EXHIBIT 1.1
INFONET SERVICES CORPORATION
(a Delaware corporation)
51,282,300 Shares of Class B Common Stock
PURCHASE AGREEMENT
Dated: , 1999
Table of Contents
PURCHASE AGREEMENT.................................................................... 1
SECTION 1. Representations and Warranties....................................... 3
(a) Representations and Warranties by the Company........................ 3
(i) Compliance with Registration Requirements.................... 3
(ii) Independent Accountants...................................... 4
(iii) Financial Statements......................................... 4
(iv) No Material Adverse Change in Business....................... 4
(v) Good Standing of the Company................................. 4
(vi) Good Standing of Subsidiaries................................ 5
(vii) Capitalization............................................... 5
(viii) Authorization of Agreement................................... 5
(ix) Authorization and Description of Securities.................. 5
(x) Absence of Defaults and Conflicts............................ 6
(xi) Absence of Labor Dispute..................................... 6
(xii) Absence of Proceedings....................................... 7
(xiii) Accuracy of Exhibits......................................... 7
(xiv) Possession of Intellectual Property.......................... 7
(xv) Absence of Further Requirements.............................. 7
(xvi) Possession of Licenses and Permits........................... 8
(xvii) Title to Property............................................ 8
(xviii) Compliance with Cuba Act..................................... 8
(xix) Investment Company Act....................................... 8
(xx) Environmental Laws........................................... 9
(xxi) Registration Rights.......................................... 9
(xxii) Year 2000.................................................... 9
(xxiii) Insurance.................................................... 9
(xxiv) FCC Requirements............................................. 9
(b) Representations and Warranties by the Selling Stockholders........... 10
(i) Other Information............................................ 10
(ii) Authorization of Agreements.................................. 10
(iii) Good and Marketable Title.................................... 10
(iv) Due Execution of Power of Attorney and Custody Agreement..... 11
(v) Absence of Manipulation...................................... 11
(vi) Absence of Further Requirements.............................. 11
(vii) Certificates Suitable for Transfer........................... 11
(viii) No Association with NASD..................................... 11
(c) Officers' Certificates............................................... 12
SECTION 2. Sale and Delivery to Underwriters; Closing........................... 12
(a) Initial Securities................................................... 12
(b) Option Securities.................................................... 12
(c) Payment.............................................................. 13
(d) Denominations; Registration.......................................... 13
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SECTION 3. Covenants of the Company............................................. 13
(a) Compliance with Securities Regulations and Commission Requests....... 13
(b) Filing of Amendments................................................. 14
(c) Delivery of Registration Statements.................................. 14
(d) Delivery of Prospectuses............................................. 14
(e) Continued Compliance with Securities Laws............................ 14
(f) Blue Sky Qualifications.............................................. 15
(g) Rule 158............................................................. 15
(h) Use of Proceeds...................................................... 15
(i) Listing.............................................................. 15
(j) Restriction on Sale of Securities.................................... 15
(k) Reporting Requirements............................................... 16
(l) Compliance with NASD Rules........................................... 16
(m) Compliance with Rule 463............................................. 16
(n) Financial Statements................................................. 16
SECTION 4. Payment of Expenses.................................................. 17
(a) Expenses............................................................. 17
(b) Expenses of the Selling Stockholders................................. 17
(c) Termination of Agreement............................................. 17
(d) Allocation of Expenses............................................... 17
SECTION 5. Conditions of Underwriters' Obligations.............................. 18
(a) Effectiveness of Registration Statement.............................. 18
(b) Opinion of Counsel for Company....................................... 18
(c) Opinion of Counsel for the Selling Stockholders...................... 18
(d) Opinion of Counsel for Underwriters.................................. 18
(e) Officers' Certificate................................................ 18
(f) Certificate of Selling Stockholders.................................. 19
(g) Accountant's Comfort Letter.......................................... 19
(h) Bring-down Comfort Letter............................................ 19
(i) Approval of Listing.................................................. 19
(j) No Objection......................................................... 19
(k) Lock-up Agreements................................................... 19
(l) Conditions to Purchase of Option Securities.......................... 19
(m) Additional Documents................................................. 20
(n) Termination of Agreement............................................. 21
SECTION 6. Indemnification...................................................... 21
(a) Indemnification of Underwriters by Company........................... 21
(b) Indemnification of Underwriters by Selling Stockholders.............. 22
(c) Indemnification of Company, Directors and Officers and Selling
Stockholders......................................................... 23
(d) Actions Against Parties; Notification................................ 23
(e) Settlement without Consent if Failure to Reimburse................... 24
(f) Indemnification for Reserved Securities.............................. 24
(g) Other Agreements with Respect to Indemnification..................... 25
SECTION 7. Contribution......................................................... 25
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SECTION 8. Representations, Warranties and Agreements to Survive Delivery....... 26
SECTION 9. Termination of Agreement............................................. 26
(a) Termination; General................................................. 26
(b) Liabilities.......................................................... 27
SECTION 10. Default by One or More of the Underwriters........................... 27
SECTION 11. Default by one or more of the Selling Stockholders or the Company.... 28
SECTION 12. Notices.............................................................. 28
SECTION 13. Parties.............................................................. 28
SECTION 14. GOVERNING LAW AND TIME............................................... 29
SECTION 15. Appointment of Agent for Service..................................... 29
SECTION 16. Consent to Jurisdiction.............................................. 29
SECTION 17. Judgment Currency.................................................... 29
SECTION 18. Effect of Headings................................................... 30
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SCHEDULES
Schedule A - List of Underwriters............................................... Sch A-1
Schedule B - List of Selling Stockholders....................................... Sch B-1
Schedule C - Pricing Information................................................ Sch C-1
Schedule D - List of Persons and Entities Subject to Lock-up.................... Sch D-1
Schedule E - Material Subsidiaries.............................................. Sch E-1
EXHIBITS
Exhibit A - Form of Opinion of Company's Counsel................................ A-1
Exhibit B - Form of Opinion of Counsel for the Selling Stockholders............. B-1
Exhibit C - Form of Lock-up Letter.............................................. C-1
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INFONET SERVICES CORPORATION
(a Delaware corporation)
51,282,300 Shares of Class B Common Stock
(Par Value $.01 Per Share)
PURCHASE AGREEMENT
------------------
, 1999
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
WARBURG DILLON READ LLC
as Representatives of the several Underwriters
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Infonet Services Corporation, a Delaware corporation (the "Company"), and
the stockholders listed in Schedule B hereto (the "Selling Stockholders"),
confirm their respective agreements with Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx") and each of the other
Underwriters named in Schedule A hereto (collectively, the "Underwriters", which
term shall also include any underwriter substituted as hereinafter provided in
Section 10 hereof), for whom Xxxxxxx Xxxxx and Xxxxxxx Xxxxxx Read LLC ("Warburg
Dillon Read") are acting as representatives (in such capacity, the
"Representatives"), with respect to (i) the sale by the Company and the Selling
Stockholders, acting severally and not jointly, and the purchase by the
Underwriters, acting severally and not jointly, of the respective numbers of
shares of Class B Common Stock (the "Class B Common Stock"), par value $.01 per
share, of the Company (together with the Class A Common Stock, par value $.01
per share, and the Class C Common Stock, par value $.01 per share, the "Common
Stock") set forth in Schedules A and B hereto and (ii) the grant by the Selling
Stockholders, acting severally and not jointly, to the Underwriters, acting
severally and not jointly, of the option described in Section 2(b) hereof to
purchase all or any part of additional shares of Class B Common Stock to cover
over-allotments, if any. The aforesaid 51,282,300 shares of Class B Common
Stock (the "Initial Securities") to be purchased by the Underwriters and all or
any part
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of the 7,692,342 shares of Class B Common Stock subject to the option described
in Section 2(b) hereof (the "Option Securities") are hereinafter called,
collectively, the "Securities."
The Company and the Selling Stockholders understand that the Underwriters
propose to make a public offering of the Securities as soon as the
Representatives deem advisable after this Agreement has been executed and
delivered.
The Company, the Selling Stockholders and the Underwriters agree that up to
____________ shares, or ______ percent, of the Securities to be purchased by the
Underwriters (the "Reserved Securities") shall be reserved for sale by the
Underwriters to certain persons specified by the Company, as part of the
distribution of the Securities by the Underwriters, subject to the terms of this
Agreement, the applicable rules, regulations and interpretations of the National
Association of Securities Dealers, Inc. (the "NASD") and all other applicable
laws, rules and regulations. To the extent that such Reserved Securities are not
orally confirmed for purchase by such persons by the end of the first business
day after the date of this Agreement, such Reserved Securities may be offered to
the public as part of the public offering contemplated hereby.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-1 (No. 333-88799) covering the
registration of the Securities under the Securities Act of 1933, as amended (the
"1933 Act"), including the related preliminary prospectus. Promptly after
execution and delivery of this Agreement, the Company will either (i) prepare
and file a prospectus in accordance with the provisions of Rule 430A ("Rule
430A") of the rules and regulations of the Commission under the 1933 Act (the
"1933 Act Regulations") and paragraph (b) of Rule 424 ("Rule 424(b)") of the
1933 Act Regulations or (ii) if the Company has elected to rely upon Rule 434
("Rule 434") of the 1933 Act Regulations, prepare and file a term sheet (a "Term
Sheet") in accordance with the provisions of Rule 434 and Rule 424(b). The
information included in such prospectus or in such Term Sheet, as the case may
be, that was omitted from such registration statement at the time it became
effective but that is deemed to be part of such registration statement at the
time it became effective (a) pursuant to paragraph (b) of Rule 430A is referred
to as "Rule 430A Information" or (b) pursuant to paragraph (d) of Rule 434 is
referred to as "Rule 434 Information." Each prospectus used before such
registration statement became effective, and any prospectus that omitted, as
applicable, the Rule 430A Information or the Rule 434 Information, that was used
after such effectiveness and prior to the execution and delivery of this
Agreement, is herein called a "preliminary prospectus." Such registration
statement, including the exhibits thereto and schedules thereto at the time it
became effective and including the Rule 430A Information and the Rule 434
Information, as applicable, is herein called the "Registration Statement." Any
registration statement filed pursuant to Rule 462(b) of the 1933 Act Regulations
is herein referred to as the "Rule 462(b) Registration Statement," and after
such filing the term "Registration Statement" shall include the Rule 462(b)
Registration Statement. The final prospectus in the form first furnished to the
Underwriters for use in connection with the offering of the Securities is herein
called the "Prospectus." If Rule 434 is relied on, the term "Prospectus" shall
refer to the preliminary prospectus dated November 24, 1999 together with the
Term Sheet and all references in this Agreement to the date of the Prospectus
shall mean the date of the Term Sheet. For purposes of this Agreement, all
references to the Registration Statement, any preliminary prospectus, the
Prospectus or any Term Sheet or any amendment or supplement to any of the
foregoing shall be deemed to
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include the copy filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval system ("XXXXX").
SECTION 1. Representations and Warranties.
