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): SEPTEMBER 20, 1996
ACC CORP.
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(Exact name of registrant as specified in its charter)
DELAWARE 0-14567 16-1175232
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(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
400 WEST AVENUE, ROCHESTER, NEW YORK 14611
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (716) 987-3000
NOT APPLICABLE
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(Former name or former address, if changed since last report)
Exhibit Index Appears at Page 4
<PAGE>
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
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EXHIBITS
See Exhibit Index
<PAGE>
SIGNATURES
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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 thereunto duly authorized.
ACC Corp.
Dated: September 20, 1996 By: /S/MICHAEL R. DALEY
Michael R. Daley
Chief Financial Officer
<PAGE>
EXHIBIT INDEX
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Exhibit TITLE OR DESCRIPTION
Number
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99.1 Form of Underwriting Agreement.
EXHIBIT 99.1
________ Shares
ACC CORP.
CLASS A COMMON STOCK (par value $0.015 per share)
UNDERWRITING AGREEMENT
September __, 1996
<PAGE>
September __, 1996
Morgan Stanley & Co.
Incorporated
Wheat, First Securities, Inc.
c/o Morgan Stanley & Co.
Incorporated
1585 Broadway
New York, New York 10036
Ladies and Gentlemen:
Certain shareholders of ACC Corp., a Delaware corporation (the
"Company") named in Schedule I hereto (the "Selling Shareholders"),
severally propose to sell to the several Underwriters named in Schedule II
hereto (the "Underwriters"), _________ shares of Class A Common Stock (par
value $0.015 per share) of the Company (the "Secondary Shares") and
warrants (the "Warrants") exercisable for an aggregate of _____ shares (the
"Warrant Shares") of Class A Common Stock (par value $0.015 per share) of
the Company, each Selling Shareholder selling the amount of Secondary
Shares and Warrants exercisable for the number of Warrant Shares set forth
opposite such Selling Shareholder's name in Schedule I hereto. The Selling
Shareholders selling Warrants as set forth in Schedule I hereto are
hereinafter referred to individually as a "Warrant Holder" and collectively
as "Warrant Holders". The Secondary Shares and the Warrant Shares are
hereinafter collectively referred to as the "Shares". The shares of Class
A Common Stock (par value $0.015 per share) of the Company to be
outstanding after giving effect to the sales contemplated hereby including
the purchase and exercise of the Warrants by the Underwriters are
hereinafter referred to as the "Common Stock".
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (Registration No.
333-12195), including a prospectus, relating to the Shares, and the
offering thereof from time to time in accordance with Rule 415 under the
Securities Act of 1933, as amended (the "Securities Act"). Such
registration statement has been declared effective by the Commission. The
Company may also file, pursuant to Rule 462(b) under the Securities Act,
one or more registration statements in connection with the registration
statement on Form S-3, which would become effective upon filing with the
Commission (a "Rule 462(b) Registration Statement"). As provided in
Section 6(a) hereof, a prospectus supplement relating to the Shares, the
terms of the offering thereof and the other matters set forth therein has
been prepared and will be filed pursuant to Rule 424 under the Securities
Act. Such prospectus supplement, in the form first filed after the date
hereof pursuant to Rule 424, is herein referred to as the "Prospectus
supplement." Such registration statement, as amended as of the date
hereof, together with any Rule 462(b) Registration Statement under the
Securities Act, including the exhibits thereto and the documents
incorporated by reference therein, is herein called the "Registration
Statement," and the basic prospectus included therein relating to the
offering of Common Stock under the Registration Statement, as supplemented
by the Prospectus supplement, is herein called the "Prospectus," except
that, if such basic prospectus is amended or supplemented on or prior to
the date on which the Prospectus supplement is first filed pursuant to
Rule 424, the term "Prospectus" shall refer to the basic prospectus, as so
amended or supplemented and as supplemented by the Prospectus supplement,
in either case including the documents filed by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), that are incorporated by reference therein.
1. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to each of the Underwriters and to each of the Selling
Shareholders that:
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or, to
the Company's knowledge, threatened by the Commission.
(b) (i) On the original effective date of the Registration
Statement, on the effective date of the most recent post-effective
amendment thereto, if any, on the date of the filing of any Rule
462(b) Registration Statement, and, if applicable, on the date of the
filing by the Company of any annual report on Form 10-K after the
original filing of the Registration Statement, the Registration
Statement complied in all material respects with the requirements of
the Securities Act and the rules and regulations of the Commission
thereunder (the "Securities Act Regulations") and did not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; (ii) on the date hereof and on the Closing
Date (as defined below), the Registration Statement, and any
amendments thereto, and the Prospectus, and any amendments thereto and
supplements thereto, comply and will comply in all material respects
with the requirements of the Securities Act and the Securities Act
Regulations, (iii) neither the Registration Statement nor any
amendments thereto include or will include an untrue statement of a
material fact or omit or will omit to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading, and neither the Prospectus, nor any amendments and
supplements thereto, include or will include an untrue statement of a
material fact or omit or will omit to state any material fact required
to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading;
PROVIDED, HOWEVER, that the Company makes no representations or
warranties as to statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by or
on behalf of any Selling Shareholder or Underwriter, through you,
expressly for use in the Registration Statement or the Prospectus.
(c) The documents incorporated by reference in the Prospectus, at
the time they were filed with the Commission, complied in all material
respects with the requirements of the Exchange Act, and the rules and
regulations of the Commission thereunder (the "Exchange Act
Regulations") and, when read together with the other information in
the Prospectus, do not and will not, on the date hereof and on the
Closing Date, include an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which
they were made, not misleading.
(d) The Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the State of
Delaware, has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its subsidiaries,
taken as a whole.
(e) Each of the Company's significant subsidiaries (as such term
is defined in Rule 1-02(w) of Regulation S-X under the Securities Act)
and ACC National Telecom Corp. has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described
in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole. Neither
the Company nor any of its subsidiaries conducts any business in the
District of Columbia, Alaska, Arizona, Hawaii, Kentucky or Vermont
which subjects it to applicable telecommunications regulations of any
such jurisdiction.
(f) The authorized capital stock of the Company conforms as to
legal matters to the description thereof contained in the Prospectus.
(g) The shares of Common Stock outstanding have been duly
authorized and are validly issued, fully paid and non-assessable.
(h) The Warrants are exercisable for the Warrant Shares. The
Shares have been duly authorized and, when issued and delivered in
accordance with the terms of this Agreement, will be validly issued,
fully paid and non-assessable and will not be subject to any
preemptive or similar rights.
(i) This Agreement and each of the Irrevocable Power of Attorney
and Custody Agreements (the "Power of Attorney and Custody
Agreements"), each dated the date hereof, between each employee
Selling Shareholder and the Company as Custodian (the "Custodian"),
appointing certain individuals as the employee Selling Shareholders'
attorneys-in-fact to the extent set forth therein relating to the
transactions contemplated hereby and by the Registration Statement,
have been duly authorized, executed and delivered by the Company. The
Power of Attorney and Custody Agreements are valid and binding
agreements of the Company, enforceable in accordance with their terms,
except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and
(ii) the availability of equitable remedies may be limited by
equitable principles of general applicability.
(j) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement
and the Power of Attorney and Custody Agreements will not contravene
any provision of applicable law or the certificate of incorporation or
by-laws of the Company or any agreement or other instrument binding
upon the Company or any of its subsidiaries, or any judgment, order or
decree of any governmental body, agency or court having jurisdiction
over the Company or any subsidiary, and no consent, approval,
authorization or order of or qualification with any governmental body
or agency is required for the performance by the Company of its
obligations under this Agreement or the Power of Attorney and Custody
Agreements, except such as may be required by the securities or Blue
Sky laws of the various states of the United States of America or of
any jurisdiction outside the United States of America in connection
with the offer and sale of the Shares.
(k) Since the respective dates as of which information is given
in the Registration Statement and the Prospectus, except as otherwise
stated therein or contemplated thereby, there has not occurred any
material adverse change, or any development involving a prospective
material adverse change, in the condition, financial or otherwise, or
in the earnings, business or operations of the Company and its
subsidiaries, taken as a whole.
