Exhibit 1
XXX COMMUNICATIONS, INC.
UNDERWRITING AGREEMENT
____ __, 1998
[Name of Underwriter],
As Representatives of the Several Underwriters,
Dear Sirs:
1. Introductory. Xxx Communications, Inc., a Delaware corporation
("Company"), proposes to issue and sell $_________ principal amount of its
_______ Securities Due _____ as set forth below, to be issued under an
indenture, dated as of ______, 199_ ("Indenture"), between the Company and
______________, as trustee (the "Trustee"). The _____ are herein also referred
to as the "Offered Securities". The Company hereby agrees with the several
Underwriters named in Schedule A hereto (the "Underwriters") as follows:
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the several Underwriters that:
(a) A registration statement (No. 333-______) relating to
the Offered Securities, including a form of prospectus, has been
filed with the Securities and Exchange Commission ("Commission")
and either (i) has been declared effective under the Securities Act
of 1933 ("Act") and is not proposed to be amended or (ii) is
proposed to be amended by amendment or post-effective amendment. If
such registration statement ("initial registration statement") has
been declared effective, either (i) an additional registration
statement ("additional registration statement") relating to the
Offered Securities may have been filed with the Commission pursuant
to Rule 462(b) ("Rule 462(b)") under the Act and, if so filed, has
become effective upon filing pursuant to such Rule and the Offered
Securities all have been duly registered under the Act pursuant to
the initial registration statement and, if applicable, the
additional registration statement or (ii) such an additional
registration statement is proposed to be filed with the Commission
pursuant to Rule 462(b) and will become effective upon filing
pursuant to such Rule and upon such filing the Offered Securities
will all have been duly registered under the Act pursuant to the
initial registration statement and such additional registration
statement. If the Company does not propose to amend the initial
registration statement or, if an additional registration statement
has been filed and the Company does not propose to amend it, and if
any post-effective amendment to either such registration statement
has been filed with the Commission prior to the execution and
delivery of this Agreement, the most recent amendment (if any) to
each such registration statement has been declared effective by the
Commission or has become effective upon filing pursuant to Rule
462(c) ("Rule 462(c)") under the Act or, in the case of the
additional registration statement, Rule 462(b). For purposes of
this Agreement, "Effective Time" with respect to the initial
registration statement or, if filed prior to the execution and
delivery of this Agreement, the additional registration statement
means (i) if the Company has advised the Representatives that it
does not propose
to amend such registration statement, the date and time as of which
such registration statement, or the most recent post-effective
amendment thereto (if any) filed prior to the execution and
delivery of this Agreement, was declared effective by the
Commission or has become effective upon filing pursuant to Rule
462(c), or (ii) if the Company has advised the Representatives that
it proposes to file an amendment or post-effective amendment to
such registration statement, the date and time as of which such
registration statement, as amended by such amendment or
post-effective amendment, as the case may be, is declared effective
by the Commission. If an additional registration statement has not
been filed prior to the execution and delivery of this Agreement
but the Company has advised the Representatives that it proposes to
file one, "Effective Time" with respect to such additional
registration statement means the date and time as of which such
registration statement is filed and becomes effective pursuant to
Rule 462(b). "Effective Date" with respect to the initial
registration statement or the additional registration statement (if
any) means the date of the Effective Time thereof. The initial
registration statement, as amended at its Effective Time, including
all information contained in the additional registration statement
(if any) and deemed to be a part of the initial registration
statement as of the Effective Time of the additional registration
statement pursuant to the General Instructions of the Form on which
it is filed and including all information (if any) deemed to be a
part of the initial registration statement as of its Effective Time
pursuant to Rule 430A(b) ("Rule 430A(b)") under the Act, is
hereinafter referred to as the "Initial Registration Statement".
The additional registration statement, as amended at its Effective
Time, including the contents of the initial registration statement
incorporated by reference therein and including all information (if
any) deemed to be a part of the additional registration statement
as of its Effective Time pursuant to Rule 430A(b) is hereinafter
referred to as the "Additional Registration Statement". The Initial
Registration Statement and the Additional Registration Statement
are herein referred to collectively as the "Registration
Statements" and individually as a "Registration Statement". The
form of prospectus relating to the Offered Securities, as first
filed with the Commission pursuant to and in accordance with Rule
424(b) ("Rule 424(b)") under the Act or (if no such filing is
required) as included in the Registration Statement, is hereinafter
referred to as the "Prospectus". No document has been or will be
prepared or distributed with respect to the Offered Securities in
reliance on Rule 434 under the Act.
