EXHIBIT 1.1
EXECUTION COPY
Xxxxx 0 Communications, Inc.
Underwriting Agreement
New York, New York
September 14, 1999
Xxxxxxx, Xxxxx & Co.
Xxxxxxx Xxxxx Xxxxxx Inc.
Xxxxx Securities Inc.
Credit Suisse First Boston Corporation
X. X. Xxxxxx Securities Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Xxxxx 0 Xxxxxxxxxxxxxx, Xxx., a corporation organized under the laws
of Delaware (the "Company"), proposes to sell to the several underwriters named
in Schedule I hereto (the "Underwriters"), for whom you (the "Representatives")
are acting as representatives, $750,000,000 aggregate principal amount of its 6%
Convertible Subordinated Notes due 2009 (the "Firm Securities") convertible into
shares of the Company's common stock, $0.01 par value (the "Common Stock"). The
Company also proposes to grant to the Underwriters an option to purchase up to
$112,500,000 additional aggregate principal amount of such notes (the "Option
Securities" and, together with the Firm Securities, the "Securities"). To the
extent there are no additional Underwriters listed on Schedule I other than you,
the term Representatives as used herein shall mean you, as Underwriters, and the
terms Representatives and Underwriters shall mean either the singular or plural
as the context requires. Any reference herein to the Registration Statement,
the Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus
shall be deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 which were filed under the Exchange Act
on or before the Effective Date of the Registration Statement or the issue date
of the Basic Prospectus, any Preliminary Final Prospectus or the Prospectus, as
the case may be; and any reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement, the Basic Prospectus,
any Preliminary Final Prospectus or the Final Prospectus shall be deemed to
refer to and include the filing of any document under the Exchange Act after the
Effective Date of the Registration Statement, or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as the
case may be, deemed to be incorporated therein by reference. Certain terms used
herein are defined in Section 17 hereof.
1. Representations and Warranties. The Company represents and
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warrants to, and agrees with, each Underwriter as set forth below in this
Section 1.
(a) The Company meets the requirements for use of Form S-3 under the
Act and has prepared and filed with the Commission a registration statement
(file
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number 333-68887) on Form S-3, including a related basic prospectus, for
registration under the Act of the offering and sale of the Securities. The
Company may have filed one or more amendments thereto, including a
Preliminary Final Prospectus, each of which has previously been furnished
to you. The Company will next file with the Commission one of the
following: (1) after the Effective Date of such registration statement, a
final prospectus supplement relating to the Securities in accordance with
Rules 430A and 424(b), (2) prior to the Effective Date of such registration
statement, an amendment to such registration statement (including the form
of final prospectus supplement) or (3) a final prospectus in accordance
with Rules 415 and 424(b). In the case of clause (1), the Company has
included in such registration statement, as amended at the Effective Date,
all information (other than Rule 430A Information) required by the Act and
the rules thereunder to be included in such registration statement and the
Final Prospectus. As filed, such final prospectus supplement or such
amendment and form of final prospectus supplement shall contain all Rule
430A Information, together with all other such required information, and,
except to the extent the Representatives shall agree in writing to a
modification, shall be in all substantive respects in the form furnished to
you prior to the Execution Time or, to the extent not completed at the
Execution Time, shall contain only such specific additional information and
other changes (beyond that contained in the Basic Prospectus and any
Preliminary Final Prospectus) as the Company has advised you, prior to the
Execution Time, will be included or made therein.
(b) On the Effective Date, the Registration Statement did or will,
and when the Final Prospectus is first filed (if required) in accordance
with Rule 424(b) and on the Closing Date (as defined herein) and on any
date on which Option Securities are purchased, if such date is not the
Closing Date (a "settlement date"), the Final Prospectus (and any
supplement thereto) will, comply in all material respects with the
applicable requirements of the Act and the Exchange Act and the respective
rules thereunder; on the Effective Date and at the Execution Time, the
Registration Statement did not or will not contain any untrue statement of
a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading; and, on the Effective Date (if the Final Prospectus is not
filed pursuant to Rule 424(b)) or on the date of any filing pursuant to
Rule 424(b) (if the Final Prospectus is filed pursuant to Rule 424(b)) and,
in either case, on the Closing Date and any settlement date, the Final
Prospectus (together with any supplement thereto) will not, include any
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
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however, that the Company makes no representations or warranties as to the
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information contained in or omitted from the Registration Statement or the
Final Prospectus (or any supplement thereto) in reliance upon and in
conformity with information furnished in writing to the Company by or on
behalf of any Underwriter through the Representatives specifically for
inclusion in the Registration Statement or the Final Prospectus (or any
supplement thereto).
(c) Subsequent to the respective dates as of which information is
given in the Final Prospectus, except as set forth or contemplated in the
Final Prospectus, neither the Company nor any of its subsidiaries has
incurred any liabilities or obligations, direct or contingent, which are
material to the Company and its subsidiaries taken as a whole, nor entered
into any transaction not in the ordinary course of business that
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is material to the Company and its subsidiaries taken as a whole, and there
has not been, singularly or in the aggregate, any material adverse change,
in the properties, business, results of operations, financial condition,
affairs or business prospects of the Company and its subsidiaries taken as
a whole (a "Material Adverse Change"). Without limiting the foregoing,
neither the Company nor any of its subsidiaries has sustained since the
respective dates as of which information is given in the Final Prospectus
any loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental or regulatory action, order or decree,
constituting a Material Adverse Change, otherwise than as set forth or
contemplated in the Final Prospectus.
(d) Each of the Company and the Subsidiaries (x) has been duly
organized and is validly existing as a corporation under the laws of its
jurisdiction of organization and is in good standing under the laws of such
jurisdiction, (y) has the requisite corporate power and authority to carry
on its business as it is currently being conducted and as described in the
Final Prospectus, and to own, lease and operate its properties and (z) is
duly qualified and is authorized to do business and is in good standing in
each jurisdiction where the operation, ownership or leasing of property or
the conduct of its business requires such qualification, except where any
failure to be so qualified would not, singularly or when aggregated with
failures to be qualified elsewhere, have a material adverse effect on the
properties, business, results of operations, financial condition, affairs
or business prospects of the Company and its subsidiaries taken as a whole
(a "Material Adverse Effect"). The Company has the requisite corporate
power and authority to execute, deliver and perform this Agreement and to
issue, sell and deliver the Securities. The term "Subsidiary" means each
entity listed on Schedule II hereto.
(e) The Company's authorized equity capitalization is as set forth in
the Final Prospectus; the capital stock of the Company conforms in all
material respects to the description thereof contained in the Final
Prospectus; the outstanding shares of Common Stock have been duly and
validly authorized and issued and are fully paid and nonassessable; the
shares of Common Stock initially issuable upon conversion of the Securities
have been duly and validly authorized and, when issued upon conversion
against payment of the conversion price and in accordance with the terms of
the Indenture (as defined below), will be validly issued, fully paid and
nonassessable; the Board of Directors of the Company or a duly constituted
committee thereof, has duly and validly adopted resolutions reserving such
shares of Common Stock for issuance upon conversion; the holders of
outstanding shares of capital stock of the Company are not entitled to
preemptive or other rights to subscribe for the Securities or the shares of
Common Stock issuable upon conversion thereof; and, except as set forth in
the Final Prospectus and, except for outstanding warrants and options to
purchase shares of Common Stock that in the aggregate represent less than
1% of the Common Stock outstanding on the date hereof, no options, warrants
or other rights to purchase, agreements or other obligations to issue, or
rights to convert any obligations into or exchange any securities for,
shares of capital stock of or ownership interests in the Company are
outstanding. All the outstanding shares of capital stock of each
Subsidiary have been duly and validly authorized and issued and are fully
paid and nonassessable, and, except as otherwise set forth in the Final
Prospectus, all outstanding shares of capital stock of the Subsidiaries are
owned by the Company either directly or through wholly owned
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subsidiaries free and clear of any perfected security interest or any other
security interests, claims, liens or encumbrances.
