Exhibit 1.1
4,700,000 Shares
VIATEL, INC.
COMMON STOCK (PAR VALUE $.01 PER SHARE)
UNDERWRITING AGREEMENT
June , 1999
June , 1999
Xxxxxx Xxxxxxx & Co. Incorporated
Credit Suisse First Boston Corporation
Xxxxxxx Xxxxx Barney Inc.
ING Baring Xxxxxx Xxxx LLC
c/x Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. International Limited
Credit Suisse First Boston (Europe) Limited
Salomon Brothers International Limited
ING Barings Limited, as agent for ING Bank N.V., London branch
c/o Morgan Xxxxxxx & Co. International Limited
00 Xxxxx Xxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
England
Dear Sirs and Mesdames:
Viatel, Inc., a Delaware corporation (the "Company"), proposes to
issue and sell to the several Underwriters named in Schedules I and II hereto
(the "Underwriters"), and certain stockholders of the Company (each, a "Selling
Stockholder" and, collectively, the "Selling Stockholders") named in Schedule
III hereto severally propose to sell to the several Underwriters, an aggregate
of 4,700,000 shares of the Company's common stock, par value $.01 per share (the
"Firm Shares"), of which 4,000,000 shares are to be issued and sold by the
Company and 700,000 shares are to be sold by the Selling Stockholders, each
Selling Stockholder selling the amount set forth opposite such Selling
Stockholder's name in Schedule III hereto.
It is understood that, subject to the conditions hereinafter stated,
3,760,000 Firm Shares (the "U.S. Firm Shares") will be sold to the several U.S.
Underwriters named in Schedule I hereto (the "U.S. Underwriters") in connection
with the offering and sale of such U.S. Firm Shares in the United States and
Canada to United States and Canadian Persons (as such terms are defined in the
Agreement Between U.S. and International Underwriters of even date herewith),
and 940,000 Firm Shares (the "International Shares") will be sold to the several
International
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Underwriters named in Schedule II hereto (the "International Underwriters") in
connection with the offering and sale of such International Shares outside the
United States and Canada to persons other than United States and Canadian
Persons. Xxxxxx Xxxxxxx & Co. Incorporated, Credit Suisse First Boston
Corporation, Xxxxxxx Xxxxx Barney Inc. and ING Baring Xxxxxx Xxxx LLC shall act
as representatives (the "U.S. Representatives") of the several U.S.
Underwriters, and Xxxxxx Xxxxxxx & Co. International Limited, Credit Suisse
First Boston (Europe) Limited, Salomon Brothers International Limited and ING
Barings Limited, as agent for ING Bank N.V., London branch, shall act as
representatives (the "International Representatives") of the several
International Underwriters.
The Company and Xxxxxx Xxxxxxxxx, a Selling Stockholder, also
propose to issue and sell, jointly and severally, to the several U.S.
Underwriters not more than an additional 705,000 shares of the Company's common
stock, par value $.01 per share (the "Additional Shares"), if and to the extent
that the U.S. Representatives shall determine to exercise, on behalf of the U.S.
Underwriters, the right to purchase such shares of common stock granted to the
U.S. Underwriters in Section 3 hereof. The Firm Shares and the Additional Shares
are hereinafter collectively referred to as the "Shares." The shares of common
stock, par value $.01 per share, of the Company to be outstanding after giving
effect to the sales contemplated hereby are hereinafter referred to as the
"Common Stock." The Company and the Selling Stockholders are hereinafter
collectively referred to as the "Sellers."
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (333-78855) relating to
the Shares. The registration statement contains two prospectuses to be used in
connection with the offering and sale of the Shares: the U.S. prospectus, to be
used in connection with the offering and sale of Shares in the United States and
Canada to United States and Canadian Persons, and the international prospectus,
to be used in connection with the offering and sale of Shares outside the United
States and Canada to persons other than United States and Canadian Persons. The
international prospectus is identical to the U.S. prospectus except for the
outside front cover page. The registration statement as amended at the time it
becomes effective, including the information (if any) deemed to be part of the
registration statement at the time of effectiveness pursuant to Rule 430A under
the Securities Act of 1933, as amended (the "Securities Act"), is hereinafter
referred to as the "Registration Statement"; the U.S. prospectus and the
international prospectus in the respective forms first used to confirm sales of
Shares are hereinafter collectively referred to as the "Prospectus." If the
Company has filed an abbreviated registration statement to register additional
shares of Common Stock pursuant to Rule 462(b) under the Securities Act (the
"Rule 462(b) Registration Statement"), then any reference herein to the term
"Registration Statement" shall be deemed to include such Rule 462(b)
Registration Statement.
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1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or, to the
Company's knowledge, threatened by the Commission.
(b) (i) The Registration Statement, when it became effective, did
not contain and, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, (ii) the Registration Statement and the
Prospectus comply and, as amended or supplemented, if applicable, will
comply in all material respects with the Securities Act and the applicable
rules and regulations of the Commission thereunder, and (iii) the
Prospectus does not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading,
except that the representations and warranties set forth in this paragraph
1(b) do not apply to statements in or omissions from the Registration
Statement or the Prospectus based upon information relating to any
Underwriter furnished to the Company in writing by such Underwriter either
directly or through you expressly for use therein.
(c) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware,
has the corporate power and corporate authority to own its properties and
to conduct its business as described in the Prospectus and is duly
qualified to transact business as a foreign corporation and is in good
standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to
the extent that the failure to be so qualified or be in good standing
would not have a Material Adverse Effect (as defined below) on the Company
and its Subsidiaries (as defined below), taken as a whole.
(d) Each subsidiary of the Company is listed on Exhibit B hereto
(each a "Subsidiary" and, collectively, the "Subsidiaries"). If applicable
to such country, each of the Subsidiaries operating in such country has
been duly incorporated or otherwise organized, is validly existing in good
standing under the laws of the jurisdiction of its incorporation or
organization, with full corporate power and corporate authority to own its
properties and to conduct its business as described in the Prospectus and
is duly
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qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not have a
Material Adverse Effect on the Company and its Subsidiaries, taken as a
whole; all of the issued shares of capital stock or other equity
interests, as the case may be, of each Subsidiary of the Company have been
duly authorized and are validly issued, fully paid and non-assessable and
are owned, either directly or by the Company, free and clear of all liens,
encumbrances, equities or claims, other than those indicated in the
Prospectus.
(e) This Agreement has been duly authorized, executed and delivered
by the Company. The Irrevocable Power of Attorney and Custody Agreement,
dated the date hereof, between the Selling Stockholders (other than Xxxxxx
Xxxxxxxxx) and the Company, as custodian (the "Power of Attorney and
Custody Agreement"; and together with this Agreement, the "Transaction
Documents"), appointing certain individuals as such Selling Stockholders'
attorneys-in-fact to the extent set forth therein and relating to the
deposit of the Shares to be sold by such Selling Stockholders and the
transactions contemplated hereby and by the Registration Statement and the
Prospectus, have been duly authorized, executed and delivered by the
Company, and will be valid and binding obligations of the Company
enforceable against the Company in accordance with their terms, except as
the enforceability thereof may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws affecting creditors' rights generally and subject to general
equitable principles (whether considered in a proceeding in equity or at
law).
(f) The authorized capital stock of the Company conforms as to legal
matters to the description thereof contained in the Prospectus.
(g) The shares of Common Stock (including the Shares to be sold by
the Selling Stockholders) outstanding prior to the issuance of the Shares
to be sold by the Company have been duly authorized and are validly
issued, fully paid and non-assessable.
(h) The Shares to be sold by the Company have been duly authorized
and, when issued and delivered in accordance with the terms of this
Agreement, will be validly issued, fully paid and non-assessable, and the
issuance of such Shares will not be subject to any preemptive or similar
rights.
(i) The execution and delivery by the Company of, and the
performance by the Company of its obligations under the Transaction
Documents will not contravene (i) any provision of applicable law, (ii)
the certificate of incorporation or by-laws of the
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Company, as amended to date, (iii) any agreement or other instrument
binding upon the Company or any of its Subsidiaries, or (iv) any judgment,
order or decree of any governmental body, agency or court having
jurisdiction over the Company or any of its Subsidiaries, except with
respect to clauses (i) and (iii) to the extent that any contravention
would not have a Material Adverse Effect on the Company and its
Subsidiaries, taken as a whole, and no consent, approval, authorization or
order of, or qualification with, any governmental body or agency is
required for the performance by the Company of its obligations under the
Transaction Documents, except (x) such as may be required by the
securities or Blue Sky laws of the various states in connection with the
offer and sale of the Shares, (y) such as may be required by federal and
state securities laws with respect to the Company's obligations under any
of the Transaction Documents, and (z) for any consents, approvals,
authorizations, orders or qualifications, the failure to obtain which
would not have a Material Adverse Effect on the ability of the Company to
perform its obligations under the Transaction Documents.