(l) There are no legal or governmental proceedings pending or, to
the Company's knowledge, threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of the
Company or any of its subsidiaries is subject that are required to be
described in the Registration Statement or the Prospectus and are not
so described in the Registration Statement or Prospectus or a document
incorporated therein by reference or any statutes, regulations,
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to
the Registration Statement that are not described or filed as
required.
(m) Each of the Company and its subsidiaries has all necessary
certificates, orders, permits, licenses, authorizations, consents and
approvals of and from, and has made all declarations and filings with,
all federal, state, local, foreign supranational, national and other
governmental authorities, all self-regulatory organizations and all
courts and tribunals, to own, lease, license and use its properties
and assets and to conduct its business in the manner described in the
Prospectus, except to the extent that the failure to so obtain or file
would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole; and neither the Company nor any of its
subsidiaries has received any notice of proceedings relating to
revocation or modification of any such certificates, orders, permits,
licenses, authorizations, consents or approvals, nor is the Company or
any of its subsidiaries in violation of, or in default under, any
federal, state, local, foreign supranational or national law,
regulation, rule, decree, order or judgment applicable to the Company
or any of its subsidiaries the effect of which, singly or in the
aggregate, would have a material adverse effect on the prospects,
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole,
except as described in the Prospectus. The radio licenses issued to
the Company and its subsidiaries are not material to the business of
the Company and its subsidiaries, taken as a whole.
(n) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or
preliminary prospectus supplement filed pursuant to Rule 424 under the
Securities Act, complied when so filed in all material respects with
the Securities Act and the rules and regulations of the Commission
thereunder.
(o) The Company is not an "investment company", as such term is
defined in the Investment Company Act of 1940, as amended.
(p) The Company and its subsidiaries are (i) in compliance with
any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (ii) have received all permits,
licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii)
are in compliance with all terms and conditions of any such permit,
license or approval, except where such noncompliance with
Environmental Laws, failure to receive required permits, licenses or
other approvals or failure to comply with the terms and conditions of
such permits, licenses or approvals would not, singly or in the
aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(q) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, (1) the
Company and its subsidiaries have not incurred any material liability
or obligation, direct or contingent, nor entered into any material
transaction not in the ordinary course of business; (2) the Company
has not purchased any of its outstanding capital stock, nor declared,
paid or otherwise made any dividend or distribution of any kind on its
capital stock; and (3) there has not been any material change in the
capital stock, short-term debt or long-term debt of the Company and
its consolidated subsidiaries, except in each case as described in or
contemplated by the Prospectus.
(r) The Company and its subsidiaries have good and insurable
title to all real property and good and marketable title to all
personal property owned by them which is material to the business of
the Company and its subsidiaries, in each case free and clear of all
liens, encumbrances and defects except such as are described in the
Prospectus or such as do not materially affect the value of such
property and do not interfere with the use made and proposed to be
made of such property by the Company and its subsidiaries; and any
real property and buildings held under lease by the Company and its
subsidiaries are held by them under valid and subsisting leases which
are enforceable against the Company and, to the Company's knowledge,
against the other parties thereto with such exceptions as are not
material and do not interfere with the use made and proposed to be
made of such property and buildings by the Company and its
subsidiaries, in each case except as described in or contemplated by
the Prospectus.
(s) No material labor dispute with the employees of the Company
or any of its subsidiaries exists, except as described in or
contemplated by the Prospectus, or, to the knowledge of the Company,
is imminent, which would have a material adverse effect upon the
Company and its subsidiaries, taken as a whole; and the Company is not
aware of any existing or imminent labor disturbance by the employees
of any of its principal suppliers, manufacturers or contractors that
could result in any material adverse change in the condition,
financial or otherwise, or in the earnings, business or operations of
the Company and its subsidiaries, taken as a whole.
(t) The Company and each of its subsidiaries are insured by
insurers of recognized financial responsibility against such losses
and risks and in such amounts as the Company believes are prudent and
are generally customary in the businesses in which they are engaged;
since December 31, 1993, neither the Company nor any such subsidiary
has been refused any insurance coverage sought or applied for; and
neither the Company nor any such subsidiary has any reason to believe
that it will not be able to renew its existing insurance coverage as
and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its business at a
cost that would not materially and adversely affect the condition,
financial or otherwise, or the earnings, business or operations of the
Company and its subsidiaries, taken as a whole, except as described in
or contemplated by the Prospectus.
(u) The Company and each of its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable
assurance that (1) transactions are executed in accordance with
management's general and 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.
(v) The Company is in compliance with all provisions of Section
517.075, Florida Statutes (Chapter 92-198, Laws of Florida).
(w) The Shares have been approved for quotation on the Nasdaq
National Market System ("Nasdaq") by the National Association of
Securities Dealers, Inc.
(x) Neither the Company nor any of its subsidiaries has taken or
will take, directly or indirectly, any action designed to, or that
might be reasonably expected to, cause or result in stabilization or
manipulation of the price of the Common Stock.
2. REPRESENTATIONS AND WARRANTIES OF THE SELLING SHAREHOLDERS.
Each of the Selling Shareholders severally and not jointly represents and
warrants to and agrees with each of the Underwriters and the Company that:
(a) This Agreement has been duly authorized, executed and
delivered by or on behalf of such Selling Shareholder, and each of the
Power of Attorney and Custody Agreement and, in the case of the
Warrant Holders, the warrant assignment agreement relating to the
Warrants (the "Warrant Assignment Agreement") of such Selling
Shareholder has been duly authorized, executed and delivered by such
Selling Shareholder, and is a valid and binding agreement of such
Selling Shareholder, enforceable in accordance with its terms, except
as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and
(ii) the availability of equitable remedies may be limited by
equitable principles of general applicability.
(b) The execution and delivery by such Selling Shareholder of,
and the performance by such Selling Shareholder of its obligations
under, this Agreement, with respect to each employee or other Selling
Shareholder signing a Power of Attorney and Custody Agreement, its
Power of Attorney and Custody Agreement and, in the case of each
Warrant Holder, the Warrant Assignment Agreement will not contravene
any provision of applicable law, the certificate of incorporation or
by-laws (if such Selling Shareholder is a corporation) or the
partnership agreement (if such Selling Shareholder is a partnership)
of such Selling Shareholder or any agreement or other instrument
binding upon such Selling Shareholder or any judgment, order or decree
of any governmental body, agency or court having jurisdiction over
such Selling Shareholder, and no consent, approval, authorization or
order of, or qualification with, any governmental body or agency is
required for the performance by such Selling Shareholder of its
obligations under this Agreement or the Power of Attorney and Custody
Agreement or, if applicable, the Warrant Assignment Agreement, in the
case of a Warrant Holder, of such Selling Shareholder, except such as
may be required by the securities or Blue Sky laws of the various
states in connection with the offer and sale of the Shares.
(c) Such employee Selling Shareholder will have, upon exercise of
its options, the legal right and power, and all required
authorizations and approvals to enter into this Agreement and, in the
case of the employee Selling Shareholders, its Power of Attorney and
Custody Agreement and to sell, transfer and deliver the Secondary
Shares to be sold by such Selling Shareholder.
(d) In the case of a Warrant Holder, such Selling Shareholder has
the legal right and power, and all required authorizations and
approvals to enter into its Warrant Assignment Agreement and to sell,
transfer and deliver the Warrants to be sold by such Selling
Shareholder.
(e) In the case of a Warrant Holder, such Selling Shareholder has
valid and marketable title, free and clear of all security interests,
claims, liens, equities and other encumbrances, to the Warrants, which
are (and, subsequent to the assignment to the Underwriters pursuant to
the Warrant Assignment Agreement, will be) exercisable for the Warrant
Shares.