(f) The Securities have been duly authorized and, when executed by
the Company and authenticated by the Trustee (as defined below) in
accordance with the terms of the Indenture and delivered to and paid for by
the Underwriters in accordance with the terms of this Agreement, will
constitute valid and legally binding obligations of the Company entitled to
the benefits provided by the indenture to be dated as of the Closing Date
(the "Base Indenture") between the Company and IBJ Whitehall Bank & Trust
Company as Trustee (the "Trustee"), as supplemented by the First
Supplemental Indenture to be dated as of the same date (the "Supplemental
Indenture" and, together with the Base Indenture, the "Indenture") under
which they are to be issued. The Base Indenture will be substantially in
the form filed as an exhibit to the Registration Statement; the Indenture
has been duly authorized and duly qualified under the Trust Indenture Act
and, when executed and delivered by the Company and the Trustee, will
constitute a valid and legally binding obligation of the Company,
enforceable in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
other laws of general applicability relating to or affecting creditors'
rights and to general equity principles; and the Securities and the
Indenture will conform to the descriptions thereof in the Prospectus;
(g) There is no franchise, contract or other document of a character
required to be described in the Registration Statement or Final Prospectus,
or to be filed as an exhibit thereto, which is not described or filed as
required; and the statements in the Final Prospectus under the headings
"Business--Regulation" and "Business--Legal Proceedings" fairly summarize
the matters therein described.
(h) This Agreement has been duly authorized, executed and delivered
by the Company.
(i) The Company is not and, after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as
described in the Final Prospectus, will not be an "investment company" as
defined in the Investment Company Act of 1940, as amended.
(j) The execution and delivery of this Agreement, the issuance and
sale of the Securities, the performance by the Company of this Agreement
and the consummation of the other transactions herein contemplated will not
(x) conflict with or result in a breach or violation of any of the
respective charters, by-laws or other organizational documents of the
Company or any of the Subsidiaries, (y) violate or conflict with any
material statute, rule or regulation applicable to the Company or any
Subsidiary or any order or decree of any governmental or regulatory agency
or body or any court having jurisdiction over the Company or any Subsidiary
or any of their respective properties or (z) after giving effect to the
waivers and consents obtained on or prior to the date hereof, if any,
conflict with or result in a breach or violation of any term or provision
of, constitute a default or cause an acceleration of any obligation under,
or result in the imposition or creation of (or the obligation to create or
impose) a lien or other claim or encumbrance with respect to, any bond,
note, debenture or other evidence of indebtedness or any indenture,
mortgage or deed of
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trust or any other material agreement or instrument to which the Company or
any of the Subsidiaries is a party or by which it or any of them is bound,
or to which any properties of the Company or any of the Subsidiaries is or
may be subject. No authorization, approval or consent or order of, or
filing, registration or qualification with, any court or governmental or
regulatory body or agency is required in connection with the transactions
contemplated by this Agreement except as have been made or obtained and
except as may be required by and made with or obtained from state
securities laws or regulations, the National Association of Securities
Dealers, Inc. or, with respect to filing the Final Prospectus with the
Commission in accordance with Rule 424(b) under the Act.
(k) Except as described in the Final Prospectus, there is no action,
suit or proceeding before or by any court, arbitrator or governmental or
regulatory official, agency or body, domestic or foreign, pending against
or affecting the Company or any of its subsidiaries, or any of their
respective properties, that, if determined adversely, is reasonably
expected to affect adversely the issuance of the Securities or in any
manner draw into question the validity of this Agreement or the Securities
or to result, singularly or when aggregated with other pending actions and
actions known to be threatened that are not described in the Final
Prospectus, in a Material Adverse Effect, or that is reasonably expected to
materially and adversely affect the consummation of this Agreement or the
transactions contemplated hereby, and to the best of the Company's
knowledge, no such proceedings are contemplated or threatened.
(l) Neither the Company nor any of the Subsidiaries is or after
giving effect to the issuance of the Securities will be (i) in violation of
its respective charter, bylaws or other organizational documents or (ii) in
default in the performance of any bond, debenture, note or any other
evidence of indebtedness or any indenture, mortgage, deed of trust or other
contract, lease or other instrument to which the Company or any of the
Subsidiaries is a party or by which any of them is bound, or to which any
of the property or assets of the Company or any of the Subsidiaries is
subject, other than such defaults that could not, singularly or in the
aggregate, have a Material Adverse Effect.
(m) The firms of accountants that have certified the consolidated
financial statements and supporting schedules of the Company included or
incorporated by reference in the Final Prospectus are independent public
accountants with respect to the Company and its subsidiaries, as required
by the Act. The consolidated historical statements and any pro forma
information, together with related schedules and notes, if any, included or
incorporated by reference in the Final Prospectus comply as to form in all
material respects with the requirements of the Act. Such historical
financial statements fairly present in all material respects the
consolidated financial position of the Company and its subsidiaries at the
respective dates indicated and the results of their operations and their
cash flows for the respective periods indicated, in accordance with
generally accepted accounting principles, except as otherwise expressly
stated therein, as consistently applied throughout such periods. Such pro
forma information has been prepared on a basis consistent with such
historical financial statements, except for the pro forma adjustments
specified therein, and gives effect to assumptions made on a reasonable
basis and fairly presents in all material respects and gives effect to the
transactions described therein pertaining to such pro forma information.
The other financial and statistical information and data
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included in the Final Prospectus and the Registration Statement, historical
and pro forma, are, in all material respects, accurately presented and
prepared on a basis consistent with such financial statements and the books
and records of the Company.
(n) Each of the Company and the Subsidiaries has all certificates,
consents, exemptions, orders, permits, licenses, authorizations, or other
approvals (each, an "Authorization") of and from, and has made all
declarations and filings with, all Federal, state, local and other
governmental or regulatory bodies or agencies, and all courts and other
tribunals, necessary or required to own, lease, license and use its
properties and assets and to conduct its business as currently operated in
the manner described in the Final Prospectus, except to the extent that the
failure to obtain or file any such Authorizations would not, singularly or
in the aggregate, reasonably be expected to have a material adverse effect
on such business taken as a whole. All such Authorizations are in full
force and effect with respect to the Company and the Subsidiaries, and the
Company and the Subsidiaries are in compliance in all material respects
with the terms and conditions of all such Authorizations and with the rules
and regulations of the regulatory authorities and governing bodies having
jurisdiction with respect thereto.
(o) Except as disclosed in the Final Prospectus, no holder of any
security of the Company has or will have any right to require the
registration of such security by virtue of the offering and sale of the
Securities under this Agreement other than any such right that has been
expressly waived in writing. No holder of any of the outstanding shares of
capital stock of the Company or any other person is entitled to preemptive
or other rights to subscribe for the Securities.
(p) The Company has not taken nor will it take, directly or
indirectly, any action prohibited by Regulation M under the Exchange Act,
in connection with the offering of the Securities.
(q) Other than the Subsidiaries, there is no entity or other person
(i) of which a majority of the voting equity securities or other interests
is owned, directly or indirectly, by the Company and (ii) which held more
than 5% of the total assets of the Company on a consolidated basis as of
June 30,1999, excluding inter-company balances.
(r) Any reprogramming required to permit the proper functioning, in
and following the year 2000, of (a) the computer systems of the Company and
the Subsidiaries and (b) equipment containing embedded microchips of the
Company and the Subsidiaries and the testing of all such systems and
equipment, as so reprogrammed, will be completed by December 31, 1999
except where the failure to do so would not reasonably be expected to
result in a Material Adverse Effect. Except as disclosed in the Final
Prospectus, the cost to the Company and the Subsidiaries of such
reprogramming and testing and of the reasonably foreseeable consequences of
the year 2000 to the Company and the Subsidiaries (other than reprogramming
errors and the failure of others' systems or equipment) is not reasonably
expected by the Company to result in a Material Adverse Effect. Except for
such of the reprogramming referred to in the preceding sentence as may be
necessary, the computer and management information systems of the Company
and the Subsidiaries are and, with ordinary course upgrading and
maintenance, will
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continue to be, sufficient to permit the Company to conduct its businesses
without a Material Adverse Effect.
Any certificate signed by any officer of the Company and delivered to
the Representatives or counsel for the Underwriters in connection with the
offering of the Securities shall be deemed a representation and warranty by the
Company, as to matters covered thereby, to each Underwriter.