(b) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement:
(i) on the Effective Date of the Initial Registration Statement,
the Initial Registration Statement conformed in all respects to the
requirements of the Act, the Trust Indenture Act of 1939 ("Trust
Indenture Act") and the rules and regulations of the Commission
("Rules and Regulations") and did not include any untrue statement
of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading, (ii) on the Effective Date of the Additional
Registration Statement (if any), each Registration Statement
conformed, or will conform, in all material respects to the
requirements of the Act, the Trust Indenture Act and the Rules and
Regulations and did not include, or will not include, any untrue
statement of a material fact and did not omit, or will not omit, to
state any material fact required to be stated therein or necessary
to make the statements therein not misleading and (iii) on the date
of this Agreement, the Initial Registration Statement and, if the
Effective Time of the Additional Registration Statement is prior to
the execution and delivery of this Agreement, the Additional
Registration Statement each conform, and at the time of filing of
the Prospectus pursuant to Rule 424(b) or (if no such filing is
required) at the Effective Date of the Additional Registration
Statement in which the Prospectus is included, each Registration
Statement and the Prospectus will conform, in all material respects
to the requirements of the Act, the Trust Indenture Act and the
Rules and Regulations, and none of such documents includes, or will
include, any untrue statement of a material fact or omits, or will
omit, to state any material fact required to be stated therein or
necessary to make the statements therein (in the case of the
Prospectus, in light of the circumstances under which they were
made) not misleading. If the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery
of this Agreement: on the Effective Date of the Initial
Registration Statement, the Initial Registration Statement and the
Prospectus will conform in all material respects to the
requirements of the Act, the Trust Indenture Act and the Rules and
Regulations, neither of such documents will include any untrue
statement of a material fact or will omit to state any material
fact required to be stated therein or necessary to make
the statements therein not misleading, and no Additional
Registration Statement has been or will be filed. The two preceding
sentences do not apply to statements in or omissions from a
Registration Statement or the Prospectus based upon written
information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood
and agreed that the only such information is that described as such
in Section 7(b).
(c) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the State
of Delaware, with power and authority (corporate and other) to own
its properties and conduct its business as described in the
Prospectus; and the Company is duly qualified to do business as a
foreign corporation in good standing in all other jurisdictions in
which its ownership or lease of property or the conduct of its
business requires such qualification, other than where the failure
to so qualify would not, individually or in the aggregate, have a
material adverse effect on the Company and its subsidiaries taken
as a whole.
(d) Each subsidiary of the Company has been duly
incorporated and is an existing corporation in good standing under
the laws of the jurisdiction of its incorporation, with power and
authority (corporate and other) to own its properties and conduct
its business as described in the Prospectus; and each subsidiary of
the Company is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in which
its ownership or lease of property or the conduct of its business
requires such qualification, other than where the failure to so
qualify would not, individually or in the aggregate, have a
material adverse effect on the Company and its subsidiaries taken
as a whole; all of the issued and outstanding capital stock of each
subsidiary of the Company has been duly authorized and validly
issued and is fully paid and nonassessable; and, except as
disclosed in the Prospectus or any document incorporated therein by
reference, the capital stock of each subsidiary owned by the
Company, directly or through subsidiaries, is owned free from
liens, encumbrances and defects.
(e) The Indenture has been duly authorized, executed and
delivered and, if the Effective Time of a Registration Statement is
prior to the execution and delivery of this Agreement, has been or
otherwise upon such Effective Time will be duly qualified under the
Trust Indenture Act with respect to the Offered Securities
registered thereby; the Offered Securities have been duly
authorized; and when the Offered Securities are delivered and paid
for pursuant to this Agreement on each Closing Date (as defined
below), such Offered Securities will have been duly executed,
authenticated, issued and delivered and will conform to the
description thereof contained in the Prospectus and the Indenture
and such Offered Securities will constitute valid and legally
binding obligations of the Company, enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles.
(f) No consent, approval, authorization, or order of, or
filing with, any governmental agency or body or any court is
required for the consummation of the transactions contemplated by
this Agreement in connection with the issuance and sale of the
Offered Securities by the Company, except such as have been
obtained and made under the Act and the Trust Indenture Act and
such as may be required under state securities laws or the laws of
a foreign jurisdiction.
(g) The execution, delivery and performance of the Indenture
and this Agreement, and the issuance and sale of the Offered
Securities and compliance with the terms and provisions thereof
will not result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any statute, any
rule, regulation or order of any governmental agency or body or any
court, domestic or foreign, having jurisdiction over the Company or
any subsidiary of the Company or any of their properties, or any
agreement or instrument to which the Company or any such subsidiary
is a party or by which the Company or any such subsidiary is bound
or to which any of the properties of the Company or any such
subsidiary is subject, or the charter or by-laws of the Company or
any such subsidiary, and the Company has full power and authority
to authorize, issue and sell the Offered Securities as contemplated
by this Agreement.
(h) This Agreement has been duly authorized, executed and
delivered by the Company.