------------------------------
(a) Representations and Warranties by the Company. The Company represents
and warrants to each Underwriter as of the date hereof, as of the Closing Time
referred to in Section 2(c) hereof, and as of each Date of Delivery (if any)
referred to in Section 2(b) hereof, and agrees with each Underwriter, as
follows:
(i) Compliance with Registration Requirements. The Company meets the
-----------------------------------------
requirements for use of Form S-1 under the 1933 Act. Each of the Registration
Statement and any Rule 462(b) Registration Statement has become effective under
the 1933 Act and no stop order suspending the effectiveness of the Registration
Statement or any Rule 462(b) Registration Statement has been issued under the
1933 Act and no proceedings for that purpose have been instituted or are pending
or, to the knowledge of the Company, are threatened by the Commission, and any
outstanding request on the part of the Commission for additional information has
been complied with.
At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto became
effective and at the Closing Time (and, if any Option Securities are purchased,
at the Date of Delivery), the Registration Statement, the Rule 462(b)
Registration Statement and any amendments and supplements thereto complied and
will comply in all material respects with the applicable requirements of the
1933 Act and the 1933 Act Regulations and did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
the Prospectus, any preliminary prospectus and any supplement thereto or
prospectus wrapper prepared in connection therewith, at their respective times
of issuance and at the Closing Time, complied and will comply in all material
respects with any applicable laws or regulations of foreign jurisdictions in
which the Prospectus and such preliminary prospectus, as amended or
supplemented, if applicable, are distributed in connection with the offer and
sale of Reserved Securities. Neither the Prospectus nor any amendments or
supplements thereto (including any prospectus wrapper), at the time the
Prospectus or any such amendment or supplement was issued and at the Closing
Time (and, if any Option Securities are purchased, at the Date of Delivery),
included or will include an untrue statement of a material fact or omitted or
will omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. If Rule 434 is used, the Company will comply with the requirements
of Rule 434 and the Prospectus shall not be "materially different", as such term
is used in Rule 434, from the prospectus included in the Registration Statement
at the time it became effective. The representations and warranties in this
subsection shall not apply to statements in or omissions from the Registration
Statement or Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by any Underwriter through the
Representatives expressly for use in the Registration Statement or Prospectus.
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Each preliminary prospectus and the prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment thereto,
or filed pursuant to Rule 424 under the 1933 Act, complied when so filed in all
material respects with the applicable requirements of the 1933 Act Regulations
and each preliminary prospectus and the Prospectus delivered to the Underwriters
for use in connection with this offering was identical to the electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX, except
to the extent permitted by Regulation S-T and except for the German listing
prospectus (consisting of the German prospectus wrapper and the Prospectus) (the
"German Listing Prospectus") which was not delivered to any person in the United
States.
(ii) Independent Accountants. The accountants who certified the
-----------------------
financial statements and supporting schedules included in the Registration
Statement are independent public accountants as required by the 1933 Act and the
1933 Act Regulations.
(iii) Financial Statements. The consolidated financial statements of the
--------------------
Company included in the Registration Statement, the Prospectus and the
German Listing Prospectus, together with the related schedules and notes,
present fairly the financial position of the Company and its consolidated
subsidiaries at the dates indicated and the statement of operations and
comprehensive income, stockholders' equity and cash flows of the Company and its
consolidated subsidiaries for the periods specified; said financial statements
have been prepared in conformity with generally accepted accounting principles
("GAAP") applied on a consistent basis throughout the periods involved. The
supporting schedules included in the Registration Statement present fairly in
accordance with GAAP the information required to be stated therein. The
selected financial data and the summary financial information included in the
Prospectus and the German Listing Prospectus present fairly the information
shown therein and have been compiled on a basis consistent with that of the
audited financial statements included in the Registration Statement.
(iv) No Material Adverse Change in Business. Since the respective dates as
--------------------------------------
of which information is given in the Registration Statement, the Prospectus and
the German Listing Prospectus, except as otherwise stated therein, (A) there has
been no material adverse change, in the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business (a "Material Adverse Effect"), (B) there have been
no transactions entered into by the Company or any of its subsidiaries, other
than those in the ordinary course of business, which are material with respect
to the Company and its subsidiaries considered as one enterprise, and (C) there
has been no dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(v) Good Standing of the Company. The Company has been duly organized and
----------------------------
is validly existing as a corporation in good standing under the laws of the
State of Delaware and has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and the German Listing Prospectus and to enter into and perform its
obligations under this Agreement; and the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each other
jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business,
4
except where the failure so to qualify or to be in good standing would not
result in a Material Adverse Effect. Complete and correct copies of the
certificate of incorporation and of the bylaws of the Company as in effect on
the Date of Delivery have been delivered to you, and except as set forth in the
Registration Statement no changes therein will be made subsequent to the date
hereof and prior to the Closing Time.
(vi) Good Standing of Subsidiaries. Each subsidiary of the Company set
-----------------------------
forth on Schedule E hereto (each a "Subsidiary" and, collectively, the
"Subsidiaries") has been duly organized and is validly existing as a
corporation, partnership, association or similar business entity, as the case
may be, in good standing under the laws of the jurisdiction of its incorporation
or organization, as the case may be, has requisite power and authority to own,
lease and operate its properties and to conduct its business as described in the
Prospectus and the German Listing Prospectus and is duly qualified as a foreign
corporation, partnership, association or similar business entity, as the case
may be, to transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure to so
qualify or to be in good standing would not result in a Material Adverse Effect;
no changes to the certificates of incorporation and the bylaws or other
organizational instruments of the Subsidiaries will be made subsequent to the
date hereof and prior to the Closing Time except as set forth in the exhibits to
the Registration Statement; except as otherwise disclosed in the Registration
Statement or the German Listing Prospectus, as the case may be, the issued and
outstanding capital stock of each such Subsidiary has been duly authorized and
validly issued, is fully paid and non-assessable and is owned by the Company,
directly or through Subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity (other than interests
secured under the $250 million Senior Secured Credit Agreement, dated August 17,
1999, filed as Exhibit 10.7 to the Registration Statement); none of the
outstanding shares of capital stock of any Subsidiary was issued in violation of
the preemptive or similar rights of any securityholder of such Subsidiary. All
of the Subsidiaries of the Company are listed on Exhibit 21.1 to the
Registration Statement.
(vii) Capitalization. The authorized, issued and outstanding capital
--------------
stock of the Company is as set forth in the Prospectus and the German Listing
Prospectus in the column entitled "Actual" under the caption "Capitalization"
(except for subsequent issuances, if any, pursuant to this Agreement, pursuant
to reservations, agreements or employee benefit plans referred to in the
Prospectus and the German Listing Prospectus, or pursuant to the exercise of
convertible securities or options referred to in the Prospectus and the German
Listing Prospectus). The shares of issued and outstanding capital stock of the
Company, including the Securities to be purchased by the Underwriters from the
Selling Stockholders, have been duly authorized and validly issued and are fully
paid and non-assessable; none of the outstanding shares of capital stock,
including the Securities to be purchased by the Underwriters from the Selling
Stockholders, was issued in violation of the preemptive or other similar rights
of any securityholder of the Company.
(viii) Authorization of Agreement. This Agreement has been duly
--------------------------
authorized, executed and delivered by the Company.
5
(ix) Authorization and Description of Securities. The Securities to be
-------------------------------------------
purchased by the Underwriters from the Company have been duly authorized for
issuance and sale to the Underwriters pursuant to this Agreement and, when
issued and delivered by the Company pursuant to this Agreement against payment
of the consideration set forth herein, will be validly issued and fully paid and
non-assessable; the Common Stock conforms to all statements relating thereto
contained in the Prospectus and the German Listing Prospectus and such
description conforms to the rights set forth in the instruments defining the
same; no holder of the Securities will be subject to personal liability solely
by reason of being such a holder; and the issuance of the Securities is not
subject to the preemptive or other similar rights of any securityholder of the
Company.
(x) Absence of Defaults and Conflicts. Neither the Company nor any of
---------------------------------
its Subsidiaries is (i)(a) in violation of its charter, by-laws or other
organizational instruments or (b) in default, and no event has occurred which,
with notice or lapse of time or both, would constitute such a default, in the
due performance or observance of any term, obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of trust, loan or
credit agreement, note, bond, lease or other agreement or instrument to which
the Company or any of its Subsidiaries is a party or by which it or any of them
may be bound, or to which any of the property or assets of the Company or any
Subsidiary is subject (collectively, "Agreements and Instruments"), except for
such defaults that, individually or in the aggregate, would not result in a
Material Adverse Effect, or (ii) in violation in any material respect of any
law, ordinance, governmental rule, regulation or court decree to which it or its
property or assets may be subject or has failed to obtain any material license,
permit, certificate, franchise or other governmental authorization or permit
necessary to the ownership of its property or assets or to the conduct of its
business, except for such violations or failures that, individually or in the
aggregate, would not result in a Material Adverse Effect; and the execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated herein and in the Registration Statement (including
the issuance and sale of the Securities, the use of the proceeds from the sale
of the Securities as described in the Prospectus and the German Listing
Prospectus under the caption "Use of Proceeds" and the AUCS Transactions (as
defined below)) and compliance by the Company with its obligations hereunder
have been duly authorized by all necessary corporate action and do not and will
not, whether with or without the giving of notice or passage of time or both,
conflict with or constitute a breach of, or default or Repayment Event (as
defined below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any
Subsidiary pursuant to the Agreements and Instruments (except for such
conflicts, breaches or defaults or liens, charges or encumbrances that would not
result in a Material Adverse Effect), nor will such action result in (i) any
violation of the provisions of the charter or by-laws or other organizational
instruments of the Company or any Subsidiary or (ii) any violation of any
applicable law, statute, rule, regulation, judgment, order, writ or decree of
any government, government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any Subsidiary or any of their assets,
properties or operations, except for such violations that would not result in a
Material Adverse Effect. As used herein, a "Repayment Event" means any event or
condition which gives the holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holder's behalf) the right to require
the repurchase, redemption or repayment of all or a portion of such indebtedness
by the Company or any Subsidiary.
6
(xi) Absence of Labor Dispute. No labor dispute with the employees of
------------------------
the Company or any Subsidiary exists or, to the knowledge of the Company, is
imminent, which, in either case, would result in a Material Adverse Effect.
(xii) Absence of Proceedings. There is no action, suit, proceeding,
----------------------
inquiry or investigation before or brought by any court or governmental agency
or body, domestic or foreign, now pending, or, to the knowledge of the Company,
threatened, against or affecting the Company or any Subsidiary, nor has there
been any such action, suit, proceeding, inquiry or investigation within the last
two years, which is required to be disclosed in the Registration Statement or
the German Listing Prospectus (other than as disclosed therein), or which would
reasonably be expected to result in a Material Adverse Effect, or which would
reasonably be expected to materially and adversely affect the properties or
assets thereof, or the consummation of the transactions contemplated in this
Agreement or the performance by the Company of its obligations hereunder; the
aggregate of all pending legal or governmental proceedings to which the Company
or any Subsidiary is a party or of which any of their respective properties or
assets is the subject which are not described in the Registration Statement or
the German Listing Prospectus, including ordinary routine litigation incidental
to the business, could not reasonably be expected to result in a Material
Adverse Effect.