2. Purchase and Sale. (a) Subject to the terms and conditions and
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in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at a purchase price of
97.125% of the principal amount thereof, plus accrued interest, if any, from
September 20, 1999 to the Closing Date, the principal amount of Firm Securities
set forth opposite such Underwriters name on Schedule I hereto.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company hereby grants an
option to the several Underwriters to purchase, severally and not jointly, up to
$112,500,000 aggregate principal amount of Option Securities at a purchase price
of 97.125% of the principal amount thereof, plus accrued interest, if any, from
September 20, 1999 to the settlement date for the Option Securities. Said
option may be exercised for the sole purpose of covering sales of securities in
excess of the aggregate principal amount of Firm Securities by the Underwriters.
Said option may be exercised in whole or in part at any time (but not more than
once) on or before the 30th day after the date of the Final Prospectus upon
written or telegraphic notice by the Representatives to the Company setting
forth the number of shares of the Option Securities as to which the several
Underwriters are exercising the option and the settlement date. The principal
amount of Option Securities to be purchased by each Underwriter shall be the
same percentage of the total principal amount of Option Securities to be
purchased by the several Underwriters as such Underwriter is purchasing of the
Firm Securities, subject to such adjustments as you in your absolute discretion
shall deem advisable.
3. Delivery and Payment. Delivery of and payment for the Firm
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Securities and the Option Securities (if the option provided for in Section 2(b)
hereof shall have been exercised on or before the third Business Day prior to
the Closing Date) shall be made at 10:00 AM, New York City time, on September
20, 1999, which date and time may be post poned by agreement between the
Representatives and the Company or as provided in Section 9 hereof (such date
and time of delivery and payment for the Securities being herein called the
"Closing Date"). Delivery of the Securities shall be made to the
Representatives for the respective accounts of the several Underwriters against
payment by the several Underwriters through the Representatives of the purchase
price thereof to or upon the order of the Company by wire transfer payable in
same-day funds to an account specified by the Company. Delivery of the Firm
Securities and the Option Securities shall be made through the facilities of The
Depository Trust Company ("DTC") unless the Representatives shall otherwise
instruct.
If the option provided for in Section 2(b) hereof is exercised after
the third Business Day prior to the Closing Date, the Company will deliver the
Option Securities (at the expense of the Company), through the facilities of DTC
unless the Representatives shall instruct otherwise, on the date specified by
the Representatives in the notice to the Company of their exercise of such
option (which shall be not more than ten nor fewer than three Business Days
after exercise of said option) for the respective accounts of the several
Underwriters, against payment by the several
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Underwriters through the Representatives of the purchase price thereof to or
upon the order of the Company by wire transfer payable in same-day funds to an
account specified by the Company. If settlement for the Option Securities occurs
after the Closing Date, the Company will deliver to the Representatives on the
settlement date for the Option Securities, and the obligation of the
Underwriters to purchase the Option Securities shall be conditioned upon receipt
of, supplemental opinions, certificates and letters confirming as of such date
the opinions, certificates and letters delivered on the Closing Date pursuant to
Section 6 hereof.
4. Offering by Underwriters. It is understood that the several
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Underwriters are to offer the Securities for sale to the public as set forth in
the Final Prospectus.
5. Agreements. The Company agrees with the several Underwriters
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that:
(a) The Company will use its best efforts to cause the Registration
Statement, if not effective at the Execution Time, and any amendment
thereof, to become effective. Prior to the termination of the offering of
the Securities, the Company will not file any amendment of the Registration
Statement or supplement (including the Final Prospectus or any Preliminary
Final Prospectus) to the Basic Prospectus or any Rule 462(b) Registration
Statement unless the Company has furnished you a copy for your review prior
to filing and will not file any such proposed amendment or supplement to
which you reasonably object. Subject to the foregoing sentence, if the
Registration Statement has become or becomes effective pursuant to Rule
430A, or filing of the Final Prospectus is otherwise required under Rule
424(b), the Company will cause the Final Prospectus, properly completed,
and any supplement thereto to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed and
will provide evidence satisfactory to the Representatives of such timely
filing. The Company will promptly advise the Representatives (1) when the
Registration Statement, if not effective at the Execution Time, shall have
become effective, (2) when the Final Prospectus, and any supplement
thereto, shall have been filed (if required) with the Commission pursuant
to Rule 424(b) or when any Rule 462(b) Registration Statement shall have
been filed with the Commission, (3) when, prior to termination of the
offering of the Securities, any amendment to the Registration Statement
shall have been filed or become effective, (4) of any request by the
Commission or its staff for any amendment of the Registration Statement, or
any Rule 462(b) Registration Statement, or for any supplement to the Final
Prospectus or for any additional information, (5) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding
for that purpose and (6) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Securi ties for
sale in any jurisdiction or the institution or threatening of any
proceeding for such purpose. The Company will use its best efforts to
prevent the issuance of any such stop order or the suspension of any such
qualification and, if issued, to obtain as soon as possible the withdrawal
thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Final Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein in the light of the circumstances under
which they were made not misleading, or if it shall be necessary
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to amend the Registration Statement or supplement the Final Prospectus to
comply with the Act or the Exchange Act or the respective rules thereunder,
the Company promptly will (1) notify the Representatives of such event, (2)
prepare and file with the Commission, subject to the second sentence of
paragraph (a) of this Section 5, an amendment or supplement which will
correct such statement or omission or effect such compliance and (3) supply
any supplemented Final Prospectus to you in such quantities as you may
reasonably request.
(c) As soon as practicable, the Company will make generally available
to its security holders an earnings statement or statements of the Company
and its subsidiaries which will satisfy the provisions of Section 11(a) of
the Act and Rule 158 under the Act.
(d) The Company will furnish to each of the Representatives and
counsel for the Underwriters, without charge, a conformed copy of the
Registration Statement (including exhibits thereto) and to each other
Underwriter a copy of the Registration Statement (without exhibits thereto)
and, so long as delivery of a prospectus by an Underwriter or dealer may be
required by the Act, as many copies of each Preliminary Final Prospectus
and the Final Prospectus and any supplement thereto as the Representatives
may reasonably request. The Company will pay the expenses of printing or
other production of all such documents.
(e) The Company will cooperate with the Representatives in arranging,
at the Company's cost, for the qualification of the Securities for sale
under the laws of such jurisdictions as the Representatives may designate
and will maintain such qualifications in effect so long as required for the
sale of the Securities; provided however, that in connection therewith the
Company shall not be required to qualify as a foreign corporation or to
execute a general consent to service of process in any jurisdiction or
subject itself to taxation in excess of a nominal dollar amount in any such
jurisdiction where it is not then subject. The Company promptly will
advise the Representatives of the receipt by it of any notification with
respect to the suspension of the qualification of the Securities for sale
in any jurisdiction or the initiation or threatening of any proceeding for
such purpose.
(f) The Company will not, for a period of 90 days following the
Execution Date, without the prior written consent of Xxxxxxx, Xxxxx & Co.,
offer, sell, contract to sell, issue, announce the offering or issuance of
or otherwise dispose of, directly or indirectly, register, cause to be
registered or announce the registration or intended registration of, in any
case for its own account, any securities of the Company that are
substantially similar to the Securities or any shares of Common Stock,
including any such shares beneficially or indirectly owned or controlled by
the Company, or any securities convertible into or exchangeable for Common
Stock, except for: (A) up to 2,000,000 shares of Common Stock in the
aggregate issued in connection with acquisitions (including by
consolidation, merger or similar transaction and including acquisitions of
shares of any of its subsidiaries held by minority shareholders), provided
that more than 2,000,000 such shares may be issued to the extent the
purchaser or purchasers of such excess shares agree to be bound by the
provisions of this paragraph until after the 90th day following the
Execution Date, (B) Common Stock issued pursuant to any employee benefit
plan, stock ownership or stock option plan or dividend reinvestment plan in
effect on the Execution Date, or options granted pursuant to any such plan
in effect on the Execution Date,
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provided that such options cannot be exercised until after the 90th day
following the Execution Date, (C) Common Stock issued in connection with
the inclusion of the Common Stock in any Major Market Index, (D)
maintaining the effectiveness of any registration statement in place on the
Execution Date or otherwise permitted to be filed under this paragraph, (E)
Common Stock issued in connection with the exercise of any warrants
outstanding on the Execution Date, (F) Common Stock issued to prospective
employees in connection with such employees being hired by the Company and
(G) the Securities and Common Stock issuable upon conversion of the
Securities.