(i) Except as disclosed in the Prospectus or any document
incorporated therein by reference, the Company and its subsidiaries
have good and marketable title to all material real properties and
all other material properties and assets owned by them, in each
case free from liens, encumbrances and defects that would
materially affect the value thereof or materially interfere with
the use made or presently contemplated to be made thereof by them;
and except as disclosed in the Prospectus, the Company and its
subsidiaries hold any leased real or personal property under valid
and enforceable leases with no exceptions that are material or
would materially interfere with the use made or presently
contemplated to be made thereof by them.
(j) The Company and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate
governmental agencies or bodies necessary to conduct the business
now operated by them other than those the absence of which would
not, individually or in the aggregate, have a material adverse
effect on the Company and its subsidiaries taken as a whole and
have not received any notice of proceedings relating to the
revocation or modification of any such certificate, authority or
permit that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a
material adverse effect on the Company and its subsidiaries taken
as a whole.
(k) No labor dispute with the employees of the Company or
any subsidiary exists or, to the knowledge of the Company, is
imminent that would, individually or in the aggregate, have a
material adverse effect on the Company and its subsidiaries taken
as a whole.
(1) The Company and its subsidiaries own, possess or can, on
reasonable terms, acquire adequate trademarks, trade names and
other rights to inventions, know-how, patents, copyrights,
confidential information and other intellectual property
(collectively, "intellectual property rights") necessary to conduct
the business now operated by them, other than those the absence of
which would not, individually or in the aggregate, have a material
adverse effect on the Company and its subsidiaries taken as a
whole, and have not received any notice of infringement of or
conflict with asserted rights of others with respect to any
intellectual property rights that, if determined adversely to the
Company or any of its subsidiaries, would individually or in the
aggregate have a material adverse effect on the Company and its
subsidiaries taken as a whole.
(m) Except as disclosed in the Prospectus or any document
incorporated therein by reference, neither the Company nor any of
its subsidiaries is in violation of any statute, any rule,
regulation, decision or order of any governmental agency or body or
any court, domestic or foreign, having jurisdiction over the
Company or any of its subsidiaries relating to the use, disposal or
release of hazardous or toxic substances or relating to the
protection or restoration of the environment or human exposure to
hazardous or toxic substances (collectively, "environmental laws"),
owns or operates any real property contaminated with any substance
that is subject to any environmental laws, is liable for any
off-site disposal or contamination pursuant to any environmental
laws, or is subject to any claim relating to any environmental
laws, which violation, contamination, liability or claim would
individually or in the aggregate have a material adverse effect on
the Company and its subsidiaries taken as a whole; and the Company
has no knowledge of any pending investigation which might lead to
such a claim.
(n) Except as disclosed in the Prospectus or any document
incorporated therein by reference, there are no pending actions,
suits or proceedings against or affecting the Company, any of its
subsidiaries or any of their respective properties that, if
determined adversely to the Company or any of its subsidiaries,
would individually or in the aggregate have a material adverse
effect on the condition (financial or other), business, prospects
or results of operations of the Company and its subsidiaries taken
as a whole, or would materially and adversely affect the ability of
the Company to perform its obligations under the Indenture
or this Agreement, or which are otherwise material in the context
of the sale of the Offered Securities; and, to the Company's
knowledge, no such actions, suits or proceedings are threatened.
(o) The financial statements included in each Registration
Statement and the Prospectus present fairly the financial position
of the Company and its consolidated subsidiaries as of the dates
shown and their results of operations and cash flows for the
periods shown, and such financial statements have been prepared in
conformity with the generally accepted accounting principles in the
United States applied on a consistent basis, except as otherwise
stated therein; and the schedules included in each Registration
Statement present fairly in all material respects the information
required to be stated therein.
(p) Except as disclosed in the Prospectus or any document
incorporated therein by reference, since the date of the latest
audited financial statements included in the Prospectus there has
been no material adverse change, nor any development or event
reasonably likely to result in a material adverse change, in the
condition (financial or other), business, properties or results of
operations of the Company and its subsidiaries taken as a whole,
and, except as disclosed in or contemplated by the Prospectus,
there has been no dividend or distribution of any kind declared,
paid or made by the Company on any class of its capital stock.
(q) Except to the extent set forth in the Prospectus or any
document incorporated therein by reference, the Company has not
received any notice of, nor does it have any actual knowledge of,
any failure by it or any of its Significant Subsidiaries (as
defined in Rule 1-02(w) of Regulation S-X promulgated under the
Act) to be in substantial compliance with all existing statutes and
regulations applicable to it or such subsidiaries, which failure
would materially and adversely affect the Company and its
subsidiaries taken as a whole.
3. Purchase, Sale and Delivery of Offered Securities. On the basis
of the representations, warranties and agreements herein contained, but subject
to the terms and conditions herein set forth, (i) the Company agrees to sell to
the Underwriters, and the Underwriters agree, severally and not jointly, to
purchase from the Company, at a purchase price of ______% of the principal
amount thereof, the respective principal amounts of Offered Securities set forth
opposite the names of the Underwriters in Schedule A hereto.
