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Exhibit 1.1
Shares
IMPSAT FIBER NETWORKS, INC.
Common Stock, Par Value $0.01 Per Share
UNDERWRITING AGREEMENT
, 2000
2
, 2000
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx, Sachs & Co.
Xxxxxxx Xxxxx Xxxxxx Inc.
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
IMPSAT Fiber Networks, Inc., a Delaware corporation (the
"COMPANY"), proposes to issue and sell to the several Underwriters (as defined
below) shares of its common stock, par value $0.01 per share (the
"FIRM SHARES").
It is understood that, subject to the conditions hereinafter
stated, the Firm Shares will be sold to the several Underwriters named in
Schedule I hereto (the "UNDERWRITERS") in connection with the initial public
offering and sale of such Firm Shares. Xxxxxx Xxxxxxx & Co. Incorporated,
Xxxxxxx, Sachs & Co. and Xxxxxxx Xxxxx Xxxxxx Inc. shall act as representatives
(the "REPRESENTATIVES") of the several Underwriters.
The Company also proposes to issue and sell to the several
Underwriters not more than an additional shares of its common stock,
[par value $ per share][no par value] (the "ADDITIONAL SHARES") if and to the
extent that the Representatives shall have determined to exercise, on behalf of
the Underwriters, the right to purchase such shares of common stock granted to
the Underwriters in Section 2 hereof. The Firm Shares and the Additional Shares
are hereinafter collectively referred to as the "SHARES". The shares of common
stock, par value $0.01 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 has filed with the Securities and Exchange
Commission (the "COMMISSION") a registration statement relating to the Shares.
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 prospectus in the form first
used to confirm sales of Shares is hereinafter referred to as the "PROSPECTUS".
If the Company has filed an abbreviated registration statement to register
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additional shares of Common Stock pursuant to Rule 462(b) under the Securities
Act (the "RULE 462 REGISTRATION STATEMENT"), then any reference herein to the
term "Registration Statement" shall be deemed to include such Rule 462
Registration Statement.
As part of the offering contemplated by this Agreement, the
Underwriters have agreed to reserve out of the Shares set forth opposite each of
their names on Schedule I to this Agreement, up to shares, for sale to the
Company's employees, officers, and directors and other parties associated with
the Company (collectively, "PARTICIPANTS"), as set forth in the Prospectus under
the heading "Underwriting" (the "DIRECTED SHARE PROGRAM"). The Shares to be sold
by the Underwriters pursuant to the Directed Share Program (the "DIRECTED
SHARES") will be sold by the Underwriters pursuant to this Agreement at the
public offering price. Any Directed Shares not orally confirmed for purchase by
any Participants by the end of the business day on which this Agreement is
executed will be offered to the public by the Underwriters as set forth in the
Prospectus.
1. Representations and Warranties. 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 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 do not apply to statements
or omissions in the Registration Statement or the Prospectus, both, as
amended or supplemented, if applicable, based upon information relating
to any Underwriter furnished to the Company in writing by such
Underwriter through you expressly for use therein.
(c) The Company has been duly incorporated, is
validly existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described
in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business
or its ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be in
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good standing would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole. All of the shares of capital
stock of the Company's subsidiaries owned by the Company have been duly
and validly authorized and issued, are fully paid and non-assessable
and are owned by the Company, free and clear of all liens,
encumbrances, equities or claims.
(d) Each subsidiary of the Company has been duly
incorporated, is validly existing under the laws of the jurisdiction of
its incorporation, has the corporate power and authority to own its
property and to conduct its business as described in the Prospectus and
is duly qualified to transact business 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 have a material adverse effect on such
subsidiary. IMPSAT S.A. ("IMPSAT ARGENTINA") is a 95.2% owned
subsidiary of the Company, IMPSAT S.A. ("IMPSAT COLOMBIA") is a 74.2%
owned subsidiary of the Company, IMPSATel del Ecuador S.A. ("IMPSAT
ECUADOR") is a wholly owned subsidiary of the Company, IMPSAT S.A. de
C.V. ("IMPSAT MEXICO") is a 99.9% owned subsidiary of the Company,
Telecomunicaciones IMPSAT S.A. ("IMPSAT VENEZUELA") is a 75% owned
subsidiary of the Company and IMPSAT Comunicacoes Ltda. ("IMPSAT
BRAZIL") is a 99.9% owned subsidiary of the Company.
(e) This Agreement has been duly authorized, executed
and delivered by the Company.
(f) The authorized, issued and outstanding capital
stock of the Company conforms to the description thereof contained in
the Prospectus.
(g) The shares of Common Stock outstanding prior to
the issuance of the Shares have been duly authorized and are validly
issued, fully paid and nonassessable.
(h) The Shares have been duly authorized and, when
issued and delivered in accordance with the terms of this Agreement,
will be validly issued, fully paid and nonassessable, 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, this Agreement
will not contravene any provision of applicable law, the certificate of
incorporation or bylaws of the Company, as amended to date, 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 (except to the extent that any such contravention
would not have a Material Adverse Effect on the Company and its
subsidiaries, taken as a whole), or any judgment, order or decree of
any governmental body, agency or court having jurisdiction over the
Company or any subsidiary; and no consent, approval, authorization or
order of, or qualification with, any governmental body
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or agency is required for the performance by the Company of its
obligations under this Agreement, except (x) 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 this Agreement and (y)
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.
(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, from that set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this
Agreement).
