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EXHIBIT 1.1
GST TELECOMMUNICATIONS, INC.
[___]% Senior Subordinated Accrual Notes Due 2007
UNDERWRITING AGREEMENT
November [___], 1997
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November [___], 1997
Xxxxxx Xxxxxxx & Co. Incorporated
Bear, Xxxxxxx & Co. Inc.
Credit Suisse First Boston Corporation
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
GST Telecommunications, Inc., a federally chartered Canadian
corporation (the "Company"), proposes to issue and sell to the several
Underwriters named in Schedule I hereto (the "Underwriters") $200.0 million
principal amount of the Company's [__]% Senior Subordinated Accrual Notes due
2007 (the "Notes") to be issued pursuant to the provisions of an Indenture to be
dated as of November [___], 1997 (the "Indenture") between the Company, as
issuer, and United States Trust Company of New York, as trustee (the "Trustee").
Pursuant to an underwriting agreement, dated the date hereof, among
the Company and Xxxxxx Xxxxxxx & Co. Incorporated, Bear, Xxxxxxx & Co. Inc.,
Credit Suisse First Boston Corporation, Xxxxxx Xxxxxxx & Co. International
Limited, Bear, Xxxxxxx International Limited and Credit Suisse First Boston
(Europe) Limited, as representatives of the U.S. underwriters and international
underwriters named therein, the Company will issue and sell an aggregate of
7,000,000 of its Common Shares (the "Stock Offering").
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement, including a prospectus, relating to
the Notes. The registration statement, as amended at the time it becomes
effective, including the exhibits thereto, the documents incorporated by
reference therein and the information (if any) deemed to be part of the
registration statement at the time of effectiveness pursuant to Rule 430A under
the Securities Act of 1933 (the "Securities Act"), is hereinafter referred to as
the "Original Registration Statement"; any registration statement filed pursuant
to Rule 462(b) under the Securities Act is hereinafter referred to as the "Rule
462(b) Registration Statement"; the Original Registration Statement and any Rule
462(b) Registration Statement are hereinafter referred to collectively as the
"Registration Statement"; and the prospectus in the form first used to confirm
sales of Notes is hereinafter referred to as the "Prospectus". As used herein,
the term "Specified Subsidiaries" means the following subsidiaries of the
Company: GST USA, Inc., a Delaware corporation, GST Telecom Inc., a Delaware
corporation, GST Pacific Lightwave, Inc. a Washington corporation, GST Telecom
Hawaii, Inc., a Hawaii corporation, GST Tucson Lightwave, Inc., an Arizona
corporation, GST Telecom New Mexico, Inc., a New Mexico corporation, GST Telecom
California, Inc., a Delaware corporation, NACT Telecommunications, Inc., a
Delaware corporation, Wasatch International Network Services,
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Inc., a Utah corporation, GST Net, Inc., a Delaware corporation, International
Telemanagement Group, Inc., an Ohio corporation, TotalNet Communications, Inc.,
a Texas corporation, GST Call America, Inc., a California corporation, Tri-Star
Residential Communications Corp., a Washington corporation, GST Equipco, Inc., a
Washington corporation, GST Internet, Inc., a Delaware corporation, GST
Equipment Funding, Inc., a Delaware corporation and GST Action Telecom, Inc., a
Delaware corporation.
I.
The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) The Original Registration Statement has become effective and, if
the Company has elected to rely upon Rule 462(b) under the Securities Act,
the Rule 462(b) Registration Statement shall have become effective not
later than the earlier of (i) 10:00 p.m. Eastern time on the date hereof
and (ii) the time confirmations are sent or given, as specified by Rule
462(b)(2) under the Securities Act; no stop order suspending the
effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or, to the Company's
knowledge, threatened by the Commission.