(g) The Company will not take, directly or indirectly, any action
designed to or which has constituted or which might reasonably be expected
to cause or result, under the Exchange Act or otherwise, in stabilization
or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities.
(h) The Company will apply the net proceeds from the sale of the
Securities sold by it substantially in accordance with its statements under
the caption "Use of Proceeds" in the Final Prospectus.
6. Conditions to the Obligations of the Underwriters. The
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obligations of the Underwriters to purchase the Firm Securities and the Option
Securities, as the case may be, shall be subject to the accuracy of the
representations and warranties on the part of the Company contained herein as of
the Execution Time, the Closing Date and any settlement date pursuant to Section
3 hereof, to the accuracy of the statements of the Company made in any
certificates pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to
the Execution Time, unless the Representatives agree in writing to a later
time, the Registration Statement will become effective not later than (i)
6:00 PM New York City time on the date of determination of the public
offering price, if such determination occurred at or prior to 3:00 PM New
York City time on such date or (ii) 9:30 AM on the Business Day following
the day on which the public offering price was determined, if such
determination occurred after 3:00 PM New York City time on such date, if
filing of the Final Prospectus, or any supplement thereto, is required
pursuant to Rule 424(b), the Final Prospectus, and any such supplement,
will be filed in the manner and within the time period required by Rule
424(b); and no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceeding for that purpose shall
have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxxx Xxxx &
Xxxxxxxxx, counsel for the Company, to have furnished to the
Representatives their opinion, dated the Closing Date and addressed to the
Representatives on behalf of the Underwriters, to the effect of Exhibit A.
(c) The Company shall have caused Xxxxxxx Berlin Shereff Xxxxxxxx
LLP, regulatory counsel for the Company, to have furnished to the
Representatives their opinion, dated the Closing Date and addressed to the
Representatives on behalf of the Underwriters, to the effect of Exhibit B.
11
(d) The Company shall have furnished to the Representatives the
opinion of Xxxxxx X. Xxxxxx, Senior Vice President, General Counsel and
Secretary of the Company, dated the Closing Date and addressed to the
Representatives on behalf of the Underwriters, to the effect of Exhibit C.
(e) The Representatives shall have received from Cravath, Swaine &
Xxxxx, counsel for the Underwriters, such opinion or opinions, dated the
Closing Date and addressed to the Representatives on behalf of the
Underwriters, with respect to the issuance and sale of the Securities, the
Registration Statement, the Final Prospectus (together with any supplement
thereto) and other related matters as the Representatives may reasonably
require, and the Company shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon
such matters.
(f) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the President and Chief Executive
Officer and the Executive Vice President and Chief Financial Officer of the
Company, dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement, the Final
Prospectus, any supplements to the Final Prospectus and this Agreement and
that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on
and as of the Closing Date with the same effect as if made
on the Closing Date, and the Company has complied with all
the agreements and satisfied all the conditions on its
part to be performed or satisfied hereunder at or prior to
the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings
for that purpose have been instituted or, to the Company's
knowledge, threatened; and
(iii) since June 30, 1999, the date of the most recent financial
statements included or incorporated by reference in the
Final Prospectus (exclusive of any supplement thereto),
there has not been, singularly or in the aggregate, any
material adverse change in the properties, business,
results of operations, financial condition, affairs or
business prospects of the Company and its subsidiaries
taken as a whole, whether or not arising from transactions
in the ordinary course of business, except as set forth in
or contemplated in the Final Prospectus (exclusive of any
supplement thereto).
(g) The Company shall have requested and caused Pricewaterhouse
Coopers LLP to have furnished to the Representatives, at the Execution Time
and at the Closing Date, letters, dated respectively as of the Execution
Time and as of the Closing Date, in form and substance reasonably
satisfactory to the Representatives, confirming that they are independent
accountants within the meaning of the Act and the Exchange Act and the
respective applicable rules and regulations adopted by the
12
Commission thereunder and Rule 101 of the Code of Professional Conduct of
the American Institute of Certified Public Accountants and stating in
effect that:
(i) in their opinion the audited financial statements and
financial statement schedules included or incorporated by reference in
the Registration Statement and the Final Prospectus and reported on by
them comply as to form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the
related rules and regulations adopted by the Commission;
(ii) nothing came to their attention which caused them to
believe that the information included or incorporated by reference in
the Registration Statement and the Final Prospectus in response to
Regulation S-K, Item 301 (Selected Financial Data) and Item 503(d)
(Ratio of Earnings to Fixed Charges) is not in conformity with the
applicable disclosure requirements of Regulation S-K; and
(iii) they have performed certain other specified procedures as
a result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Company and its subsidiaries) set
forth in the Final Prospectus and the information included or
incorporated by reference in the Company's Annual Report on Form 10-K
for the year ended December 31, 1998 and the Proxy Statement on
Schedule 14A dated April 28, 1999, incorporated by reference in the
Registration Statement and the Final Prospectus, agrees with the
accounting records of the Company and its subsidiaries, excluding any
questions of legal interpretation.
All references in this Section 6(g) to the Registration Statement or
the Final Prospectus shall be deemed to include any amendment or supplement
thereto at the date of the letter.
(h) At the Execution Time and at the Closing Date, Xxxxxx Xxxxxxxx
LLP shall have furnished to the Representatives a letter or letters, dated
respectively as of the Execution Time and as of the Closing Date, in form
and substance reasonably satisfactory to the Representatives, confirming
that they are independent accountants within the meaning of the Act and the
Exchange Act and the applicable rules and regulations thereunder and Rule
101 of the Code of Professional Conduct of the American Institute of
Certified Public Accountants and stating in effect that:
(i) in their opinion the audited financial statements and
financial statement schedules included or incorporated by reference in
the Registration Statement and the Final Prospectus and reported on by
them comply as to form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the
related rules and regulations adopted by the Commission;
(ii) based upon (x) their review, in accordance with standards
established under Statement on Auditing Standards No. 71, of the
unaudited interim financial information included in the Company's
quarterly report on
13
Form 10-Q for the three-month and six-month periods ended June 30,
1999 and 1998, included or incorporated by reference in the
Registration Statement and Final Prospectus, and (y) with respect to
the period subsequent to June 30, 1999, including the reading of the
minutes and inquiries of certain officials of the Company who have
responsibility for financial and accounting matters and certain other
limited procedures requested by the Representatives and described in
detail in such letter, nothing has come to their attention that causes
them to believe that:
(1) any unaudited financial statements included or
incorporated by reference in the Registration Statement and the
Final Prospectus do not comply as to form in all material
respects with applicable accounting requirements of the Act and
with the related rules and regulations adopted by the
Commission with respect to financial statements included or
incorporated by reference in quarterly reports on Form 10-Q
under the Exchange Act; and said unaudited financial statements
are not in conformity with generally accepted accounting
principles applied on a basis substantially consistent with
that of the audited financial statements included or
incorporated by reference in the Registration Statement and the
Final Prospectus;
(2) with respect to the period subsequent to June 30,
1999, there were any increases, at a specified date not more
than five business days prior to the date of the letter, in the
long-term debt of the Company and its subsidiaries or decreases
in the stockholders' equity of the Company or decreases in
total current assets of the Company and its subsidiaries or any
change in capital stock of the Company and its subsidiaries, as
compared with the amounts shown on the June 30, 1999
consolidated balance sheet included as an attachment to the
letter or letters referred to in this paragraph or for the
period from July 1, 1999, to such specified date there were any
decreases, as compared with the corresponding period in the
immediately preceding quarter, in revenue, cost of revenue,
operating earnings, EBITDA (as defined in the Final Prospectus)
or in total or per share amounts of net earnings, except in all
instances for increases, changes or decreases set forth in such
letter, in which case the letter shall be accompanied by an
explanation by the Company as to the significance thereof
unless said explanation is not deemed necessary by the
Representatives; and
(3) the information included or incorporated by reference
in the Registration Statement and the Final Prospectus in
response to Regulation S-K, Item 301 (Selected Financial Data)
and Item 503(d) (Ratio of Earnings to Fixed Charges) is not in
conformity with the applicable disclosure requirements of
Regulation S-K; and
(iii) they have performed certain other specified procedures as a
result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Company and its subsidiaries) set
forth in the Registration Statement and the Final
14
Prospectus and in Exhibit 12 to the Registration Statement, and the
information included or incorporated by reference in the Company's
Annual Report on Form 10-K for the year ended December 31, 1998, Proxy
Statement on Schedule 14A dated April 28, 1999, Quarterly Reports on
Form 10-Q for the quarters ended March 31, 1999 and June 30, 1999 and
amended Quarterly Reports on Form 10-Q/A for the quarters ended June
30, 1998 and September 30, 1998, incorporated by reference in the
Registration Statement and the Final Prospectus, agrees with the
accounting records of the Company and its subsidiaries, excluding any
questions of legal interpretation.