(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 a party or to which any of the
properties of the Company or any of its subsidiaries is subject that
are required to be described in the Registration Statement or the
Prospectus and are not so described, 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.
(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
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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 cleanup, 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) 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) 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; (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 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; and (iii) nothing has come to
the attention of the Company as of the date hereof, after due inquiry,
that any Year 2000 Problems have occurred that (A) could 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 or (B) 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.
(q) Except as disclosed in the Registration Statement
and the 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
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to include such securities with the Shares registered pursuant to the
Registration Statement (or any such right has been waived).
(r) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus,
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.
(s) The Company and its subsidiaries have good and
marketable title in fee simple to all real property and good title to
all personal property owned by them which is material to the business
of the Company and its subsidiaries, in each case free and clear of all
liens, encumbrances and defects except such as are described in the
Prospectus or such as do not materially affect the value of such
property and do not materially interfere with the use made and proposed
to be made of such property by the Company and its subsidiaries; and
any real property and buildings held under lease by the Company and its
subsidiaries are held by them under valid, subsisting 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 the Prospectus.
(t) 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 described 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 have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(u) 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 could have a material
adverse effect on the Company and its subsidiaries, taken as a whole.
(v) The Company and each of its subsidiaries are
insured by insurers of recognized financial responsibility against such
losses and risks and in such amounts as the Company reasonably believes
are prudent and customary in the businesses in which they are engaged;
neither the Company nor any such subsidiary has been refused any
insurance coverage sought or applied for; and neither the Company nor
any such subsidiary has any
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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 the Prospectus.
(w) The Company and each of its subsidiaries keep
accurate books and records reflecting their assets and 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 consolidated 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.
Furthermore, the Company represents and warrants to the
Underwriters that (i) the Registration Statement, the Prospectus and any
preliminary prospectus comply, and any further amendments or supplements thereto
will comply, with any applicable laws or regulations of foreign jurisdictions in
which the Prospectus or any preliminary prospectus, as amended or supplemented,
if applicable, are distributed in connection with the Directed Share Program,
and that (ii) no authorization, approval, consent, license, order, registration
or qualification of or with any government, governmental instrumentality or
court, other than such as have been obtained, is necessary under the securities
laws and regulations of foreign jurisdictions in which the Directed Shares are
offered outside the United States.
The Company has not offered, or caused to the Underwriters to
offer, Shares to any person pursuant to the Directed Share Program with the
specific intent to unlawfully influence (i) a customer or supplier of the
Company to alter the customer's or supplier's level or type of business with the
Company, or (ii) a trade journalist or publication to write or publish favorable
information about the Company.
2. Agreements to Sell and Purchase. The Company 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 the
Company the respective number of Firm Shares set forth in Schedules I and II
hereto opposite its names at U.S.$ a share ("PURCHASE PRICE").
On the basis of the representations and warranties contained
in this Agreement, and subject to its terms and conditions, the Company agrees
to sell to the Underwriters the Additional Shares, and the Underwriters shall
have a one-time right to purchase, severally and not jointly, up to
Additional Shares at the Purchase Price. If the Representatives, on behalf of
the Underwriters, elect to exercise such option, the Representatives shall so
notify the Company in writing not later than 30 days after the date of this
Agreement, which notice shall specify the number
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of Additional Shares to be purchased by the 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 4 hereof solely for the purpose of covering
overallotments made in connection with the offering of the Firm Shares. If any
Additional Shares are to be purchased, each Underwriter agrees, severally and
not jointly, to purchase the number of Additional Shares (subject to such
adjustments to eliminate fractional shares as the Representatives may determine)
that bears the same proportion to the total number of Additional Shares to be
purchased as the number of Firm Shares set forth in Schedule I hereto opposite
the name of such Underwriter bears to the total number of 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 180 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 or (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.
3. Terms of Public Offering. The Company is 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 Company is
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.
4. Payment and Delivery. Payment for the Firm Shares shall be
made to the account of the Company 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 10:00 a.m., New York City
time, on , 2000, or at such other time on the same or such other date, not
later than , 2000, 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 to the Company
in Federal or other funds immediately available in New York City against
delivery of such Additional Shares for the
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respective accounts of the several Underwriters 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 ,
2000, 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.
5. Conditions to the Underwriters' Obligations. The obligation
of the Company 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 (New York City time) on the date hereof.
The several obligations of the Underwriters are subject to the
following further conditions:
(a) Subsequent to the execution and delivery of this
Agreement and prior to the Closing Date:
(i) there shall not have occurred any
downgrading, nor shall any notice have been given of any
intended or potential downgrading or of any review for a
possible change that does not indicate the direction of the
possible change, in the rating accorded any of the Company's
securities by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule
436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any
change, or any development involving a prospective change, in
the condition, financial or otherwise, or in the earnings,
business or operations of the Company and its subsidiaries,
taken as a whole, from that set forth in the 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
5(a)(i) above and to the effect that the representations and warranties
of the
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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 & Xxxxxx, special U.S. counsel for
the Company, dated the Closing Date, to the effect set forth in Exhibit
B.
The opinion of Xxxxxx & Xxxxxx as set forth in
Exhibit B shall be rendered to the Underwriters at the request of the
Company and shall so state therein.
(d) The Underwriters shall have received on the
Closing Date an opinion of Nicolson & Xxxx, Argentine counsel for the
Company and IMPSAT Argentina, dated the Closing Date, to the effect set
forth in Exhibit C.