(xiii) Accuracy of Exhibits. There are no contracts or documents which
--------------------
are required to be described in the Registration Statement or the Prospectus or
the German Listing Prospectus or to be filed as exhibits thereto which have not
been so described and filed as required.
(xiv) Possession of Intellectual Property. The Company and its
-----------------------------------
Subsidiaries own or possess, or can acquire on reasonable terms, adequate
patents, patent rights, licenses, inventions, copyrights, know-how (including
trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks, trademark
registrations, service marks, service xxxx registrations, trade names,
copyrights or other intellectual property (collectively, "Intellectual
Property") necessary to carry on the business now operated by them, and neither
the Company nor any of its Subsidiaries has received any notice or is otherwise
aware of any infringement of or conflict with asserted rights of others with
respect to any Intellectual Property or of any facts or circumstances which
would render any Intellectual Property invalid or inadequate to protect the
interest of the Company or any of its Subsidiaries therein, and which
infringement or conflict (if the subject of any unfavorable decision, ruling or
finding) or invalidity or inadequacy, singly or in the aggregate, would result
in a Material Adverse Effect.
(xv) Absence of Further Requirements. No filing with, or authorization,
-------------------------------
approval, consent, license, order, registration, qualification or decree (the
"Further Requirements") of, any court or governmental authority, agency or body,
domestic or foreign, is necessary or required for the performance by the Company
of its obligations hereunder, in connection with the offering, issuance or sale
of the Securities hereunder or the consummation of the transactions contemplated
by this Agreement, or in connection with the Company's agreements with AT&T-
Unisource Communications Services N.V. ("AUCS") and with KPN Royal Dutch
Telecom, Swisscom Ltd and Telia Telecom AB (collectively, the "Trio") which
provide for the Company to obtain access to the Trio's multinational corporate
clients currently served by AUCS, as well as additional multinational
7
clients to which the Trio may provide services in the future (the "AUCS
Transactions"), except (i) such as have been already obtained or as may be
required under the 1933 Act or the 1933 Act Regulations or the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976, as amended, or foreign or state securities
or Blue Sky laws, the New York Stock Exchange, the Frankfurt Stock Exchange, the
Securities Exchange Act of 1934, as amended (the "1934 Act"), or the German
Stock Exchange Admission Regulation, as amended, as of September 17, 1988, which
in each case, will be effective on or prior to the Closing Date (except for
Further Requirements necessary or required for listing on the Frankfurt Stock
Exchange or pursuant to the German Stock Exchange Admission Regulation, which
will be effective within ten (10) days of the Closing Date), (ii) such as have
been obtained under the laws and regulations of jurisdictions outside the United
States in which the Reserved Securities are offered and (iii) such Further
Requirements, the absence of which, individually or in the aggregate, would not
result in a Material Adverse Effect or a material adverse effect on the
consummation and performance of the AUCS Transactions.
(xvi) Possession of Licenses and Permits. The Company and its
----------------------------------
Subsidiaries possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the appropriate
federal, state, local or foreign regulatory agencies or bodies as are reasonably
necessary to conduct the business now operated by them, except where the failure
to possess such Governmental Licenses would not, individually or in the
aggregate, result in a Material Adverse Effect; the Company and its
Subsidiaries are in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so to comply would not, singly
or in the aggregate, have a Material Adverse Effect; all of the Governmental
Licenses are valid and in full force and effect, except where the invalidity of
such Governmental Licenses or the failure of such Governmental Licenses to be in
full force and effect would not have a Material Adverse Effect; and neither the
Company nor any of its Subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such Governmental Licenses
which, singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in a Material Adverse Effect.
(xvii) Title to Property. The Company and its Subsidiaries have good and
-----------------
marketable title to all material real property owned by the Company and its
Subsidiaries and good and marketable title to all other material properties
owned by them, in each case, free and clear of all mortgages, pledges, liens,
security interests, claims, restrictions, defects or encumbrances of any kind
(the "Liens") except the mortgage on the Company's headquarters building at 0000
Xxxx Xxxxx Xxxxxx, Xx Xxxxxxx, Xxxxxxxxxx 00000-0000, and except such Liens as
(a) are described in the Prospectus and the German Listing Prospectus or (b) do
not, singly or in the aggregate, materially affect the value of such property
and do not interfere with the use made and proposed to be made of such property
by the Company or any of its Subsidiaries; and all of the leases and subleases
material to the business of the Company and its Subsidiaries, considered as one
enterprise, and under which the Company or any of its Subsidiaries holds
properties described in the Prospectus and the German Listing Prospectus, are in
full force and effect, and neither the Company nor any Subsidiary has any notice
of any material claim of any sort that has been asserted by anyone adverse to
the rights of the Company or any Subsidiary under any of the leases or subleases
mentioned above, or affecting or questioning the rights of the Company or such
Subsidiary to the continued possession of the leased or subleased premises under
any such lease or sublease.
8
(xviii) Compliance with Cuba Act. The Company has complied with, and is
------------------------
and will be in compliance with, the provisions of that certain Florida act
relating to disclosure of doing business with Cuba, codified as Section 517.075
of the Florida statutes, and the rules and regulations thereunder (collectively,
the "Cuba Act") or is exempt therefrom.
(xix) Investment Company Act. The Company is not, and upon the
----------------------
issuance and sale of the Securities as herein contemplated and the application
of the net proceeds therefrom as described in the Prospectus will not be, an
"investment company" as such term is defined in the Investment Company Act of
1940, as amended (the "1940 Act").
(xx) Environmental Laws. Except as described in the Registration
-------------------
Statement and the German Listing Prospectus and except as would not, singly or
in the aggregate, result in a Material Adverse Effect, (A) neither the Company
nor any of its Subsidiaries is in violation of any federal, state, local or
foreign statute, law, rule, regulation, ordinance, code, policy or rule of
common law or any judicial or administrative interpretation thereof, including
any judicial or administrative order, consent, decree or judgment, relating to
pollution or protection of human health, the environment (including, without
limitation, ambient air, surface water, groundwater, land surface or subsurface
strata) or wildlife, including, without limitation, laws and regulations
relating to the release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances, petroleum or
petroleum products (collectively, "Hazardous Materials") or to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of Hazardous Materials (collectively, "Environmental Laws"), (B) the
Company and its Subsidiaries have all permits, authorizations and approvals
required under any applicable Environmental Laws and are each in compliance with
their requirements, (C) there are no pending or threatened administrative,
regulatory or judicial actions, suits, demands, demand letters, claims, liens,
notices of noncompliance or violation, investigation or proceedings relating to
any Environmental Law against the Company or any of its Subsidiaries and (D)
there are no events or circumstances that might reasonably be expected to form
the basis of an order for clean-up or remediation, or an action, suit or
proceeding by any private party or governmental body or agency, against or
affecting the Company or any of its Subsidiaries relating to Hazardous Materials
or any Environmental Laws.
(xxi) Registration Rights. Except as disclosed in the Stockholders'
-------------------
Agreement filed as Exhibit 9.1 to the Registration Statement, there are no
persons with registration rights or other similar rights to have any securities
registered pursuant to the Registration Statement or otherwise registered by the
Company under the 0000 Xxx.
(xxii) Year 2000. The Company's disclosure in the Prospectus and the
---------
German Listing Prospectus regarding the potential effect of the Year 2000 issue
upon the Company constitutes an accurate and complete representation of the Year
2000 issue as it relates to the Company.
(xxiii) Insurance. The Company and each of its Subsidiaries carry,
---------
or are covered by, insurance in such amounts and covering such risks as is
adequate for the conduct of their
9
respective businesses and the value of their respective properties and assets
and as is customary for companies engaged in similar businesses in similar
industries with similar revenues.
(xxiv) Stabilization. The Company has not taken, directly or indirectly,
-------------
any action designed to or which has constituted or which might reasonably be
expected to cause or result, under the Exchange Act, the German Exchange Act or
otherwise, in stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
(b) Representations and Warranties by the Selling Stockholders. Each
Selling Stockholder severally represents and warrants to each Underwriter as of
the date hereof, as of the Closing Time, and, if the Selling Stockholder is
selling Option Securities on a Date of Delivery, as of each such Date of
Delivery, and agrees with each Underwriter, as follows:
(i) Other Information. The information pertaining to each Selling
-----------------
Stockholder provided to the Company for inclusion in the Prospectus does not and
will not contain an untrue statement of material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading.
(ii) Authorization of Agreements. Each Selling Stockholder has
---------------------------
the full right, power and authority to enter into this Agreement and a Power of
Attorney and Custody Agreement (the "Power of Attorney and Custody Agreement")
and to sell, transfer and deliver the Securities to be sold by such Selling
Stockholder hereunder. The execution, delivery and performance of this Agreement
and the Power of Attorney and Custody Agreement and the sale and delivery of the
Securities to be sold by such Selling Stockholder and the consummation of the
transactions contemplated herein and compliance by such Selling Stockholder with
its obligations hereunder have been duly authorized by such Selling Stockholder
and do not and will not, whether with or without the giving of notice or passage
of time or both, conflict with or constitute a breach or violation of, or
default under, or result in the creation or imposition of any tax, lien, charge
or encumbrance upon the Securities to be sold by such Selling Stockholder or any
property or assets of such Selling Stockholder pursuant to any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, bond,
license, lease or other agreement or instrument to which such Selling
Stockholder is a party or by which such Selling Stockholder may be bound, or to
which any of the property or assets of such Selling Stockholder is subject,
other than any such conflict, breach, violation or default as would not,
individually or in the aggregate, have a material adverse affect on such Selling
Stockholder's ability to consummate the transactions contemplated herein, nor
will such action result in any violation of the provisions of the charter or by-
laws or other organizational instruments of such Selling Stockholder, if
applicable, or any applicable treaty, law, statute, rule, regulation, judgment,
order, writ or decree of any government, government instrumentality, agency or
body, or court, domestic or foreign, having jurisdiction over such Selling
Stockholder or any of its properties or assets.
(iii) Good and Marketable Title. Such Selling Stockholder has and
-------------------------
will at the Closing Time and, if any Option Securities are purchased, on the
Date of Delivery have good and marketable title to the Securities to be sold by
such Selling Stockholder hereunder, free and clear of any security interest,
mortgage, pledge, lien, charge, claim, equity or encumbrance of any kind, other
10
than pursuant to this Agreement; and upon delivery of such Securities and
payment of the purchase price therefor as herein contemplated, assuming each
such Underwriter has no notice of any adverse claim, each of the Underwriters
will receive good and marketable title to the Securities purchased by it from
such Selling Stockholder, free and clear of any security interest, mortgage,
pledge, lien, charge, claim, equity or encumbrance of any kind.