(f) In the case of Fleet Venture Resources, Inc., Fleet Equity
Partners VI, L.P. and Chisholm Partners II, L.P. (each, a "Preferred
Stock Holder"), such Selling Shareholder has valid and marketable
title, free and clear of all security interests, claims, liens,
equities and other encumbrances, to the Preferred Stock, which is
convertible into the Secondary Shares to be sold by such Selling
Shareholder as set forth in the Prospectus and, upon conversion of the
Preferred Stock, such Selling Shareholder will have valid and
marketable title to the Common Stock it receives upon such conversion,
free and clear of all security interests, claims, liens, equities and
other encumbrances.
(g) Such Selling Shareholder has valid and marketable title, free
and clear of all security interests, claims, liens, equities and other
encumbrances, to the Secondary Shares to be sold by such Selling
Shareholder as set forth in the Prospectus.
(h) Upon delivery of, and payment for, the Shares, if any, to be
sold by such Selling Shareholder pursuant to this Agreement, valid and
marketable title to such Shares, free and clear of any security
interests, claims, liens, equities and other encumbrances, will pass
to the Underwriters.
(i) In the case of a Warrant Holder, upon delivery of, and
payment for, the Warrants to be sold by such Selling Shareholder
pursuant to this Agreement, valid and marketable title to such
Warrants, free and clear of any security interests, claims, liens,
equities and other encumbrances, will pass to the Underwriters.
(j) Such employee Selling Shareholder has placed in custody under
its Power of Attorney and Custody Agreement with the Custodian for
delivery under this Agreement, the certificates representing the
Secondary Shares to be sold by such Selling Shareholder and a stock
transfer power duly executed in blank.
(k) All information furnished to the Company in writing by or on
behalf of such Selling Shareholder expressly for use in the
Registration Statement and Prospectus is, and on the Closing Date (as
defined below) will be, true, correct and complete, and does not, and
on the Closing Date will not, contain any untrue statement of material
fact or omit to state any material fact necessary to make such
information not misleading.
(l) Such Selling Shareholder has not taken and will not take,
directly or indirectly, any action designed to, or that might be
reasonably expected to, cause or result in stabilization or
manipulation of the price of the Common Stock (provided that such
Selling Shareholder does not make any representation as to any actions
that may be taken by any Underwriter); and such 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 other than any preliminary prospectus supplement filed with the
Commission or the Prospectus or other material permitted by the
Securities Act.
(m) Such Selling Shareholder has no direct or indirect
association or affiliation with any National Association of Securities
Dealers, Inc. members participating in the offering of the Shares and
has had no arrangements, dealings or affiliation with, and is not
aware of any information relating to underwriting compensation payable
to or for the benefit of, any member of the National Association of
Securities Dealers, Inc., person associated with a member or any
Underwriter, relating to the offering of Shares that has not been
disclosed in the Registration Statement or set forth herein.
3. AGREEMENTS TO SELL AND PURCHASE. The Company and the
Selling Shareholders have been advised by you that the Underwriters propose
to make a public offering from time to time of the Shares as soon after the
Registration Statement and this Agreement have become effective as in your
judgment is advisable. Each Selling Shareholder, severally and not
jointly, hereby agrees to sell to the several Underwriters, and the
Underwriters, upon the basis of the representations and warranties herein
contained, but subject to the conditions hereinafter stated or specified in
Schedule III hereto, agree, severally and not jointly, to purchase from the
Selling Shareholders the respective number of Shares and Warrants set forth
in Schedule II hereto opposite their respective names at the purchase price
per share or warrant, as the case may be, set forth in Schedule III hereto.
The Company and the Selling Shareholders are further advised by you that
the Shares are to be offered to certain dealers selected by you at a price
that represents a concession as set forth in Schedule III hereto and that
any Underwriter may allow, and such dealers may reallow, a concession as
set forth in Schedule III hereto, to any Underwriter or to certain other
dealers.
Each of the Selling Shareholders and the Company hereby agrees
that, without the prior written consent of Morgan Stanley & Co.
Incorporated, it will not (A) offer, pledge, sell, contract to sell, sell
any option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant to purchase or otherwise transfer
or dispose of, directly or indirectly, any shares of Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock
(whether or not such shares or securities are either now owned or are
hereafter acquired) or (B) enter into any swap or other arrangement that
transfers to another, in whole or in part, any of the economic consequences
of ownership of the Common Stock, whether any such transaction described in
clause (A) or (B) above is to be settled by delivery of Common Stock or
such other securities, in cash or otherwise for a period of 60 days after
the date of the Prospectus, other than (i) the Shares to be sold hereunder,
(ii) the issuance by the Company of shares of Common Stock upon the
exercise of an option or warrant or the conversion of a security
outstanding on the date hereof and described in the Prospectus (iii) Shares
which, as of the date of the Prospectus, have been pledged to secure bona
fide loans on which a Selling Shareholder is the obligor as set forth in
the lock-up agreements prepared by you and signed by certain of the Selling
Shareholders, or (iv) the issuance by the Company of shares of Common Stock
pursuant to the Company's Employee Long-Term Incentive Plan, Employee Stock
Purchase Plan and, with respect to any new directors, the Non-Employee
Directors' Stock Option Plan, as such plans are in effect on the date of
the Prospectus.
4. PAYMENT AND DELIVERY. Each payment hereunder shall be made
by wire transfer in immediately available funds at the office of Shearman &
Sterling, 599 Lexington Avenue, New York, New York at 10:00 A.M., local
time, on the date specified in Schedule III hereto, or at such other time
or date as designated in writing by you, not later than ten business days
after the date specified in Schedule III hereto. The time and date of such
payment are hereinafter referred to as the "Closing Date".
The "purchase price" to be paid by the Underwriters shall be
equal to (i) $_____ per Secondary Share and (ii) $_____ per Warrant Share,
less the exercise price with respect to such Warrant Share. The purchase
price shall be paid by the Underwriters (a) in the case of employee Selling
Shareholders, to the Company, to the account specified in writing by the
Company and (b) in the case of other Selling Shareholders, to such Selling
Shareholder, to the account specified in writing by such Selling
Shareholder. The exercise price with respect to any Warrant Shares shall
be paid by the Underwriters to the Company, to the account specified in
writing by the Company. All payments provided for in this paragraph shall
be made in immediately available funds on the Closing Date.
Certificates for the Secondary Shares and the Warrant Shares
shall be in definitive form and registered in such names and in such
denominations as you shall request in writing not later than two full
business days prior to the Closing Date. The certificates evidencing the
Secondary Shares and the Warrant Shares shall be delivered to you on the
Closing Date for the respective accounts of the several Underwriters, with
any transfer taxes payable in connection with the transfer of the Shares to
the Underwriters duly paid, against payment of the purchase price therefor.
5. CONDITIONS TO THE UNDERWRITERS' OBLIGATIONS. The
obligations of the Selling Shareholders and the Company and the several
obligations of the Underwriters hereunder are subject to the condition that
the Registration Statement shall have become effective not later than the
date hereof.
The several obligations of the Underwriters hereunder are subject
to the following further conditions:
(a) Subsequent to the execution and delivery of this Agreement
and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall
any notice have been given of any intended or potential
downgrading or of any review for a possible change that does not
indicate the direction of the possible change, in the rating
accorded any of the Company's securities by any "nationally
recognized statistical rating organization" as such term is
defined for purposes of Rule 436(g)(2) under the Securities Act;
and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or
operations, of the Company and its subsidiaries, taken as a
whole, from that set forth in the Registration Statement, that,
in your judgment, is material and adverse and makes it, in your
judgment, impracticable to market the Shares on the terms and in
the manner contemplated in the Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed, on behalf of the
Company, by an executive officer of the Company, to the effect set
forth in clause (a)(i) above and to the effect that the
representations and warranties of the Company contained in this
Agreement are true and correct as of the Closing Date and that the
Company has complied with all of the agreements and satisfied all of
the conditions on its part to be performed or satisfied hereunder on
or before the Closing Date.
The officer signing and delivering such certificate may rely upon
the best of his knowledge as to proceedings threatened.