(e) The Underwriters shall have received on the
Closing Date an opinion of Xxxxxxxxxxxx & Xxxxxxxxx, Colombian counsel
for IMPSAT Colombia, dated the Closing Date, to the effect set forth in
Exhibit D.
(f) The Underwriters shall have received on the
Closing Date an opinion of Xxxxx Xxxxxxxxxx & Xxxxx, Ecuadoran counsel
for IMPSAT Ecuador, dated the Closing Date, to the effect set forth in
Exhibit E.
(g) The Underwriters shall have received on the
Closing Date an opinion of Xxxxxx, Ringe & Xxxxxx, Mexican counsel for
IMPSAT Mexico, dated the Closing Date, to the effect set forth in
Exhibit F.
(h) The Underwriters shall have received on the
Closing Date an opinion of Xxxxxxxxxx & Xxxxxx, Venezuelan counsel for
IMPSAT Venezuela, dated the Closing Date, to the effect set forth in
Exhibit G.
(i) The Underwriters shall have received on the
Closing Date an opinion of Xxxxxxxx Neto, Brazilian counsel for IMPSAT
Brazil, dated the Closing Date, to the effect set forth in Exhibit H.
(j) The Underwriters shall have received on the
Closing Date an opinion of Xxxxxx & Xxxxxxx, U.S. regulatory counsel
for the Company, dated the Closing Date, to the effect set forth in
Exhibit I.
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Each of the opinions referred to in clauses (d) through (j)
shall be rendered to the Underwriters at the request of the Company and
shall so state therein.
(k) 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.
(l) 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 Deloitte & Touche 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.
(m) The "lockup" agreements, each substantially in
the form of Exhibit A hereto, between you and certain shareholders,
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.
(n) The Common Stock shall have been approved for
trading on the Nasdaq National Market, subject only to official notice
of issuance.
(o) You shall have received such other documents and
certificates as are reasonably requested by you or your counsel.
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.
6. 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, four 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
in New York City, without charge, 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 6(c) below, as many copies of
the Prospectus and any supplements and amendments thereto or to the
Registration Statement as you may reasonably request.
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(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 in your judgment 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.
(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 of 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 , 2001 that satisfies
the provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder.
(f) Whether or not the transactions contemplated in
this Agreement are consummated or this Agreement is terminated, to pay
or cause to be paid all expenses incident to the performance of its
obligations under this Agreement, including: (i) the fees,
disbursements and expenses of the Company's counsel and the Company's
accountants in connection with the registration and delivery of the
Shares under the Securities Act and all other fees or expenses in
connection with the preparation and filing of the Registration
Statement, any preliminary prospectus, the Prospectus and amendments
and supplements to any of the foregoing, including all printing costs
associated therewith, and the mailing and
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delivering of copies thereof to the Underwriters and dealers, in the
quantities hereinabove specified, (ii) all costs and expenses related
to the transfer and delivery of the Shares to the Underwriters,
including any transfer or other taxes payable thereon, (iii) the cost
of producing any Blue Sky memorandum in connection with the offer and
sale of the Shares under state securities laws and all expenses in
connection with the qualification of the Shares for offer and sale
under state securities laws as provided in Section 6(d) hereof,
including filing fees and the reasonable fees and disbursements of
counsel for the Underwriters in connection with such qualification and
in connection with the preparation of any Blue Sky memorandum, (iv) all
filing fees and the reasonable fees and disbursements of counsel to the
Underwriters incurred in connection with the review and qualification
of the offering of the Shares by the National Association of Securities
Dealers, Inc., (v) all fees and expenses in connection with the
preparation and filing of the registration statement on Form 8-A
relating to the Common Stock and all costs and expenses incident to
listing the Shares on the Nasdaq National Market, (vi) the cost of
printing certificates representing the Shares, (vii) the costs and
charges of any transfer agent, registrar or depositary, (viii) the
costs and expenses of the Company relating to investor presentations on
any "road show" undertaken in connection with the marketing of the
offering of the Shares, 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 (ix) all other costs and expenses incident to the performance of
the obligations of the Company hereunder for which provision is not
otherwise made in this Section. It is understood, however, that except
as provided in this Section, Section 7 entitled "Indemnity and
Contribution", and the last paragraph of Section 9 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.
(g) That, in connection with the Directed Share
Program, the Company will ensure that the Directed Shares will be
restricted to the extent required by the National Association of
Securities Dealers, Inc. (the "NASD") or the NASD rules from sale,
transfer, assignment, pledge or hypothecation for a period of three
months following the date of the effectiveness of the Registration
Statement. The Underwriters will notify the Company as to which
Participants will need to be so restricted. The Company will direct the
transfer agent to place stop transfer restrictions upon such securities
for such period of time.
(h) To pay all reasonable fees and disbursements of
counsel incurred by the Underwriters in connection with the Directed
Share Program and stamp duties, similar taxes or duties or other taxes,
if any, incurred by the Underwriters in connection with the Directed
Share Program.
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Furthermore, the Company covenants with the Underwriters that
the Company will comply with all applicable securities and other applicable
laws, rules and regulations in each foreign jurisdiction in which the Directed
Shares are offered in connection with the Directed Share Program.
7. Indemnity and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the 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,
except insofar as such losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue statement or omission based
upon information relating to any Underwriter furnished to the Company in writing
by such Underwriter through you expressly for use therein.