(iv) Due Execution of Power of Attorney and Custody Agreement. Such
--------------------------------------------------------
Selling Stockholder has duly executed and delivered, in the form heretofore
furnished to the Representatives, the Power of Attorney and Custody Agreement
with Beat Xxxxxxxxxxxxx, in his capacity as Head of Treasury of Swisscom AG, as
attorney-in-fact (the "Attorney-in-Fact") and Xxxxxxx Xxxxx, in his capacity as
Assistant General Counsel to the Company, as custodian (the "Custodian"); the
Custodian is authorized to deliver the Securities to be sold by such Selling
Stockholder hereunder and to accept payment therefor; and the Attorney-in-Fact
is authorized to execute and deliver this Agreement and the certificate referred
to in Section 5(f) or that may be required pursuant to Sections 5(l) and 5(m) on
behalf of such Selling Stockholder, to sell, assign and transfer to the
Underwriters the Securities to be sold by such Selling Stockholder hereunder, to
determine the purchase price to be paid by the Underwriters to such Selling
Stockholder, as provided in Section 2(a) hereof, to authorize the delivery of
the Securities to be sold by such Selling Stockholder hereunder, to accept
payment therefor, and otherwise to act on behalf of such Selling Stockholder in
connection with this Agreement.
(v) Absence of Manipulation. Such Selling Stockholder has not
-----------------------
taken, and will not take, directly or indirectly, any action which is designed
to or which has constituted 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 Securities.
(vi) Absence of Further Requirements. No filing with, or consent,
-------------------------------
approval, authorization, order, registration, qualification or decree of, any
court or governmental authority or agency, domestic or foreign, is necessary or
required for the performance by each Selling Stockholder of its obligations
hereunder or in the Power of Attorney and Custody Agreement, or in connection
with the sale and delivery of the Securities hereunder or the consummation of
the transac tions contemplated by this Agreement, except (i) such as may have
previously been made or obtained or as may be required under the 1933 Act or the
1933 Act Regulations, or the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended, or foreign or state securities laws or Blue Sky laws, the New
York Stock Exchange, the Frankfurt Stock Exchange, the 1934 Act, or the German
Stock Exchange Admission Regulation, which, in each case will be effective on or
prior to the Closing Date, (except for Further Requirements necessary or
required for listing on the Frankfurt Stock Exchange or pursuant to the German
Stock Exchange Admission Regulation, which will be effective within ten (10)
days of the Closing Date).
(vii) Certificates Suitable for Transfer. Certificates for all of
----------------------------------
the Securities to be sold by such Selling Stockholder pursuant to this
Agreement, in suitable form for transfer by delivery or accompanied by duly
executed instruments of transfer or assignment in blank with signatures
guaranteed, have been placed in custody with the Custodian with irrevocable
conditional instructions to deliver such Securities to the Underwriters pursuant
to this Agreement.
11
(viii) No Association with NASD. Neither such Selling Stockholder
------------------------
nor any of its affiliates directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with,
or has any other association with (within the meaning of Article I, Section 1(m)
of the By-laws of the NASD), any member firm of the NASD.
(c) Officers' Certificates. Any certificate signed by any officer of the
Company or any of its Subsidiaries delivered to the Representatives or to
counsel for the Underwriters shall be deemed a representation and warranty by
the Company to each Underwriter as to the matters covered thereby; and any
certificate signed by or on behalf of the Selling Stockholders as such and
delivered to the Representatives or to counsel for the Underwriters pursuant to
the terms of this Agreement shall be deemed a representation and warranty by
such Selling Stockholder to the Underwriters as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
------------------------------------------
(a) Initial Securities. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company and each Selling Stockholder, severally and not jointly, agrees to sell
to each Underwriter, severally and not jointly, and each Underwriter, severally
and not jointly, agrees to purchase from the Company and each Selling
Stockholder, at the price per share set forth in Schedule C, that proportion of
the number of Initial Securities set forth in Schedule B opposite the name of
the Company or such Selling Stockholder, as the case may be, which the number of
Initial Securities set forth in Schedule A opposite the name of such
Underwriter, plus any additional number of Initial Securities which such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof, bears to the total number of Initial Securities, subject, in
each case, to such adjustments among the Underwriters as the Representatives in
their sole discretion shall make to eliminate any sales or purchases of
fractional securities.
(b) Option Securities. In addition, on the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, each Selling Stockholder, severally and not jointly, hereby grants an
option to the Underwriters, severally and not jointly, to purchase up to an
additional 7,692,342 shares of Class B Common Stock, as set forth in Schedule B,
at the price per share set forth in Schedule C. The option hereby granted will
expire 30 days after the date hereof and may be exercised once only in whole or
in part only for the purpose of covering over-allotments which may be made in
connection with the offering and distribution of the Initial Securities upon
notice by the Representatives to the Selling Stockholders setting forth the
number of Option Securities as to which the several Underwriters are then
exercising the option and the time and date of payment and delivery for such
Option Securities. Any such time and date of delivery (a "Date of Delivery")
shall be determined by the Representatives, but shall not be later than three
full business days after the exercise of said option, nor in any event prior to
the Closing Time, as hereinafter defined. If the option is exercised as to all
or any portion of the Option Securities, each of the Underwriters, acting
severally and not jointly, will purchase that proportion of the total number of
Option Securities then being purchased which the number of Initial Securities
set forth in Schedule A opposite the name of such Underwriter, plus any
additional number of Initial
12
Securities which such Underwriter may become obligated to purchase pursuant to
the provisions of Section 10 hereof, bears to the total number of Initial
Securities, subject in each case to such adjustments as the Representatives in
their discretion shall make to eliminate any sales or purchases of fractional
shares.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of Xxxxxxx
Xxxxxxx & Xxxxxxxx, counsel for the Underwriters, 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed upon by the
Representatives and the Company and the Selling Stockholders, at 9:00 A.M.
(Eastern time) on the third (fourth, if the pricing occurs after 4:30 P.M.
(Eastern time) on any given day) business day after the date hereof (unless
postponed in accordance with the provisions of Section 10), or such other time
not later than ten business days after such date as shall be agreed upon by the
Representatives and the Company and the Selling Stockholders (such time and date
of payment and delivery being herein called "Closing Time").
In addition, in the event that any or all of the Option Securities are
purchased by the Underwriters, payment of the purchase price for, and delivery
of certificates for, such Option Securities shall be made at the above-mentioned
offices, or at such other place as shall be agreed upon by the Representatives
and the Company and the Selling Stockholders, on the Date of Delivery as
specified in the notice from the Representatives to the Company and the Selling
Stockholders.
Payment shall be made to the Company and the Selling Stockholders by wire
transfer of immediately available funds in U.S. dollars to bank accounts
designated by the Company and the Custodian pursuant to each Selling
Stockholder's Power of Attorney and Custody Agreement, as the case may be,
against delivery to the Representatives for the respective accounts of the
Underwriters of certificates for the Securities to be purchased by them. It is
understood that each Underwriter has authorized the Representatives, for its
account, to accept delivery of, receipt for, and make payment of the purchase
price for, the Initial Securities and the Option Securities, if any, which it
has agreed to purchase. Each of Xxxxxxx Xxxxx and Xxxxxxx Xxxxxx Read,
individually and not as representatives of the Underwriters, may (but shall not
be obligated to) make payment of the purchase price for the Initial Securities
or the Option Securities, if any, to be purchased by any Underwriter whose funds
have not been received by the Closing Time or the relevant Date of Delivery, as
the case may be, but such payment shall not relieve such Underwriter from its
obligations hereunder.
(d) Denominations; Registration. Certificates for the Initial Securities
and the Option Securities, if any, shall be in such denominations and registered
in such names as the Representatives may request in writing at least two full
business days before the Closing Time or the relevant Date of Delivery, as the
case may be. The certificates for the Initial Securities and the Option
Securities, if any, will be made available for examination and packaging by the
Representatives in The City of New York not later than 10:00 A.M. (Eastern time)
on the business day prior to the Closing Time or the relevant Date of Delivery,
as the case may be.
SECTION 3. Covenants of the Company. The Company covenants with each
------------------------
Underwriter as follows:
13
(a) Compliance with Securities Regulations and Commission Requests. The
Company, subject to Section 3(b), will comply with the requirements of Rule 430A
or Rule 434, as applicable, and will notify the Representatives immediately, and
confirm the notice in writing, (i) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the
Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt
of any comments from the Commission, (iii) of any request by the Commission for
any amendment to the Registration Statement or any amendment or supplement to
the Prospectus or for additional information, and (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the Securities for
offering or sale in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes. The Company will promptly effect the
filings necessary pursuant to Rule 424(b) and will take such steps as it deems
necessary to ascertain promptly whether the form of prospectus transmitted for
filing under Rule 424(b) was received for filing by the Commission and, in the
event that it was not, it will promptly file such prospectus. The Company will
make every reasonable effort to prevent the issuance of any stop order and, if
any stop order is issued, to obtain the lifting thereof at the earliest possible
date.
(b) Filing of Amendments. The Company will give the Representatives
notice of its intention to file or prepare any amendment to the Registration
Statement (including any filing under Rule 462(b)), any Term Sheet or any
amendment, supplement or revision to either the prospectus included in the
Registration Statement at the time it became effective or to the Prospectus or
to the German Listing Prospectus, will furnish the Representatives with copies
of any such documents a reasonable amount of time prior to such proposed filing
or use, as the case may be, and will not file or use any such document to which
the Representatives or counsel for the Underwriters shall reasonably object in
writing.
(c) Delivery of Registration Statements. The Company has furnished or
will deliver to the Representatives and counsel for the Underwriters, without
charge, signed copies of the Registration Statement as originally filed and of
each amendment thereto (including exhibits filed therewith or incorporated by
reference therein) and signed copies of all consents and certificates of
experts, and will also deliver to the Representatives, without charge, a
conformed copy of the Registration Statement as originally filed and of each
amendment thereto (without exhibits) for each of the Underwriters. The copies
of the Registration Statement and each amendment thereto furnished to the
Underwriters will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered to each
Underwriter, without charge, as many copies of each preliminary prospectus as
such Underwriter reasonably requested, and the Company hereby consents to the
use of such copies for purposes permitted by the 1933 Act. The Company will
furnish to each Underwriter, without charge, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such
number of copies of the Prospectus (as amended or supplemented) as such
Underwriter may reasonably request. The Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be
14
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T
and except for the German Listing Prospectus which will not be delivered to any
person in the United States.