(b) (i) Each part of the Registration Statement, when such part
became effective, did not contain and each such part, as amended or
supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, (ii)
the Registration Statement and the Prospectus comply and, as amended or
supplemented, if applicable, will comply in all material respects with the
Securities Act and the applicable rules and regulations of the Commission
thereunder and (iii) the Prospectus does not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, except that the representations and warranties
set forth in this paragraph (b) do not apply (A) to statements or
omissions in the Registration Statement or the Prospectus based upon
information relating to any Underwriter furnished to the Company in
writing by such Underwriter through you expressly for use therein or (B)
to that part of the Registration Statement that constitutes the Statement
of Eligibility and Qualification (Form T-1) under the Trust Indenture Act
of 1939, as amended (the "Trust Indenture Act"), of the Trustee.
(c) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has
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the corporate power and authority to own or lease its property and to
conduct its business as described in the Prospectus and is duly qualified
or licensed to transact business and is in good standing as a foreign
corporation in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such qualification or
licensing, except to the extent that the failure to be so qualified or
licensed or be in good standing would not have a material adverse effect
on the Company and its subsidiaries, taken as a whole.
(d) Each of the Specified Subsidiaries has been duly incorporated,
is validly existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, has the corporate power and
authority to own or lease its property and to conduct its business as
described in the Prospectus and is duly qualified or licensed to transact
business and is in good standing as a foreign corporation in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification or licensing, except to
the extent that the failure to be so qualified or licensed or be in good
standing would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole. The only direct subsidiaries of the
Company are GST USA, Inc., GST Call America, Inc., TotalNet
Communications, Inc. and GST Action Telecom, Inc. and the Company owns all
of the outstanding capital stock of such subsidiaries, free and clear of
any claims, liens, pledges or other encumbrances. The total assets and
revenues of the Company's direct and indirect subsidiaries other than the
Specified Subsidiaries, in the aggregate, comprised less than 5% of the
Company's total consolidated assets and revenues, respectively, at and for
the year ended September 30, 1996 and at and for the quarter ended June
30, 1997.
(e) This Agreement has been duly authorized, executed and delivered
by the Company.
(f) The Indenture has been duly qualified under the Trust Indenture
Act and has been duly authorized, and when executed and delivered by the
Company will be a valid and binding agreement of the Company, enforceable
in accordance with its terms except as (i) the enforceability thereof may
be limited by the effect of applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability.
(g) The Notes have been duly authorized and, when executed and
authenticated 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 be entitled to the benefits of the Indenture and will be
valid and binding obligations of the Company, enforceable in accordance
with their terms except as (i) the enforceability thereof may be limited
by the effect of applicable bankruptcy, insolvency, reorganization,
moratorium
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or similar laws affecting creditors' rights generally and (ii) rights of
acceleration and the availability of equitable remedies may be limited by
equitable principles of general applicability.
(h) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement
(including the issuance, sale and delivery of the Notes), the Indenture
and the Notes will not contravene any provision of applicable law or the
articles of incorporation or by-laws of the Company or any agreement or
other instrument binding upon the Company that is material to the Company
and its subsidiaries, taken as a whole, or any judgment, order or decree
of any governmental body, agency or court having jurisdiction over the
Company or any subsidiary, and no consent, approval, authorization or
order of, or qualification with, any governmental body or agency is
required for the performance by the Company of its obligations under this
Agreement, the Indenture and the Notes; except such as may be required by
the securities or Blue Sky laws of the various states in connection with
the offer and sale of the Notes.
(i) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from
that set forth in the Prospectus (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement).
(j) There are no legal or governmental proceedings pending or, to
the best of the Company's knowledge, threatened to which the Company or
any of the Specified Subsidiaries is a party or to which any of the
properties of the Company or any of the Specified Subsidiaries is subject
that are required to be described in the Registration Statement or the
Prospectus and are not so described or any statutes, regulations,
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not described or filed as required.