The Company will deliver the Offered Securities to the
Representatives for the accounts of the Underwriters, against payment of the
purchase prices by wire transfer of immediately available funds at the office of
_________________, at __:00 a.m., New York time, on________, 199_, or at such
other time not later than seven full business days thereafter as _______________
and the Company determine, such time being herein referred to as the "Closing
Date". For purposes of Rule 15c6-1 under the Securities Exchange Act of 1934,
the Closing Date (if later than the otherwise applicable settlement date) shall
be the settlement date for payment of funds and delivery of securities for all
the Offered Securities sold pursuant to the offering contemplated by this
Agreement. The Offered Securities so to be delivered will be in definitive fully
registered form, in such denominations and registered in such names as__________
requests and will be made available for checking and packaging at the office
of___________y no later than __:00 p.m. on the business day prior to the Closing
Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus.
5. Certain Agreements of the Company. The Company agrees with the
several Underwriters that:
(a) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement,
the Company will file the Prospectus with the Commission pursuant
to and in accordance with subparagraph (2) (or, if applicable and
if consented to by _____________, subparagraph (5)) of Rule 424(b)
not later than the second business day following the execution and
delivery of this Agreement. The Company will advise ______________
promptly of any such filing
pursuant to Rule 424(b). If the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of
this Agreement and an additional registration statement is
necessary to register a portion of the Offered Securities under the
Act but the Effective Time thereof has not occurred as of such
execution and delivery, the Company will file the additional
registration statement or, if filed, will file a post-effective
amendment thereto with the Commission pursuant to and in accordance
with Rule 462(b) on or prior to __:00 P.M., New York time, on the
date of this Agreement or, if earlier, on or prior to the time the
Prospectus is printed and distributed to any Underwriter, or will
make such filing at such later date as shall have been consented to
by ___________.
(b) The Company will advise ____________ promptly of any
proposal to amend or supplement the initial or any additional
registration statement as filed or the related prospectus or the
Initial Registration Statement, the Additional Registration
Statement (if any) or the Prospectus and will not effect such
amendment or supplementation without ____________'s consent (except
if required by applicable law), which consent shall not
unreasonably be withheld; and the Company will also advise
______________ promptly of the effectiveness of each Registration
Statement (if its Effective Time is subsequent to the execution and
delivery of this Agreement) and of any amendment or supplementation
of a Registration Statement or the Prospectus and of the
institution by the Commission of any stop order proceedings in
respect of a Registration Statement and will use its best efforts
to prevent the issuance of any such stop order and to obtain as
soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the
Offered Securities is required to be delivered under the Act in
connection with sales by any Underwriter or dealer, any event
occurs as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact
or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to amend
the Prospectus to comply with the Act, the Company will promptly
notify ______________ of such event and will promptly prepare and
file with the Commission, at its own expense, an amendment or
supplement which will correct such statement or omission or an
amendment which will effect such compliance. Neither
_______________'s consent to, nor the Underwriters' delivery of,
any such amendment or supplement shall constitute a waiver of any
of the conditions set forth in Section 6.
(d) As soon as reasonably practicable, but not later than
the Availability Date (as defined below), the Company will make
generally available to its securityholders an earnings statement
covering a period of at least 12 months beginning after the
Effective Date of the Initial Registration Statement (or, if later,
the Effective Date of the Additional Registration Statement) which
will satisfy the provisions of Section 1l(a) of the Act. For the
purpose of the preceding sentence, "Availability Date" means the
45th day after the end of the fourth fiscal quarter following the
fiscal quarter that includes such Effective Date, except that, if
such fourth fiscal quarter is the last quarter of the Company's
fiscal year, "Availability Date" means the 90th day after the end
of such fourth fiscal quarter.
(e) The Company will furnish to the Representatives copies
of each Registration Statement (of which 2 will be signed and will
include all exhibits), each related preliminary prospectus, and, so
long as delivery of a prospectus relating to the Offered Securities
is required to be delivered under the Act in connection with sales
by any Underwriter or dealer, the Prospectus and all amendments and
supplements to such documents, in each case in such quantities as
________________requests. The Prospectus shall be so furnished on
or prior to __:00 A.M., New York time, on the business day
following the later of the execution and delivery of this Agreement
or the Effective Time of the Initial Registration Statement. All
other documents shall be so furnished as soon as available. The
Company will pay the expenses of printing and distributing to the
Underwriters all such documents.
(f) The Company will cooperate with ________________and
counsel for the Underwriters in connection with the qualification
of the Offered Securities for sale and the determination of their
eligibility
for investment under the laws of such jurisdictions as
________________ designates and will continue such qualifications
in effect so long as required for the distribution thereof;
provided, however, that the Company shall not be required to
register or qualify as a foreign corporation or to take any action
which would subject it to service of process in suits or taxation
in any jurisdiction where it is not now so subject.