(e) Continued Compliance with Securities Laws. The Company will comply
with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the rules
and regulations promulgated thereunder (the "1934 Act Regulations"), and any
other applicable securities law governing the offering, so as to permit the
completion of the distribution of the Securities as contemplated in this
Agreement and in the Prospectus. If at any time when a prospectus is required by
the 1933 Act or the 1934 Act to be delivered in connection with sales of the
Securities, any event shall occur or condition shall exist as a result of which
it is necessary, in the reasonable opinion of counsel for the Underwriters or
for the Company, to amend the Registration Statement or amend or supplement the
Prospectus in order that the Prospectus will not include any untrue statement of
a material fact or omit to state a material fact necessary in order to make the
statements therein not misleading in the light of the circumstances existing at
the time it is delivered to a purchaser, or if it shall be necessary, in the
opinion of such counsel, at any such time to amend the Registration Statement or
amend or supplement the Prospectus in order to comply with the requirements of
the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and
file with the Commission, subject to Section 3(b), such amendment or supplement
as may be necessary to correct such statement or omission or to make the
Registration Statement or the Prospectus comply with such requirements, and the
Company will furnish to the Underwriters such number of copies of such amendment
or supplement as the Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company will use its best efforts, in
cooperation with the Underwriters, to qualify the Securities for offering and
sale under the applicable securities laws of such states and other jurisdictions
(domestic or foreign) as the Representatives may designate and to maintain such
qualifications in effect for a period of not less than one year from the later
of the effective date of the Registration Statement and any Rule 462(b)
Registration Statement; provided, however, that the Company shall not be
obligated to file any general consent to service of process or to qualify as a
foreign corporation or as a dealer in securities in any jurisdiction in which it
is not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject. In each
jurisdiction in which the Securities have been so qualified, the Company will
file such statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for a period of not less
than one year from the effective date of the Registration Statement and any Rule
462(b) Registration Statement.
(g) Rule 158. The Company will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earning statement for the purposes of,
and to provide the benefits contemplated by, the last paragraph of Section 11(a)
of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds received by it
from the sale of the Securities in the manner specified in the Prospectus under
"Use of Proceeds".
15
(i) Listing. The Company will use its best efforts to effect the listing
of the Class B Common Stock (including the Securities) on the New York Stock
Exchange and on the Frankfurt Stock Exchange.
(j) Restriction on Sale of Securities. During a period of 180 days from
the date of this Agreement, the Company will not, without the prior written
consent of Xxxxxxx Xxxxx, directly or indirectly, (i) offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant for the sale of, or
otherwise dispose of or transfer any shares of the Company's Common Stock or any
securities convertible into or exchangeable or exercisable for Common Stock,
whether now owned or hereafter acquired by the Company or with respect to which
the Company has or hereafter acquires the power of disposition, or file any
registration statement under the 1933 Act with respect to any of the foregoing
or (ii) enter into any swap or any other agreement or any transaction that
transfers, in whole or in part, directly or indirectly, the economic consequence
of ownership of the Common Stock, whether any such swap or transaction is to be
settled by delivery of Common Stock or other securities, in cash or otherwise.
The foregoing sentence shall not apply to (A) the Securities to be sold
hereunder, (B) any shares of Common Stock issued by the Company upon the
exercise of an option or warrant or the conversion of a security outstanding on
the date hereof and referred to in the Prospectus, (C) any shares of Common
Stock issued or options to purchase Common Stock granted pursuant to existing
employee benefit plans of the Company referred to in the Prospectus, (D) any
shares of Common Stock issued pursuant to any non-employee director stock plan
or dividend reinvestment plan or (E) the Company's issuance of shares of Common
Stock in connection with the acquisition of, or joint venture or similar
transaction with, another business or entity, provided that the terms of such
acquisition or joint venture prohibit the resale or other disposition of such
shares for the period ending 180 days after the date hereof.
(k) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will
file all documents required to be filed with the Commission pursuant to the 1934
Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
(l) Compliance with NASD Rules. The Company hereby agrees that it will
ensure that the Reserved Securities will be restricted as required by the NASD
or the NASD rules from sale, transfer, assignment, pledge or hypothecation for a
period of three months following the date of this Agreement. The Underwriters
will notify the Company as to which persons will need to be so restricted. At
the request of the Underwriters, the Company will direct the transfer agent to
place a stop transfer restriction upon such securities for such period of time.
Should the Company release, or seek to release, from such restrictions any of
the Reserved Securities, the Company agrees to reimburse the Underwriters for
any reasonable expenses (including, without limitation, legal expenses) they
incur in connection with such release.
(m) Compliance with Rule 463. The Company will file with the Commission
such reports as may be required pursuant to Rule 463 of the 1933 Act
Regulations.
16
(n) Financial Statements. The Company will furnish to its stockholders as
soon as practicable after the end of each fiscal year an annual report according
to the requirements of Section 11(a) of the 1934 Act and the 1934 Act
Regulations (including a balance sheet and statements of income, stockholders'
equity and of cash flow of the Company for such fiscal year), accompanied by a
copy of the certificate or report thereon of nationally recognized independent
certified public accounts.
SECTION 4. Payment of Expenses. (a) Expenses. The Underwriters will pay
-------------------
or cause to be paid all expenses incident to the performance of the Company's
obligations under this Agreement not to exceed $2.75 million in the aggregate,
including (i) the preparation, printing and filing of the Registration Statement
(including financial statements and exhibits) as originally filed and of each
amendment thereto, (ii) the preparation, printing and delivery to the
Underwriters of this Agreement, the German Listing Agreement, any agreement
among Underwriters and such other documents as may be required in connection
with the offering, purchase, sale, issuance or delivery of the Securities, (iii)
the preparation, issuance and delivery of the certificates for the Securities to
the Underwriters, including any stock or other transfer taxes and any stamp or
other duties payable upon the sale, issuance or delivery of the Securities to
the Underwriters, (iv) the fees and disbursements of the Company's counsel,
accountants and other advisors, (v) the qualification of the Securities under
securities laws in accordance with the provisions of Section 3(f) hereof,
including filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the preparation
of the Blue Sky Survey and any supplement thereto, such expenses under this
clause (v) not to exceed $50,000 , (vi) the printing and delivery to the
Underwriters of copies of each preliminary prospectus, any Term Sheets and of
the Prospectus and the German Listing Prospectus and any amendments or
supplements thereto, (vii) the preparation, printing and delivery to the
Underwriters of copies of the Blue Sky Survey and any supplement thereto, (viii)
the fees and expenses of any transfer agent or registrar for the Securities,
(ix) the filing fees incident to, and the reasonable fees and disbursements of
counsel to the Underwriters in connection with, the review by the NASD of the
terms of the sale of the Securities and (x) the fees and expenses incurred in
connection with the listing of the Class B Common Stock (including the
Securities) on the New York Stock Exchange and the Frankfurt Stock Exchange. Any
expenses of the Company in excess of $2.75 million will be paid by the Company.
(b) Expenses of the Selling Stockholders. The Selling Stockholders,
jointly and severally, will pay all expenses incident to the performance of
their respective obligations under this Agreement, including (i) any stamp
duties, capital duties and stock transfer taxes, if any, payable upon the sale
of the Securities to the Underwriters, and their transfer between the
Underwriters pursuant to an agreement between such Underwriters, and (ii) the
fees and disbursements of their respective counsel and accountants.
(c) Termination of Agreement. If this Agreement is terminated by the
Representatives in accordance with the provisions of Section 5 (other than (i)
the failure of the conditions set forth in Section 5(j) and (ii) any failure to
satisfy a condition set forth in Section 5 which is due to the default or
omission of any Underwriter), Section 9(a)(i) or Section 11 hereof, the Company
shall reimburse the Underwriters for all of their out-of-pocket expenses,
including the reasonable fees and disbursements of counsel for the Underwriters.
17
(d) Allocation of Expenses. The provisions of this Section shall not
affect any agreement that the Company and the Selling Stockholders may make for
the sharing of such costs and expenses.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of
---------------------------------------
the several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company and the Selling Stockholders
contained in Section 1 hereof or in certificates of any officer of the Company
or any Subsidiary or on behalf of any Selling Stockholder delivered pursuant to
the provisions hereof, to the performance by the Company of its covenants and
other obligations hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration Statement,
including any Rule 462(b) Registration Statement, has become effective and at
Closing Time no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the
reasonable satisfaction of counsel to the Underwriters. A prospectus containing
the Rule 430A Information shall have been filed with the Commission in
accordance with Rule 424(b) (or a post-effective amendment providing such
information shall have been filed and declared effective in accordance with the
requirements of Rule 430A) or, if the Company has elected to rely upon Rule 434,
a Term Sheet shall have been filed with the Commission in accordance with Rule
424(b).
(b) Opinion of Counsel for Company. At Closing Time, the Representatives
shall have received the favorable opinions, dated as of Closing Time, of (i)
Xxxxxx & Xxxxxxx, counsel for the Company, in form and substance satisfactory to
counsel for the Underwriters, together with signed or reproduced copies of such
letter for each of the other Underwriters, to the effect set forth in Exhibit A-
1 hereto and (ii) Xx. Xxxxxx X. Xxxxxxx, Senior Vice President and Secretary,
General Counsel of the Company, in form and substance satisfactory to counsel
for the Underwriters, together with signed or reproduced copies of such letter
for each of the other Underwriters, to the effect set forth in Exhibit A-2.
(c) Opinion of Counsel for the Selling Stockholders. At Closing Time, the
Representatives shall have received the favorable opinions, dated as of Closing
Time, of (i) the general counsel of each of the Selling Stockholders, in form
and substance satisfactory to counsel for the Underwriters, together with signed
or reproduced copies of such letter for each of the other Underwriters, to the
effect set forth on Exhibit B-1 hereto and (ii) Xxxxxxxx & Xxxxxxxx, special
U.S. counsel to the Selling Stockholders, in form and substance satisfactory to
counsel for the Underwriters, together with signed or reproduced copies of such
letter for each of the other Underwriters, to the effect set forth on Exhibit B-
2 hereto.
(d) Opinion of Counsel for Underwriters. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of Closing
Time, of Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Underwriters, together with
signed or reproduced copies of such letter for each of the other Underwriters in
form and substance reasonably satisfactory to the Underwriters.
18
(e) Officers' Certificate. At Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information is
given in the Registration Statement and the Prospectus, any material adverse
change, in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its Subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of business, and
the Representatives shall have received a certificate of the President or a
Senior Vice President of the Company and of the chief financial or chief
accounting officer of the Company on behalf of the Company, dated as of Closing
Time, to the effect that (i) there has been no such material adverse change,
(ii) to the best of each such officer's knowledge, the representations and
warranties in Section 1(a) hereof are true and correct with the same force and
effect as though expressly made at and as of Closing Time, (iii) the Company has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to Closing Time, and (iv) to the best of each
such officer's knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been instituted or are pending or are threatened by the Commission.
(f) Certificate of Selling Stockholders. At Closing Time, the
Representatives shall have received a certificate of an Attorney-in-Fact on
behalf of each Selling Stockholder, dated as of Closing Time, to the effect that
(i) the representations and warranties of each Selling Stockholder contained in
Section 1(b) hereof are true and correct in all respects with the same force and
effect as though expressly made at and as of Closing Time and (ii) each Selling
Stockholder has complied in all respects with all agreements and all conditions
on its part to be performed under this Agreement at or prior to Closing Time.