All references in this Section 6(h) to the Registration Statement or
the Final Prospectus shall be deemed to include any amendment or supplement
thereto at the date of the letter.
(i) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any increase, change or decrease
specified in the letter or letters referred to in paragraph (h) of this
Section 6 or (ii) any change, or any development involving a prospective
change, in or affecting the properties, business, results of operations,
financial condition, affairs or business prospects of the Company and its
subsidiaries, taken as a whole, whether or not arising from transactions in
the ordinary course of business, except as set forth in or contemplated in
the Final Prospectus (exclusive of any supplement thereto) the effect of
which, in any case referred to in clause (i) or (ii) above, is, in the sole
judgment of the Representatives, so material and adverse as to make it
impractical or inadvisable to proceed with the offering or delivery of the
Securities as contemplated by the Final Prospectus (exclusive of any
supplement thereto).
(j) Subsequent to the Execution Time, there shall not have been (i)
any decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Securities Act) or (ii) any notice given
of any intended or potential decrease in any such rating or that such
organization has under surveillance or review (other than any such notice
with positive implications of a possible upgrading) its rating of the
Company's debt securities.
(k) The Common Stock issuable upon conversion of the Securities shall
have been listed and admitted and authorized for trading, subject to
official notice of issuance, on the Nasdaq National Market, and reasonably
satisfactory evidence of such actions shall have been provided to the
Representatives.
(l) Prior to the Closing Date, the Company shall have furnished to
the Representatives such further information, certificates and documents as
the Representatives may reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be
15
canceled at, or at any time prior to, the Closing Date by the Repre sentatives.
Notice of such cancelation shall be given to the Company in writing or by
telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be
delivered at the office of Cravath, Swaine & Xxxxx, counsel for the
Underwriters, at 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing
Date.
7. Reimbursement of Underwriters' Expenses. If the sale of the
----------------------------------------
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied,
because of any termination pursuant to Section 10 hereof or because of any
refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof, in each case, other than
by reason of a default by any of the Underwriters, the Company will reimburse
the Underwriters severally through Xxxxxxx, Sachs & Co. on demand for all
reasonable out-of-pocket expenses (including reasonable fees and disbursements
of counsel) that shall have been incurred by them in connection with the
proposed purchase and sale of the Securities. Except as provided in the
preceding sentence or elsewhere in this Agreement, the Underwriters shall be
responsible for all costs and expenses incurred by them in connection with their
purchase of the Securities hereunder and the resale of any of the Securities,
including, without limitation, their own out-of-pocket lodging, meal and other
"roadshow" expenses and fees and disbursements of counsel for the Underwriters
and (ii) such other "roadshow" expenses as shall be agreed upon by the Company
and the Representatives.
8. Indemnification and Contribution. (a) The Company agrees to
---------------------------------
indemnify and hold harmless each Underwriter, the directors, officers, employees
and agents of each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement as originally filed or in
any amendment thereof, or in the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, or in any amendment thereof or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the Company will not
-------- -------
be liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Company by or on
behalf of any Underwriter through the Representatives specifically for inclusion
therein; provided further, that with respect to any untrue statement or omission
----------------
of material fact made in the Basic Prospectus or any Preliminary Final
Prospectus, the indemnity agreement contained in this Section 8(a) shall not
inure to the benefit of any Underwriter from whom the person asserting any such
loss, claim, damage or liability purchased the securities concerned, to the
extent that any such loss, claim, damage or liability of such Underwriter occurs
under the circumstance where it shall have been determined by a court of
competent jurisdiction by final and
16
nonappealable judgment that such loss, claim, damage or liability results from
the fact that (i) the Company had previously furnished copies of the Final
Prospectus to the Representatives, (ii) delivery of the Final Prospectus was
required by the Act to be made to such person, (iii) the untrue statement or
omission of a material fact contained in the Basic Prospectus or the Preliminary
Final Prospectus was corrected in the Final Prospectus, (iv) there was not sent
or given to such person, at or prior to the written confirmation of the sale of
such securities to such person, a copy of the Final Prospectus and (v) such
correction would have cured the defect giving rise to such loss, claim, damage
or liability. This indemnity agreement will be in addition to any liability
which the Company may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify
and hold harmless the Company, each of its directors, each of its officers who
signs the Registration Statement, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, to the same extent as
the foregoing indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the Representatives
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability which
any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
-------- -------
reasonably satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the indemnified
party in an action, the indemnified party shall have the right to employ
separate counsel (including local counsel), and the indemnifying party shall
bear the reasonable fees, costs and expenses of such separate counsel if (i) the
use of counsel chosen by the indemnifying party to represent the indemnified
party would present such counsel with a conflict of interest, (ii) the actual or
potential defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party, (iii) the indemnifying party shall not have
employed counsel reasonably satisfactory to the indemnified party to represent
the indemnified party within a reasonable time after notice of the institution
of such action or (iv) the indemnifying party shall authorize the indemnified
party to employ separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
17
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
(i) includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act, by or on behalf of any indemnified party. It is understood, however,
that the Company shall, in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the reasonable fees
and expenses of only one separate firm of attorneys (in addition to any local
counsel) at any time for all such Underwriters and controlling persons, which
firm shall be designated in writing by Xxxxxxx, Xxxxx & Co. An indemnifying
party shall not be liable under this Section 8 to any indemnified party
regarding any settlement or compromise or consent to the entry of any judgment
with respect to any pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent is consented to
by such indemnifying party, which consent shall not be unreasonably withheld.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Underwriters severally
agree to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which the Company
and one or more of the Underwriters may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and by the Underwriters on the other from the offering of the Securities;
provided, however, that in no case shall any Underwriter (except as may be
-------- -------
provided in any agreement among underwriters relating to the offering of the
Securities) be responsible for any amount in excess of the underwriting discount
or commission applicable to the Securities purchased by such Underwriter
hereunder. If the allocation provided by the immediately preceding sentence is
unavailable for any reason, the Company and the Underwriters severally shall
contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand and
of the Underwriters on the other in connection with the statements or omissions
which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed to be equal to
the total net proceeds from the offering (before deducting expenses) received by
it, and benefits received by the Underwriters shall be deemed to be equal to the
total underwriting discounts and commissions, in each case as set forth on the
cover page of the Final Prospectus. Relative fault shall be determined by
reference to, among other things, whether any untrue or any alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information provided by the Company on the one hand or
the Underwriters on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Company and the Underwriters agree that it
would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this paragraph (d), no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 8, each person who controls an Underwriter within the
meaning of either the Act or the Exchange Act and each director, officer,
employee and agent of an Underwriter shall
18
have the same rights to contribution as such Underwriter, and each person who
controls the Company within the meaning of either the Act or the Exchange Act,
each officer of the Company who shall have signed the Registration Statement and
each director of the Company shall have the same rights to contribution as the
Company, subject in each case to the applicable terms and conditions of this
paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters shall
--------------------------
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule I hereto bears to the aggregate amount of
Securities set forth opposite the names of all the remaining Under writers) the
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
-------- -------
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of Securities set forth in
Schedule I hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Securities,
and if such nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter or
the Company. In the event of a default by any Underwriter as set forth in this
Section 9, the Closing Date shall be postponed for such period, not exceeding
five Business Days, as the Representatives shall determine in order that the
required changes in the Registration Statement and the Final Prospectus or in
any other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to
the Company and any nondefaulting Underwriter for damages occasioned by its
default hereunder.