(g) During the period of 10 years hereafter, the Company
will furnish to the Underwriters, as soon as practicable after the
end of each fiscal year, a copy of its annual report to
stockholders, if any, filed with the Commission under the Act or
the Securities Exchange Act of 1934 or mailed to public
stockholders for such year; and the Company will furnish to the
Underwriters (i) as soon as available, a copy of each report and
any definitive proxy statement of the Company, if any, filed with
the Commission under the Securities Exchange Act of 1934 or mailed
to public stockholders, and (ii) from time to time, such other
information concerning the Company, if any, filed with the
Commission under the Act or the Securities Exchange Act of 1934 or
mailed to public stockholders as ________________ may reasonably
request.
(h) The Company will pay all expenses incident to the
performance of its obligations under this Agreement and will
reimburse the Underwriters (if and to the extent such fees and
expenses are incurred by the Underwriters) for any filing fees and
other expenses (including reasonable fees and disbursements of
counsel) incurred by them in connection with qualification of the
Offered Securities for sale under the laws of such jurisdictions as
________________ reasonably designates and the printing of
memoranda relating thereto, for any fees charged by investment
rating agencies for the rating of the Offered Securities, for any
travel expenses of the Company's officers and employees and any
other expenses of the Company in connection with attending or
hosting meetings with prospective purchasers of the Offered
Securities and for expenses incurred in distributing preliminary
prospectuses and the Prospectus (including any amendments and
supplements thereto) to the Underwriters during the time when a
prospectus relating to the Offered Securities is required to be
delivered under the Act.
(i) The Company agrees that it will not, for a period of 30
days after the date of the Prospectus, without the prior written
consent of ________________, offer, sell or contract to sell, or
otherwise dispose of, directly or indirectly, or announce the
offering of any debt securities (other than offerings of debt
securities pursuant to a purchase agreement of even date hereof. or
any securities convertible into, or exchangeable for, debt
securities, other than an announcement of a commercial paper
program.
6. Conditions of the Obligations of the Underwriters. The obligations of the
several Underwriters to purchase and pay for the Offered Securities on the
Closing Date will be subject to the accuracy in all material respects of the
representations and warranties on the part of the Company herein, to the
accuracy of the written certifications of Company officers made pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions precedent:
(a) The Representatives shall have received a letter, dated
the date of delivery thereof (which, if the Effective Time of the
Initial Registration Statement is prior to the execution and
delivery of this Agreement, shall be on or prior to the date of
this Agreement or, if the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery
of this Agreement, shall be prior to the filing of the amendment or
post-effective amendment to the registration statement to be filed
shortly prior to such Effective Time), of ________________
confirming that they are independent public accountants within the
meaning of the Act and the applicable published Rules and
Regulations thereunder and stating to the effect that:
(i) in their opinion the financial statements and
schedules of the Company examined by them and included in
the Registration Statements comply as to form in all
material respects with the applicable accounting
requirements of the Act and the related published Rules and
Regulations;
(ii) they have performed the procedures specified by the
American Institute of Certified Public Accountants for a
review of interim financial information as described in
Statement of Auditing Standards No. 71, Interim Financial
Information, on the unaudited financial statements included
in the Registration Statements;
(iii) on the basis of a reading of the unaudited pro
forma financial statements included in the Registration
Statements and the Prospectus (the "pro forma financial
statements"), carrying out certain specified procedures,
reading of minutes and inquiries of certain officials of the
Company who have responsibility for financial and accounting
matters and proving the arithmetic accuracy of the
application of the pro forma adjustments to the historical
amounts in the pro forma financial statements, nothing came
to their attention which caused them to believe that the pro
forma financial statements do not comply as to form in all
material respects with the applicable accounting
requirements of Rule 11-02 of Regulation S-X or that the pro
forma adjustments have not been properly applied to the
historical amounts in the compilation of such statements or
on the pro forma basis described in the notes thereto;
(iv) on the basis of the review referred to in clause
(ii) above, a reading of the latest available interim
financial statements of the Company, inquiries of officials
of the Company who have responsibility for financial and
accounting matters and other specified procedures, nothing
came to their attention that caused them to believe that:
(A) the unaudited financial statements included in
the Registration Statements do not comply as to form in
all material respects with the applicable accounting
requirements of the Act and the related published Rules
and Regulations or any material modifications should be
made to such unaudited financial statements for them to
be in conformity with generally accepted accounting
principles;
(B) at the date of the latest available balance sheet
read by such accountants, or at a subsequent specified
date not more than five days prior to the date of this
Agreement, there was any change in the capital stock or
any increase in debt of the Company and its consolidated
subsidiaries or, at the date of the latest available
balance sheet read by such accountants, there was any
decrease in total assets or consolidated shareholders'
equity, as compared with amounts shown on the latest
balance sheet included in the Prospectus; or
(C) for the period from the closing date of the
latest income statement included in the Prospectus to
the closing date of the latest available income
statement read by such accountants there were any
decreases, as compared with the previous corresponding
number of months of the same year and with the period of
corresponding length ended the date of the latest income
statement included in the Prospectus, in consolidated
revenues, EBITDA (as defined in the Registration
Statements) or net income, except as otherwise specified
in such letter,
except in all cases set forth in clauses (B) and (C) above
for changes, increases or decreases which the Prospectus
discloses have occurred or may occur and which are described
in such letter; and
(v) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information contained in the Registration
Statements (in each case to the extent that such dollar
amounts, percentages and other financial information are
derived from the general accounting records of the Company
and its subsidiaries subject to the internal controls of the
Company's accounting system or are derived directly from
such records by analysis or computation) with the results
obtained from inquiries, a reading of such general
accounting records and other procedures specified in such
letter and have found such dollar amounts, percentages and
other financial information to be in agreement with such
results, except as otherwise specified in such letter.