(g) Accountant's Comfort Letter. At the time of the execution of this
Agreement, the Representatives shall have received from Deloitte & Touche LLP a
letter dated such date, in form and substance satisfactory to the
Representatives, together with signed or reproduced copies of such letter for
each of the other Underwriters containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
in the Registration Statement, the Prospectus and the German prospectus wrapper.
(h) Bring-down Comfort Letter. At Closing Time, the Representative shall
have received from Deloitte & Touche LLP a letter, dated as of Closing Time, to
the effect that they reaffirm the statements made in the letter furnished
pursuant to subsection (g) of this Section, except that the specified date
referred to shall be a date not more than three business days prior to Closing
Time.
(i) Approval of Listing. At Closing Time, the Class B Common Stock
(including the Securities) shall have been approved for listing on the New York
Stock Exchange, subject only to official notice of issuance. Within ten days of
the Closing Time, the Class B Common Stock (including the Securities) shall have
been approved for listing and trading on the Frankfurt Stock Exchange.
(j) No Objection. The NASD has confirmed that it has not raised any
objection with respect to the fairness and reasonableness of the underwriting
terms and arrangements.
19
(k) Lock-up Agreements. At the date of this Agreement, the
Representatives shall have received from each of the Selling Stockholders and
the other persons listed on Schedule D hereto an agreement substantially in the
form of Exhibit C hereto.
(l) Conditions to Purchase of Option Securities. In the event that the
Underwriters exercise their option provided in Section 2(b) hereof to purchase
all or any portion of the Option Securities, the representations and warranties
of the Company and the Selling Stockholders contained herein and the statements
in any certificates furnished by the Company, any Subsidiary of the Company and
the Selling Stockholders hereunder shall be true and correct as of each Date of
Delivery and, at the relevant Date of Delivery, the Representatives shall have
received:
(i) Officers' Certificate. A certificate, dated such Date of
---------------------
Delivery, of the President or a Senior Vice President of the Company and of the
chief financial or chief accounting officer of the Company confirming that the
certificate delivered at the Closing Time pursuant to Section 5(e) hereof
remains true and correct as of such Date of Delivery.
(ii) Certificate of Selling Stockholders. A certificate, dated
-----------------------------------
such Date of Delivery, of an Attorney-in-Fact on behalf of each Selling
Stockholder confirming that the certificate delivered at Closing Time pursuant
to Section 5(f) remains true and correct as of such Date of Delivery.
(iii) Opinions of Counsel for Company. The favorable opinions of
-------------------------------
Xxxxxx & Xxxxxxx, counsel for the Company, and Xx. Xxxxxx X. Xxxxxxx, Senior
Vice President and Secretary, General Counsel of the Company, in form and
substance satisfactory to counsel for the Underwriters, dated such Date of
Delivery, relating to the Option Securities to be purchased on such Date of
Delivery and otherwise to the same effect as the opinion required by Section
5(b) hereof.
(iv) Opinions of Counsel for the Selling Stockholders. The favorable
------------------------------------------------
opinions of the respective general counsel of each of the Selling Stockholders
and Xxxxxxxx & Xxxxxxxx, special U.S. Counsel to the Selling Stockholders, in
form and substance satisfactory to counsel for the Underwriters, dated such Date
of Delivery, relating to the Option Securities to be purchased on such Date of
Delivery and otherwise to the same effect as the opinion required by Section
5(c) hereof.
(v) Opinion of Counsel for Underwriters. The favorable opinion of
-----------------------------------
Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Underwriters, dated such Date of
Delivery, relating to the Option Securities to be purchased on such Date of
Delivery and otherwise to the same effect as the opinion required by Section
5(d) hereof.
(vi) Bring-down Comfort Letter. A letter from Deloitte & Touche
-------------------------
LLP in form and substance satisfactory to the Representatives and dated such
Date of Delivery, substantially in the same form and substance as the letter
furnished to the Representatives pursuant to Section 5(g) hereof, except that
the "specified date" in the letter furnished pursuant to this paragraph shall be
a date not more than five days prior to such Date of Delivery.
20
(m) Additional Documents. At Closing Time and at each Date of Delivery
counsel for the Underwriters shall have been furnished with such documents as
they may reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the Securities as herein contemplated, or in order to
evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company and the Selling Stockholders in connection with the
issuance and sale of the Securities as herein contemplated shall be satisfactory
in form and substance to the Representatives and counsel for the Underwriters.
(n) Termination of Agreement. If any condition specified in this Section
shall not have been fulfilled when and as required to be fulfilled, this
Agreement, or, in the case of any condition to the purchase of Option Securities
on a Date of Delivery which is after the Closing Time, the obligations of the
several Underwriters to purchase the relevant Option Securities, may be
terminated by the Representatives by notice to the Company at any time at or
prior to Closing Time or such Date of Delivery, as the case may be, and such
termination shall be without liability of any party to any other party except as
provided in Section 4 and except that Sections 1, 6, 7 and 8 shall survive any
such termination and remain in full force and effect.
SECTION 6. Indemnification.
---------------
(a) Indemnification of Underwriters by Company. The Company agrees to
indemnify and hold harmless each Underwriter, its partners, directors and
officers, and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or any
amendment thereto), including the Rule 430A Information and the Rule 434
Information, if applicable, or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the statements
therein not misleading or arising out of any untrue statement or alleged untrue
statement of a material fact included in any preliminary prospectus, the
Prospectus or the German Listing Prospectus (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of (A) the violation of any applicable laws
or regulations of foreign jurisdictions where Reserved Securities have been
offered and (B) any untrue statement or alleged untrue statement of a material
fact included in the supplement or prospectus wrapper material distributed in
foreign jurisidictions in connection with the reservation and sale of the
Reserved Securities to certain persons specified by the Company or the omission
or alleged omission therefrom of a material fact necessary to make the
statements therein, when considered in conjunction with the Prospectus or
preliminary prospectus, not misleading;
21
(iii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any such alleged untrue
statement or omission or in connection with any violation of the nature referred
to in Section 6(a)(ii)(A) hereof; provided that (subject to Section 6(e) below)
any such settlement is effected with the written consent of the Company; and
(iv) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by the Representatives),
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or omission
or in connection with any violation of the nature referred to in Section
6(a)(ii)(A) hereof, to the extent that any such expense is not paid under (i),
or (ii) or (iii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
-------- -------
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through the Representatives expressly for use in the Registration
Statement (or any amendment thereto), including the Rule 430A Information and
the Rule 434 Information, if applicable, or any preliminary prospectus, the
Prospectus or the German Listing Prospectus (or any amendment or supplement
thereto);
provided, further, that this indemnity agreement with respect to any preliminary
-------- -------
prospectus shall not inure to the benefit of any Underwriter, or any person
controlling such Underwriter, if a copy of the Prospectus was not sent or given
by or on behalf of such Underwriter to such person at or prior to the written
confirmation of the sale of such Securities to such person and if the Prospectus
(as so amended or supplemented, if applicable) would have corrected the defect
giving rise to such loss, liability, claim, damage or expense.
(b) Indemnification of Underwriters by Selling Stockholders. The
Underwriters shall pursue any and all claims arising under this Agreement or
otherwise ("Claims") by seeking recovery from the Company under Section 6(a)
prior to pursuing any Claim against the Selling Stockholders under this Section
6(b), provided that if any such Claim is not satisfied by the Company within a
period of 30 days following a final judgment from a court of first instance
having jurisdiction that the Underwriters are entitled to indemnity under this
Agreement with respect to any such Claim (the "Final Judgment"), the Selling
Stockholders agree severally in proportion to the number of Initial Securities
set forth opposite their respective names in Schedule B hereto and not jointly,
to indemnify and hold harmless each Underwriter, its partners, directors and
officers, and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or any
amendment thereto), including the Rule 430A Information and
22
the Rule 434 Information, if applicable, or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to make
the statements therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact included in any preliminary
prospectus, the Prospectus or the German Listing Prospectus (or any amendment or
supplement thereto), or the omission or alleged omission therefrom of a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any such alleged untrue
statement or omission; provided that (subject to Section 6(e) below) any such
settlement is effected with the written consent of the Selling Stockholders,
which shall not be unreasonably withheld; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by the Representatives), reasonably
incurred in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the extent that
any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
-------- -------
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company on the
Selling Stockholders by any Underwriter through the Representatives expressly
for use in the Registration Statement (or any amendment thereto), including the
Rule 430A Information and the Rule 434 Information, if applicable, or any
preliminary prospectus, the Prospectus or the German Listing Prospectus (or any
amendment or supplement thereto);
provided, further, that the Underwriters may exercise this right to first seek
-------- -------
to obtain payment from the Company and thereafter to obtain payment from the
Selling Stockholders irrespective of whether an appeal of such Final Judgment is
pending. The Underwriters shall, however, be relieved of their obligation to
first obtain a Final Judgment, seek to obtain payment from the Company with
respect to such Final Judgment or, having sought such payment, to wait such 30
days after failure by the Company to immediately satisfy such Final Judgment if
(i) the Company files a petition for relief under the United States Bankruptcy
code (the "Bankruptcy Code"), (ii) an order for relief is entered into against
the Company in an involuntary case under the Bankruptcy Code and continues for
45 consecutive days, (iii) the Company makes an assignment for the benefit of
its creditors, or (iv) any court orders or approves the appointment of a
receiver or custodian for the Company or a substantial portion of its assets and
such order or approval continues for 45 consecutive days.
provided, further, that notwithstanding the foregoing provisions, (i) the
-------- -------
aggregate amount of any Selling Stockholder's indemnity and contribution
obligations under this Section 6(b) and Section 7 shall not exceed the net cash
proceeds received by such Selling Stockholder from its sale of
23
Common Stock pursuant to this Agreement. The foregoing indemnity agreement is in
addition to any liability which any such Selling Stockholder may otherwise have
to the Underwriters or any such officer, employee or controlling person.
(c) Indemnification of Company, Directors and Officers and Selling
Stockholders. Each Underwriter severally agrees to indemnify and hold harmless
the Company, its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act, and each Selling
Stockholder, and each person, if any, who controls such Selling Stockholder
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act,
against any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto),
including the Rule 430A Information and the Rule 434 Information, if applicable,
or any preliminary prospectus, the Prospectus or the German Listing Prospectus
(or any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by such Underwriter through the
Representatives expressly for use in the Registration Statement (or any
amendment thereto) or such preliminary prospectus, the Prospectus or the German
Listing Prospectus (or any amendment or supplement thereto).
(d) Actions Against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Sections 6(a) and 6(b)
above, counsel to the indemnified parties shall be selected by Xxxxxxx Xxxxx
and, in the case of parties indemnified pursuant to Section 6(c) above, counsel
to the indemnified parties shall be selected by the Company. An indemnifying
party may participate at its own expense in the defense of any such action;
provided, however, that counsel to the indemnifying party shall not (except with
the consent of the indemnified party) also be counsel to the indemnified party.