10. Termination. This Agreement shall be subject to termination in
------------
the absolute discretion of the Representatives, by notice given to the Company
prior to delivery of and payment for the Securities, if at any time prior to
such time (i) trading in the Company's Common Stock shall have been suspended by
the Commission or the Nasdaq National Market or trading in securities generally
on the New York Stock Exchange or the Nasdaq National Market shall have been
suspended or limited or minimum prices shall have been established on such
Exchange or the Nasdaq National Market, (ii) a banking moratorium shall have
been declared either by Federal or New York State authorities or (iii) there
shall have occurred any outbreak or escalation of hostilities, declaration by
the United States of a national emergency or war, or other calamity or crisis
the effect of which on financial markets is such as to make it, in the sole
judgment of the Representatives, impractical or inadvisable to proceed with the
offering or delivery of the Securities as contemplated by the Final Prospectus
(exclusive of any supplement thereto).
11. Representations and Indemnities to Survive. The respective
-------------------------------------------
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors, employees, agents or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for the Securities.
The provisions of Sections 7 and 8 hereof shall survive the termination or
cancelation of this Agreement.
19
12. Notices. All communications hereunder will be in writing and
--------
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telefaxed to Xxxxxxx, Sachs & Co., at 00 Xxx Xxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx, 00000, Attention: Registration Department; or, if sent to the
Company, will be mailed, delivered or telefaxed to Level 3 Communications, Inc.
(fax no.: (000) 000-0000) Attention: General Counsel and confirmed to it at 0000
Xxxxxxxx Xxxxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: General Counsel.
13. Successors. This Agreement will inure to the benefit of and be
-----------
binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to in
Section 8 hereof, and no other person will have any right or obligation
hereunder.
14. Applicable Law. This Agreement will be governed by and construed
---------------
in accordance with the laws of the State of New York applicable to contracts
made and to be performed within the State of New York.
15. Counterparts. This Agreement may be signed in one or more
------------
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. Headings. The section headings used herein are for convenience
---------
only and shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in this
------------
Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"Basic Prospectus" shall mean the prospectus referred to in Section
1(a) above contained in the Registration Statement at the Effective Date,
including the Preliminary Final Prospectus (if any).
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
20
"Final Prospectus" shall mean the prospectus supplement relating to
the Securities that was first filed pursuant to Rule 424(b) after the
Execution Time, together with the Basic Prospectus.
"Major Market Index" shall mean the Dow Xxxxx Industrial Average or
Standard and Poor's 500 Stock Index.
"Preliminary Final Prospectus" shall mean any preliminary prospectus
supplement to the Basic Prospectus which describes the Securities and the
offering thereof and is used prior to filing of the Final Prospectus,
together with the Basic Prospectus.
"Registration Statement" shall mean the registration statement
referred to in Section 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in the
event any post-effective amendment thereto or any Rule 462(b) Registration
Statement becomes effective prior to the Closing Date, shall also mean such
registration statement as so amended or such Rule 462(b) Registration
Statement, as the case may be. Such term shall include any Rule 430A
Information deemed to be included therein at the Effective Date as provided
by Rule 430A.
"Rule 415", "Rule 424", "Rule 430A" and "Rule 462" refer to such rules
under the Act.
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b) relating
to the offering covered by the registration statement referred to in
Section 1(a) hereof.
21
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
Xxxxx 0 Communications, Inc.
By: /s/ Xxxxx X. X'Xxxx
---------------------------
Name: Xxxxx X. X'Xxxx
Title: Executive Vice President
The foregoing Agreement is hereby
confirmed and accepted as of the
date specified in Schedule I hereto
Xxxxxxx, Sachs & Co.
Xxxxxxx Xxxxx Xxxxxx Inc.
Xxxxx Securities Inc.
Credit Suisse First Boston Corporation
X. X. Xxxxxx Securities Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
By: Xxxxxxx, Sachs & Co.
By: /s/ Xxxxxxx, Xxxxx & Co.
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
For themselves and the other
several Underwriters, if any, named
in Schedule I to the foregoing
Agreement.
SCHEDULE I
Principal Amount of Firm
Underwriters Securities to be Purchased
------------ --------------------------
Xxxxxxx, Xxxxx & Co............................. $255,200,000
Xxxxxxx Xxxxx Barney Inc........................ 255,200,000
Chase Securities Inc............................ 31,900,000
Credit Suisse First Boston Corporation.......... 31,900,000
X. X. Xxxxxx Securities Inc..................... 31,900,000
Xxxxxx Xxxxxxx & Co. Incorporated............... 31,900,000
Lazard Freres & Co. LLC......................... 16,000,000
BNY Capital Markets, Inc........................ 16,000,000
Credit Lyonnais Securities (USA) Inc............ 16,000,000
Dresdner Kleinwort Xxxxxx North America LLC..... 16,000,000
First Union Capital Markets Corp................ 16,000,000
Xxxxx Partners, Inc............................. 16,000,000
Xxxxxxxxxxx, Pettis, Smith, Polian Inc.......... 16,000,000
------------
Total...................................... $750,000,000
============
SCHEDULE II
Subsidiaries
------------
PKS Information Services, Inc.
Xxxxx 0 Xxxxxxxx, Xxx.
KCP, Inc.
Xxxxx 0 Xxxxxxx Xxxxxxxx, Inc.
Xxxxx 0 Communications, LLC
EXHIBIT A
Opinion of
----------
Xxxxxxx Xxxx & Xxxxxxxxx
------------------------
Counsel for the Company
-----------------------
1. Each of the Company and Level 3 Communications, LLC has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of the jurisdiction in which it is chartered or organized, with full power
and authority to own or lease, as the case may be, and to operate its properties
and conduct its business as described in the Final Prospectus.
2. All the outstanding shares of capital stock or other equity
interests of the Company and Level 3 Communications, LLC have been duly and
validly authorized and are duly issued and are fully paid and nonassessable, and
have not been issued and are not owned or held in violation of any statutory
preemptive right of stockholders; to the knowledge of such counsel after due
inquiry, such shares or other equity interests are not held in violation of any
other preemptive right of stockholders or other equity interest holders, and
except as otherwise set forth in the Final Prospectus, all outstanding equity
interests of Level 3 Communications, LLC are owned by the Company either
directly or through wholly owned subsidiaries, to the knowledge of such counsel,
after due inquiry, free and clear of any agreement providing for a security
interest in such equity interests to secure any obligation and any stockholders=
agreements, voting trusts, claims or other encumbrances.
3. (i) To the best knowledge of such counsel, there is no pending or
threatened action, suit or proceeding by or before any court or governmental
agency, authority or body or any arbitrator involving the Company or any of its
Subsidiaries or its or their property of a character required to be disclosed in
the Registration Statement which is not adequately disclosed or incorporated by
reference in the Final Prospectus, and (ii) to the best knowledge of such
counsel, there is no contract or other document of a character required to be
described in the Registration Statement or the Final Prospectus, or to be filed
as an exhibit thereto, which is not described or filed as required; and the
statements included in the Final Prospectus under the heading "Description of
Notes," "Description of Common Stock" and "Description of Outstanding Capital
Stock," insofar as such sections summarize the terms of the Securities, the
Common Stock and the Indenture, and under the heading "Certain United States Tax
Consequences to Non-United States Holders", insofar as such section summarizes
matters of law, fairly summarize the matters therein described.
4. The Registration Statement has become effective under the Act; any
required filing of the Basic Prospectus, any Preliminary Final Prospectus and
the Final Prospectus and any supplements thereto, pursuant to Rule 424(b) has
been made in the manner and within the time period required by Rule 424(b); to
the knowledge of such counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued, no proceedings for that purpose have
been instituted or threatened and the Registration Statement and the Final
Prospectus (other than the financial statements and other financial information
contained therein or omitted therefrom, as to which such counsel need express no
opinion) comply as to form in all material respects with the applicable
requirements of the Act and the Exchange Act and the respective rules
thereunder.
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5. The Company is not and, after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as described
in the Final Prospectus, will not be an "investment company" as defined in the
Investment Company Act of 1940, as amended.
6. To the best knowledge of such counsel, no consent, approval,
authorization, license, certificate, permit or order of any court or
governmental agency or body is required for the execution, delivery and
performance of this Agreement and the Securities or for the consummation of the
transactions contemplated hereby, except such as may be required by the Federal
Communications Commission or similar state regulatory authorities or under the
blue sky laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters (as to which such counsel
need not opine) and such other approvals (to be specified in such opinion) as
have been obtained.