(c) You shall have received on the Closing Date an opinion of
Daniel J. Venuti, Corporate Counsel for the Company, dated the Closing
Date, to the effect that:
(i) the Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
State of Delaware, has the corporate power and authority to own
its property and to conduct its business as described in the
Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material
adverse effect on the Company and its subsidiaries taken as a
whole;
(ii) each subsidiary of the Company incorporated under the
laws of a state of the United States has been duly incorporated,
is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, has the corporate
power and authority to own its property and to conduct its
business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its
subsidiaries taken as a whole;
(iii) the shares of Common Stock outstanding have been duly
authorized and are validly issued, fully paid and non-assessable;
(iv) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this
Agreement and the Power of Attorney and Custody Agreements will
not contravene any provision of applicable law or the certificate
of incorporation or by-laws of the Company or, to the best of
such counsel's knowledge, any agreement or other instrument
binding upon the Company or any of its subsidiaries or, to the
best of such counsel's knowledge, any judgment, or decree of any
governmental body, agency or court having jurisdiction over the
Company or any subsidiary, and no consent, approval,
authorization or order of or qualification with any governmental
body or agency is required for the performance by the Company of
its obligations under this Agreement or the Power of Attorney and
Custody Agreements, except such as may be required by the
securities or Blue Sky laws of the various states in connection
with the offer and sale of the Shares by the Underwriters; and
(v) the statements in the Prospectus under the caption "Risk
Factors - Shares Eligible for Future Sale", insofar as such
statements constitute summaries of the documents or legal
conclusions referred to therein, fairly summarize and fairly
present, in all material respects, the information called for
with respect to such documents or legal conclusions referred to
therein with respect to at least _____ shares of Common Stock
outstanding.
(d) You shall have received on the Closing Date an opinion of
Nixon, Hargrave, Devans & Doyle LLP, special securities counsel for
the Company, dated the Closing Date, to the effect that:
(i) the authorized capital stock of the Company conforms in
all material respects as to legal matters to the description
thereof contained in the Prospectus;
(ii) the Shares have been duly authorized and, when issued
and delivered in accordance with the terms of this Agreement,
will be validly issued, fully paid and non-assessable, and to
such counsel's knowledge the issuance of such Shares will not be
subject to any preemptive or similar rights;
(iii) this Agreement and the Power of Attorney and Custody
Agreements have been duly authorized, executed and delivered by
the Company;
(iv) the statements (1) in the Prospectus under the captions
"Description of Capital Stock" and "Plan of Distribution", (2) in
the Registration Statement in Item 15, and (3) in the Company's
most recent annual report on Form 10-K ("Form 10-K") incorporated
by reference in the Prospectus under the caption "Item 13 -
Certain Relationships and Related Transactions", in each case
insofar as such statements constitute summaries of the documents
or legal conclusions referred to therein, fairly summarize and
fairly present, in all material respects, the information called
for with respect to such documents or legal conclusions referred
to therein;
(v) after due inquiry, such counsel does not know of any
legal or governmental proceeding pending or threatened to which
the Company or any of its subsidiaries is a party or to which any
of the properties of the Company or any of its subsidiaries is
subject that are required to be described in the Registration
Statement or the Prospectus and are not so described in the
Registration Statement or the Prospectus or a document
incorporated by reference therein or of any statutes,
regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to
be filed as exhibits to the Registration Statement that are not
described or filed as required;
(vi) the Company is not an "investment company", as such
term is defined in the Investment Company Act of 1940, as
amended; and
(vii) such counsel (1) is of the opinion that each document
filed pursuant to the Exchange Act and incorporated by reference
in the Registration Statement and the Prospectus (except for
financial statements and notes thereto and schedules and other
financial or statistical data included or incorporated by
reference therein as to which such counsel need not express any
opinion) complied when so filed as to form in all material
respects with the Exchange Act and the rules and regulations of
the Commission thereunder, and (2) is of the opinion that the
Registration Statement and Prospectus (except for financial
statements and notes thereto and schedules and other financial or
statistical data included or incorporated by reference therein as
to which such counsel need not express any opinion) comply as to
form in all material respects with the Securities Act and the
rules and regulations of the Commission thereunder. Such counsel
shall also state that, although such counsel has not undertaken
to determine independently, and therefore does not assume, except
as expressly indicated in paragraph (iv) above, any
responsibility, explicitly or implicitly, for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement and in the Prospectus, such counsel has
participated in the preparation of the Registration Statement and
Prospectus. Based upon and subject to the foregoing, and the
other customary qualifications and limitations contained in such
counsel's letter, nothing has come to such counsel's attention
which causes such counsel to believe that (except for financial
statements and notes thereto and schedules and other financial or
statistical data included or incorporated by reference therein as
to which such counsel need not express any belief) the
Registration Statement and the prospectus included therein, on
the original effective date of the Registration Statement, on the
effective date of the most recent post-effective amendment
thereto, if any, or on the date of the Underwriting Agreement,
contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary
to make the statements therein not misleading or that the
Prospectus, or any amendment or supplement thereto, at the time
the Prospectus supplement was issued, at the time any such
amended or supplemented Prospectus was issued, contained or
contains any untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which
they were made, not misleading.
(e) You shall have received on the Closing Date, an opinion of
Kirkland & Ellis, [add name of counsel for Columbia Capital] and
Daniel J. Venuti, counsel for the Selling Shareholders, dated the
Closing Date, to the effect set forth on Exhibit A through C hereto,
respectively. The opinion of Kirkland & Ellis shall also comply with
the requirements of the Warrant Purchase Agreement of the Warrant
Holders.
The opinion of Kirkland & Ellis, [add name of counsel for
Columbia Capital], and Daniel J. Venuti, shall be rendered to the
Underwriters at the request of one or more of the Selling
Shareholders, as the case may be, and shall so state therein.
(f) You shall have received on the Closing Date an opinion of
Shearman & Sterling, counsel for the Underwriters, dated the Closing
Date, with respect to the Registration Statement and the Prospectus
and such other related matters as you may reasonably request, and such
counsel shall have received such documents and information as they may
reasonably request to enable them to pass upon such matters.
Nixon, Hargrave, Devans & Doyle LLP, Kirkland & Ellis, [add name
of counsel for Columbia Capital] and Shearman & Sterling need not express
any opinion or belief with respect to matters governed by or related to (i)
federal, state, local or foreign communications law or the rules,
regulations or policies of the FCC thereunder or with respect thereto, or
(ii) any law other than the federal law of the United States of America,
the law of the State of New York or the General Corporation Law of the
State of Delaware.
(g) You shall have received, on each of the date hereof and the
Closing Date, a letter dated the date hereof or the Closing Date, as
the case may be, in form and substance satisfactory to you, from
Arthur Andersen LLP, independent public accountants, containing
statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in or
incorporated by reference into the Registration Statement and the
Prospectus.
(h) The "lock-up" agreements between you and certain officers and
directors of the Company relating to sales of shares of Common Stock
of the Company or any securities convertible into or exercisable or
exchangeable for such Common Stock, delivered to you on or before the
date hereof, shall be in full force and effect on the Closing Date.
(i) The Shares shall have been approved for quotation on Nasdaq
by the National Association of Securities Dealers, Inc.
(j) You shall have received on the Closing Date a certificate of
status for each of ACC TelEnterprises Ltd. and its subsidiaries from
the respective jurisdiction of incorporation and the jurisdictions in
which ACC TelEnterprises Ltd. and its subsidiaries transact business.
(k) You shall have received on the Closing Date certificates
dated the Closing Date and signed by the Selling Shareholders or by
the attorneys-in-fact of the Selling Shareholders, to the effect that
the representations and warranties of each such Selling Shareholder
contained in this Agreement are true and correct as of the Closing
Date and that each such Selling Shareholder has complied with all of
the agreements and satisfied all of the conditions on its part to be
performed or satisfied hereunder on or before the Closing Date.
(l) No stop order suspending the effectiveness of the
Registration Statement shall be in effect and no proceedings for such
purpose shall be pending before or, to the knowledge of the Company or
the Underwriters, threatened by the Commission.
(m) You shall have received on the Closing Date such other
certificates and documents as you may reasonably request.