(k) The Company and the Specified Subsidiaries have all necessary
permits, licenses, authorizations, consents and approvals and have made
all necessary filings required under any federal, state, local or foreign
supranational, national or regional law, regulation or rule, and have
obtained all necessary authorizations, consents and approvals from other
persons, to own, lease, license and use their respective properties and
assets and to conduct its business in the manner described in the
Prospectus, in each case except to the extent that the failure to obtain
such permits, licenses, authorizations, consents or approvals or to make
such filings would not, singly or in the aggregate, have a material
adverse effect on the properties, assets, prospects, condition, financial
or otherwise, businesses or operations of the Company and its
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subsidiaries, taken as a whole; except as accurately described in all
material respects in the Prospectus, the Company and the Specified
Subsidiaries have not received any notice of proceedings which remain
unresolved relating to revocation or modification of any such permits,
licenses, authorizations, consents or approvals, nor is the Company or any
of the Specified Subsidiaries in violation of, or in default under, any
such license, authorization, consent or approval or any federal, state,
local or foreign supranational, national or regional law, regulation or
rule or any decree, order or judgment applicable to the Company or any of
the Specified Subsidiaries the effect of which could have a material
adverse effect on the properties, assets, prospects, condition, financial
or otherwise, business or operations of the Company and its subsidiaries,
taken as a whole.
(l) Each preliminary prospectus filed as part of the Registration
Statement as originally filed or as part of any amendment thereto, or
filed pursuant to Rule 424 or Rule 462 under the Securities Act, complied
when so filed in all material respects with the Securities Act and the
rules and regulations of the Commission thereunder.
(m) The Company is not and, after giving effect to the offering and
sale of the Notes and the application of the proceeds thereof as described
in the Prospectus, will not be an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended.
(n) The Company and the Specified Subsidiaries are (i) in compliance
with any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (ii) have received all permits,
licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) are in
compliance with all terms and conditions of any such permit, license or
approval, except where such noncompliance with Environmental Laws, failure
to receive required permits, licenses or other approvals or failure to
comply with the terms and conditions of such permits, licenses or
approvals would not, singly or in the aggregate, have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(o) The financial statements contained in the Prospectus comply with
the requirements of Regulation S-X of the Commission.
(p) Schedule A to the Certificate of Responsible Officer dated
[_______], 1997 signed by Xxxx Xxxxx and delivered in connection with the
opinion of Xxxxxxx & Berlin delivered pursuant to Article V(g) hereof
lists all of the telecommunications services provided by the Specified
Subsidiaries (other than NACT Telecommunications, Inc. and Wasatch
International Network Services, Inc.), other than services which are not,
singly or in the aggregate, material to the Company and its subsidiaries,
taken as a whole.
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II.
The Company hereby agrees to sell to the several Underwriters, and
the Underwriters, upon the basis of the representations and warranties herein
contained, but subject to the conditions hereinafter stated, agree, severally
and not jointly, to purchase from the Company the respective principal amount of
Notes set forth in Schedule I hereto opposite their names at [__]% of their
principal amount (the "purchase price"), plus accrued interest, if any, from
[_______], 1997 to the date of payment and delivery.
III.
The Company is advised by you that the Underwriters propose to make
a public offering of their respective portions of the Notes as soon after the
Original Registration Statement and this Agreement have become effective as in
your judgment is advisable. The Company is further advised by you that the Notes
are to be offered to the public initially at [__]% of their principal amount
(the "public offering price"), plus accrued interest, if any, and to certain
dealers selected by you at a price that represents a concession not in excess of
[.__]% of the public offering price, and that any Underwriter may allow, and
such dealers may reallow, a concession, not in excess of [.__]% of the public
offering price, to any Underwriter or to certain other dealers.
IV.
Payment for the Notes shall be made in same day funds by wire
transfer to the Company's account at [__________] at a closing to be held at the
offices of Shearman & Sterling, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, N.Y., at [____]
A.M., local time, on November [__], 1997, or at such other time on the same or
such other date, not later than [_______], 1997, as shall be designated in
writing by you. The time and date of such payment are hereinafter referred to as
the Closing Date.
Payment for the Notes shall be made against delivery to you for the
respective accounts of the several Underwriters of the Notes registered in such
names and in such denominations as you shall request in writing not later than
one business day prior to the date of delivery, with any transfer taxes payable
in connection with the transfer of the Notes to the Underwriters duly paid.
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V.