In no event shall the indemnifying parties be liable for fees and expenses of
more than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
24
(e) Settlement without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(iii) or Section 6(b)(ii) effected without its written consent if
(i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to
the date of such settlement. Notwithstanding the immediately preceding 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, an
indemnifying party shall not be liable for any settlement of the nature
contemplated by Section 6(a)(iii) or Section 6(b)(ii) effected without its
consent if such indemnifying party (i) reimburses such indemnified party in
accordance with such request to the extent it considers such request to be
reasonable and (ii) provides written notice to the indemnified party
substantiating the unpaid balance as unreasonable, in each case prior to the
date of such settlement.
(f) Indemnification for Reserved Securities. In connection with the offer
and sale of the Reserved Securities, the Company agrees, promptly upon a request
in writing, to indemnify and hold harmless the Underwriters from and against any
and all losses, liabilities, claims, damages and expenses incurred by them as a
result of the failure of any persons specified by the Company to pay for and
accept delivery of Reserved Securities which, by the end of the first business
day following the date of this Agreement, were subject to a properly confirmed
agreement to purchase.
(g) Other Agreements with Respect to Indemnification. The provisions of
this Section shall not affect any agreement among the Company and the Selling
Stockholders with respect to indemnification.
SECTION 7. Contribution. If the indemnification provided for in Section 6
------------
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Selling Stockholders on the one hand and the Underwriters on the other hand from
the offering of the Securities pursuant to this Agreement or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company and the
Selling Stockholder(s) on the one hand and of the Underwriters on the other hand
in connection with the statements or omissions, or in connection with any
violation of the nature referred to in Section 6(a)(ii)(A) hereof, which
resulted in such losses, liabilities, claims, damages or expenses, as well as
any other relevant equitable considerations.
The relative benefits received by the Company and the Selling Stockholders
on the one hand and the Underwriters on the other hand in connection with the
offering of the Securities pursuant to this Agreement shall be deemed to be in
the same respective proportions as the total net proceeds
25
from the offering of the Securities pursuant to this Agreement (before deducting
expenses) received by the Company and the Selling Stockholders and the total
underwriting discount received by the Underwriters, in each case as set forth on
the cover of the Prospectus, or, if Rule 434 is used, the corresponding location
on the Term Sheet bear to the aggregate initial public offering price of the
Securities as set forth on such cover.
The relative fault of the Company and the Selling Stockholders on the one
hand and the Underwriters on the other hand shall be determined by reference to,
among other things, whether any such untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company or the Selling Stockholders or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission or any
violation of the nature referred to in Section 6(a)(ii)(A) hereof.
The Company, the Selling Stockholders and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this Section
7. The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 7 shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company or any
Selling Stockholder within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act shall have the same rights to contribution as the Company or
such Selling Stockholder, as the case may be. The Underwriters' respective
obligations to contribute pursuant to this Section 7 are several in proportion
to the number of Initial Securities set forth opposite their respective names in
Schedule A hereto and not joint.
26
The provisions of this Section shall not affect any agreement among the
Company and the Selling Stockholders with respect to contribution.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
--------------------------------------------------------------
All representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company or any of its Subsidiaries or the
Selling Stockholders submitted pursuant hereto, shall remain operative and in
full force and effect, regardless of any investigation made by or on behalf of
any Underwriter or controlling person, or by or on behalf of the Company or the
Selling Stockholders, and shall survive delivery of the Securities to the
Underwriters.
SECTION 9. Termination of Agreement.
------------------------
(a) Termination; General. The Representatives may terminate this
Agreement, by notice to the Company and the Selling Stockholders, at any time at
or prior to Closing Time (i) if there has been, since the time of execution of
this Agreement or since the respective dates as of which information is given in
the Prospectus, any material adverse change, in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its Subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, or (ii) if there has occurred any
material adverse change in the financial markets in the United States or the
international financial markets, any outbreak of hostilities or escalation
thereof or other calamity or crisis or any change or development involving a
prospective change in national or international political, financial or economic
conditions, in each case the effect of which is such as to make it, in the
judgment of the Representatives, impracticable to market the Securities or to
enforce contracts for the sale of the Securities, or (iii) if trading in any
securities of the Company has been suspended or materially limited by the
Commission, the New York Stock Exchange or the Frankfurt Stock Exchange, or if
trading generally on the American Stock Exchange, the New York Stock Exchange or
the Frankfurt Stock Exchange, or in the Nasdaq National Market has been
suspended or materially limited, or minimum or maximum prices for trading have
been fixed, or maximum ranges for prices have been required, by any of said
exchanges or by such system or by order of the Commission, the NASD or any other
governmental authority, or (iv) if a banking moratorium has been declared by
either U.S. Federal, New York or German authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 6, 7 and 8 shall survive such termination and remain in full force and
effect.
SECTION 10. Default by One or More of the Underwriters. If one or more of
------------------------------------------
the Underwriters shall fail at Closing Time or a Date of Delivery to purchase
the Securities which it or they are obligated to purchase under this Agreement
(the "Defaulted Securities"), the Representatives shall have the right, within
24 hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the Representatives shall not have
completed such arrangements within such 24-hour period, then:
27
(a) if the number of Defaulted Securities does not exceed 10% of the
number of Securities to be purchased on such date, each of the non-defaulting
Underwriters shall be obligated, severally and not jointly, to purchase the full
amount thereof in the proportions that their respective underwriting obligations
hereunder bear to the underwriting obligations of all non-defaulting
Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the number of
Securities to be purchased on such date, this Agreement or, with respect to any
Date of Delivery which occurs after the Closing Time, the obligation of the
Underwriters to purchase and of the Selling Stockholders to sell the Option
Securities to be purchased and sold on such Date of Delivery shall terminate
without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement or, in the case of a Date of Delivery which is after the Closing
Time, which does not result in a termination of the obligation of the
Underwriters to purchase and the Selling Stockholders to sell the relevant
Option Securities, as the case may be, either the (i) Representatives or (ii)
the Company and any Selling Stockholder shall have the right to postpone the
Closing Time or the relevant Date of Delivery, as the case may be, for a period
not exceeding seven days in order to effect any required changes in the
Registration Statement or Prospectus or in any other documents or arrangements.
As used herein, the term "Underwriter" includes any person substituted for an
Underwriter under this Section 10.
SECTION 11. Default by one or more of the Selling Stockholders or the
---------------------------------------------------------
Company. (a) If a Selling Stockholder shall fail at Closing Time or at a Date
-------
of Delivery to sell and deliver the number of Securities which such Selling
Stockholder is obligated to sell hereunder, and the remaining Selling
Stockholders do not exercise the right hereby granted to increase, pro rata or
otherwise, the number of Securities to be sold by them hereunder to the total
number to be sold by all Selling Stockholders as set forth in Schedule B hereto,
then the Underwriters may, at the option of the Representatives, by notice from
the Representatives to the Company and the non-defaulting Selling Stockholders,
either (a) terminate this Agreement without any liability on the fault of any
non-defaulting party except that the provisions of Sections 1, 4, 6, 7 and 8
shall remain in full force and effect or (b) elect to purchase the Securities
which the non-defaulting Selling Stockholders and the Company have agreed to
sell hereunder. No action taken pursuant to this Section 11 shall relieve any
Selling Stockholder so defaulting from liability, if any, in respect of such
default.
In the event of a default by any Selling Stockholder as referred to in this
Section 11, each of the Representatives, the Company and the non-defaulting
Selling Stockholders shall have the right to postpone Closing Time or Date of
Delivery for a period not exceeding seven days in order to effect any required
change in the Registration Statement or Prospectus or in any other documents or
arrangements.
28
(b) If the Company shall fail at Closing Time or at the Date of Delivery
to sell the number of Securities that it is obligated to sell hereunder, then
this Agreement shall terminate without any liability on the part of any non-
defaulting party; provided, however, that the provisions of Sections 1, 4, 6, 7
and 8 shall remain in full force and effect. No action taken pursuant to this
Section shall relieve the Company from liability, if any, in respect of such
default.
SECTION 12. Notices. All notices and other communications hereunder shall
-------
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to: Xxxxxxx Xxxxx, at Xxxxx Xxxxx, Xxxxx
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, attention of Xxxx Xxxxxxxx ;
and Warburg Dillon Read, at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention
of Xxxxxx Xxxx. Notices to the Company shall be directed to it at 0000 Xxxx
Xxxxx Xxxxxx, Xx Xxxxxxx, XX 00000, attention of Xx. Xxxxxx X. Xxxxxxx. Notices
to the Selling Stockholders shall be directed to Swisscom XX, XX - 0000 Xxxx,
Xxxxxxxxxxx, attention of Beat Xxxxxxxxxxxxx.
SECTION 13. Parties. This Agreement shall inure to the benefit of and be
-------
binding upon the Underwriters, the Company and the Selling Stockholders and
their respective successors. Nothing expressed or mentioned in this Agreement
is intended or shall be construed to give any person, firm or corporation, other
than the Underwriters, the Company and the Selling Stockholders and their
respective successors and the controlling persons and officers and directors
referred to in Sections 6 and 7 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision herein contained. This Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive benefit of the
Underwriters, the Company and the Selling Stockholders and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Securities from any Underwriter shall be deemed to
be a successor by reason merely of such purchase.
SECTION 14. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
----------------------
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS
OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 15. Appointment of Agent for Service. Each of the Selling
--------------------------------
Stockholders represents to each of the Underwriters that it has appointed CT
Corporation System, as the authorized agent (the "Authorized Agent") of the
Selling Stockholders, for service of process in any action, suit or proceeding
in any United States Federal court or any state court in the State of New York,
County of New York, and expressly accepts the nonexclusive jurisdiction of any
such court in respect of any such action, suit or proceeding. Each of the
Selling Stockholders represents to each of the Underwriters that it has notified
CT Corporation System of such designation and appointment and that CT
Corporation System has accepted the same in writing. Each of the Selling
Stockholders agrees to take any and all action, including the execution and
filing of all such instruments and documents as may be necessary to continue
such designation and appointment in full force and effect. Service of process
upon the Authorized Agent and written notice of such service to the Selling
Stockholders shall be deemed, in every respect, effective service of process
upon the Selling Stockholders.
29
SECTION 16. Consent to Jurisdiction. Each of the parties hereto
-----------------------
irrevocably agrees that any legal suit, action or proceeding arising out of or
based upon this Agreement or the transactions contemplated hereby may be
instituted in any New York State or United States Federal court sitting in the
State of New York, County of New York, and irrevocably waives, to the fullest
extent it may effectively do so, any objection which it may now or hereafter
have to the laying of venue of any such proceeding and irrevocably submits to
the exclusive jurisdiction of such courts in any such suit, action or
proceeding. To the extent that either of the Selling Shareholders or the Company
has or hereafter may acquire any immunity (sovereign or otherwise pursuant to
public law or status) in respect of its obligations under this Agreement from
jurisdiction of any court or from any legal process (whether through service or
notice, attachment prior to judgment, attachment in aid of execution, execution
or otherwise) with respect to itself or its property, each of the Company and
the Selling Stockholders hereby irrevocably waives such immunity in respect of
its obligations under this Agreement, to the extent permitted by law.