(b) Each Underwriter agrees, severally and not
jointly, to indemnify and hold harmless the Company, its directors, its
officers who sign the Registration Statement and each person, if any,
who controls the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as
the foregoing indemnity from the Company to such Underwriter, but only
with reference to information relating to such Underwriter furnished to
the Company in writing by such Underwriter through you expressly for
use in the Registration Statement, any preliminary prospectus, the
Prospectus or any amendments or supplements thereto.
(c) 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 7(a) or
7(b), 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
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of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local
counsel) for all such indemnified parties and that all such fees and
expenses shall be reimbursed as they are incurred. Such firm shall be
reasonably satisfactory to Xxxxxx Xxxxxxx & Co. Incorporated, in the
case of parties indemnified pursuant to Section 7(a), and reasonably
satisfactory to the Company, in the case of parties indemnified
pursuant to Section 7(b). The indemnifying party shall not be liable
for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify
the indemnified party from and against any loss or liability by reason
of such settlement or judgment. Notwithstanding the foregoing sentence,
if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and
expenses of counsel as contemplated by the second and third sentences
of this paragraph, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30
days after receipt by such indemnifying party of the aforesaid request
and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of
such settlement. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending
or threatened proceeding in respect of which any indemnified party is
or could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on
claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in
Section 7(a) or 7(b) 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 Company on the one hand and the Underwriters on the other hand
from the offering of the Shares or (ii) if the allocation provided by
clause 7(d)(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 7(d)(i) above but also the relative fault of the
Company on the one hand and of the Underwriters 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 Company
on the one hand and the Underwriters on the other hand in connection
with the offering of the Shares shall be deemed to be in the same
respective proportions as the net proceeds from the offering of the
Shares (before deducting expenses) received by the Company and the
total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover of
the Prospectus, bear to the aggregate Public Offering Price of the
Shares. The relative fault of the Company on the one hand and the
Underwriters on the other hand shall
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17
be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are
several in proportion to the respective number of Shares they have
purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it
would not be just or equitable if contribution pursuant to this Section
7 were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations
referred to in Section 7(d). 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 7, 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. 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
7 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.
(f) The indemnity and contribution provisions
contained in this Section 7 and the representations, warranties and
other statements of the Company 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 or
by or on behalf of the Company, its officers or directors or any person
controlling the Company and (iii) acceptance of and payment for any of
the Shares.
8. Directed Share Program Indemnification. (a) The Company
agrees to indemnify and hold harmless Xxxxxx Xxxxxxx & Co. Incorporated, its
affiliates and each person, if any, who controls Xxxxxx Xxxxxxx & Co.
Incorporated or its affiliates within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act ("XXXXXX XXXXXXX ENTITIES"),
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) (i) caused
by any untrue statement or alleged untrue statement of a material fact contained
in any material prepared by or with the consent of the Company for distribution
to
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Participants in connection with the Directed Share Program, 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; (ii)
caused by the failure of any Participant to pay for and accept delivery of
Directed Shares that the Participant has agreed to purchase; or (iii) related
to, arising out of, or in connection with the Directed Share Program other than
losses, claims, damages or liabilities (or expenses relating thereto) that are
finally judicially determined to have resulted from the bad faith or gross
negligence of Xxxxxx Xxxxxxx Entities.
(b) In case any proceeding (including any
governmental investigation) shall be instituted involving any Xxxxxx
Xxxxxxx Entity in respect of which indemnity may be sought pursuant to
Section 8(a), the Xxxxxx Xxxxxxx Entity seeking indemnity shall
promptly notify the company in writing and the Company, upon request of
the Xxxxxx Xxxxxxx Entity, shall retain counsel reasonably satisfactory
to the Xxxxxx Xxxxxxx Entity to represent the Xxxxxx Xxxxxxx Entity and
any other the Company may designate in such proceeding and shall pay
the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any Xxxxxx Xxxxxxx Entity shall have the right
to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such Xxxxxx Xxxxxxx Entity unless (i) the
Company shall have agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties)
include both the Company and the Xxxxxx Xxxxxxx Entity and
representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between
them. The Company shall not, in respect of the legal expenses of the
Xxxxxx Xxxxxxx Entities in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local
counsel) for all Xxxxxx Xxxxxxx Entities. Any such firm for the Xxxxxx
Xxxxxxx Entities shall be designated in writing by Xxxxxx Xxxxxxx & Co.
Incorporated. The Company 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
Company agrees to indemnify the Xxxxxx Xxxxxxx Entities from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time a Xxxxxx Xxxxxxx
Entity shall have requested the Company to reimburse it for fees and
expenses of counsel as contemplated by the second and third sentences
of this paragraph, the Company agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if
(i) such settlement is entered into more than 30 days after receipt by
the Company of the aforesaid request and (ii) the Company shall not
have reimbursed the Xxxxxx Xxxxxxx Entity in accordance with such
request prior to the date of such settlement. The Company shall not,
without the prior written consent of Xxxxxx Xxxxxxx & Co. Incorporated,
effect any settlement of any pending or threatened proceeding in
respect of which any Xxxxxx Xxxxxxx Entity is or could have been a
party and indemnity could have been sought hereunder by such Xxxxxx
Xxxxxxx Entity, unless such settlement includes an unconditional
release of the Xxxxxx Xxxxxxx Entities from all liability on claims
that are the subject matter of such proceeding.