The obligations of the Company and the several obligations of the
Underwriters hereunder are subject to the condition that the Registration
Statement shall have become effective not later than 5:30 p.m. (New York City
time) on the date hereof.
The several obligations of the Underwriters hereunder are subject to
the following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date,
(i) there shall not have occurred any downgrading, nor shall
any notice have been given of any intended or potential downgrading
or of any review for a possible change that does not indicate the
direction of the possible change, in the rating accorded any of the
Company's securities by any "nationally recognized statistical
rating organization," as such term is defined for purposes of Rule
436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or operations,
of the Company and its subsidiaries, taken as a whole, from that set
forth in the Registration Statement, that, in your judgment, is
material and adverse and that makes it, in your judgment,
impracticable to market the Notes on the terms and in the manner
contemplated in the Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer of
the Company, on behalf of the Company, to the effect set forth in clause
(a)(i) above and to the effect that the representations and warranties of
the Company contained in this Agreement are true and correct in all
material respects as of the Closing Date and that the Company has complied
with all of the agreements and satisfied all of the conditions contained
in this Agreement on its part to be performed or satisfied on or before
the Closing Date.
The officer signing and delivering such certificate may rely upon
the best of his knowledge as to proceedings threatened.
(c) No stop order suspending the effectiveness of the Registration
Statement shall be in effect and no proceedings for such purpose shall be
pending before or, to the knowledge of the Company or the Underwriters,
threatened by the Commission.
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(d) You shall have received on the Closing Date an opinion of Xxxxxx
Xxxxxxxx Frome & Xxxxxxxxxx LLP, U.S. counsel for the Company, dated the
Closing Date, in the form attached hereto as Exhibit A.
The opinion of Xxxxxx Xxxxxxxx Frome & Xxxxxxxxxx LLP shall be
rendered to you at the request of the Company and shall so state therein.
(e) You shall have received on the Closing Date an opinion of
X'Xxxxx & Company, Canadian counsel for the Company, dated the Closing
Date, in the form attached hereto as Exhibit B.
The opinion of X'Xxxxx & Company shall be rendered to you at the
request of the Company and shall so state therein.
(f) You shall have received on the Closing Date an opinion of
Thorsteinssons, Canadian tax counsel for the Company, dated the Closing
Date, which shall be to the effect that such counsel is of the opinion
that the statements in the Prospectus under the caption "Certain Canadian
Tax Considerations" are accurate in all material respects and fairly
summarize the matters referred to therein.
(g) You shall have received on the Closing Date an opinion of
Xxxxxxx & Berlin, Chartered, special regulatory counsel for the Company,
in the form attached hereto as Exhibit C.
The opinion of Xxxxxxx & Berlin, Chartered shall be rendered to you
at the request of the Company and shall so state therein.
(h) You shall have received on the Closing Date opinions from local
regulatory counsel in the forms attached hereto as Exhibit D.
(i) You shall have received on the Closing Date an opinion of
Shearman & Sterling, counsel for the Underwriters, dated the Closing Date,
with respect to the Registration Statement and the Prospectus and such
other related matters as you may reasonably request, and such counsel
shall have received such documents and information as they may reasonably
request to enable them to pass upon such matters.
(j) You shall have received, on each of the date hereof and the
Closing Date, a letter dated the date hereof or the Closing Date, as the
case may be, in form and substance satisfactory to you, from KPMG Peat
Marwick LLP, independent public accountants, containing statements and
information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and
certain financial information contained in the Registration Statement and
the Prospectus;
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provided that the letter delivered on the Closing Date shall use a
"cut-off date" not earlier that the date hereof.
(k) The Company shall have complied with the provisions of Article
VI(a) hereof with respect to the furnishing of Prospectuses on the
business day next succeeding the date of this Agreement, in such
quantities as you shall have reasonably requested.
(l) You shall have received such other documents and certificates as
are reasonably requested by you or your counsel.
The obligations of the Underwriters hereunder are also subject to
the concurrent closing of the Stock Offering as described in the Prospectus.
VI.