6. COVENANTS OF THE COMPANY. In further consideration of the
agreements of the Underwriters herein contained, the Company covenants as
follows:
(a) If requested by you in connection with the offering of the
Shares, the Company will prepare a preliminary prospectus supplement
containing such information as you, the Company and the
Attorney-in-Fact for the Selling Shareholders deem appropriate and,
immediately following the execution of this Agreement, the Company
will prepare a Prospectus supplement that complies with the Securities
Act and the Securities Act Regulations and that sets forth the number
of Shares and their terms, the name of each Underwriter participating
in the offering and the number of Shares that each severally has
agreed to purchase, the name of each Underwriter, if any, acting as
Representative in connection with the offering, the price at which the
Secondary Shares are to be purchased by the Underwriters from the
Selling Shareholders, any initial public offering price, any selling
concession and reallowance, and such other information as you, the
Company and the Selling Shareholders deem appropriate in connection
with the offering of the Shares. The Company will promptly transmit
copies of any preliminary prospectus supplement and the Prospectus
supplement to the Commission for filing pursuant to Rule 424 under the
Securities Act and will furnish to the Underwriters as many copies of
any preliminary prospectus supplement and the Prospectus as you shall
reasonably request.
(b) If at any time when the Prospectus is required by the
Securities Act to be delivered in connection with sales of the Shares,
any event shall occur or condition exist as a result of which it is
necessary, in the opinion of counsel for the Underwriters or counsel
for the Company, to amend the Registration Statement or amend or
supplement the Prospectus in order that the Prospectus will not
include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time it
is delivered to a purchaser, or if it shall be necessary, in the
opinion of either such counsel, at any such time to amend the
Registration Statement or amend or supplement the Prospectus in order
to comply with the requirements of the Securities Act or the
Securities Act Regulations, the Company will promptly prepare and file
with the Commission such amendment or supplement as may be necessary
to correct such untrue statement or omission or to make the
Registration Statement or the Prospectus comply with such
requirements.
(c) During the period when the Prospectus is required by the
Securities Act to be delivered in connection with sales of the Shares,
the Company will file promptly all documents required to be filed with
the Commission pursuant to Section 13, Section 14 or Section 15(d) of
the Exchange Act.
(d) During the period when the Prospectus is required by the
Securities Act to be delivered in connection with sales of the Shares,
the Company will inform you and the Attorney-in-Fact for the Selling
Shareholders of its intention to file any amendment to the
Registration Statement, any supplement to the Prospectus or any
document that would as a result thereof be incorporated by reference
in the Prospectus; and the Company will furnish you with copies of any
such amendment, supplement or other document at a reasonable time in
advance of filing.
(e) During the period when the Prospectus is required by the
Securities Act to be delivered in connection with sales of the Shares,
the Company will notify you and the Attorney-in-Fact for the Selling
Shareholders immediately, and confirm the notice in writing, (i) of
the effectiveness of any amendment to the Registration Statement,
(ii) of the mailing or the delivery to the Commission for filing of
any supplement to the Prospectus or any document that would as a
result thereof be incorporated by reference in the Prospectus,
(iii) of the receipt of any comments from the Commission with respect
to the Registration Statement, the Prospectus or the Prospectus
supplement, (iv) of any request by the Commission for any amendment to
the Registration Statement or any supplement to the Prospectus or for
additional information relating thereto or to any document
incorporated by reference in the Prospectus and (v) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement, of the suspension of the qualification of the
Shares for offering or sale in any jurisdiction, or of the institution
or threatening of any proceeding for any of such purposes. The
Company will use every reasonable effort to prevent the issuance of
any such stop order or of any order suspending such qualification and,
if any such order is issued, to obtain the lifting thereof at the
earliest possible moment.
(f) The Company has furnished or will furnish to you three signed
copies of the Registration Statement (as originally filed), of any
Rule 462(b) Registration Statement, and of all amendments thereto,
whether filed before or after the Registration Statement became
effective, copies of all exhibits and documents filed therewith or
incorporated by reference therein (through the end of the period when
the Prospectus is required by the Securities Act to be delivered in
connection with sales of the Shares) and signed copies of all consents
and certificates of experts, as you may reasonably request, and has
furnished or will furnish to you, for each of the Underwriters, a
conformed copy of the Registration Statement (as originally filed), of
any Rule 462(b) Registration Statement and of each amendment thereto
(including documents incorporated by reference into the Prospectus but
without exhibits).
(g) The Company will endeavor to qualify the Shares for offer and
sale under the securities or Blue Sky laws of such jurisdictions as
you shall reasonably request and to pay all expenses (including
reasonable fees and disbursements of counsel) in connection with such
qualification and in connection with any review of the offering of the
Shares by the National Association of Securities Dealers, Inc.
(h) The Company will make generally available to its security
holders as soon as practicable, but not later than 45 days after the
close of the period covered thereby, an earnings statement of the
Company (in form complying with the provisions of Rule 158 of the
Securities Act Regulations), covering (i) a period of 12 months
beginning after the effective date of the Registration Statement (or,
if applicable, any Rule 462(b) Registration Statement) and covering a
period of 12 months beginning after the effective date of any post-
effective amendment to the Registration Statement but not later than
the first day of the Company's fiscal quarter next following such
respective effective dates and (ii) a period of 12 months beginning
after the date of this Agreement but not later than the first day of
the Company's fiscal quarter next following the date of this
Agreement.
(i) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or
cause to be paid the following: (i) the fees, disbursements and
expenses of the Company's counsel and the Company's accountants in
connection with the registration and delivery of the Shares under the
Securities Act and all other fees or expenses in connection with the
preparation and filing of the Registration Statement, any preliminary
prospectus supplement, the Prospectus and amendments and supplements
to any of the foregoing, including all printing costs associated
therewith, and the mailing and delivering of copies thereof to the
Underwriters and dealers, in the quantities hereinabove specified,
(ii) all costs and expenses related to the transfer and delivery of
the Shares to the Underwriters, including any transfer or other taxes
payable thereon, (iii) the cost of printing or producing any Blue Sky
or Legal Investment memorandum in connection with the offer and sale
of the Shares under state securities laws and all expenses in
connection with the qualification of the Shares for offer and sale
under state securities laws as provided in paragraph (d) above,
including filing fees and the reasonable fees and disbursements of
counsel for the Underwriters in connection with such qualification and
in connection with the Blue Sky or Legal Investment memorandum, (iv)
all filing fees and disbursements of counsel to the Underwriters
incurred in connection with the review and qualification of the
offering by the National Association of Securities Dealers, Inc., (v)
all costs and expenses incidental to listing the Shares on Nasdaq,
(vi) the cost of printing certificates representing the Shares, (vii)
the costs and charges of any transfer agent, registrar or depositary,
(viii) the costs and expenses of the Company relating to investor
presentations on any "road show" undertaken in connection with the
marketing of the offering, including, without limitation, expenses
associated with the production of road show slides and graphics, fees
and expenses of any consultants engaged in connection with the road
show presentations with the prior approval of the Company, travel and
lodging expense of the representatives and officers of the Company and
any such consultants, and the cost of any aircraft chartered in
connection with the road show and (ix) all other costs and expenses
incident to the performance of the obligations of the Company
hereunder for which provision is not otherwise made in this paragraph.
It is understood, however, that except as provided in this Section,
Section 8 and the third paragraph of Section 10 below, the
Underwriters will pay all of their costs and expenses, including fees
and disbursements of their counsel, stock transfer taxes payable on
resale of any of the Shares by them, and any advertising expenses
connected with any offers they may make.
(j) The Company hereby agrees to waive the five business day
period which it has to issue certificates representing shares of
Common Stock upon the conversion of the Preferred Stock or the
exercise of the Warrants by the holders thereof. The Company hereby
agrees to issue or cause to be issued on the Closing Date certificates
representing the Common Stock issuable (i) upon the conversion of the
Preferred Stock and (ii) the exercise of the Warrants; PROVIDED, that
the holders thereof shall have delivered to the Company prior to such
time all of the items set forth in Section 6A of the Company's
Certificate of Designation of Series A Preferred Stock with respect to
the conversion of the Preferred Stock and all the items set forth in
the Warrants with respect to the exercise of the Warrants.