(j) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its Subsidiaries, taken as a whole (a
"Material Adverse Effect"), from that set forth in the Prospectus
(exclusive of any amendments or supplements thereto subsequent to the date
of this Agreement). Furthermore, (i) other than the transactions
contemplated hereby, the Company and its Subsidiaries have not incurred
any material liability or obligation, direct or contingent, nor entered
into any material transaction not in the ordinary course of business; (ii)
the Company has not purchased any of its outstanding capital stock, nor
declared, paid or otherwise made any dividend or distribution of any kind
on its capital stock other than ordinary and customary dividends; and (3)
there has not been any material change in the capital stock, short-term
debt or long-term debt of the Company and its consolidated Subsidiaries,
taken as a whole, except in each case as described in the Prospectus.
(k) There are no legal or governmental proceedings pending or, to
the knowledge of the Company, threatened to which the Company or any of
its Subsidiaries is or may be a party, or to which any of the properties
of the Company or any of its Subsidiaries is or may be subject that are
required to be described in the Registration Statement or the Prospectus
and are not so described, or any statutes, regulations, contracts or other
documents that are required to be described in the Registration Statement
or the Prospectus or to be filed as exhibits to the Registration Statement
that are not described or filed as required, except to the extent that
such proceeding, statute, regulation, contract or other document is not
reasonably likely to have a Material Adverse Effect on the Company and its
Subsidiaries, taken as a whole,
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or on the power or ability of the Company to perform its obligations under
any of the Transaction Documents or to consummate the transactions
contemplated by the Registration Statement or the Prospectus.
(l) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or
filed pursuant to Rule 424 under the Securities Act, complied when so
filed in all material respects with the Securities Act and the applicable
rules and regulations of the Commission thereunder.
(m) The Company is not and, after giving effect to the offering and
sale of the Shares and the application of the proceeds thereof as
described in the Prospectus under the caption "Use of Proceeds," will not
be an "investment company" as such term is defined in the Investment
Company Act of 1940, as amended.
(n) The Company and its Subsidiaries (i) are in compliance with any
and all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), (ii) have received all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct
their respective businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required
permits, licenses or other approvals or failure to comply with the terms
and conditions of such permits, licenses or approvals would not, singly or
in the aggregate, have a Material Adverse Effect on the Company and its
Subsidiaries, taken as a whole.
(o) There are no costs or liabilities associated with Environmental
Laws (including, without limitation, any capital or operating expenditures
required for clean-up, closure of properties or compliance with
Environmental Laws or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to third
parties) which would, singly or in the aggregate, have a Material Adverse
Effect on the Company and its Subsidiaries, taken as a whole.
(p) Except as described in the Prospectus, the Company and its
Subsidiaries (i) have all necessary consents, authorizations, approvals,
orders, certificates and permits of and from, and have made all
declarations and filings with, all federal, state, local and other
governmental, administrative or regulatory authorities, all
self-regulatory organizations and all courts and other tribunals, to own,
lease, license and use their properties and assets and to conduct their
business in the manner described in the Prospectus, except to the extent
that the failure to obtain such consents, authorizations, approvals,
orders, certificates or permits or make such declarations or
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filings would not have a Material Adverse Effect on the Company and its
Subsidiaries, taken as a whole; and (ii) have not received any notice of
proceedings relating to the violation, revocation or modification of any
such license, consent, authorization, approval, order, certificate or
permit which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would reasonably be expected to have a
Material Adverse Effect on the Company and its Subsidiaries, taken as a
whole.
(q) The Company and its Subsidiaries have good and marketable title
in fee simple to all real property and good and marketable title to all
personal property owned by them which is material to the business of the
Company and its Subsidiaries, taken as a whole, in each case free and
clear of all liens, encumbrances and defects except (i) such as are
reflected in the Company's financial statements or are described in the
Prospectus; (ii) such as do not materially affect the value of such
property and do not interfere with the use made and proposed to be made of
such property by the Company and its Subsidiaries; or (iii) such as do not
have a Material Adverse Effect on the Company and its Subsidiaries, taken
as a whole; and any real property and buildings held under lease by the
Company and its Subsidiaries are held by them under valid, binding and
enforceable leases with such exceptions as are not material and do not
materially interfere with the use made and proposed to be made of such
property and buildings by the Company and its Subsidiaries, in each case
except as described in or contemplated by the Prospectus.
(r) The Company and its Subsidiaries own or possess, or can acquire
on reasonable terms, all material patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks and trade names
currently employed by them in connection with the business now operated by
them, and, except as set forth in the Prospectus, neither the Company nor
any of its Subsidiaries has received any notice of infringement of or
conflict with asserted rights of others with respect to any of the
foregoing which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would be reasonably likely to
have a Material Adverse Effect on the Company and its Subsidiaries, taken
as a whole.
(s) No material labor dispute with the employees of the Company or
any of its Subsidiaries exists, except as described in or contemplated by
the Prospectus, or, to the knowledge of the Company, is imminent, and the
Company is not aware of any existing, threatened or imminent labor
disturbance by the employees of any of its principal suppliers,
manufacturers or contractors that might reasonably be expected to have a
Material Adverse Effect on the Company and its Subsidiaries, taken as a
whole.
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(t) (i) The Company and its Subsidiaries are insured against such
losses and risks and in such amounts as the Company reasonably believes
are prudent and customary in the businesses in which they are engaged;
(ii) neither the Company nor any such Subsidiary has been refused any
insurance coverage sought or applied for; and (iii) neither the Company
nor any such Subsidiary has any reason to believe that it will not be able
to renew its existing insurance coverage as and when such coverage expires
or to obtain similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not have a Material Adverse
Effect on the Company and its Subsidiaries, taken as a whole, except as
described in or contemplated by the Prospectus.
(u) The Company and its Subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or
specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability; (iii)
access to assets is permitted only in accordance with management's general
or specific authorization; and (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(v) The Company has reviewed its operations and that of its
Subsidiaries to evaluate the extent to which the business or operations of
the Company or any of its Subsidiaries will be affected by the Year 2000
Problem (that is, any significant risk that computer hardware or software
applications used by the Company and its Subsidiaries will not, in the
case of dates or time periods occurring after December 31, 1999, function
at least as effectively as in the case of dates or time periods occurring
prior to January 1, 2000); as a result of such review, (i) the Company has
no reason to believe, and does not believe, that (A) there are any issues
related to the Company's preparedness to address the Year 2000 Problem
that are of a character required to be described or referred to in the
Registration Statement or Prospectus which have not been accurately
described in the Registration Statement or Prospectus and (B) with respect
to the systems of the Company and its Subsidiaries, the Year 2000 Problem
will have a material adverse effect on the condition, financial or
otherwise, or on the earnings, business or operations of the Company and
its Subsidiaries, taken as a whole, or result in any material loss or
interference with the business or operations of the Company and its
Subsidiaries, taken as a whole; and (ii) the Company reasonably believes,
after due inquiry, that the suppliers, vendors, customers or other
material third parties used or served by the Company and such Subsidiaries
are addressing or will address the Year 2000 Problem in a timely manner,
except to the extent that a failure to address the Year 2000 Problem by
any supplier, vendor, customer or material
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third party would not have a material adverse effect on the condition,
financial or otherwise, or on the earnings, business or operations of the
Company and its Subsidiaries, taken as a whole.
(w) Except as described in the Registration Statement and
Prospectus, there are no contracts, agreements or understandings between
the Company and any person granting such person the right to require the
Company to file a registration statement under the Securities Act with
respect to any securities of the Company or to require the Company to
include such securities with the Shares registered pursuant to the
Registration Statement.
2. REPRESENTATIONS AND WARRANTIES OF THE SELLING STOCKHOLDERS. Each
of the Selling Stockholders represents and warrants to and agrees with each of
the Underwriters that:
(a)This Agreement has been duly executed and delivered by or on
behalf of such Selling Stockholder.
(b) The execution and delivery by such Selling Stockholder of, and
the performance by such Selling Stockholder of its obligations under, this
Agreement and the Power of Attorney and Custody Agreement of such Selling
Stockholder will not contravene (i) any provision of applicable law, (ii)
any agreement or other instrument binding upon such Selling Stockholder,
or (iii) any judgment, order or decree of any governmental body, agency or
court having jurisdiction over such Selling Stockholder, and no consent,
approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by such
Selling Stockholder of its obligations under this Agreement or the Power
of Attorney and Custody Agreement of such Selling Stockholder, except such
as may be required by the securities or Blue Sky laws of the various
states in connection with the offer and sale of the Shares.
(c) Such Selling Stockholder has, and on the Closing Date (defined
below) will have, valid title to the Shares to be sold by such Selling
Stockholder and the legal right and power, and all authorization and
approval required by law, to enter into this Agreement and the Power of
Attorney and Custody Agreement of such Selling Stockholder and to sell,
transfer and deliver the Shares to be sold by such Selling Stockholder.