In further consideration of the agreements of the Underwriters
herein contained, the Company covenants and agrees as follows:
(a) To furnish to you, without charge, four signed copies of the
Registration Statement (including exhibits thereto) and for delivery to
each other Underwriter a conformed copy of the Registration Statement
(without exhibits thereto) and, during the period mentioned in paragraph
(c) below, as many copies of the Prospectus and any supplements and
amendments thereto or to the Registration Statement as you may reasonably
request. In the case of the Prospectus, to furnish to you copies of the
Prospectus in New York City, prior to 3:00 p.m., on the business day
following the date of this Agreement, in such quantities as you reasonably
request.
(b) Before amending or supplementing the Registration Statement or
the Prospectus, to furnish to you a copy of each such proposed amendment
or supplement and not to file any such proposed amendment or supplement to
which you reasonably object, and to file with the Commission within the
applicable period specified in Rule 424(b) under the Securities Act any
prospectus required to be filed pursuant to such Rule.
(c) If, during such period after the first date of the public
offering of the Notes as in the opinion of your counsel the Prospectus is
required by law to be delivered in connection with sales by an Underwriter
or dealer, any event shall occur or condition shall exist as a result of
which it is necessary in your judgment to amend or supplement the
Prospectus in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if, in the opinion of your counsel, it is necessary to
amend or supplement the Prospectus to comply with applicable law,
forthwith to prepare, file with the Commission and furnish, at its own
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expense, to the Underwriters and to the dealers (whose names and addresses
you will furnish to the Company) to which Notes may have been sold by you
on behalf of the Underwriters and to any other dealers upon request,
either amendments or supplements to the Prospectus so that the statements
in the Prospectus as so amended or supplemented will not, in the light of
the circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus, as amended or supplemented, will
comply with law.
(d) To endeavor to qualify the Notes for offer and sale under the
securities or Blue Sky laws of such jurisdictions as you shall reasonably
request; provided that the Company shall not be required to (A) qualify as
a foreign corporation or as a dealer in securities in any jurisdiction
where it would not otherwise be required to qualify but for this paragraph
(d), (B) file any general consent to service of process or (C) subject
itself to taxation in any such jurisdiction if it is not otherwise so
subject.
(e) If the Company elects to rely on Rule 462(b) under the
Securities Act, the Company shall file a Rule 462(b) Registration
Statement with the Commission in compliance with Rule 462(b) under the
Securities Act no later than the earlier of (i) 10:00 p.m. Eastern time on
the date hereof and (ii) the time confirmations are sent or given, as
specified by Rule 462(b)(2) under the Securities Act, and shall pay the
applicable fees in accordance with Rule 111 under the Securities Act.
(f) To make generally available to the Company's security holders
and to you as soon as practicable an earnings statement of the Company
covering the twelve-month period ending December 31, 1998 that satisfies
the provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder.
(g) During the period beginning on the date hereof and continuing to
and including the Closing Date, not to offer, sell, contract to sell or
otherwise dispose of any debt securities of the Company substantially
similar to the Notes (other than (i) the Notes and (ii) commercial paper
issued in the ordinary course of business), without your prior written
consent.
(h) To use the net proceeds received by the Company from the sale of
(i) Notes hereunder and (ii) Common Shares pursuant to the Stock Offering,
in the manner specified in the Prospectus under the caption "Use of
Proceeds."