7. COVENANTS OF THE SELLING SHAREHOLDERS. In further
consideration of the agreements of the Underwriters herein contained, each
of the Selling Shareholders severally and not jointly covenants as follows:
(a) Whether or not the transactions contemplated hereby are
consummated or this Agreement is terminated, to pay or cause to be
paid all taxes, if any, on the transfer and sale of the Shares and the
Warrants, in the case of a Warrant Holder, being sold by such Selling
Shareholder.
(b) Such Selling Shareholder has carefully reviewed the
Registration Statement and will carefully review, promptly upon
receipt, each amendment thereto provided to such Selling Shareholder.
At any time during the period from the date hereof through the Closing
Date, if there is any change in the information in the Registration
Statement that specifically relates to such Selling Shareholder,
including the tables and notes thereto, such Selling Shareholder will
immediately notify the Company of such change.
(c) Such Selling Shareholder shall cooperate fully with the
Company in supplying such information relating to such Selling
Shareholder and the Shares and the Warrants, in the case of a Warrant
Holder, as the Company may reasonably request for use in preparation
of the Registration Statement and all other documents reasonably
necessary or desirable in connection with the offering of Shares. In
addition, such Selling Shareholder shall furnish to the Company (or,
at the Company's request, to the Underwriters or other parties) such
further certificates and documents confirming the representations and
warranties contained herein, or with respect to related matters, as
the Company may reasonably request.
(d) In the case of a Preferred Stock Holder, such Selling
Shareholder shall deliver to the Company the Preferred Stock for
conversion into the Secondary Shares to be sold by such Selling
Shareholder hereunder, on or before 10:00 a.m. on the Closing Date.
(e) In the case of a Warrant Holder, such Selling Shareholder
shall deliver to you the Warrants on or before 10:00 a.m. on the
Closing Date, which upon exercise by you, will entitle you to receive
the Warrant Shares from the Company.
8. INDEMNITY AND CONTRIBUTION. The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any, who controls
any Underwriter within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act, from and against any and all losses,
claims, damages and liabilities (including, without limitation, any legal
or other expenses reasonably incurred by any Underwriter or any such
controlling person in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or any amendment
thereof, any preliminary prospectus supplement or the Prospectus (as
amended or supplemented if the Company shall have furnished any amendments
or supplements thereto), or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, except insofar as such losses,
claims, damages or liabilities are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon information
relating to any Underwriter furnished to the Company in writing by such
Underwriter through you expressly for use therein; PROVIDED, HOWEVER, that
the foregoing indemnity agreement with respect to any preliminary
prospectus supplement shall not inure to the benefit of any Underwriter
from whom the person asserting any such losses, claims, damages or
liabilities purchased Shares, or any person controlling such Underwriter,
if a copy of the Prospectus (as then amended or supplemented if the Company
shall have furnished any amendments or supplements thereto) was not sent or
given by or on behalf of such Underwriter to such person, if required by
law so to have been delivered, at or prior to the written confirmation of
the sale of the Shares to such person, and if the Prospectus (as so amended
or supplemented) would have cured the defect giving rise to such losses,
claims, damages or liabilities.
Each Selling Shareholder agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who
sign the Registration Statement and each person, if any, who controls the
Company within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act and each Underwriter and each person, if
any, who controls any Underwriter within the meaning of either Section 15
of the Securities Act or Section 20 of the Exchange Act, from and against
any and all losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses reasonably incurred in connection
with defending or investigating any such action or claim) caused by any
untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement or any amendment thereof, any preliminary
prospectus supplement or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto), or
caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein
not misleading, but only with reference to information relating to such
Selling Shareholder furnished in writing by or on behalf of such Selling
Shareholder expressly for use therein, PROVIDED, HOWEVER, that the
foregoing indemnity agreement with respect to any preliminary prospectus
supplement shall not inure to the benefit of any Underwriter from whom the
person asserting any such losses, claims, damages or liabilities purchased
Shares, or any person controlling such Underwriter, if a copy of the
Prospectus (as then amended or supplemented if the Selling Shareholder
shall have furnished the Underwriters with written information with respect
to facts or events that would require an amendment or supplement thereto)
was not sent or given by or on behalf of such Underwriter to such person,
if required by law so to have been delivered, at or prior to the written
confirmation of the sale of the Shares to such person, and if the
Prospectus (as so amended or supplemented, including the information
provided by such Selling Shareholder) would have cured the defect giving
rise to such losses, claims, damages or liabilities.
Notwithstanding any other term or provision of this Agreement to
the contrary, no Selling Shareholder shall be liable for any amount under
this Agreement in excess of the purchase price of the Secondary Shares or
the Warrants, as the case may be, received by such Selling Shareholder from
the Underwriters, plus in the case of the Warrant Holders, the exercise
price with respect thereto.
Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement, the Selling Shareholders and each person, if any,
who controls the Company or any Selling Shareholders within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act
to the same extent as the foregoing indemnity from the Selling Shareholders
and the Company to such Underwriter, but only with reference to information
relating to such Underwriter furnished to the Company in writing by such
Underwriter through you expressly for use in the Registration Statement,
any preliminary prospectus supplement, the Prospectus or any amendments or
supplements thereto.
In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may
be sought pursuant to either of the three preceding paragraphs, such person
(the "indemnified party") shall promptly notify the person against whom
such indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in
such proceeding and shall pay the reasonable fees and disbursements of such
counsel related to such proceeding. In any such proceeding, any
indemnified party shall have the right to retain its own counsel, but the
fees and expenses of such counsel shall be at the expense of such
indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii)
the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and
representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. It is
understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local counsel)
for all such indemnified parties and that all such fees and expenses shall
be reimbursed as they are incurred. In the case of any such separate firm
for the Underwriters and such control persons of Underwriters, such firm
shall be designated in writing by Morgan Stanley & Co. Incorporated. In
the case of any such separate firm for the Company, and such directors,
officers and control persons of the Company, such firm shall be designated
in writing by the Company. In the case of any such separate firm for the
Selling Shareholders and such controlling persons of Selling Shareholders,
such firm shall be designated in writing by the persons named as
attorney-in-fact for a majority in interest of the Selling Shareholders
under the Power of Attorney and Custody Agreements. The indemnifying party
shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a
final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by
reason of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses
of counsel as contemplated by the second and third sentences of this
paragraph, the indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i)
such settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with
such request prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened proceeding in respect of which
any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such proceeding.
If the indemnification provided for in the first three paragraphs
of this Section 8 is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein,
then each indemnifying party under such paragraph, in lieu of indemnifying
such indemnified party thereunder, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect
the relative benefits received by the indemnifying party or parties on the
one hand and the indemnified party or parties on the other hand from the
offering of the Shares or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the indemnifying party or parties
on the one hand and of the indemnified party or parties on the other hand
in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Selling
Shareholders and the Company on the one hand and the Underwriters on the
other hand in connection with the offering of the Shares shall be deemed to
be in the same respective proportions as the net proceeds from the offering
of the Shares (before deducting expenses) received by the Selling
Shareholders and the Company and the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the
table on the cover of the Prospectus supplement, bear to the aggregate
public offering price of the Shares. The relative fault of the Selling
Shareholders and the Company on the one hand and the Underwriters on the
other hand shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact relates to information
supplied by the Selling Shareholders and the Company or by the Underwriters
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
Underwriters' and Selling Shareholders' respective obligations to
contribute pursuant to this Section 8 are several in proportion to the
respective number of Shares they have purchased or sold hereunder,
respectively, and not joint.