(d)The Power of Attorney and Custody Agreement of such Selling
Stockholder has been duly executed and delivered by such Selling
Stockholder and is a valid and binding agreement of such Selling
Stockholder, enforceable in accordance with its terms,
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subject to applicable bankruptcy, insolvency or similar laws affecting
creditors' rights generally and general principles of equity.
(e) Delivery of the Shares to be sold by such Selling Stockholder
pursuant to this Agreement will pass title to such Shares free and clear
of any security interests, claims, liens, equities and other encumbrances.
(f) (i) The Registration Statement, when it became effective, did
not contain and, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, (ii) to the knowledge of the respective
Selling Stockholder, the Registration Statement and the Prospectus comply
and, as amended or supplemented, if applicable, will comply in all
material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder and (iii) the Prospectus does not
contain and, as amended or supplemented, if applicable, will not contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, it being
understood and agreed that the representations and warranties set forth in
this paragraph 2(f) apply only to statements in or omissions from the
Registration Statement or the Prospectus based upon information relating
to any such Selling Stockholder furnished to the Company in writing by
such Selling Stockholder expressly for use therein.
In addition to the foregoing provisions of this Section 2, Xxxxxx
Xxxxxxxxx represents and warrants to and agrees with each of the Underwriters
that Schedule I to the opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx,
acting as counsel to Xxxxxx Xxxxxxxxx, dated the Closing Date, will, on such
date be a true and complete list of all material agreements or other instrument
binding upon Xxxxxx Xxxxxxxxx.
3. AGREEMENTS TO SELL AND PURCHASE. Each Seller, severally and not
jointly, hereby agrees to sell to the several Underwriters, and each
Underwriter, upon the basis of the representations and warranties herein
contained, but subject to the conditions hereinafter stated, agrees, severally
and not jointly, to purchase from such Seller at $ a share (the
"Purchase Price") the number of Firm Shares (subject to such adjustments to
eliminate fractional shares as you may determine) that bears the same proportion
to the number of Firm Shares to be sold by such Seller as the number of Firm
Shares set forth in Schedules I and II hereto opposite the name of such
Underwriter bears to the total number of Firm Shares.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company and Xxxxxx
Xxxxxxxxx agree, jointly and severally, to sell to the U.S. Underwriters the
Additional Shares, and the U.S. Underwriters shall
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have a one-time right to purchase, severally and not jointly, up to 705,000
Additional Shares at the Purchase Price. If the U.S. Representatives, on behalf
of the U.S. Underwriters, elect to exercise such option, the U.S.
Representatives shall so notify Xxxxxx Xxxxxxxxx and the Company in writing not
later than 30 days after the date of this Agreement, which notice shall specify
the number of Additional Shares to be purchased by the U.S. Underwriters and the
date on which such shares are to be purchased. Such date may be the same as the
Closing Date (as defined below) but not earlier than the Closing Date nor later
than ten business days after the date of such notice. Additional Shares may be
purchased as provided in Section 5 hereof solely for the purpose of covering
over-allotments made in connection with the offering of the Firm Shares. If any
Additional Shares are to be purchased, each U.S. Underwriter agrees, severally
and not jointly, to purchase the number of Additional Shares (subject to such
adjustments to eliminate fractional shares as the U.S. Representatives may
determine) that bears the same proportion to the total number of Additional
Shares to be purchased as the number of U.S. Firm Shares set forth in Schedule I
hereto opposite the name of such U.S. Underwriter bears to the total number of
U.S. Firm Shares.
The Company hereby agrees that, without the prior written consent of
Xxxxxx Xxxxxxx & Co. Incorporated on behalf of the Underwriters, it will not,
during the period ending 120 days after the date of the Prospectus, (i) offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any
shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock, or (ii) enter into any swap or other arrangement
that transfers to another, in whole or in part, any of the economic consequences
of ownership of the Common Stock, whether any such transaction described in
clause (i) or (ii) above is to be settled by delivery of Common Stock or such
other securities, in cash or otherwise. The foregoing sentence shall not apply
to (A) the Shares to be sold hereunder, (B) the issuance by the Company of
shares of Common Stock upon the exercise of an option or warrant or the
conversion of a security outstanding on the date hereof of which the
Underwriters have been advised in writing or (C) transactions by any person
other than the Company relating to shares of Common Stock or other securities
acquired in open market transactions after the completion of the offering of the
Shares.
4. TERMS OF PUBLIC OFFERING. The Sellers are advised by you that the
Underwriters propose to make a public offering of their respective portions of
the Shares as soon after the Registration Statement and this Agreement have
become effective as in your judgment is advisable. The Sellers are further
advised by you that the Shares are to be offered to the public initially at
U.S.$ a share (the "Public Offering Price") and to certain dealers
selected by you at a price that represents a concession not in excess of
U.S.$ a share under the Public Offering Price, and that any Underwriter
may allow, and such dealers may reallow, a concession, not in excess of
U.S.$ a share, to any Underwriter or to certain other dealers.
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5. PAYMENT AND DELIVERY. Payment for the Firm Shares to be sold by
each Seller shall be made, (i) if to the Company, to the account of the Company,
and (ii) if to a Selling Stockholder, to the relevant custodian of such Selling
Stockholder, in accordance with the provisions of the applicable Power of
Attorney and Custody Agreement, in Federal or other funds immediately available
in New York City against delivery of such Firm Shares for the respective
accounts of the several Underwriters at a closing to be held at the offices of
Shearman & Sterling, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, at 10:00 a.m.,
New York City time, on June , 1999, or at such other time on the same or
such other date, not later than July , 1999, as shall be designated in
writing by you. The time and date of such payment are hereinafter referred to as
the "Closing Date."
Payment for any Additional Shares shall be made, (i) if to the
Company, to the account of the Company, and/or (ii) if to Xxxxxx Xxxxxxxxx, to
the custodian of Xxxxxx Xxxxxxxxx, in accordance with the provisions of the
applicable Power of Attorney and Custody Agreement, in Federal or other funds
immediately available in New York City against delivery of such Additional
Shares for the respective accounts of the several Underwriters at a closing to
be held at the offices of Shearman & Sterling, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx, at 10:00 a.m., New York City time, on the date specified in the notice
described in Section 2 or at such other time on the same or on such other date,
in any event not later than August , 1999, as shall be designated in writing
by the U.S. Representatives. The time and date of such payment are hereinafter
referred to as the "Option Closing Date."
Certificates for the Firm Shares and Additional Shares shall be in
definitive form and registered in such names and in such denominations as you
shall request in writing not later than one full business day prior to the
Closing Date or the Option Closing Date, as the case may be. The certificates
evidencing the Firm Shares and Additional Shares shall be delivered to you on
the Closing Date or the Option Closing Date, as the case may be, for the
respective accounts of the several Underwriters, with any transfer taxes payable
in connection with the transfer of the Shares to the Underwriters duly paid,
against payment of the Purchase Price therefor.
6. CONDITIONS TO THE UNDERWRITERS' OBLIGATIONS. The obligations of
the Sellers to sell the Shares to the Underwriters and the several obligations
of the Underwriters to purchase and pay for the Shares on the Closing Date are
subject to the condition that the Registration Statement shall have become
effective not later than 5:00 p.m. on June , 1999 (New York City time) on
the date hereof.
The several obligations of the Underwriters are subject to the
following further conditions:
13
(a) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or
of any review for a possible change that does not indicate the
direction of the possible change, in the rating accorded to any of
the Company's securities by any "nationally recognized statistical
rating organization," as such term is defined for purposes of Rule
436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations of the Company
and its Subsidiaries, taken as a whole, from that set forth in the
Prospectus (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement) that, in your judgment, is
material and adverse and that makes it, in your judgment,
impracticable to market the Shares on the terms and in the manner
contemplated in the Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer of
the Company, to the effect set forth in Section 6(a)(i) above and to the
effect that the representations and warranties of the Company contained in
this Agreement are true and correct as of the Closing Date and that the
Company has complied with all of the agreements and satisfied all of the
conditions on its part to be performed or satisfied hereunder on or before
the Closing Date.
The officer signing and delivering such certificate may rely upon
the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an
opinion of Xxxxxx Xxxx & Xxxxxx LLP, outside counsel to the Company, dated
the Closing Date, to the effect set forth in Exhibit C.
(d) The Underwriters shall have received on the Closing Date the
opinions of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx, dated the Closing
Date, to the effect set forth in Exhibit E, and Xxxxxx Xxxx & Xxxxxx LLP,
dated the Closing Date, to the effect set forth in Exhibit D, in their
respective capacities as counsels for the several Selling Stockholders.