7. Neither the execution and delivery of this Agreement, nor the
issue and sale of the Securities, nor the consummation of any other of the
transactions herein contemplated nor the fulfillment of the terms thereof will
conflict with, result in a breach of, or constitute a default under the
certificate of incorporation, by-laws or other organizational documents of the
Company or of any Subsidiary or the terms of any agreement or instrument listed
on Annex I hereto, or any judgment, order or regulation known to such counsel to
be applicable to the Company or any of its Subsidiaries of any court, regulatory
body, administrative agency, governmental agency, authority or body or
arbitrator having jurisdiction over the Company or any of its Subsidiaries,
except orders or regulations of the Federal Communications Commission or similar
state regulatory authorities or regulations of any state securities commission
(as to which such counsel need not opine).
8. To the knowledge of such counsel, no holders of securities of the
Company have rights to the registration of such securities in connection with or
as a result of the offering and sale of the Securities under this Agreement.
9. The Company's authorized equity capitalization as of June 30,
1999, is as set forth in the Final Prospectus; the capital stock of the Company
conforms in all material respects to the description thereof contained in the
Final Prospectus; the shares of Common Stock initially issuable upon conversion
of the Securities have been duly and validly authorized, and, when issued upon
conversion against payment of the conversion price and in accordance with the
terms of the Indenture, will be validly issued, fully paid and nonassessable;
the Board of Directors of the Company or a duly constituted committee thereof,
has duly and validly adopted resolutions reserving such shares of Common Stock
for issuance upon conversion; and the holders of outstanding shares of capital
stock of the Company are not entitled to preemptive or other rights to subscribe
for the Securities; and, except as set forth in the Final Prospectus and, except
for outstanding warrants and options to purchase shares of Common Stock that in
the aggregate represent less than 1% of the Common Stock outstanding on the date
of this Agreement, to the knowledge of such counsel, no options, warrants or
other rights to purchase, agreements or other obligations to issue, or rights to
convert any obligations into or exchange any securities for, shares of capital
stock of or ownership interests in the Company are outstanding.
10. The Securities have been duly authorized and, when executed and
authenticated in accordance with the provisions of the Indenture and delivered
to and paid for by the Underwriters in accordance with the terms of the
Underwriting Agreement, will constitute valid and legally binding obligations of
the Company entitled to the benefits of the
3
Indenture, subject, as to enforcement, to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and other laws of general applicability
relating to or affecting creditors' rights and to general equity principles.
11. The Indenture has been duly authorized, executed and delivered by
the Company and constitutes a valid and legally binding obligation of the
Company, enforceable in accordance with its terms, subject, as to enforcement,
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
other laws of general applicability relating to or affecting creditors' rights
and to general equity principles; and the Indenture has been duly qualified
under the Trust Indenture Act.
12. The Company has full corporate right, power and authority to
execute and deliver this Agreement and to perform its obligations hereunder,
including the issuance of the Securities; and all corporate action required to
be taken by the Company for the due and proper authorization, execution and
delivery of this Agreement and for the consummation of the transactions
contemplated hereby has been duly and validly taken.
13. This Agreement has been duly authorized, validly executed and
delivered by the Company.
In addition, such counsel shall state that they have participated in
conferences with representatives of the Company, the Underwriters and their
counsel, at which conferences the contents of the Final Prospectus were
discussed, and, although, except as otherwise described above, such counsel has
not independently checked or verified and does not pass upon and assumes no
responsibility for the factual accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Final Prospectus, such
counsel has no reason to believe that on the Effective Date or at the Execution
Time the Registration Statement contained any untrue statement of a material
fact or omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that the Final
Prospectus as of its date or on the Closing Date included or includes any untrue
statement of a material fact or omitted or omits to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading (in each case, other than the
financial statements and other financial information contained therein or
omitted therefrom and other than the sections entitled "Risk Factors--We are
subject to significant regulation that could change in an adverse manner", A--
Canadian law currently does not permit us to offer services in Canada" and A--
Potential regulation of internet service providers could adversely affect our
operations" and "Business--Regulation" included in the Final Prospectus and
comparable sections in the Company's Exchange Act reports incorporated in the
Final Prospectus by reference, as to which such counsel need not express a
belief).
Such opinion may be limited to the laws of the State of New York, the
Federal laws of the United States of America and the General Corporation Law and
the Limited Liability Company Act of the State of Delaware.
All references in this Exhibit A to the Final Prospectus shall be
deemed to include any supplements thereto at the Closing Date. The opinion of
such counsel shall be rendered to the Underwriters at the request of the Company
and shall so state.
ANNEX I
to Exhibit A
1. Construction and Maintenance Agreement relating to Japan-US Cable Network
dated July 31, 1998.
2. Fibre Optic Cable License Agreement, dated December 23, 1998, between
Norfolk Southern Railway Company, Central of Georgia Railroad Company, and
Georgia Southern and Florida Railway Company and Level 3 Communications,
LLC.
3. Agreement, dated November 19, 1998, between Worldwide Fibre Inc. and Xxxxx
0 Communications, LLC for construction and right of way.
4. Agreement, dated November 19, 1998, between Mi-Link LLC and Level 3
Communications, LLC for construction and right of way
5. Acquisition Agreement by and between CalEnergy Co., Inc. and Kiewit
Diversified Group, Inc., dated September 10, 1997.
6. Agreement and Plan of Merger among Xxxxx 0 Xxxxxxxxxxxxxx, Xxx.,
XxxxxxxXxxXx, Inc., XCOM Technologies, Inc. and certain individuals,
partnerships and companies, dated April 3, 1998.
7. Telecommunications Services Agreement between Frontier Communications
International Inc. and Level 3 Communications, LLC, dated March 23, 1998.
8. Fiber Optic Survey Agreement between Level 3 Communications, LLC and Union
Pacific Rail Road Company, dated March 31, 1998.
9. Fiber Optic Agreement between Level 3 Communications, LLC and Union Pacific
Rail Road Company, dated 1998.
10. Systems Integration Agreement by and between Xxxxx 0 Communications, LLC
and Science Applications International Corporation, dated January 10, 1998.
11. Agreement between Kiewit Coal Properties, Inc. and Xxxxxx Mining Group,
Inc., dated January 8, 1992.
12. Separation Agreement by and among Xxxxx Xxxxxx Sons', Inc., Kiewit
Diversified Group, Inc., PKS Holdings, Inc., and Xxxxxx Construction Group,
Inc., dated December 8, 1997.
13. Amendment to Separation Agreement by and among Xxxxx Xxxxxx Sons', Inc.,
Level 3 Communications, Inc., PKS Holdings, Inc. and Xxxxxx Construction
Group, Inc., dated March 18, 1998.
14. Tax Sharing Agreement by and between Xxxxx Xxxxxx Sons', Inc. and PKS
Holdings, Inc., dated March 26, 1998.
2
15. Promissory Note from Xxxxx Xxxxxx Sons' Co. to Metropolitan Life Insurance
Company, dated June 27, 1997.
16. Deed of Trust, Security Agreement and Fixture Filing by Xxxxx Xxxxxx Sons'
Co., to Metropolitan Life Insurance Company, dated June 27, 1997.
17. Repayment and Cooperation Agreement between Orange County Transportation
Authority and California Private Transportation Company, L.P., dated July
13, 1992.
18. Amendment to Repayment and Cooperation Agreement dated as of July 13, 1992,
between Orange County Transportation Authority and California Private
Transportation Company, L.P., dated July 13, 1992.
19. Subordinated Promissory Note by Orange County Transportation Authority and
California Private Transportation Company, L.P., dated July 20, 1993.
20. Credit Agreement among California Private Transportation Company, L.P.,
Bank Nationale de Paris, CitiCorp U.S.A., Inc. and Societe Generale, dated
July 14, 1993.
21. Cost Sharing and IRU Agreement among Xxxxx 0 Communications, LLC and
Internext LLC, dated July 18, 1998.
22. Master Right-of-Way Agreement among Level 3 Communications, LLC and The
Burlington Northern and Santa Fe Railway Company, dated June 23, 1998.
23. Intercity Network Infrastructure Contract between Level 3 Communications,
LLC and Kiewit Construction Company, dated June 15, 1998.