The Selling Shareholders, the Company and the Underwriters agree
that it would not be just or equitable if contribution pursuant to this
Section 8 were determined by PRO RATA allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations
referred to in the immediately preceding paragraph. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages
and liabilities referred to in the immediately preceding paragraph shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim. Notwithstanding
the provisions of this Section 8, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at
which the Shares underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages that such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The remedies provided for
in this Section 8 are not exclusive and shall not limit any rights or
remedies which may otherwise be available to any indemnified party at law
or in equity. In no event shall the liability of a Selling Shareholder
under this and the preceding paragraph exceed the amount that such Selling
Shareholder would have been required to pay under first three paragraphs of
this Section 8 had such indemnification been held to be available
thereunder.
The indemnity and contribution provisions contained in this
Section 8 and the representations and warranties of the Company and the
Selling Shareholders contained in this Agreement shall remain operative and
in full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by or on behalf of any Underwriter
or any person controlling any Underwriter, any Selling Shareholder or any
person controlling any Selling Shareholder, or the Company, its officers or
directors or any person controlling the Company and (iii) acceptance of and
payment for any of the Shares.
9. TERMINATION. This Agreement shall be subject to termination
by notice given by you to the Company, the Attorney-in-Fact for the
employee Selling Shareholders, Fleet Venture Resouces, Inc., Fleet Equity
Partners VI, L.P. and Chisholm Partners II L.P. ( "Fleet Selling
Shareholders") and Columbia Capital Corporation, if (a) after the execution
and delivery of this Agreement and prior to the Closing Date (i) trading
generally shall have been suspended or materially limited on or by, as the
case may be, any of the New York Stock Exchange, the American Stock
Exchange, the National Association of Securities Dealers, Inc., the Chicago
Board of Options Exchange, the Chicago Mercantile Exchange or the Chicago
Board of Trade, (ii) trading of any securities of the Company shall have
been suspended on any exchange or in any over-the-counter market, (iii) a
general moratorium on commercial banking activities in New York shall have
been declared by either federal or New York State authorities or (iv) there
shall have occurred any outbreak or escalation of hostilities or any change
in financial markets or any calamity or crisis that, in your judgment, is
material and adverse and (b) in the case of any of the events specified in
clauses (a)(i) through (iv), such event singly or together with any other
such event makes it, in your judgment, impracticable to market the Shares
on the terms and in the manner contemplated in the Prospectus.
10. EFFECTIVENESS; DEFAULTING UNDERWRITERS. This Agreement
shall become effective upon the later of (a) execution and delivery hereof
by the parties hereto and (b) release of notification of the effectiveness
of the Registration Statement by the Commission.
If on the Closing Date any one or more of the Underwriters shall
fail or refuse to purchase Shares that it or they have agreed to purchase
hereunder on such date, and the aggregate number of Shares which such
defaulting Underwriter or Underwriters agreed but failed or refused to
purchase is not more than one-tenth of the aggregate number of the Shares
to be purchased on such date, the other Underwriters shall be obligated
severally in the proportions that the number of Shares set forth opposite
their respective names in Schedule II bears to the aggregate number of
Shares set forth opposite the names of all such nondefaulting Underwriters,
or in such other proportions as you may specify, to purchase the Shares
which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase on such date; PROVIDED that in no event shall the
number of Shares that any Underwriter has agreed to purchase pursuant to
Section 3 be increased pursuant to this Section 10 by an amount in excess
of one-ninth of such number of Shares without the written consent of such
Underwriter. If on the Closing Date any Underwriter or Underwriters shall
fail or refuse to purchase Shares and the aggregate number of Shares with
respect to which such default occurs is more than one-tenth of the
aggregate number of Shares to be purchased on such date, and arrangements
satisfactory to you and Fleet Selling Shareholders for the purchase of such
Shares are not made within 36 hours after such default, this Agreement
shall terminate without liability on the part of any non-defaulting
Underwriter, the Company or the Selling Shareholders. In any such case
either you or the Fleet Selling Shareholders shall have the right to
postpone the Closing Date, but in no event for longer than seven days, in
order that the required changes, if any, in the Registration Statement and
in the Prospectus or in any other documents or arrangements may be
effected. Any action taken under this paragraph shall not relieve any
defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any
of them, because of any failure or refusal on the part of the Company or
the Selling Shareholders to comply with the terms or to fulfill any of the
conditions of this Agreement, or if for any reason the Company or any
Selling Shareholders shall be unable to perform their obligations under
this Agreement (a "Non-Performing Party"), the Non-Performing Party will
reimburse the Underwriters or such Underwriters as have so terminated this
Agreement with respect to themselves, severally, for all out-of-pocket
expenses (including the reasonable fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement
or the offering contemplated hereunder.
11. COUNTERPARTS. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as
if the signatures thereto and hereto were upon the same instrument.
12. APPLICABLE LAW. This Agreement shall be governed by the
laws of the State of New York.
13. REGISTRATION AGREEMENT. Nothing in this Agreement shall be
interpreted as amending or otherwise affecting any of the terms or
provisions of the Registration Agreement, dated as of May 25, 1995, between
the Company and certain of the Selling Shareholders (the "Registration
Agreement"). The terms of the Registration Agreement shall prevail in the
event of any conflict or inconsistency between this Agreement and the
Registration Agreement.
14. HEADINGS. All headings of the sections and subparts thereof
of this Agreement are for convenience of reference only and shall not be
deemed a part of this Agreement.
Very truly yours,
ACC CORP.
By:
----------------------------------
Name:
Title:
The Employee Selling Shareholders named
in Schedule I hereto, acting severally
By:
-----------------------------------
Attorney-in-Fact
Name:
Title:
FLEET VENTURE RESOURCES, INC.
By:
-----------------------------------
Name:
Title:
FLEET EQUITY PARTNERS VI, L.P.
By: Silverado IV Corp.
Its: General Partner
By:
-----------------------------------
Name:
Title:
CHISHOLM PARTNERS II, L.P.
By: Silverado II, L.P.
Its: General Partner
By: Silverado II, Corp.
Its: General Partner
By:
------------------------------------
Name:
Title:
COLUMBIA CAPITAL CORPORATION
By:
------------------------------------
[Attorney-in-Fact]
Name:
Title:
Accepted as of the date hereof
MORGAN STANLEY & CO.
INCORPORATED
WHEAT, FIRST SECURITIES, INC.
Acting severally on behalf of themselves
and the several Underwriters
named in Schedule II hereto.
By Morgan Stanley & Co.
Incorporated
By:
----------------------------------
Name:
Title:
<PAGE>
SCHEDULE I
SELLING SHAREHOLDERS
Number of
Secondary Shares Warrants To Be Sold
Selling Shareholder TO BE SOLD (NUMBER OF SHARES)
------------------- ---------------- -------------------
Fleet Venture Resources, Inc.
Fleet Equity Partners VI, L.P.
Chisholm Partners II, L.P.
Columbia Capital Corporation
Christopher Bantoft 0
Arunas A. Chesonis 0
Michael L. LaFrance 0
John J. Zimmer 0
Hugh F. Bennett 0
Daniel D. Tessoni 0
Mae Squier-Dow 0
Sharon L. Barnes 0
Richard T. Aab
Total
<PAGE>
SCHEDULE II
UNDERWRITERS
Number of Warrants
Secondary To Be
Shares Purchased
To Be (Number Total Number
Underwriter Purchased of Shares) of Shares
----------- ---------- ---------- ------------
Morgan Stanley & Co. Incorporated
Wheat, First Securities, Inc.
___________ __________ ____________
Total Shares
=========== ========== ============
<PAGE>
SCHEDULE III
__________, 1996
ACC Corp.
Class A Common Stock (par value $.015 per share)
Number of Secondary Shares
sold to the Underwriters: __________
Warrants to be sold to the Underwriters
(number of shares): __________
Total Number of Shares
to be offered by the Underwriters: __________
Public offering price: $______
Purchase price for the Secondary Shares: $______
Concession to dealers: $______
Reallowance: $______
Closing Date _______, 1996, 10:00 a.m.