14
With respect to Section 6(d) above, Xxxxxx Xxxx & Xxxxxx LLP and
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx, in their respective capacities
as counsels for the several Selling Stockholders, may rely upon an opinion
or opinions of counsel for any Selling Stockholder and, with respect to
factual matters and to the extent such counsel deems appropriate, upon the
representations of each Selling Stockholder contained herein and in the
Power of Attorney and Custody Agreement of such Selling Stockholder and in
other documents and instruments; PROVIDED that (A) each such counsel for
the Selling Stockholders is satisfactory to your counsel, (B) a copy of
each opinion so relied upon is delivered to you and is in form and
substance satisfactory to your counsel, (C) copies of such Power of
Attorney and Custody Agreements and of any such other documents and
instruments shall be delivered to you and shall be in form and substance
satisfactory to your counsel and (D) Xxxxxx Xxxx & Xxxxxx LLP and Xxxx,
Weiss, Rifkind, Xxxxxxx & Xxxxxxxx, if applicable, shall state in their
opinion that they are justified in relying on each such other opinion.
The opinions of Xxxxxx Xxxx & Xxxxxx LLP, as outside counsel to the
Company, and Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx and Xxxxxx Xxxx &
Xxxxxx LLP, in their respective capacities as counsel for Xxxxxx Xxxxxxxxx
and the other Selling Stockholders, respectively, described in Sections
6(c) and 6(d) above (and any opinions of counsel for any Selling
Stockholder referred to in the immediately preceding paragraph) shall be
rendered to the Underwriters at the request of the Company or one or more
of the Selling Stockholders, as the case may be, and shall so state
therein.
(e) The Underwriters shall have received on the Closing Date
opinions of foreign local counsel in Germany, Switzerland, Italy, France,
Belgium, Spain, The Netherlands and the United Kingdom dated the Closing
Date, to the effect set forth in Exhibit F or as to such other form as
agreed to by the Underwriters. Such opinions shall be rendered to the
Underwriters at the request of the Company and shall so state therein.
(f) The Underwriters shall have received on the Closing Date an
opinion of Xxxxxxxx & Forester, LLP, special U.S. communications counsel
to the Company, together with an opinion of Nebraska counsel, each dated
the Closing Date, substantially to the effect set forth in Exhibit G. Such
opinions shall be rendered to the Underwriters at the request of the
Company and shall so state therein.
(g) The Underwriters shall have received on the Closing Date an
opinion of Shearman & Sterling, counsel for the Underwriters, dated the
Closing Date, in form and substance satisfactory to you.
15
(h) The Underwriters shall have received, on each of the date hereof
and the Closing Date, a letter dated the date hereof or the Closing Date,
as the case may be, in form and substance satisfactory to the
Underwriters, from KPMG LLP, independent public accountants, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements
and certain financial information contained in the Registration Statement
and the Prospectus; PROVIDED that the letter delivered on the Closing Date
shall use a "cut-off date" not earlier than the date hereof.
(i) The "lock-up" agreements, each substantially in the form of
Exhibit A hereto, between you and the Selling Stockholders (other than
Xxxxxx Xxxxxxxxx), executive officers and directors of the Company
relating to sales and certain other dispositions of shares of Common Stock
or certain other securities, delivered to you on or before the date
hereof, shall be in full force and effect on the Closing Date.
(j) The "lock-up" agreement between Xxxxxx Xxxxxxxxx and the
Company, dated June 4, 1999, shall be in full force and effect on the
Closing Date and shall not have been amended, supplemented or modified
without the consent of Xxxxxx Xxxxxxx & Co. Incorporated.
(k) The Shares shall have been approved for quotation on the Nasdaq
National Market, subject only to official notice of issuance.
(l) The representations and warranties of each Selling Stockholder
contained in this Agreement shall be true and correct as of the Closing
Date and each Selling Stockholder shall have complied with all of the
agreements and satisfied all of the conditions on its part to be performed
or satisfied hereunder on or before the Closing Date. The Underwriters
shall have received on the Closing Date certificates dated the Closing
Date and signed by the Selling Stockholders or by their attorneys-in-fact
to the effect set forth above.
(m) The Underwriters shall have received on the Closing Date, a
certificate of an executive officer of the Company that provides that
there are no material misstatements or omissions with respect to the
"Management" and "Certain Transactions" sections of the Prospectus, in
form and substance satisfactory to Xxxxxx Xxxxxxx & Co.
Incorporated.
(n) You shall have received such other documents and certificates as
are reasonably requested by you or your counsel.
16
The several obligations of the U.S. Underwriters to purchase
Additional Shares hereunder are subject to the delivery to the U.S.
Representatives on the Option Closing Date of such documents as they may
reasonably request with respect to the good standing of the Company, the due
authorization and issuance of the Additional Shares and other matters related to
the issuance of the Additional Shares.
7. COVENANTS OF THE COMPANY. In further consideration of the
agreements of the Underwriters herein contained, the Company covenants with each
Underwriter as follows:
(a) To furnish to you, without charge, 9 signed copies of the
Registration Statement (including exhibits thereto) and for delivery to
each other Underwriter a conformed copy of the Registration Statement
(without exhibits thereto) and to furnish to you, without charge, in New
York City, prior to 10:00 a.m. New York City time on the business day next
succeeding the date of this Agreement and during the period mentioned in
Section 7(c) below, as many copies of the Prospectus and any supplements
and amendments thereto or to the Registration Statement as you may
reasonably request.
(b) Before amending or supplementing the Registration Statement or
the Prospectus, to furnish to you a copy of each such proposed amendment
or supplement and not to file any such proposed amendment or supplement to
which you reasonably object, and to file with the Commission within the
applicable period specified in Rule 424(b) under the Securities Act any
prospectus required to be filed pursuant to such Rule.
(c) If, during such period after the first date of the public
offering of the Shares as in the opinion of counsel for the Underwriters
the Prospectus is required by law to be delivered in connection with sales
by an Underwriter or dealer, any event shall occur or condition exist as a
result of which it is necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the circumstances
when the Prospectus is delivered to a purchaser, not misleading, or if, in
the opinion of counsel for the Underwriters, it is necessary to amend or
supplement the Prospectus to comply with applicable law, forthwith to
prepare, file with the Commission and furnish, at its own expense, to the
Underwriters and to the dealers (whose names and addresses you will
furnish to the Company) to which Shares may have been sold by you on
behalf of the Underwriters and to any other dealers upon request, either
amendments or supplements to the Prospectus so that the statements in the
Prospectus as so amended or supplemented will not, in the light of the
circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus, as amended or supplemented, will
comply with law.
17
(d) To endeavor to qualify the Shares for offer and sale under the
securities or Blue Sky laws of such jurisdictions as you shall reasonably
request; PROVIDED that in no event shall the Company be obligated to
qualify to do business in any jurisdiction in which it is not now so
qualified or to take any action which would subject it to taxation in any
jurisdiction in which it is not now so subject or to service or process in
suits, other than those arising out of the offering or sale of the Shares
in any jurisdiction in which it is not now so subject.
(e) To make generally available to the Company's security holders
and to you as soon as practicable an earning statement covering the
twelve-month period ending June 30, 2000 that satisfies the provisions of
Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder.
(f) Not to amend, supplement or modify the "lock-up" agreement
between Xxxxxx Xxxxxxxxx and the Company, dated June 4, 1999, without the
prior written consent of Xxxxxx Xxxxxxx & Co. Incorporated on behalf of
the Underwriters, which consent may be granted or withheld at the sole
discretion of Xxxxxx Xxxxxxx & Co. Incorporated on behalf of the
Underwriters.
8. EXPENSES. Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, the Company agrees to
pay or cause to be paid all expenses incident to the performance of its
obligations and the obligations of the Selling Stockholders under this Agreement
including: (i) the preparation of the Registration Statement and the Prospectus
and all amendments and supplements thereto, (ii) the fees, disbursements and
expenses of the Company's counsel and the Company's accountants in connection
with the registration and delivery of the Shares under the Securities Act and
all other fees or expenses in connection with the preparation and filing of the
Registration Statement, any preliminary prospectus, the Prospectus and
amendments and supplements to any of the foregoing, including all printing costs
associated therewith, and the mailing and delivering of copies thereof to the
Underwriters and dealers, in the quantities hereinabove specified, (iii) the
qualification of the Shares under securities or Blue Sky laws in accordance with
the provisions of Section 7(d), including filing fees and the reasonable fees
and disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of any Blue Sky or legal investment memoranda,
(iv) all costs and expenses related to the transfer and delivery of the Shares
to the Underwriters, including any transfer or other taxes payable thereon, (v)
the printing and delivery to the Underwriters in quantities as hereinabove
stated of copies of the Registration Statement and the Prospectus and any
amendments or supplements thereto, (vi) all document production charges and
expenses of counsel to the Underwriters (but not including their fees for
professional services) in connection with the preparation of this Agreement,
(vii) all filing fees and the reasonable fees and disbursements of counsel to
the Underwriters incurred
18
in connection with the review and qualification of the offering of the Shares by
the National Association of Securities Dealers, Inc., (viii) all costs and
expenses incident to listing the Shares on the Nasdaq National Market and the
London Stock Exchange, (ix) the cost of printing certificates representing the
Shares, (x) the costs and charges of any transfer agent, registrar or
depositary, (xi) the costs and expenses of the Company relating to investor
presentations on any "road show" undertaken in connection with the marketing of
the offering, whether by traditional or electronic means, including, without
limitation, expenses associated with the production of road show slides and
graphics, fees and expenses of any consultants engaged in connection with the
road show presentations with the prior approval of the Company, travel and
lodging expenses of the representatives and officers of the Company and any such
consultants, and the cost of any aircraft chartered in connection with the road
show with the prior approval of the Company, and (xii) all other costs and
expenses incident to the performance of the obligations of the Company hereunder
for which provision is not otherwise made in this Section. Each Selling
Stockholder agrees to pay or cause to be paid (i) all taxes, if any, on the
transfer and sale, if any, of the Shares and (ii) all underwriting discounts and
commissions relating to their Shares. In addition, the Company shall not be
liable for the fees, disbursements and expenses of the counsel to Xxxxxx
Xxxxxxxxx. It is understood, however, that except as provided in this Section,
Section 9 entitled "Indemnity and Contribution," and the last paragraph of
Section 11 below, the Underwriters will pay all of their costs and expenses,
including fees and disbursements of their counsel, stock transfer taxes payable
on resale of any of the Shares by them and any advertising expenses connected
with any offers they may make.