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(c) To the extent the indemnification provided for in
Section 8(a) is unavailable to a Xxxxxx Xxxxxxx Entity or insufficient
in respect of any losses, claims, damages or liabilities referred to
therein, then the Company, in lieu of indemnifying the Xxxxxx Xxxxxxx
Entity thereunder, shall contribute to the amount paid or payable by
the Xxxxxx Xxxxxxx Entity 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 Company on the one hand and the
Xxxxxx Xxxxxxx Entities on the other hand from the Offering of the
Directed Shares or (ii) if the allocation provide by clause 8(c)(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 8(c)(i) above but also the relative fault of the Company on the
one hand and of the Xxxxxx Xxxxxxx Entities on the other hand in
connection with the statements or omissions that results in such
losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Company
on the one hand and of the Xxxxxx Xxxxxxx Entities on the other hand in
connection with the offering of the Directed Shares shall be deemed to
be in the same respective proportions as the net proceeds from the
offering of the Directed Shares (before deducting expenses) and the
total underwriting discounts and commissions received by the Xxxxxx
Xxxxxxx Entities for the Directed Shares, bear to the aggregate Public
Offering Price of the Shares. If the loss, claim, damage or liability
is caused by an untrue or alleged untrue statement of a material fact,
the relative fault of the Company on the one hand and the Xxxxxx
Xxxxxxx Entities on the other hand shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement or
the omission or alleged omission relates to information supplied by the
company or by the Xxxxxx Xxxxxxx Entities and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
(d) The Company and the Xxxxxx Xxxxxxx Entities agree
that it would not be just or equitable if contribution pursuant to this
Section 8 were determined by pro rata allocation (even if the Xxxxxx
Xxxxxxx Entities 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 8(c). The amount paid or payable
by the Xxxxxx Xxxxxxx Entities 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 the
Xxxxxx Xxxxxxx Entities in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this
Section 8, no Xxxxxx Xxxxxxx Entity shall be required to contribute any
amount in excess of the amount by which the total price at which the
Directed Shares distributed to the public were offered to the public
exceeds the amount of any damages that such Xxxxxx Xxxxxxx Entity has
otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. The remedies provided
for in this Section 8 are not exclusive and shall not limit any rights
or remedies which may otherwise be available to any Xxxxxx Xxxxxxx
Entity at law or in equity.
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(e) The indemnity and contribution provisions
contained in this Section 8 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 Xxxxxx Xxxxxxx Entity or
the Company, its officers or directors or any person controlling the
Company and (iii) acceptance of and payment for any of the Directed
Shares.
9. 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 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 8(a)(i) through 8(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.
10. 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 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 9 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 and
the Company 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 or the Company. In any such case either you or
the Company 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
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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
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 the Company to
comply with the terms or to fulfill any of the conditions of this Agreement, or
if for any reason the Company shall be unable to perform its obligations under
this Agreement, the Company 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.
11. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
12. Applicable Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York.
13. 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.
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Please confirm your agreement to the foregoing by signing in
the space provided below for that purpose and returning to us a copy hereof,
whereupon this Agreement shall constitute a binding agreement between us.
Very truly yours,
IMPSAT FIBER NETWORKS, INC.
By: ___________________________________
Name:
Title:
By: ___________________________________
Name:
Title:
Accepted as of the date hereof
XXXXXX XXXXXXX & CO. INCORPORATED
XXXXXXX, SACHS & CO.
XXXXXXX XXXXX XXXXXX INC.
Acting severally on behalf of themselves and the several Underwriters named in
Schedule I hereto.
By: Xxxxxx Xxxxxxx & Co. Incorporated
By: ___________________________________
Name:
Title:
23
SCHEDULE I
UNDERWRITERS
NUMBER OF
FIRM SHARES
UNDERWRITER TO BE PURCHASED
----------- ---------------
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx, Sachs & Co.
Xxxxxxx Xxxxx Xxxxxx Inc.
---------------
Total Firm Shares ..............
===============
24
EXHIBIT A
[FORM OF LOCK-UP LETTER]
, 2000
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx, Sachs & Co.
Xxxxxxx Xxxxx Xxxxxx Inc.
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
The undersigned understands that Xxxxxx Xxxxxxx & Co. Incorporated
("XXXXXX XXXXXXX") propose to enter into an Underwriting Agreement (the
"UNDERWRITING AGREEMENT") with IMPSAT Fiber Networks, Inc., a Delaware
corporation (the "COMPANY") providing for the initial public offering (the
"PUBLIC OFFERING") by the several Underwriters, including Xxxxxx Xxxxxxx (the
"UNDERWRITERS") of [ ] shares ([ ] shares if the Underwriters' over-allotment
option is exercised in full) (the "SHARES") of the common stock, par value
$0.01 per share (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, it will not, during the period commencing
on the date hereof and ending 180 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
25
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 [180] 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 between the Company and the Underwriters. It is understood that, if
the Underwriting Agreement is not executed, or if the Underwriting Agreement
shall terminate or be terminated prior to payment for and delivery of the Common
Stock subject thereof, this lock-up agreement shall automatically terminate and
be of no force or effect.