For purposes of this subsection (a), (i) if the Effective Time of
the Initial Registration Statement is subsequent to the execution
and delivery of this Agreement, "Registration Statements" shall
mean the initial registration statement as proposed to be amended
by the amendment or post-effective amendment to be filed shortly
prior to its Effective Time, (ii) if the Effective Time of the
Initial Registration Statement is prior to the execution and
delivery of this Agreement but the Effective Time of the Additional
Registration Statement is subsequent to such execution and
delivery, "Registration Statements" shall mean the Initial
Registration Statement and the additional registration statement as
proposed to be filed or as proposed to be amended by the
post-effective amendment to be filed shortly prior to its Effective
Time and (iii) "Prospectus" shall mean the prospectus included in
the Registration Statements.
(b) If the Effective Time of the Initial Registration
Statement is not prior to the execution and delivery of this
Agreement, such Effective Time shall have occurred not later than
__:00 P.M., New York time, on the date of this Agreement or such
later date as shall have been consented to by ________________. If
the Effective Time of the Additional Registration Statement (if
any) is not prior to the execution and delivery of this Agreement,
such Effective Time shall have occurred not later than __:00 P.M.,
New York time, on the date of this Agreement or, if earlier, the
time the Prospectus is printed and distributed to any Underwriter,
or shall have occurred at such later date as shall have been
consented to by ________________. If the Effective Time of the
Initial Registration Statement is prior to the execution and
delivery of this Agreement, the Prospectus shall have been filed
with the Commission in accordance with the Rules and Regulations
and Section 5(a) of this Agreement. Prior to the Closing Date, no
stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that
purpose shall have been instituted or, to the knowledge of the
Company or the Underwriters, shall be contemplated by the
Commission.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any
development or event reasonably likely to result in a change, in
the condition (financial or other), business, properties or results
of operations of the Company and its subsidiaries taken as a whole
which, in the reasonable judgment of a majority in interest of the
Underwriters including ________________, is material and adverse
and makes it impractical or inadvisable to proceed with completion
of the public offering or the sale of and payment for the Offered
Securities; (ii) any downgrading in the rating of any debt
securities of the Company by any "nationally recognized statistical
rating organization" (as defined for purposes of Rule 436(g) under
the Act), or any public announcement that any such organization has
under surveillance or review its rating of any debt securities of
the Company (other than an announcement with positive implications
of a possible upgrading, and no implication of a possible
downgrading, of such rating); (iii) any suspension or limitation of
trading in securities generally on the New York Stock Exchange, or
any setting of minimum prices for trading on such exchange, or any
suspension of trading of any securities of the Company on any
exchange or in the over-the-counter market; (iv) any banking
moratorium declared by U.S. Federal or New York State authorities;
or (v) any outbreak or escalation of major hostilities in which the
United States is involved, any declaration of war by Congress or
any other substantial national or international calamity or
emergency if, in the judgment of a majority in interest of the
Underwriters including ________________, the effect of any such
outbreak, escalation, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of the public
offering or the sale of and payment for the Offered Securities.
(d) The Representatives shall have received an opinion,
dated the Closing Date, of ________________, counsel for the
Company, to the effect set forth in Exhibit A.
(e) The Representatives shall have received an opinion,
dated the Closing Date, of ________________ of the Company, to the
effect that, to the best knowledge of such counsel after due
inquiry, no franchising authority has claimed in writing that the
Company or any subsidiary is in default under any franchise that,
if revoked, would have a material adverse effect, individually or
in the aggregate, on the Company and its subsidiaries taken as a
whole.