9. INDEMNITY AND CONTRIBUTION. (a) The Company agrees to indemnify
and hold harmless each Underwriter, each Selling Stockholder and each person, if
any, who controls any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any amendment thereof,
any preliminary prospectus or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto), or caused
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading;
PROVIDED, HOWEVER, that the Company will not be liable in any such case to the
extent, but only to the extent, that any such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter either directly or
through you expressly for use therein; PROVIDED, FURTHER, that the foregoing
indemnity agreement with respect to any preliminary prospectus shall not inure
to the benefit of any Underwriter from whom the person asserting any such
losses, claims, damages or liabilities
19
purchased Shares, or any person controlling such Underwriter, if a copy of the
Prospectus (as then amended or supplemented if the Company shall have furnished
any amendment or supplement thereto) was not sent or given by or on behalf of
such Underwriter to such person, (i) if such Underwriter shall have received its
copy of the Prospectus with reasonable time for delivery of the Prospectus to
such person, (ii) if required by law to have been so delivered, at or prior to
the written confirmation of the sale of the Shares sold by the Company to such
person, and (iii) if the Prospectus (as so amended or supplemented) would have
cured the defect giving rise to such losses, claims, damages or liabilities.
(b) Each Selling Stockholder agrees, severally and not jointly, to
indemnify and hold harmless each Underwriter, the Company, its directors, its
officers who sign the Registration Statement and each person, if any, who
controls the Underwriter or the Company, as the case may be, within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act,
from and against any and all losses, claims, damages and liabilities (including,
without limitation, any legal or other expenses reasonably incurred in
connection with defending or investigating any such action or claim) caused by
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement or any amendment thereof, any preliminary prospectus
or the Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto), or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, but only with
reference to information relating to such Selling Stockholder furnished in
writing by or on behalf of such Selling Stockholder expressly for use in the
Registration Statement, any preliminary prospectus, the Prospectus or any
amendments or supplements thereto; PROVIDED, HOWEVER, that the foregoing
indemnity agreement with respect to any preliminary prospectus shall not inure
to the benefit of any Underwriter from whom the person asserting any such
losses, claims, damages or liabilities purchased Shares, or any person
controlling such Underwriter, if a copy of the Prospectus (as then amended or
supplemented if the Company shall have furnished any amendment or supplement
thereto) was not sent or given by or on behalf of such Underwriter to such
person, (i) if such Underwriter shall have received its copy of the Prospectus
with reasonable time for delivery of the Prospectus to such person, (ii) if
required by law to have been so delivered, at or prior to the written
confirmation of the sale of the Shares sold by the Company to such person, and
(iii) if the Prospectus (as so amended or supplemented) would have cured the
defect giving rise to such losses, claims, damages or liabilities. In addition,
each Selling Stockholder shall not be liable under this paragraph 9(b) for any
amount which exceeds the aggregate proceeds received by such Selling Stockholder
in connection with the offering of the Shares.
(c) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, the Selling Stockholders, the directors of the
Company, the officers of the Company who sign the Registration Statement and
each person, if any, who controls the
20
Company or any Selling Stockholder within the meaning of either Section 15 of
the Securities Act or Section 20 of the Exchange Act from and against any and
all losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or any amendment thereof, any preliminary prospectus or the Prospectus
(as amended or supplemented if the Company shall have furnished any amendments
or supplements thereto), or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, but only with reference to information
relating to such Underwriter furnished to the Company in writing by such
Underwriter either directly or through you expressly for use in the Registration
Statement, any preliminary prospectus, the Prospectus or any amendments or
supplements thereto.
(d) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to Section 9(a), 9(b) or 9(c), such person (the "indemnified
party") shall promptly notify the person against whom such indemnity may be
sought (the "indemnifying party") in writing and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably satisfactory
to the indemnified party to represent the indemnified party, and any others the
indemnifying party may designate in such proceeding, and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for (i) the fees and expenses of more than one separate firm (in
addition to any local counsel) for all Underwriters and all persons, if any, who
control any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, (ii) the fees and expenses of
more than one separate firm (in addition to any local counsel) for the Company,
its directors, its officers who sign the Registration Statement and each person,
if any, who controls the Company within the meaning of either such Section and
(iii) the fees and expenses of more than one separate firm (in addition to any
local counsel) for all Selling Stockholders and all persons, if any, who control
any Selling Stockholder within the meaning of either such Section, and that all
such fees and expenses shall be reimbursed as they are incurred. In the case of
any such separate firm for the Underwriters and such control persons of any
Underwriters, such firm shall be designated in writing by
21
Xxxxxx Xxxxxxx & Co. Incorporated. In the case of any such separate firm for the
Company, and such directors, officers and control persons of the Company, such
firm shall be designated in writing by the Company. In the case of any such
separate firm for the Selling Stockholders and such control persons of any
Selling Stockholders, such firm shall be designated in writing by the persons
named as attorneys-in-fact for the Selling Stockholders. The indemnifying party
shall not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the second
and third sentences of this paragraph, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 60 days after
receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(e) To the extent the indemnification provided for in Section 9(a), 9(b)
or 9(c) is unavailable to an indemnified party or insufficient in respect of any
losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party or parties on the other hand from the offering of the Shares
or (ii) if the allocation provided by clause 9(e)(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 9(e)(i) above but also the relative
fault of the indemnifying party or parties on the one hand and of the
indemnified party or parties on the other hand in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits
received by the Sellers on the one hand and the Underwriters on the other hand
in connection with the offering of the Shares shall be deemed to be in the same
respective proportions as the net proceeds from the offering of the Shares
(before deducting expenses) received by each Seller and the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover of the Prospectus, bear to the aggregate Public
Offering Price of the Shares. The relative fault of the Sellers on the one hand
and the Underwriters on the other hand shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
22
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Sellers or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Underwriters' respective obligations to
contribute pursuant to this Section 9 are several in proportion to the
respective number of Shares they have purchased hereunder, and not joint.
(f) The Sellers and the Underwriters agree that it would not be just or
equitable if contribution pursuant to this Section 9 were determined by PRO RATA
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in Section 9(e). The amount paid or payable
by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 9, (i) no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the Shares
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission, and (ii) no Selling Stockholder shall be required to
contribute an amount in excess of the amount by which net proceeds of the
offering received by the Selling Stockholder exceeds the amount of any damages
that such Selling Stockholder 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 Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The remedies provided
for in this Section 9 are not exclusive and shall not limit any rights or
remedies which may otherwise be available to any indemnified party at law or in
equity.
(g) The indemnity and contribution provisions contained in this Section 9
and the representations, warranties and other statements of the Company and the
Selling Stockholders contained in this Agreement shall remain operative and in
full force and effect regardless of (i) any termination of this Agreement, (ii)
any investigation made by or on behalf of any Underwriter or any person
controlling any Underwriter, any Selling Stockholder or any person controlling
any Selling Stockholder, or the Company, its officers or directors or any person
controlling the Company and (iii) acceptance of and payment for any of the
Shares.
10. TERMINATION. This Agreement shall be subject to termination by
notice given by you to the Company, if (a) after the execution and delivery of
this Agreement and prior to the Closing Date (i) trading generally shall have
been suspended or materially limited on or by, as the case may be, any of the
New York Stock Exchange, the American Stock Exchange, the National Association
of Securities Dealers, Inc., the Chicago Board of Options Exchange, the
23
Chicago Mercantile Exchange or the Chicago Board of Trade, (ii) trading of any
securities of the Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in your judgment, is material and adverse, and (b) in the case of any of
the events specified in clauses 10(a)(i) through 10(a)(iv), such event, singly
or together with any other such event, makes it, in your judgment, impracticable
to market the Shares on the terms and in the manner contemplated in the
Prospectus.