Very truly yours,
-------------------------
(Name)
-------------------------
(Address)
A-2
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EXHIBIT B
Opinion of Xxxxxx & Xxxxxx
(A) the Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property and to
conduct its business as described in the Prospectus;
(B) the authorized, issued and outstanding capital stock of the Company
conforms to the description thereof contained in the Prospectus;
(C) the shares of Common Stock outstanding prior to the issuance of the
Shares have been duly authorized and are validly issued, fully paid and
nonassessable;
(D) the Shares have been duly authorized and, when issued and delivered
in accordance with the terms of this Agreement, will be validly issued, fully
paid and nonassessable, and the issuance of such Shares will not be subject to
any preemptive or similar rights;
(E) the discussion set forth in the Prospectus, under the caption
"Certain U.S. Federal Income Tax Considerations to Non-U.S. Holders" to the
extent such discussion constitutes matters of law or legal conclusions,
accurately describes the material United States federal income tax consequences
of an investment in the Shares;
(F) this Agreement has been duly authorized, executed and delivered by
the Company;
(G) the execution and delivery by the Company of, and the performance
by the Company of its obligations under this Agreement and the issuance, sale
and delivery of the Shares, will not result in a breach or violation of any of
the terms or provisions of, or constitute a default under, (i) the certificate
of incorporation or bylaws of the Company, as amended to date, (ii) to such
counsel's knowledge, any statute, rule, regulation or order of general
applicability of any United States federal, New York or Delaware governmental
agency, body or court, (iii) to such counsel's knowledge, any judgment, decree
or order of any United States federal, New York or Delaware governmental agency,
body or court or (iv) any of the agreements or instruments listed in Schedule 1
hereto;
(H) the statements (i) in the Prospectus under the captions
"Description of Capital Stock", "Underwriters" and "Description of Our
Indebtedness" and (ii) in the Registration Statement in Items 14 and 15, in each
case insofar as such statements constitute summaries of the legal matters,
documents or proceedings referred to therein, fairly present the information
called for with respect to such legal matters, documents and proceedings and
fairly summarize the matters referred to therein in all material respects;
(I) after due inquiry, such counsel does not know of any legal or
governmental proceedings pending or threatened in the United States to which the
Company or any of its
27
subsidiaries is a party or to which any of the properties of the Company or any
of its subsidiaries is subject other than proceedings fairly summarized in the
Prospectus and proceedings which such counsel believes are not likely to have a
material adverse effect on the Company and its subsidiaries, taken as a whole,
or on the power or ability of the Company to perform its obligations under this
Agreement or to consummate the transactions contemplated by this Agreement;
(J) 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;
(K) such counsel (i) is of the opinion that the Registration Statement
and Prospectus (except for financial statements and schedules and other
financial and statistical 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 Commission
thereunder, (ii) has no reason to believe that (except for financial statements
and schedules and other financial and statistical 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 (iii) has no reason to believe that (except for financial
statements and schedules and other financial and statistical 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.
With respect to paragraph (K) above, Xxxxxx & Xxxxxx may state that
their opinion and belief are based upon their participation in the preparation
of the Registration Statement and Prospectus and any amendments or supplements
thereto and review and discussion of the contents thereof, but are without
independent check or verification, except as specified.
X-0
00
XXXXXXX X
Xxxxxxx xx Xxxxxxxxx & Xxxx
(X) IMPSAT Argentina has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the Republic of
Argentina, has the corporate power and authority to own its property and to
conduct its business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the Company and its
subsidiaries taken as a whole;
(B) all of the shares of capital stock of IMPSAT Argentina
owned by the Company have been duly and validly authorized and issued and are
fully paid and non-assessable and are directly owned by the Company, free and
clear of all liens, encumbrances, equities or claims;
(C) IMPSAT Argentina has all necessary certificates, orders,
permits, licenses, authorizations, consents and approvals of and from, and has
made all declarations and filings with, all Argentine governmental authorities,
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
IMPSAT Argentina 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 IMPSAT Argentina in violation of,
or in default under, any federal, state, local, foreign supranational, national
or regional law, regulation, rule, decree, order or judgment applicable to
IMPSAT Argentina the effect of which, singly or in the aggregate, would have a
material adverse effect on the prospects, condition, financial or otherwise, or
in the earnings, business or operations of the Company and its subsidiaries,
taken as a whole, except as described in the Prospectus;
(D) the statements in the Prospectus under the caption "Risk
Factors - We face regulatory risks and uncertainty with respect to local laws
and regulations", "Business - Legal Matters " and " Business - Description of
Country Operations - IMPSAT Argentina" in each case insofar as such statements
constitute summaries of the Argentine legal matters, documents or proceedings
referred to therein, are accurate in all material respects and fairly summarize
all matters referred to therein; and
(E) after due inquiry, such counsel does not know of any legal
or governmental proceedings pending or threatened in Argentina to which IMPSAT
Argentina is a party or to which any of the properties of IMPSAT Argentina is
subject other than proceedings fairly summarized in the Prospectus and
proceedings which such counsel believes are not likely to have a material
adverse effect on the Company and its subsidiaries, taken as a whole, or on the
power or ability of the Company to perform its obligations under this Agreement
or to consummate the transactions contemplated by this Agreement.
