Agreement; this Agreement has been duly authorized by all
necessary corporate action by the Company and has been duly executed and
delivered by the Company;
(iii) the authorized Common Stock of the Company
conforms as to legal matters in all material respects to the description
thereof contained in the Registration Statement; the outstanding Common Stock,
including the shares to be sold pursuant to the Prospectus, has been duly
authorized and validly issued and shall be fully paid and nonassessable;
(iv) except as may otherwise be set forth in the
Prospectus, all of the issued and outstanding shares of capital stock of each
of the Company's Material Subsidiaries are owned (directly or indirectly) by
the Company free and clear of any security interest in such shares of capital
stock and, to my knowledge, any other Liens with respect to such capital stock;
(v) no authorization, approval, consent or order
of any U.S. court or governmental authority or agency of the United States or
any state therein (except as to matters subject to the jurisdiction of the
Federal Communications Commission, state public utility commissions, or any
other communications or similar regulatory authorities) that such counsel
would, in its experience, recognize as directly applicable to the Company, is
required to be obtained by the Company in connection with the sale by the
Selling Shareholder of the Shares to the Underwriters, except (A) such as have
been obtained under the Act, and (B) such as may be required by the NASD or
under the state securities or Blue Sky laws or regulations of any jurisdiction
in connection with the purchase and distribution of the Shares by the
Underwriters;
(vi) to the knowledge of such counsel, (A) there
are no franchises, contracts, indentures, mortgages, loan agreements, notes,
leases or other instruments to which the Company or any Material Subsidiary is
a party or by which any of them may be bound that are required to be described
in the Registration Statement, the Prospectus or the Incorporated Documents or
to be filed as exhibits to the Registration Statement or the Incorporated
Documents
<PAGE> 52
other than those described therein or filed as exhibits thereto, and (B)
neither the Company nor any of its Material Subsidiaries is in material
violation of its respective charter or bylaws;
(vii) neither the sale of the Shares, nor the
performance of the Company's obligations pursuant to this Agreement will (A) to
the knowledge of such counsel, and except as may otherwise not have, singly or
in the aggregate, a Material Adverse Effect, (i) constitute a breach of or
default under the terms of any indenture or other agreement to which the
Company or its Material Subsidiaries is a party or bound which has been filed
as an exhibit to a registration statement or report filed with the Commission,
(ii) result (except as to matters subject to the jurisdiction of the Federal
Communications Commission, state public utility commissions, or any other
communications or similar regulatory authorities) in the violation of any
statute, rule or regulation duly adopted by any federal or state government in
the United States or any agency or body thereof that such counsel would, in its
experience, recognize as directly applicable, to which the Company or any of
its Material Subsidiaries is subject (provided, that, for purposes of this
opinion (viii), such counsel need express no opinion with respect to (x) the
NASD or state securities or Blue Sky laws or regulations of any jurisdiction in
connection with the purchase and distribution of the Shares by the
Underwriters, or (y) the information contained in, or the accuracy,
completeness or fairness of, the Prospectus or the Registration Statement or
the compliance thereof as to form with the Act), (iii) result in the violation
of any order applicable to the Company or any of its Material Subsidiaries of
any U.S. court or governmental agency or body of the United States or any state
therein having jurisdiction over the Company or its Material Subsidiaries, or
(B) violate any of the provisions of the charter or bylaws of the Company as in
effect on the date of the opinion;
(viii) except as disclosed in the Registration
Statement or the Prospectus, to the knowledge of such counsel, no holder of any
security of the Company, other than the Selling Shareholder, has any right to
require registration of shares of Common Stock, preferred stock or any other
security of the Company under the Registration Statement;
(ix) Such counsel shall confirm that it is not
aware of any current, pending or, to its knowledge, threatened action, suit or
proceeding before any court or governmental agency, authority or body or any
arbitrator involving the Company or any of its Material Subsidiaries or to
which any of their respective properties is subject of a character required to
be disclosed in the Registration Statement which is not so disclosed; and
(x) With respect to the Shares, the Registration
Statement and the Prospectus (assuming the accuracy, completeness and fairness
of the statements contained therein), as of its date, appeared on its face to
comply in all material respects with the requirements as to form for
registration statements on Form S-3 under the Act (except for financial
statements, the notes thereto and related schedules and other financial,
statistical and accounting data included or incorporated by reference therein
or omitted therefrom, as to which no opinion need be expressed).
In addition, such counsel shall state that such counsel has
participated in conferences at which the Registration Statement, the Prospectus
and related matters were
<PAGE> 53
discussed and, although such counsel is not passing upon, and does not assume
any responsibility for, the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus and has
not made any independent check or verification thereof, on the basis of the
foregoing (relying as to materiality upon the statements of officers and other
representatives of the Company and state officials), no facts have come to such
counsel's attention that have led such counsel to believe that the Registration
Statement (other than financial statements, the notes thereto and related
schedules and other financial, statistical and accounting data included or
incorporated therein, or omitted therefrom, as to which counsel need express no
belief), as amended or supplemented, if applicable, at the time such
Registration Statement or any post-effective amendment became effective,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading or that the Prospectus (other than financial statements, the
notes thereto and related schedules and other financial, statistical and
accounting data included or incorporated therein, or omitted therefrom, as to
which counsel need express no belief), as amended or supplemented, as of its
date and the Closing Date, contained an untrue statement of a material fact or
omitted 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; provided, that such counsel need not express an opinion or belief
with respect to the financial statements, schedules and other financial,
statistical and accounting data included or incorporated therein or excluded
therefrom or included, incorporated or excluded from the Registration
Statement, the Prospectus or the exhibits to the Registration Statement.
Such opinion may rely on other counsel