11. EFFECTIVENESS; DEFAULTING UNDERWRITERS. This Agreement shall
become effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date or the Option Closing Date, as the case may
be, any one or more of the Underwriters shall fail or refuse to purchase Shares
that it has or they have agreed to purchase hereunder on such date, and the
aggregate number of Shares which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate number of the Shares to be purchased on such date, the other
Underwriters shall be obligated severally in the proportions that the number of
Firm Shares set forth opposite their respective names in Schedule I or Schedule
II bears to the aggregate number of Firm Shares set forth opposite the names of
all such non-defaulting Underwriters, or in such other proportions as you may
specify, to purchase the Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; PROVIDED
that in no event shall the number of Shares that any Underwriter has agreed to
purchase pursuant to this Agreement be increased pursuant to this Section 11 by
an amount in excess of one-ninth of such number of Shares without the written
consent of such Underwriter. If, on the Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Firm Shares and the aggregate
number of Firm Shares with respect to which such default occurs is more than
one-tenth of the aggregate number of Firm Shares to be purchased, and
arrangements satisfactory to you, the Company and the Selling Stockholders for
the purchase of such Firm Shares are not made within 36 hours after such
default, this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter, the Company or the Selling Stockholders. In any such
case either you or the relevant Sellers shall have the right to postpone the
Closing Date, but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and in the Prospectus or
in any other documents or arrangements may be effected. If, on the Option
Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase
Additional Shares and the aggregate number of Additional Shares with respect to
which such default occurs is more than one-tenth of the aggregate number of
Additional Shares to be purchased, the non-defaulting Underwriters shall have
the option to (i) terminate their obligation hereunder to purchase Additional
Shares or (ii) purchase not less than the number of Additional Shares that such
non-defaulting Underwriters would have been obligated to purchase in the absence
of such
24
default. Any action taken under this paragraph shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of any Seller to comply with
the terms or to fulfill any of the conditions of this Agreement, or if for any
reason any Seller shall be unable to perform its obligations under this
Agreement, such Sellers will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder.
12. COUNTERPARTS. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
13. APPLICABLE LAW. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York.
14. HEADINGS. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
15. CONSENT. To the extent that the transactions contemplated by
this Agreement contravene any provision of any prior "lock-up" agreement entered
into between any Selling Stockholder and the Company which is in full force and
effect as of the date hereof (each, an "Existing Lock-Up Agreement"), the
Company hereby consents to all such transaction or transactions by the Selling
Stockholder who is a party to such Existing Lock-Up Agreement.
[The rest of this page is intentionally left blank.]
Very truly yours,
VIATEL, INC.
By:_______________________
Name:
Title:
The Selling Stockholders named in Schedule
III hereto, acting severally:
By:_______________________
Attorney-in-Fact
By:_______________________
Attorney-in-Fact
for Xxxxxx Varsavksy
Accepted as of the date hereof
XXXXXX XXXXXXX & CO. INCORPORATED
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXXX XXXXX BARNEY INC.
ING BARING XXXXXX XXXX LLC
Acting severally on behalf of themselves
and the several U.S. Underwriters
named in Schedule I hereto.
By: Xxxxxx Xxxxxxx & Co. Incorporated
By:___________________________
Name:
Title:
XXXXXX XXXXXXX & CO. INTERNATIONAL LIMITED
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
SALOMON BROTHERS INTERNATIONAL LIMITED
ING BARINGS LIMITED, as agent for ING Bank N.V., London branch
Acting severally on behalf of themselves
and the several International Underwriters
named in Schedule II hereto.
By: Xxxxxx Xxxxxxx & Co. International Limited
By:____________________________
Name:
Title:
SCHEDULE I
U.S. UNDERWRITERS
--------------------------------------------------------------------------------
Number of Firm Shares
Underwriter To Be Purchased
----------- ---------------------
Xxxxxx Xxxxxxx & Co. Incorporated.............
Credit Suisse First Boston Corporation
Xxxxxxx Xxxxx Barney Inc.
ING Baring Xxxxxx Xxxx LLC
Total U.S. Firm Shares.......................
SCHEDULE II
INTERNATIONAL UNDERWRITERS
--------------------------------------------------------------------------------
Number of Firm Shares
Underwriter To Be Purchased
----------- ---------------------
Xxxxxx Xxxxxxx & Co. International Limited
Credit Suisse First Boston (Europe) Limited
Salomon Brothers International Limited
ING Barings Limited
as agent for ING Bank N.V., London branch
Total International Firm Shares......................
SCHEDULE III
SELLING STOCKHOLDERS
--------------------------------------------------------------------------------
Number of Firm Shares
Selling Stockholder To Be Sold
------------------- ---------------------
Xxxxxxx X. Xxxxxxx 70,000
Xxxxx X. Xxxx 5,000
Xxxxxxxx X. Xxxxxx 10,000
Xxxxxxx X. Xxxxxxx 10,000
Xxxxxxx X. Mount 17,000
Xxxxxx Xxxxxxxxx 588,000
--------
TOTAL 700,000
========
EXHIBIT A
[FORM OF LOCK-UP AGREEMENT]
June ___, 1999
XXXXXX XXXXXXX & CO. INCORPORATED
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXXX XXXXX BARNEY INC.
ING BARING XXXXXX XXXX LLC
c/x Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
XXXXXX XXXXXXX & CO. INTERNATIONAL LIMITED
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
SALOMON BROTHERS INTERNATIONAL LIMITED
ING BARINGS LIMITED, as agent for ING Bank N.V., London branch
c/o Morgan Xxxxxxx & Co. International Limited
00 Xxxxx Xxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
England
Dear Sirs and Mesdames:
The undersigned understands that Xxxxxx Xxxxxxx & Co. Incorporated
("Xxxxxx Xxxxxxx") and Xxxxxx Xxxxxxx & Co. International Limited ("MSIL")
propose to enter into an Underwriting Agreement (the "Underwriting Agreement")
with Viatel, Inc., a Delaware corporation (the "Company"), and certain selling
stockholders named therein (the "Selling Stockholders") providing for the public
offering (the "Public Offering") by the several Underwriters, including Xxxxxx
Xxxxxxx and MSIL (the "Underwriters"), of 4,700,000 shares (5,405,000 shares if
the Underwriters' over-allotment option is exercised in full) of common stock,
par value $.01 per share, of the Company (the "Common Stock").
To induce the Underwriters that may participate in the Public
Offering to continue their efforts in connection with the Public Offering, the
undersigned hereby agrees that, without the prior written consent of Xxxxxx
Xxxxxxx on behalf of the Underwriters, he will not, during the period commencing
on the date hereof and ending 120 days after the date of the final prospectus
relating to the Public Offering (the "Prospectus"), (1) offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or
warrant to purchase, lend, or otherwise transfer or dispose of, directly or
indirectly, any shares of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock, or (2) enter into any swap or
other arrangement that transfers to another, in whole or in part, any of the
economic consequences of ownership of the Common Stock, whether any such
transaction described in clause (1) or (2) above is to be settled by delivery of
Common Stock or such other securities, in cash or otherwise. The foregoing
sentence shall not apply to (a) the sale of any Shares to the Underwriters
pursuant to the Underwriting Agreement, or (b) transactions relating to shares
of Common Stock or other securities acquired in open market transactions after
the completion of the Public Offering. In addition, the undersigned agrees that,
without the prior written consent of Xxxxxx Xxxxxxx, on behalf of the
Underwriters, it will not, during the period commencing on the date hereof and
ending 120 days after the date of the Prospectus, make any demand for or
exercise any right with respect to, the registration of any shares of Common
Stock or any security convertible into or exercisable or exchangeable for Common
Stock.
Whether or not the Public Offering actually occurs depends on a
number of factors, including market conditions. Any Public Offering will only be
made pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation among the Company, the Selling Stockholders and the Underwriters.
Very truly yours,
_____________________
(Name)
_____________________
(Address)
EXHIBIT B
SUBSIDIARIES OF VIATEL, INC.
Name of Subsidiary Jurisdiction of Incorporation or Organization
------------------ ---------------------------------------------
Viatel U.K. Limited England and Wales
Viatel Belgium Limited England and Wales
Viatel Spain Limited England and Wales
Viatel (I) Limited England and Wales
Viatel UK Holdings Ltd.
(formerly, Viatel Staines Limited) England and Wales
Viatel Global Communications S.p.A.