29
EXHIBIT D
Opinion of Xxxxxxxxxxxx & Xxxxxxxxx
(A) IMPSAT Colombia has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the Republic of
Colombia, has the corporate power and authority to own its property and to
conduct its business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the Company and its
subsidiaries taken as a whole;
(B) all of the shares of capital stock of IMPSAT Colombia
owned by the Company have been duly and validly authorized and issued and are
fully paid and non-assessable and are directly owned by the Company, free and
clear of all liens, encumbrances, equities or claims;
(C) IMPSAT Colombia has all necessary certificates, orders,
permits, licenses, authorizations, consents and approvals of and from, and has
made all declarations and filings with, all Colombian governmental authorities,
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
IMPSAT Colombia 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 IMPSAT Colombia in violation of,
or in default under, any federal, state, local, foreign supranational, national
or regional law, regulation, rule, decree, order or judgment applicable to
IMPSAT Colombia the effect of which, singly or in the aggregate, would have a
material adverse effect on the prospects, condition, financial or otherwise, or
in the earnings, business or operations of the Company and its subsidiaries,
taken as a whole, except as described in the Prospectus;
(D) the statements in the Prospectus under the caption
"Business - Description of Country Operations - IMPSAT Colombia" insofar as such
statements constitute summaries of the Colombian legal matters, documents or
proceedings referred to therein, are accurate in all material respects and
fairly summarize all matters referred to therein;
(E) after due inquiry, such counsel does not know of any legal
or governmental proceedings pending or threatened in Colombia to which IMPSAT
Colombia is a party or to which any of the properties of IMPSAT Colombia is
subject other than proceedings fairly summarized in the Prospectus and
proceedings which such counsel believes are not likely to have a material
adverse effect on the Company and its subsidiaries, taken as a whole, or on the
power or ability of the Company to perform its obligations under this Agreement
or to consummate the transactions contemplated by this Agreement.
30
EXHIBIT E
Opinion of Xxxxx Xxxxxxxxxx & Xxxxx
(A) IMPSAT Ecuador has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the Republic of
Ecuador, has the corporate power and authority to own its property and to
conduct its business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the Company and its
subsidiaries taken as a whole;
(B) all of the shares of capital stock of IMPSAT Ecuador owned
by the Company have been duly and validly authorized and issued and are fully
paid and non-assessable and are directly owned by the Company, free and clear of
all liens, encumbrances, equities or claims;
(C) IMPSAT Ecuador has all necessary certificates, orders,
permits, licenses, authorizations, consents and approvals of and from, and has
made all declarations and filings with, all Ecuadoran governmental authorities,
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
IMPSAT Ecuador 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 IMPSAT Ecuador in violation of, or
in default under, any federal, state, local, foreign supranational, national or
regional law, regulation, rule, decree, order or judgment applicable to IMPSAT
Ecuador the effect of which, singly or in the aggregate, would have a material
adverse effect on the prospects, condition, financial or otherwise, or in the
earnings, business or operations of the Company and its subsidiaries, taken as a
whole, except as described in the Prospectus;
(D) the statements in the Final Prospectus under the caption
"Business Description of Country Operations - IMPSAT Ecuador" insofar as such
statements constitute summaries of the legal matters of Ecuador, documents or
proceedings referred to therein, are accurate in all material respects and
fairly summarize all matters referred to therein;
(E) after due inquiry, such counsel does not know of any legal
or governmental proceedings pending or threatened in Ecuador to which IMPSAT
Ecuador is a party or to which any of the properties of IMPSAT Ecuador is
subject other than proceedings fairly summarized in the Prospectus and
proceedings which such counsel believes are not likely to have a material
adverse effect on the Company and its subsidiaries, taken as a whole, or on the
power or ability of the
31
Company to perform its obligations under this Agreement or to consummate the
transactions contemplated by this Agreement.
32
EXHIBIT F
Opinion of Xxxxxx, Ringe & Xxxxxx
(A) IMPSAT Mexico has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the jurisdiction of
its organization, has the corporate power and authority to own its property and
to conduct its business as described in the Prospectus under the
caption "Business - Description of Country Operations - IMPSAT Mexico" and is
duly qualified to transact business and is in good standing in each Mexican
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 taken as a whole;
(B) all of the shares of capital stock of IMPSAT Mexico owned
by the Company have been duly and validly authorized and issued and are fully
paid and non-assessable and are directly owned by the Company, free and clear of
all liens, encumbrances, equities or claims;
(C) IMPSAT Mexico has all necessary certificates, orders,
permits, licenses, authorizations, consents and approvals of and from, and has
made all declarations and filings with, all Mexican governmental authorities,
all self-regulatory organizations and all courts and tribunals, to own, lease,
license and use its properties and assets and to conduct its business in the
manner described in the Prospectus under the caption "Business - Description of
Country Operations - IMPSAT Mexico" and IMPSAT Mexico 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 IMPSAT Mexico in violation of, or in default under, any federal, state,
local, foreign supranational, national or regional law, regulation, rule,
decree, order or judgment applicable to IMPSAT Mexico the effect of which,
singly or in the aggregate, would have a material adverse effect on the
prospects, condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, except as
described in the Prospectus;
(D) the statements in the Prospectus under the caption
"Business Description of Country Operations - IMPSAT Mexico" insofar as such
statements constitute summaries of the Mexican legal matters, documents or
proceedings referred to therein, are accurate in all material respects and
fairly summarize all matters referred to therein;
(E) after due inquiry, such counsel does not know of any legal
or governmental proceedings pending or threatened in Mexico to which IMPSAT
Mexico is a party or to which any of the properties of IMPSAT Mexico is subject
other than proceedings fairly summarized in the Prospectus and proceedings which
such counsel believes are not likely to have a material adverse effect on the
Company and its subsidiaries, taken as a whole, or on the power or ability of
the Company to perform its obligations under this Agreement or to consummate the
transactions contemplated by this Agreement.