(f) The Representatives shall have received from
________________, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date, with respect to the incorporation
of the Company, the validity of the Offered Securities delivered on
the Closing Date, the Registration Statements, the Prospectus and
other related matters as the Underwriters may require, and the
Company shall have furnished to such counsel such documents as they
reasonably request for the purpose of enabling them to pass upon
such matters.
(g) The Representatives shall have received a certificate,
dated the Closing Date, of the President or any Vice-President and
a principal financial or accounting officer of the Company in which
such officers, to their knowledge but without personal liability,
shall state that: the representations and warranties of the Company
in this Agreement are true and correct in all material respects;
the Company has complied in all material respects with all
agreements and satisfied in all material respects all conditions on
its part to be performed or satisfied hereunder at or prior to the
Closing Date; no stop order suspending the effectiveness of any
Registration Statement has been issued and no proceedings for that
purpose have been instituted or are contemplated by the Commission;
the Additional Registration Statement (if any) satisfying the
requirements of subparagraphs (1) and (3) of Rule 462(b) was filed
pursuant to Rule 462(b), including payment of the applicable filing
fee in accordance with Rule 111(a) or (b) under the Act, prior to
the time the Prospectus was printed and distributed to any
Underwriter; and, subsequent to the respective dates of the most
recent financial statements in the Prospectus, there has been no
material adverse change, nor any development or event reasonably
likely to result in a material adverse change, in the condition
(financial or other), business, properties or results of operations
of the Company and its subsidiaries taken as a whole except as set
forth in or contemplated by the Prospectus or as described in such
certificate.
(h) The Representatives shall have received a letter, dated
the Closing Date, of ________________ which meets the requirements
of subsection (a) of this Section, except that the specified date
referred to in such subsection will be a date not more than five
days prior to the Closing Date for the purposes of this subsection.
(i) The Company shall have complied with the provision of
Section 5(e) hereof with respect to the furnishing of Prospectuses
by the end of the business day next succeeding the date of this
Agreement.
The Company will furnish the Representatives with such conformed copies of such
opinions, certificates, letters and documents as the Representatives reasonably
request. ________________ may in its sole discretion waive on behalf of the
Underwriters compliance with any conditions to the obligations of the
Underwriters hereunder.
7. Indemnification and Contribution. (a) The Company will indemnify
and hold harmless each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood and agreed
that the only such information furnished by any Underwriter
consists of the information described as such in subsection (b) below; and
provided, further, that with respect to any untrue statement or omission or
alleged untrue statement or omission made in any preliminary prospectus, the
indemnity agreement contained in this subsection (a) shall not inure to the
benefit of any Underwriter from whom the person asserting any such losses,
claims, damages or liabilities purchased the Offered Securities concerned, to
the extent that a prospectus relating to such Offered Securities was required to
be delivered by such Underwriter under the Act in connection with such purchase
and any such loss, claim, damage or liability of such Underwriter results from
the fact that there was not sent or given to such person, at or prior to the
written confirmation of the sale of such Offered Securities to such person, a
copy of the Prospectus if the Company had previously furnished copies thereof to
such Underwriter; and provided, further, that with respect to any untrue
statement or omission or alleged untrue statement or omission made in any
Prospectus, the indemnity agreement contained in this subsection (a) shall not
inure to the benefit of any Underwriter from whom the person asserting any such
losses, claims, damages or liabilities purchased the Offered Securities
concerned, to the extent that any such losses, claims, damages or liabilities
result from the fact that such person was not sent or given a copy of any
amended or supplemented Prospectus at or prior to the written confirmation of
the sale of the Offered Securities to such person if the Company shall have
prepared and delivered such amended or supplemented Prospectus to the
Underwriters a reasonable amount of time in advance of the delivery of the
written confirmation of such sale and if the losses, claims, damages or
liabilities result from an untrue statement or omission or alleged untrue
statement or omission made in the Prospectus that was corrected in such amended
or supplemented Prospectus.
(b) Each Underwriter will severally and not jointly indemnify and
hold harmless the Company against any losses, claims, damages or liabilities to
which the Company may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in any Registration Statement, the Prospectus, or
any amendment or supplement thereto, or any related preliminary prospectus, or
arise out of or are based upon the omission or the alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives specifically for use therein, and will reimburse any legal or
other expenses reasonably incurred by the Company in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred, it being understood and agreed that the only such
information furnished by any Underwriter consists of the following information
in the Prospectus furnished on behalf of each Underwriter: the last paragraph at
the bottom of the cover page concerning the terms of the offering by the
Underwriters, the legend concerning overallotments and stabilizing on the second
page and the information contained in the second, fourth, fifth, sixth and
seventh paragraphs under the caption "Underwriting".