(formerly Viaphone S.R.L.) Italy
Viatel S.R.L. Italy
Viatel Operations, S.A. France
Viatel S.A. France
VPN S.A.R.L. France
Viafon Dat Iberica, S.A. Spain
Viatel Global Communications Espana S.A. Spain
Viatel Belgium NV/SA Belgium
Viaphone NV/SA Belgium
Viatel GmbH Germany
Viaphone GmbH Germany
Viatel AG Switzerland
Viaphone AG Switzerland
Viatel Global Communications B.V. Netherlands
Viafoperations Communications B.V. Netherlands
Viacol Ltda. Colombia
Viatel Colombia Management, Inc. Delaware
Viatel Colombia Holdings, Inc. Delaware
Viatel Sales U.S.A., Inc. Delaware
YYC Communications, Inc. Delaware
Viatel Nebraska, Inc. Delaware
Viatel Sweden, Inc. Delaware
Viatel Finland, Inc. Delaware
Viatel Argentina Holdings, Inc. Delaware
Viatel Argentina Management, Inc. Delaware
Viatel Brazil Management, Inc. Delaware
Viatel Brazil Holdings, Inc. Delaware
Viatel Development Company Delaware
Viatel Circe Cable System, Limited Delaware
Viatel Finance Company L.L.C. Delaware
Viatel Global Communications, Ltd. Delaware
Viatel New Jersey, Inc. Delaware
EXHIBIT C
FORM OF OPINION FOR
XXXXXX XXXX & XXXXXX LLP
Pursuant to Section 6(c) of the Underwriting Agreement, Xxxxxx Xxxx
& Xxxxxx LLP shall deliver an opinion to the effect that:
(i) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware with
full corporate power and corporate authority to own its properties and to
conduct its business as described in the Prospectus and is duly qualified
to transact business as a foreign corporation and is in good standing in
each jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not have a
Material Adverse Effect (as defined below) on the Company and its
Subsidiaries (as defined below), taken as a whole.
(ii) The authorized capital stock of the Company conforms as to legal
matters to the description thereof contained in the Prospectus.
(iii) The shares of Common Stock (including the Shares to be sold by the
Selling Stockholders) outstanding prior to the issuance of the Shares to
be sold by the Company have been duly authorized and are validly issued,
fully paid and non-assessable.
(iv) The Shares to be sold by the Company have been duly authorized and,
when issued and delivered in accordance with the terms of the Underwriting
Agreement, will be validly issued, fully paid and non-assessable, and the
issuance of such Shares will not be subject to any preemptive or similar
rights.
(v) The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
(vi) The Power of Attorney and Custody Agreement between the Company and
the Selling Stockholders (other than Xxxxxx Xxxxxxxxx) has been duly
authorized, executed and delivered by the Company, and will constitute a
valid and legally binding obligation of the Company, enforceable against
the Company in accordance with its terms.
(vii) The execution and delivery by the Company of, and the performance by
the Company of its obligations under, the Transaction Documents will not
contravene (i) the DGCL or any U.S. federal or New York State law,
statute, ordinance, rule, regulation, judgment, order or decree applicable
to the Company or any of its assets or properties, whether owned or
leased, (ii) the certificate of incorporation or by-laws of the Company,
as amended to date, (iii) any agreement or other instrument binding upon
the Company or any of its Subsidiaries that is material to the Company and
its Subsidiaries, taken as a whole, or (iv) any judgment, order or decree
of any governmental body, agency or court having jurisdiction over the
Company or any Subsidiary, except, in the case of clauses (i), (iii) and
(iv), for such contraventions which would not have a Material Adverse
Effect on the Company and its Subsidiaries, taken as a whole and, except
(x) as may be required under applicable state securities or Blue Sky laws
of the various states in connection with the offer and sale of the Shares,
no consent, approval, authorization or order of, or qualification with,
any U.S. federal or New York or Delaware state governmental body or agency
is required for the performance by the Company of its obligations under
the Transaction Documents.
(viii) The statements (A) in the Prospectus under the captions "Business
-- Legal Proceedings," "Description of Capital Stock" and "Underwriters"
and (B) in the Registration Statement in Item 15, in each case insofar as
such statements constitute summaries of the legal matters, documents or
proceedings referred to therein, constitute accurate summaries of the
matters described therein in all material respects.
(ix) To the best knowledge of such counsel, there is no legal or
governmental proceeding, now pending or threatened, to which the Company
or any of its Subsidiaries is a party or to which any of the properties of
the Company or any of its Subsidiaries is or may be subject that is
required to be described in the Registration Statement or the Prospectus
and are not so described or of any statutes, regulations, contracts or
other documents that are required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits to the Registration
Statement that are not described or filed as required, or which could
reasonably be expected to have a Material Adverse Effect on the Company
and its Subsidiaries, taken as a whole, or on the ability of the Company
to perform its obligations under the Transaction Documents or to
consummate the transactions contemplated by the Prospectus.
(x) The Company is not and, after giving effect to the offering and sale
of the Shares and the application of the proceeds thereof as described in
the Prospectus, will not be an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended.
(xi) The statements in the Prospectus under the caption "Certain United
States Federal Tax Consequences for Non-U.S. Investors," insofar as such
statements constitute summaries of certain U.S. federal income tax laws
and regulations, constitute accurate summaries of the matters described
therein in all material respects.
(xii) Such counsel (A) is of the opinion that the Registration Statement
and Prospectus (except for financial statements and schedules and other
financial data included therein as to which such counsel need not express
any opinion) comply as to form in all material respects with the
Securities Act and the applicable rules and regulations of the Securities
and Exchange Commission thereunder, (B) has no reason to believe that
(except for financial statements and schedules and other financial data as
to which such counsel need not express any belief) the Registration
Statement and the Prospectus included therein at the time the Registration
Statement became effective contained any untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and (C) has no
reason to believe that (except for financial statements and schedules and
other financial data as to which such counsel need not express any belief)
the Prospectus when issued contained or as of the date such opinion is
delivered contains any untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
EXHIBIT D
FORM OF OPINION FOR
XXXXXX XXXX & XXXXXX LLP
AS COUNSEL FOR CERTAIN SELLING STOCKHOLDERS
Pursuant to Section 6(d) of the Underwriting Agreement, Xxxxxx Xxxx
& Xxxxxx LLP, in its capacity as counsel for certain Selling Stockholders, shall
deliver an opinion to the effect that:
(i) The Underwriting Agreement has been duly executed and delivered by or
on behalf of each of the Selling Stockholders.
(ii) The Power of Attorney and Custody Agreement between the Company and
the Selling Stockholders (other than Xxxxxx Xxxxxxxxx) (together with the
Underwriting Agreement, collectively, the "Transaction Documents") has
been duly executed and delivered by such Selling Stockholders and is a
valid and binding agreement of such Selling Stockholders enforceable in
accordance with its terms.
(iii) The execution and delivery by such Selling Stockholder the
Transaction Documents applicable to such Selling Stockholder, and the
performance by such Selling Stockholder of its obligations under the
Transaction Documents applicable to such Selling Stockholder, will not
contravene (A) the DGCL or any U.S. federal or New York State law,
statute, ordinance, rule, regulation, judgment, order or decree applicable
to such Selling Stockholder or any of its assets or properties, whether
owned or leased, (B) to the best of such counsel's knowledge, any material
agreement or other instrument binding upon the such Selling Stockholder,
or (C) any judgment, order or decree of any federal or New York
governmental body, agency or court having jurisdiction over such Selling
Stockholder and no consent, approval, authorization or order of, or
qualification with, any federal or New York governmental body or agency is
required for the performance by such Selling Stockholder of its
obligations under this Agreement or the Power of Attorney and Custody
Agreement of such Selling Stockholder, except such as may be required by
the securities or Blue Sky laws of the various states in connection with
the offer and sale of the Shares.
(iv) Each of the Selling Stockholders has valid title to the Shares to be
sold by such Selling Stockholder and the legal right and power, and all
authorization and approval required by law, to enter into the Transaction
Documents, and to sell, transfer and deliver the Shares to be sold by such
Selling Stockholder.
(v) Delivery of the Shares to be sold by each Selling Stockholder pursuant
to the Underwriting Agreement will pass title to such Shares free and
clear of any security interests, claims, liens, equities and other
encumbrances, assuming that each Underwriter purchases the Shares in good
faith without notice of any adverse claim.
(vi) With respect to statements or omissions from the Registration
Statement and the Prospectus based upon information relating to any
Selling Stockholder furnished to the Company by such Selling Stockholder,
such counsel (A) is of the opinion that the Registration Statement and the
Prospectus (except for financial statements and schedules and other
financial data included therein as to which such counsel need not express
any opinion) comply as to form in all material respects with the
Securities Act and the applicable rules and regulations of the Securities
and Exchange Commission thereunder, (B) has no reason to believe that
(except for financial statements and schedules and other financial data as
to which such counsel need not express any belief) the Registration
Statement and the prospectus included therein at the time the Registration
Statement became effective contained any untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and (C) has no
reason to believe that (except for financial statements and schedules and
other financial data as to which such counsel need not express any belief)
the Prospectus when issued contained or as of the date such opinion is
delivered contains any untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
EXHIBIT E
FORM OF OPINION
FOR
XXXX, WEISS, RIFKIND, XXXXXXX & XXXXXXXX
Pursuant to Section 6(d) of the Underwriting Agreement, Xxxx, Weiss,
Rifkind, Xxxxxxx & Xxxxxxxx, as counsel to Xxxxxx Xxxxxxxxx, a Selling
Stockholder (the "Selling Stockholder"), shall deliver an opinion to the effect
that:
(i) The Underwriting Agreement and the Power of Attorney and Custody
Agreement entered into by the Selling Stockholder (collectively, the
"Transaction Documents") have been duly executed and delivered by or on
behalf of the Selling Stockholder.