33
EXHIBIT G
Opinion of Xxxxxxxxxx & Xxxxxx
(A) IMPSAT Venezuela has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the jurisdiction of
its organization, has the corporate power and authority to own its property and
to conduct its business as described in the Final Prospectus and is duly
qualified to transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect on the
Company and its subsidiaries taken as a whole;
(B) all of the shares of capital stock of IMPSAT Venezuela
owned by the Company have been duly and validly authorized and issued and are
fully paid and non-assessable and are directly owned by the Company, free and
clear of all liens, encumbrances, equities or claims;
(C) IMPSAT Venezuela has no subsidiaries;
(D) IMPSAT Venezuela, to our better knowledge, has all
necessary certificates, orders, permits, licenses, authorizations, consents and
approvals of and from, and has made all declarations and filings with, all
Venezuelan governmental authorities, all self-regulatory organizations and all
courts and tribunals, to own, lease, license and use its properties and assets
and to conduct its business in the manner described in the Prospectus. Up to
this date, IMPSAT Venezuela 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 IMPSAT Venezuela in
violation of, or in default under, any federal, state, local, foreign
supranational, national or regional law, regulation, rule, decree, order or
judgment applicable to IMPSAT Venezuela 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, except as described in the Prospectus;
(E) the statements in the Prospectus under the captions
(including, without limitation, the description of withholding taxes contained
therein) "Business - Description of Country Operations - IMPSAT Venezuela"
insofar as such statements constitute summaries of the Venezuelan legal matters,
documents or proceedings referred to therein, are accurate in all material
respects and fairly summarize all matters referred to therein;
(F) after due inquiry, such counsel does not know of any legal
or governmental proceedings pending or threatened in Venezuela to which IMPSAT
Venezuela is a party or to which any of the properties of IMPSAT Venezuela is
subject other than proceedings fairly summarized in
34
the Prospectus and proceedings which such counsel believes are not likely to
have a material adverse effect on the Company and its subsidiaries, taken as a
whole, or on the power or ability of the Company to perform its obligations
under this Agreement or to consummate the transactions contemplated by this
Agreement.
G-2
35
EXHIBIT H
Opinion of Xxxxxxxx Xxxx
(A) IMPSAT Comunicacoes Ltda. ("IMPSAT Brazil") has been duly
incorporated, is validly existing as a corporation in good standing under the
laws of Brazil, has the corporate power and authority to own its property and to
conduct its business as described in the Final Memorandum and is duly qualified
to transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the Company and its
subsidiaries as a whole;
(B) all of the shares of capital stock of IMPSAT Brazil owned
by the Company have been duly and validly authorized and issued and are fully
paid and non-assessable and are directly owned by the Company, free and clear of
all liens, encumbrances, equities or claims;
(C) IMPSAT Brazil has all necessary certificates, orders,
permits, licenses, authorizations, consents and approvals of and from, and has
made all declarations and filings with, all Brazilian governmental authorities,
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
IMPSAT Brazil 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 IMPSAT Brazil in violation of, or
in default under, any federal, state, local, foreign supranational, national or
regional law, regulation, rule, decree, order or judgment applicable to IMPSAT
Brazil 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 operation of the Company and its subsidiaries, taken as a
whole, except as described in the Prospectus;
(D) the statements in the Prospectus under the caption
"Business - Description of Country Operations - IMPSAT Brazil" insofar as such
statements constitute summaries of the Brazil legal matters, documents or
proceedings referred to therein, are accurate in all material respects and
fairly summarize all matters referred to therein;
(E) after due inquiry, such counsel does not know of any legal
or governmental proceedings pending or threatened in Brazil to which IMPSAT
Brazil is a party or to which any of the properties of IMPSAT Brazil is subject
other than proceedings fairly summarized in the Prospectus and proceedings which
such counsel believes are not likely to have a material adverse effect on the
Company and its subsidiaries, taken as a whole, or on the power or ability of
the Company to perform its obligations under this Agreement or to consummate the
transactions contemplated by this Agreement.
36
EXHIBIT I
Opinion of Xxxxxx & Xxxxxxx
(A) the execution and delivery by the Company of the
Underwriting Agreement, the Indenture, the Registration Rights Agreement and the
Notes, and the performance by the Company of its obligations thereunder in
accordance with the terms thereof, (i) do not require any consent, approval,
authorization or other order of the Federal Communications Commission ("FCC")
and (ii) do not violate the Federal Communications Act of 1934, as amended (the
"Communications Act") or the rules, regulations and published policies of the
FCC (the "FCC Rules");
(B) IMPSAT USA holds the FCC licenses, permits and
authorizations set forth in Attachment 1 (the "FCC Licenses"). The FCC Licenses
are in full force and effect. The FCC Licenses are not subject to any conditions
outside the ordinary course;
(C) based on such counsel's review of the FCC files relating
to the Company and IMPSAT USA publicly available on , 2000, and informal
and non binding statements and representations of members of staff of the FCC
(together, the "FCC Records"), and to the best of such counsel's knowledge,
there is no pending threatened proceeding or action by or before the FCC to
revoke, cancel, rescind or adversely modify any of the FCC Licenses, except for
proceedings affecting the telecommunications or satellite industries generally;
and
(D) the statements in the Prospectus under the caption
"Business Description of Country Operations - IMPSAT USA" insofar as such
statements constitute summaries relating to U.S. legal matters, documents or
proceedings referred to therein, are accurate in all material respects.