24. Global Master Procurement Agreement between BTE Equipment, LLC and Lucent
Technologies Inc., dated May 17, 1999.
25. Cross Channel Cables Agreement among France Manche S.A., The Channel Tunnel
Group Limited, Level 3 Communications Limited and Level 3 Communications
S.A., dated June 22, 1999.
26. Fiber Optic Cable System Contract between Xxxxx 0 Xxxxxxxxxxxxxx Xxxxxxx,
Xxxxx 0 Communications S.A. and Alcatel Submarine Networks S.A., dated May
14, 1999.
27. Engineer, Procure and Construct Contract between Level 3 Communications,
GmbH and Alcatel Contracting, GmbH dated March 30, 1999.
28. Engineer, Procure and Construct Contract between Level 3 Communications,
Ltd. and Fujitsu Telecommunications Europe, Ltd., dated March 19, 1999.
29. Engineer, Procure and Construct Contract between Level 3 Communications, SA
and Alcatel Contracting, SA dated April 9, 1999.
30. Joint Build Agreement among Colt Telecom Group plc and certain of its
subsidiaries and Level 3 International Inc. and certain of its
subsidiaries, dated May 4, 1999.
3
31. Supply Contract among Xxxxx 0 (Xxxxxxx) Xxx., Xxxxx 0 Xxxxxxxxxxxxxx
Xxxxxxx, Xxxxx 0 International, Inc. and Tyco Submarine Systems Ltd., dated
June 15, 1999.
EXHIBIT B
Opinion of
----------
Xxxxxxx Berlin Shereff Xxxxxxxx LLP
-----------------------------------
Regulatory Counsel for the Company
----------------------------------
1. The licenses, certificates, permits and authorizations set forth
in Attachment A to this opinion constitute all of the licenses, certificates,
permits and authorizations required by the Federal Communications Commission
("FCC") and the State Regulatory Agencies (as defined below) for the provision
of telecommunications services by the Company and the Subsidiaries as such
counsel understands those services currently to be provided based on the
declaration of an executive officer of the Company attached to such opinion,
where the failure to obtain or hold such license, certificate, permit or
authorization would materially adversely affect the ability of the Company or
the Subsidiaries to provide such services, and none of the Company or any
Subsidiary has received any notice of proceedings relating to the revocation or
modification of any such license, certificate, permit or authorization which,
singly or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a material adverse affect on the Company or such Subsidiary,
in connection with the provision of such services.
2. To the best knowledge of such counsel, after reasonable inquiry,
neither the Company nor any of the Subsidiaries is subject to any pending or
threatened proceeding, complaint or investigation before the FCC or any State
Regulatory Agency based on any alleged violation by the Company or its
Subsidiaries in connection with the provision of or failure to provide
telecommunications services, of a character that would be required to be
disclosed or incorporated by reference in the Registration Statement and the
Final Prospectus, which is not adequately disclosed in the Registration
Statement and the Final Prospectus.
3. The statements included in the Final Prospectus under the headings
"Risk Factors--We are subject to significant regulation that could change in an
adverse manner", A--Canadian law currently does not permit us to offer services
in Canada" and A--Potential regulation of internet service providers could
adversely affect our operations" and "Business--Regulation", fairly summarize
the matters therein described.
4. No consent, approval, authorization, license, certificate, permit
or order of the FCC or any State Regulatory Agency is required for the
consummation of the transactions contemplated by this Agreement.
5. Neither the execution and delivery of this Agreement nor the issue
and sale of the Securities contemplated hereby will conflict with or result in a
breach or violation of the Communications Act of 1934, as amended, any order or
regulation of the FCC or any State Regulatory Agency applicable to the Company
or any of the Subsidiaries or cause the suspension, revocation, impairment,
forfeiture, nonrenewal or termination of any FCC license or other authorization
of the FCC.
Such counsel has not itself checked the accuracy or completeness of,
or otherwise verified, the information furnished with respect to other matters
in the Registration Statement and the Final Prospectus. Such counsel has
generally reviewed and discussed with representatives of and counsel for the
Underwriters and with certain officers and employees
2
of, and counsel for, the Company the information furnished, whether or not
subject to its check and verification. Although such counsel has not
independently checked or verified and is neither passing upon nor assuming any
responsibility for the factual accuracy, completeness or fairness of the
statements contained in the Registration Statement and the Final Prospectus or
any amendment thereof or supplement thereto, nothing has come to its attention
which would cause it to believe that the statements included in the Final
Prospectus under the headings "Risk Factors--We are subject to significant
regulation that could change in an adverse manner", A--Canadian law currently
does not permit us to offer services in Canada" and A--Potential regulation of
internet service providers could adversely affect our operations" and "Business
--Regulation", including the statements in respect to Canadian law or
regulation, on the date thereof or on the Closing Date contain an untrue
statement of 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.
Such counsel's opinions may be based solely on the Communications Act
of 1934, as amended, decisions of the FCC and FCC rules and regulations,
comparable state statutes governing telecommunications, and the rules and
regulations of comparable state regulatory agencies with direct regulatory
jurisdiction over telecommunications matters in the states in which the Company
and the Subsidiaries provide intrastate services ("State Regulatory Agencies").
Such counsel's opinion may be limited solely to matters arising under these
authorities regarding federal common carrier telecommunications regulatory
requirements and comparable state regulatory requirements in states in which the
Company and the Subsidiaries provide intrastate services.
Such counsel is a member of the Bar of the District of Columbia. In
rendering this opinion, such counsel has relied as to certain matters of fact on
certificates of responsible officers of the Company and public officials.
All references in this Exhibit B to the Registration Statement or the
Final Prospectus shall be deemed to include any amendment or supplement thereto
at the Closing Date. The opinion of such counsel shall be rendered to the
Underwriters at the request of the Company and shall so state.
EXHIBIT C
Opinion of
----------
Xxxxxx X. Xxxxxx, Senior Vice President,
----------------------------------------
General Counsel and Secretary of the Company
--------------------------------------------
1. Each of the Subsidiaries, other than Level 3 Communications, LLC
and Continental Holdings Inc., as to which such counsel need not opine, has been
duly incorporated or formed and is validly existing and in good standing in the
jurisdiction of its incorporation or formation, and has the requisite corporate
power and authority to carry on its business and own its properties as currently
being conducted and as described in the Final Prospectus.
2. All the outstanding shares of capital stock or other equity
interests of each Subsidiary, other than Level 3 Communications, LLC and
Continental Holdings Inc., as to which such counsel need not opine, have been
duly and validly authorized and are duly issued and are fully paid and
nonassessable, and have not been issued and are not owned or held in violation
of any statutory preemptive right of stockholders; to the knowledge of such
counsel after due inquiry, such shares or other equity interests are not held in
violation of any other preemptive right of stockholders, and except as otherwise
set forth in the Final Prospectus, all outstanding shares of capital stock or
other equity interests of the Subsidiaries are owned by the Company either
directly or through wholly owned Subsidiaries, to the knowledge of such counsel,
after due inquiry, free and clear of any agreement providing for a security
interest in such shares or equity interests to secure any obligation and any
stockholders= agreements, voting trusts, claims or other encumbrances.
3. Neither the execution and delivery of this Agreement nor the issue
and sale of the Securities, nor the consummation of any other of the
transactions herein contemplated nor the fulfillment of the terms thereof will
conflict with, result in a breach of, or constitute a default under the terms of
any indenture or other agreement or instrument actually known to such counsel,
after due inquiry (which does not include (i) a review of all the agreements or
instruments in the Company's files or of agreements or instruments such counsel
has not been involved with or (ii) a canvasing of the Company's employees), and
to which the Company or any Subsidiary is a party or bound or its property is
subject.
4. The information included in the Final Prospectus under the
headings "Risk Factors--Environmental liabilities from our historical operations
could be material" and "Business--Legal Proceedings", insofar as such headings
summarize matters of law, fairly summarize the matters therein described.
Such opinion may be limited to the laws of the State of Nebraska, the
Federal laws of the United States of America and the General Corporation Law and
the Limited Liability Company Act of the State of Delaware.
All references in this Exhibit C to the Final Prospectus shall be
deemed to include any supplement thereto at the Closing Date. The opinion of
such counsel shall be rendered to the Underwriters at the request of the Company
and shall so state.