Listing requirement: Nasdaq National Market
Other terms and conditions:
<PAGE>
EXHIBIT A
Pursuant to Section 5(e) of the Underwriting Agreement, Kirkland
& Ellis, shall furnish an opinion to the effect that:
(i) the Underwriting Agreement has been duly authorized, executed
and delivered by or on behalf of each of the Preferred Stock Holders;
(ii) each of the Power of Attorney and Custody Agreement and the
Warrant Assignment Agreement of such Preferred Stock Holder has been duly
authorized, executed and delivered by each of the Preferred Stock Holders
and is a valid and binding agreement of such Preferred Stock Holder,
enforceable in accordance with its terms, except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and (ii) the
availability of equitable remedies may be limited by equitable principles
of general applicability;
(iii) the execution and delivery by the Preferred Stock Holders of,
and the performance by each Preferred Stock Holder of its obligations
under, the Underwriting Agreement and the Power of Attorney and Custody
Agreement and Warrant Assignment Agreement of such Preferred Stock Holder
will not contravene any applicable law, or the certificate of
incorporation or by-laws (if such Preferred Stock Holder is a
corporation) or the partnership agreement (if such Preferred Stock Holder
is a partnership) of such Preferred Stock Holder or, to the best of such
counsel's knowledge, any agreement or other instrument binding upon such
Preferred Stock Holder, or to the best of such counsel's knowledge, any
judgment, order or decree of any governmental body, agency or court
having jurisdiction over such Preferred Stock Holder, and no consent,
approval, authorization or order of or qualification with any
governmental body or agency is required for the performance by such
Preferred Stock Holder of its obligations under this Agreement or the
Power of Attorney and Custody Agreement or Warrant Assignment Agreement
of such Preferred Stock Holder, except such as may be required by the
securities or Blue Sky laws of the various states in connection with the
offer and sale of the Shares;
(iv) each of the Preferred Stock Holders has the legal right and
power, and all required authorizations and approvals to enter into the
Underwriting Agreement and the Power of Attorney and Custody Agreement
and Warrant Assignment Agreement of such Preferred Stock Holder and to
sell, transfer and deliver the Secondary Shares and the Warrants to be
sold by such Preferred Stock Holder;
(v) each of the Preferred Stock Holders has valid and marketable
title, free and clear of all security interests, claims, liens, equities
and other encumbrances, to (a) the Warrants, which are exercisable for
the Warrant Shares and (b) the Preferred Stock, which is convertible into
the Secondary Shares to be sold by such Preferred Stock Holder as set
forth in the Prospectus and, immediately prior to the Closing Date upon
conversion of the Preferred Stock, each of the Preferred Stock Holders
will have valid and marketable title to the Secondary Shares, free and
clear of all security interests, claims, liens, equities and other
encumbrances;
(vi) upon delivery of, and payment for, the Secondary Shares and
the Warrants to be sold by such Preferred Stock Holder pursuant to the
Underwriting Agreement, valid and marketable title to such Secondary
Shares and the Warrants, free and clear of any security interests,
claims, liens, equities and other encumbrances will pass to the
Underwriters; and
<PAGE>
EXHIBIT B
Pursuant to Section 5(e) of the Underwriting Agreement, _________,
counsel for Columbia Capital Corporation ("Columbia"), shall furnish an
opinion to the effect that:
(i) the Underwriting Agreement has been duly authorized, executed
and delivered by or on behalf of Columbia;
(ii) each of the Power of Attorney and Custody Agreement and the
Warrant Assignment Agreement of Columbia has been duly authorized,
executed and delivered by Columbia and is a valid and binding agreement
of Columbia, enforceable in accordance with its terms, except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and (ii) the
availability of equitable remedies may be limited by equitable principles
of general applicability;
(iii) the execution and delivery by Columbia of, and the
performance by Columbia of its obligations under, the Underwriting
Agreement and the Power of Attorney and Custody Agreement and Warrant
Assignment Agreement of Columbia will not contravene any applicable law,
or the certificate of incorporation or by-laws of Columbia or, to the
best of such counsel's knowledge, any agreement or other instrument
binding upon Columbia, or to the best of such counsel's knowledge, any
judgment, order or decree of any governmental body, agency or court
having jurisdiction over Columbia, and no consent, approval,
authorization or order of or qualification with any governmental body or
agency is required for the performance by Columbia of its obligations
under the Underwriting Agreement or the Power of Attorney and Custody
Agreement or Warrant Assignment Agreement of Columbia, except such as may
be required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Shares;
(iv) Columbia has the legal right and power, and all required
authorizations and approvals to enter into the Underwriting Agreement and
the Power of Attorney and Custody Agreement and Warrant Assignment
Agreement of Columbia and to sell, transfer and deliver the Warrants to
be sold by Columbia;
(v) Columbia has valid and marketable title, free and clear of all
security interests, claims, liens, equities and other encumbrances, to the
Warrants, which are exercisable for the Warrant Shares to be sold by
Columbia as set forth in the Prospectus;
(vi) upon delivery of, and payment for, the Warrants to be sold by
Columbia pursuant to the Underwriting Agreement, valid and marketable
title to such Warrants, free and clear of any security interests, claims,
liens, equities and other encumbrances will pass to the Underwriters; and
<PAGE>
EXHIBIT C
Pursuant to Section 5(e) of the Underwriting Agreement, Daniel J.
Venuti, Corporate Counsel for the Company, shall furnish an opinion to the
effect that:
(i) the Underwriting Agreement has been duly authorized, executed
and delivered by or on behalf of each of the Selling Shareholders;
(ii) the Power of Attorney and Custody Agreement of such Selling
Shareholder has been duly authorized, executed and delivered by each of
the Selling Shareholders and is a valid and binding agreement of such
Selling Shareholder, enforceable in accordance with its terms, except as
(i) the enforceability thereof may be limited by bankruptcy, insolvency
or similar laws affecting creditors' rights generally and (ii) the
availability of equitable remedies may be limited by equitable principles
of general applicability;
(iii) the execution and delivery by the Selling Shareholders of,
and the performance by each Selling Shareholder of its obligations under,
the Underwriting Agreement and the Power of Attorney and Custody
Agreement of such Selling Shareholder will not contravene any applicable
law or, to the best of such counsel's knowledge, any agreement or other
instrument binding upon such Selling Shareholder, or to the best of such
counsel's knowledge, any judgment, order or decree of any governmental
body, agency or court having jurisdiction over such Selling Shareholder,
and no consent, approval, authorization or order of or qualification with
any governmental body or agency is required for the performance by such
Selling Shareholder of its obligations under this Agreement or the Power
of Attorney and Custody Agreement of such Selling Shareholder, except
such as may be required by the securities or Blue Sky laws of the various
states in connection with the offer and sale of the Shares;
(iv) each of the Selling Shareholders has the legal right and
power, and all required authorizations and approvals to enter into the
Underwriting Agreement and the Power of Attorney and Custody Agreement
of such Selling Shareholder and to sell, transfer and deliver the
Secondary Shares to be sold by such Selling Shareholder;
(v) each of the Selling Shareholders has valid and marketable
title, free and clear of all security interests, claims, liens, equities
and other encumbrances, to the Secondary Shares as set forth in the
Prospectus;
(vi) upon delivery of, and payment for, the Secondary Shares to be
sold by such Selling Shareholder pursuant to the Underwriting Agreement,
valid and marketable title to such Secondary Shares, free and clear of
any security interests, claims, liens, equities and other encumbrances
will pass to the Underwriters; and
(v) as to any information relating to the Selling Shareholders,
such counsel (1) is of the opinion the Registration Statement and
Prospectus comply as to form in all material respects with the Securities
Act and the rules and regulations of the Commission thereunder, (2) has
no reason to believe that the Registration Statement and the prospectus
included therein, on the original effective date of the Registration
Statement, on the effective date of the most recent post-effective
amendment thereto, if any, on the date of the filing of any annual report
on Form 10-K after the filing of the Registration Statement, on the date
of the Underwriting Agreement, or on the Closing Date, contained any
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading and (3) has no reason to believe that the Prospectus, or
any amendment or supplement thereto, at the time the Prospectus
supplement was issued, at the time any such amended or supplemented
Prospectus was issued or on the Closing Date contained or contains any
untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