(ii) The execution and delivery by such Selling Stockholder of the
Transaction Documents applicable to such Selling Stockholder, and the
performance by such Selling Stockholder of its obligations under the
Transaction Documents, will not violate (A) the DGCL or any U.S. federal
or New York State law, statute, ordinance, rule or regulation thereunder
which, in the experience of such counsel, are normally applicable to the
transactions contemplated by the Transaction Documents (the "Applicable
Law"), or any judgment, order or decree of any governmental body, agency
or court known to such counsel to be applicable to the Selling Stockholder
or any of his assets or properties or (B) any material agreement or other
instrument binding upon the such Selling Stockholder which has been
identified to such counsel as such by such and is listed on Schedule I to
the opinion1, and no consent, approval, authorization or order of, or
qualification with, any federal or New York governmental body or agency is
required for the performance by such Selling Stockholder of its
obligations under this Agreement or the Power of Attorney and Custody
Agreement of such Selling Stockholder, except (x) such as may be required
by the securities or Blue Sky laws of the various states in connection
with the offer and sale of the Shares and (y) such as may be required by
federal and state securities laws with respect to the such Selling
Stockholder's obligations under the this Agreement or the Power of
Attorney and Custody Agreement of such Selling Stockholder.
(iii) The Power of Attorney and Custody Agreement of each Selling
Stockholder has been duly executed and delivered by such Selling
Stockholder and is a valid and binding agreement of such Selling
Stockholder enforceable in accordance with its terms.
(iv) Upon delivery of the Shares to be sold by the Selling Stockholder and
payment of the purchase price for such Shares pursuant to the Underwriting
Agreement, the Underwriters will acquire good and valid title to such
Shares free and clear of any security interests, claims, liens, equities
and other encumbrances (collectively, the "Liens"), except for any Liens
created by them.
(v) Solely with respect to statements or omissions from the Registration
Statement and the Prospectus based upon information relating to any
Selling Stockholder furnished to the Company by such Selling Stockholder,
although we have not independently verified the accuracy or completeness
of, or otherwise verified the statements made in the Registration
Statement and the Prospectus (other than as expressly provided above),
nothing has come to our attention that has led us to believe that the
Registration Statement and the Prospectus (A) except for financial
statements and schedules and other financial data as to which such counsel
need not express any belief, failed to comply as to form in all material
respects with the Securities Act and the applicable rules and regulations
of the Commission thereunder, (B) except for financial statements and
schedules and other financial data as to which such counsel need not
express any belief, the Registration Statement and the Prospectus included
therein at the time the Registration Statement became effective contained
any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading and (C) except for financial statements and
schedules and other financial data as to which such counsel need not
express any belief, the Prospectus when issued contained, or as of the
date such opinion is delivered contains, any untrue statement of a
material fact or omitted or omits to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
In connection with the opinion in paragraphs (i) and (iii) above,
counsel to the Selling Stockholder may assume that the Power of Attorney and
Custody Agreement have been duly executed and delivered under the laws of Spain.
In connection with the opinion in paragraph (iv) above, counsel to
the Selling Stockholder may assume that the Underwriters have no knowledge or
notice of any "adverse claim" to the Shares within the meaning of the Uniform
Commercial Code as in effect in the State of New York.
EXHIBIT F
FORM OF FOREIGN LOCAL COUNSEL OPINION
(A) (the "Company") has been duly incorporated, is validly
existing as a company under the laws of [Name of Country], has the corporate
power and authority to own its property and to conduct its business as described
in the Prospectus of Viatel, Inc. dated June , 1999 (the "Prospectus") and
is duly qualified to transact business in each jurisdiction in which the conduct
of its business or its ownership or leasing of property requires such
qualification (except to the extent that the failure to be so qualified would
not in our view have a material adverse effect on the Company and its
subsidiaries taken as a whole).
(B) The Company has no subsidiaries.
(C) The Company has all materially necessary certificates, orders,
permits, licenses, authorizations, consents and approvals of and from, and has
made all declarations and filings with all relevant governmental authorities,
all self-regulatory organizations and all relevant courts and tribunals, to own,
lease, license and use its properties and assets and to conduct its business in
the manner described in the Prospectus, and, to the best of our knowledge, after
due inquiry has not received any notice of proceedings relating to revocation or
modification of any such certificates, orders, permits, licenses,
authorizations, consents or approvals, nor is the Company in violation of, or in
default under, any federal, state, local, national or regional law, regulation,
rule, decree, order or judgment applicable to the Company, the effect of which,
singly or in the aggregate, would have a material adverse effect on the
prospects, condition, financial or otherwise, or in the earnings, business or
operations of the Company, except as described herein or in the Prospectus.
(D) The statements in the Prospectus under the caption "Business --
Government Regulation -- " are accurate in all material respects and
fairly summarize all matters referred to therein.
(E) There are no restrictions (legal, contractual or otherwise) on the
ability of the Company to declare and pay any dividend or make any payment or
transfer of property or assets to its stockholders other than those described in
the Prospectus and such restrictions as would not have a material adverse effect
on the prospects, condition, financial or otherwise, or in the earnings,
business or operations of the Company and such descriptions, if any, fairly
summarize such restrictions.
EXHIBIT G
FORM OF U.S. REGULATORY COUNSEL OPINION
Pursuant to Section 6(f) of the Underwriting Agreement, Xxxxxxxx &
Xxxxxxxx LLP, U.S. communications counsel for the Company, shall furnish an
opinion to the effect that:
(A) (1) the execution and delivery of the Underwriting Agreement by the
Company and the consummation of the transactions contemplated thereby do not
violate (i) the Federal Communications Act of 1934, as amended, the
Telecommunications Act of 1996, or any rules or regulations of the Federal
Communications Commission ("FCC") applicable to the Company (collectively,
the "Communications Act"), (ii) any state telecommunications law, rules or
regulations ("State Law") applicable to the Company, and (iii) to the best of
such counsel's knowledge, any decree from any court, and (2) no consent,
approval, authorization or order of or filing with the FCC or any state
authority overseeing telecommunications matters ("State Authority"), is
necessary for the execution and delivery of the Underwriting Agreement by the
Company and except to the extent that the failure to obtain such consents,
approvals, authorizations or orders or to make filings with, the FCC or any
State Authority would not, individually or in the aggregate, have a material
adverse effect on the prospects, condition (financial or otherwise) or in the
earnings, business or operations of the Company and the subsidiaries listed
in Exhibit B to the Underwriting Agreement (the "Subsidiaries") taken as a
whole;
(B) except as indicated in this paragraph B, to the best of our knowledge,
(1) the Company and its Subsidiaries have made all reports and filings, and
paid all fees, required by the FCC and the State Authorities, and have all
certificates, orders, permits, licenses, authorizations, consents and
approvals of and from, and have made all filings and registrations, with the
FCC and the State Authorities necessary to own, lease, license and use its
properties and assets and to conduct its respective business in the manner
described in the Prospectus, except for those filings, fees, and approvals
the failure to obtain or file of which would not have material adverse effect
on the financial condition, or on the earnings, business, or operations of
the Company and its Subsidiaries, taken as a whole; (2) has not received any
notice of proceedings relating to the violation, revocation or modification
of any such certificates, orders, permits, licenses, authorizations, consents
or approvals, or the qualification or rejection of any such filing or
registration, the effect of which, singly or in the aggregate, would have a
material adverse effect on the prospects, condition, financial or otherwise,
or in the earnings, business or operations of the Company, taken as a whole;
and (3) neither the Company nor its Subsidiaries is in violation of, or in
default under, the Communications Act or State Law, the effect of which,
singly or in the aggregate, would have a material adverse effect on the
prospects,
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its Subsidiaries, taken as a whole;
(C) to the best of such counsel's knowledge after due inquiry (i) no
adverse judgment, decree or order of the FCC or any State Authority has been
issued against the Company or its Subsidiaries and (ii) no litigation,
proceeding, inquiry or investigation has been commenced or threatened against
the Company or its Subsidiaries before or by the FCC or any State Authority
which, if decided adversely to the interests of the Company or its
Subsidiaries would have a material adverse effect on the Company and its
Subsidiaries, taken as a whole; and
(D) the statements in the Prospectus under the captions "Risk Factors --
We Are Subject to Substantial Government Regulation Which May Affect Our
Ability to Offer Certain Services and Which May Be Changed in a Manner
Adverse to Viatel" and "Business -- Government Regulation," insofar as such
statements constitute a summary of the legal matters, documents or
proceedings of the FCC and State Authorities with respect to
telecommunications regulation referred to therein, fairly summarize the
matters referred to therein.