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a) or (b) above. In case any such action is
brought against any indemnified party and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the consent
of the indemnified party, which consent shall not unreasonably be withheld, be
counsel to the indemnifying party), and after notice from the indemnifying party
to such indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party unless such settlement includes an unconditional release of such
indemnified party from all liability on any claims that are the subject matter
of such action.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company on the one hand and the Underwriters on the other from the offering
of the Offered Securities or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also
the relative fault of the Company on the one hand and the Underwriters on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering of the Offered Securities (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters. The relative fault shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission. The
amount paid by an indemnified party as a result of the losses, claims, damages
or liabilities referred to in the first sentence of this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any action or
claim which is the subject of this subsection (d). Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Offered 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 such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company under this Section shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section shall be in addition to any liability which the
respective Underwriters may otherwise have and shall extend, upon the same terms
and conditions, to each director of the Company, to each officer of the Company
who has signed a Registration Statement and to each person, if any, who controls
the Company within the meaning of the Act.
8. Default of Underwriters. If any Underwriter or Underwriters
default in their obligations to purchase Offered Securities hereunder on the
Closing Date and the aggregate principal amount of Offered Securities that such
defaulting Underwriter or Underwriters agreed but failed to purchase does not
exceed __% of the total principal amount of Offered Securities that the
Underwriters are obligated to purchase on the Closing Date, ________________ may
make arrangements satisfactory to the Company for the purchase of such Offered
Securities by other persons, including any of the Underwriters, but if no such
arrangements are made by the Closing Date, the non-defaulting Underwriters shall
be obligated severally, in proportion to their respective commitments hereunder,
to purchase the Offered Securities that such defaulting Underwriters agreed but
failed to purchase. In the event of such a default, ________________ may
postpone the Closing Date for a period not exceeding seven days in order to make
such arrangements for the purchase of such Offered Securities by other persons.
If any Underwriter or Underwriters so default and the aggregate principal amount
of Offered Securities with respect to which such default or defaults occur
exceeds __% of the total principal amount of Offered Securities that the
Underwriters are obligated to purchase and arrangements satisfactory to
________________ and the Company for the purchase of such Offered Securities by
other persons are not made within 36 hours after such default, this Agreement
will terminate without liability on the part of any non-defaulting Underwriter
or the Company, except as provided in Section 9. As used in this Agreement, the
term "Underwriter" includes any person substituted for an Underwriter under this
Section. Nothing herein will relieve a defaulting Underwriter from liability for
its default.
9. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and written
certifications of the Company or its officers and of the several Underwriters
set forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results thereof,
made by or on behalf of any Underwriter, the Company or any of their respective
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the Offered Securities. If this Agreement is
terminated or if for any reason the purchase of the Offered Securities by the
Underwriters is not consummated, the Company shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 5 and the respective
obligations of the Company and the Underwriters pursuant to Section 7 shall
remain in effect, and if any Offered Securities have been purchased hereunder
the representations and warranties in Section 2 and all obligations under
Section 5 shall also remain in effect. If the purchase of the Offered Securities
by the Underwriters is not consummated for any reason other than because of the
termination of this Agreement pursuant to Section 8 or the occurrence of any
event specified in clause (iii), (iv) or (v) of Section 6(c), then in such
event, and only in such event, the Company will reimburse the Underwriters for
all out-of-pocket expenses (including reasonable fees and disbursements of
counsel) reasonably incurred by them in connection with the offering of the
Offered Securities.
10. Notices. All communications hereunder will be in writing and,
if sent to the Underwriters, will be mailed, delivered or telegraphed and
confirmed to the Representatives, or sent by telecopy or overnight carrier, c/o
________________, or, if sent to the Company, will be mailed, delivered or
telegraphed and confirmed to it at Xxx Communications, Inc., 0000 Xxxx Xxxxx
Xxxxx, Xxxxxxx, XX 00000, Attention: ________________; provided, however, that
any notice to an Underwriter pursuant to Section 7 will be mailed, delivered or
telegraphed and confirmed to such Underwriter.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7, and no other
person will have any right or obligation hereunder.
12. Representation of Underwriters. The Representatives will act
for the several Underwriters in connection with this financing, and any action
under this Agreement taken by the Representatives jointly or by ________________
will be binding upon all the Underwriters.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. Applicable Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York, without regard
to principles of conflicts of laws.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
If the foregoing is in accordance with the Representatives'
understanding of our agreement, kindly sign and return to the Company one of the
counterparts hereof, whereupon it will become a binding agreement between the
Company and the several Underwriters in accordance with its terms.
Very truly yours,
XXX COMMUNICATIONS, INC.
By
-----------------------------------
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
[THE UNDERWRITER]
Acting on behalf of themselves and as
the Representatives of the several
Underwriters.
By
--------------------------
By
-----------------------------
SCHEDULE A
Principal
Amount of
Offered
Underwriter Securities
------------- ------------
________________............................. $__,000,000
Total................................ $__,000,000
------------