SECTION 17. Judgment Currency. Each of the parties hereto agrees to
-----------------
indemnify each party entitled to indemnification or contribution pursuant to
Section 6 and 7 hereof from any losses incurred as a result of any judgment
being rendered in connection with any action, suit or proceeding for which
indemnification or contribution is provided by pursuant to Sections 6 and 7
hereof and such judgment or order being paid in a currency (the "Judgment
Currency") other than United States Dollars ("USD"), as a result of any
variation as between (i) the rate of exchange at which USD are converted into
the Judgment Currency for purposes of such judgment or order, and (ii) the spot
rate of exchange in New York, New York, at which the indemnified party on the
date of payment of such judgment or order is able to purchase USD with the
amount of Judgment Currency actually received by the indemnified party. The
foregoing indemnity shall constitute a separate and independent obligation of
the parties hereto and shall continue in full force and effect notwithstanding
any such judgment or order as aforesaid. The term "spot rate of exchange" shall
include any premiums or costs of exchange payable in connection with the
purchase of, or conversion into, USD.
SECTION 18. Effect of Headings. The Article and Section headings herein
------------------
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company and the Attorney-in-Fact for the Selling
Stockholders a counterpart hereof, whereupon this instrument, along with all
counterparts, will become a binding agreement among the Underwriters, the
Company and the Selling Stockholders in accordance with its terms.
Very truly yours,
INFONET SERVICES CORPORATION
By:
-----------------------------------
Name:
Title:
30
By:
-----------------------------------
Name:
Title:
As Attorney-in-Fact acting on behalf of
the Selling Stockholders named in Schedule
B hereto
31
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
WARBURG DILLON READ LLC
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:
----------------------------------
Authorized Signatory
For itself and as Representative of the other Underwriters named in
Schedule A hereto.
WARBURG DILLON READ LLC
By:
----------------------------------
Authorized Signatory
For itself and as Representative of the other Underwriters named in
Schedule A hereto.
32
SCHEDULE A
Number of
Initial
Name of Underwriter Securities
------------------- -------------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated............................................................
Warburg Dillon Read LLC...................................................
ABN AMRO Incorporated....................................................
Xxxxxxx, Xxxxx & Co.......................................................
Xxxxxx Brothers Inc.......................................................
Xxxxxxx Xxxxx Xxxxxx Inc..................................................
------------
Total.....................................................................
============
Sch A-1
SCHEDULE B
Number of Initial Maximum Number of Option
Securities to be Sold Securities to Be Sold
----------------------- ------------------------
Infonet Services Corporation 38,461,600 0
KDD Corporation 4,871,800 1,282,057
KPN Telecom, B.V. 1,410,300 1,282,057
Swisscom AG 1,410,300 1,282,057
Telefonica International Holding
B.V. 1,410,300 1,282,057
Telia AB 1,410,300 1,282,057
Telstra Corporation Limited 2,307,700 1,282,057
Total.............................. 12,820,700 7,692,342
Sch B-1
SCHEDULE C
INFONET SERVICES CORPORATION
51,282,300 Shares of Class B Common Stock
1. The initial public offering price per share for the Securities, determined
as provided in said Section 2, shall be $___.
2. The purchase price per share for the Securities to be paid by the several
Underwriters shall be $___, being an amount equal to the initial public offering
price set forth above less $___ per share.
Sch C-1
SCHEDULE D
[List of persons and entities
subject to lock-up]
Kokusai Denshin Denwa Corporation
KPN Telecom, B.V.
Swisscom AG
Telefonica International Holding
B.V.
Telia AB
Telstra Corporation Limited
Xxxx Xxxxxxx
Xxxxxx Xxxxxxx
Xxxxx Xxxxxxx
Xxxxxxx Xxxxxxx
Xxxx Xxxxxxx
Xxxxxx Xxxxxxx
Sch D-1
SCHEDULE E
Material Subsidiaries
Name
Infonet Belgium SA
Infonet France SA
Infonet Italia S.p.A
Infonet Luxembourg S.A.
Infonet Servicios de Communicaciones, SA de C.V
Infonet UK ltd.
Infonet Software Solutions
Sch E-1
Exhibit A-1
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
X-0-0
Xxxxxxx X-0
FORM OF OPINION OF COMPANY=S
GENERAL COUNSEL TO BE DELIVERED
PURSUANT TO SECTION 5(b)
X-0-0
Xxxxxxx X-0
FORM OF OPINION OF GENERAL COUNSELS FOR THE SELLING STOCKHOLDERS
TO BE DELIVERED PURSUANT TO SECTION 5(c)
Xxxxxxx Xxxxx & Co.,
Warburg Dillon Read LLC,
as representatives of the several Underwriters,
c/o Merrill Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
December __, 1999
Re: Infonet Services Corporation
----------------------------
Dear Sirs,
In my capacity as general counsel of __, a [stock corporation organized under
the laws of __] (the "Selling Stockholder"), I am delivering this opinion to you
pursuant to Section 5(c) of the Purchase Agreement relating to the sale of up to
__ shares of Class B Common Stock (the "Shares") of Infonet Services
Corporation, a Delaware corporation (the "Company"), dated December __, 1999
(the "Purchase Agreement") among the Company, the Selling Stockholder, the
Underwriters set forth in Schedule A thereto (collectively the "Underwriters")
and the other Selling Stockholders set forth in Schedule B thereto.
Defined terms used herein shall have the meanings ascribed to them in the
Purchase Agreement unless otherwise specified.
For purposes of this opinion, I have examined copies of the following documents:
(i) an executed copy of the Purchase Agreement;
(ii) a Power of Attorney and Custody Agreement, in the form described in Section
1(b)(iv) of the Purchase Agreement, executed by the Selling Stockholder and
dated as of December __, 1999 (the "Power of Attorney"); and
(iii) a copy of the [Articles of Incorporation] of the Selling Stockholder
certified as of __.
B-2-1
I have assumed without verification the genuineness of all signatures, the
authenticity and completeness of all documents submitted to us as originals and
the conformity to originals of all documents submitted to us as photocopies.
Based upon and subject to the foregoing and subject to the qualifications set
out below, I am of the opinion that:
1. The Power of Attorney has been duly authorized, executed and delivered by the
Selling Stockholder and constitutes a valid and binding agreement of the
Selling Stockholder, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
2. The Purchase Agreement has been duly authorized, executed and delivered by or
on behalf of the Selling Stockholder. The sale of the Shares to be sold by
the Selling Stockholder under the Purchase Agreement, the compliance by the
Selling Stockholder with the provisions of the Purchase Agreement and the
Power of Attorney and the consummations of the transactions therein
contemplated will not violate the [Articles of Incorporation or Bylaws] of
the Selling Stockholder; and, will not (a) violate any applicable treaty,
law, statute, rule, regulation, or, to the best of my knowledge, any
judgment, order, writ or decree of the government, courts or agencies of __
applicable to the Selling Stockholder or any of its material properties,
assets or operations, or; (b) result in a default with a material adverse
effect on the ability of the Selling Stockholder to consummate the
transactions contemplated in the Purchase Agreement under any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the property or assets of the Selling Stockholder or its material
subsidiaries is subject.
3. All regulatory consents, authorizations, approvals, orders, registrations,
qualifications, decrees and filings required to be obtained or made under the
laws of __ by the Selling Stockholder for the execution and delivery of the
Purchase Agreement and the Power of Attorney, [or in connection with the AUCS
Transactions] and the sale and delivery of the Shares by the Selling
Stockholder to the Underwriters have been obtained or made.
4. The Selling Stockholder has full right, power and authority to sell, transfer
and deliver the Shares pursuant to the Purchase Agreement.
The opinion set forth above is limited to the laws of __ as in force and as
interpreted on the date hereof.
This opinion is delivered to the Underwriters solely for their benefit in
connection with the above referenced transaction and is not to be used,
circulated, quoted or otherwise referred to for any other purpose without my
express prior written consent.
Yours sincerely,
X-0-0
Xxxxxxx X-0
FORM OF XXXXXXXX & XXXXXXXX OPINION
B-2-1
Exhibit C
[Form of Lock-up Letter]
, 1999
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated,
as Representative of the several
Underwriters to be named in the
within-mentioned Purchase Agreement
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Re: Proposed Public Offering by Infonet Services Corporation
--------------------------------------------------------
Dear Sirs:
The undersigned, a stockholder [and an officer and/or director] of Infonet
Services Corporation, a Delaware corporation (the "Company"), understands that
Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
("Xxxxxxx Xxxxx") and Xxxxxxx Xxxxxx Read LLC propose to enter into a Purchase
Agreement (the "Purchase Agreement") with the Company and the selling
stockholders providing for the public offering of shares of the Company's Class
B common stock, par value $.01 per share (together with the Company=s Class A
common stock, the "Common Stock"). In recognition of the benefit that such an
offering will confer upon the undersigned as a stockholder [and an officer
and/or director] of the Company, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the undersigned
agrees with each underwriter to be named in the Purchase Agreement that, during
a period of 180 days from the date of the Purchase Agreement, the undersigned
will not, without the prior written consent of Xxxxxxx Xxxxx, directly or
indirectly, (i) offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant for the sale of, or otherwise dispose of or transfer any shares
of the Company's Common Stock or any securities convertible into or exchangeable
or exercisable for Common Stock, whether now owned or hereafter acquired by the
undersigned or with respect to which the undersigned has or hereafter acquires
the power of disposition, or file any registration statement under the
Securities Act of 1933, as amended, with respect to any of the foregoing or (ii)
enter into any swap or any other agreement or any transaction that transfers, in
whole or in part, directly or indirectly, the economic consequence of ownership
of the Common Stock, whether any such swap or transaction is to be settled by
delivery of Common Stock or other securities, in cash or otherwise. The
foregoing sentence shall not apply to (a) the disposition of Class A common
stock to be held as Class A
C-1
common stock so long as the transfer complies with the terms of the
Stockholders' Agreement, dated as of December __, 1999, among the Company and
the Selling Stockholders (as defined in the Purchase Agreement) and the
transferee or transferees agree in writing to be bound by the terms of this
restriction or (b) the disposition of Common Stock (i) pursuant to the Purchase
Agreement, (ii) as a bona fide gift or to one or more trusts or by will or
intestacy, provided the transferee or transferees thereof agree in writing to be
bound by this restriction, or (iii) for purposes of a loan, provided that the
lender or lenders to whom the Common Stock is pledged agree in writing to be
bound by the terms of this restriction or (iv) to an entity under the "common
control" of the transfer or (an entity under "common control" being defined as
an entity in which the transferor owns, directly or indirectly, 90% of the
capital stock (or equivalent interests)) provided the transferee or transferees
thereof agree in writing to be bound by the terms of this restriction.
Very truly yours,
Signature:
--------------------------
Print Name:
--------------------------
C-2