(i) Whether or not the transactions contemplated in this Agreement
are consummated or this Agreement is terminated, to pay or cause to be
paid all expenses incident to the performance of its obligations under
this Agreement including: (i) the fees, disbursements and expenses of the
Company's counsel and the Company's
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accountants in connection with the registration and delivery of the Notes
under the Securities Act and all other fees or expenses in connection with
the preparation and filing of the Registration Statement, any preliminary
prospectus, the Prospectus and amendments and supplements to any of the
foregoing, including all printing costs associated therewith, and the
mailing and delivering of copies thereof to the Underwriters and dealers,
in the quantities hereinabove specified, (ii) all costs and expenses
related to the transfer and delivery of the Notes to the Underwriters,
including any transfer or other taxes payable thereon, (iii) the cost of
printing and producing any Blue Sky or legal investment memorandum in
connection with the offer and sale of the Notes under state law and all
expenses in connection with the qualification of the Notes for offer and
sale under state law as provided in Section 6(d) hereof, including filing
fees and the reasonable fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with
the Blue Sky or legal investment memorandum, (iv) all filing fees and the
reasonable fees and disbursements of counsel to the Underwriters incurred
in connection with the review and qualification of the offering of the
Notes by the National Association of Securities Dealers, Inc., (v) any
fees charged by the rating agencies for the rating of the Notes, (vi) the
cost of printing certificates representing the Notes, (vii) the costs and
charges of any trustee, transfer agent, registrar or depositary, (viii)
the costs and expenses of the Company relating to investor presentations
on any "road show" undertaken in connection with the marketing of the
offering of the Notes, including, without limitation, expenses associated
with the production of road show slides and graphics, fees and expenses of
any consultants engaged in connection with the road show presentations
with the prior approval of the Company, travel and lodging expenses of the
representatives and officers of the Company and any such consultants, and
the cost of any aircraft chartered in connection with the road show, and
(ix) all other costs and expenses incident to the performance of the
obligations of the Company hereunder for which provision is not otherwise
made in this Article. It is understood, however, that except as provided
in this Article, Article VII, and the last paragraph of Article IX below,
the Underwriters will pay all of their costs and expenses, including fees
and disbursements of their counsel, transfer taxes payable on resale of
any of the Notes by them and any advertising expenses connected with any
offers they may make.
VII.
The Company agrees to indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act, from
and against any and all losses, claims, damages and liabilities (including,
without limitation, any legal or other expenses reasonably incurred in
connection with defending or investigating any such action or claim) caused by
any
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untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereof, any preliminary prospectus or
the Prospectus (as amended or supplemented if the Company shall have furnished
any amendments or supplements thereto), or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any such untrue statement
or omission or alleged untrue statement or omission based upon information
relating to any Underwriter furnished to the Company in writing by such
Underwriter through you expressly for use therein.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement and each person, if any, who controls the Company within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act to
the same extent as the foregoing indemnity from the Company to such Underwriter,
but only with reference to information relating to such Underwriter furnished to
the Company in writing by such Underwriter through you expressly for use in the
Registration Statement, any preliminary prospectus, the Prospectus or any
amendments or supplements thereto.
In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either of the two preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by Xxxxxx Xxxxxxx & Co. Incorporated, in the case of
parties indemnified pursuant to the second preceding paragraph, and by the
Company, in the case of parties indemnified pursuant to the first preceding
paragraph. The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from
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and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the second and third
sentences of this paragraph, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding.
To the extent the indemnification provided for in the first or
second paragraph of this Article VII is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the indemnifying party or parties on the one hand
and the indemnified party or parties on the other hand from the offering of the
Notes or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the indemnifying party or parties on the one hand and of the indemnified party
or parties on the other hand in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the Company
on the one hand and the Underwriters on the other hand in connection with the
offering of the Notes shall be deemed to be in the same respective proportions
as the net proceeds from the offering of the Notes (before deducting expenses)
received by the Company and the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth in the table on the
cover of the Prospectus, bear to the aggregate public offering price of the
Notes. The relative fault of the Company on the one hand and of the Underwriters
on the other hand shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Underwriters' respective obligations to contribute
pursuant to this Article VII are several in proportion to the respective
principal amounts of Notes they have purchased hereunder, and not joint.
15
14
The Company and the Underwriters agree that it would not be just or
equitable if contribution pursuant to this Article VII were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Article VII, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Notes underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages that such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Article VII are
not exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
The indemnity and contribution provisions contained in this Article
VII and the representations, warranties and other statements of the Company
contained in this Agreement shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any investigation made
by or on behalf of any Underwriter or any person controlling any Underwriter or
by or on behalf of the Company, its officers or directors or any person
controlling the Company and (iii) acceptance of and payment for any of the
Notes.
VIII.
This Agreement shall be subject to termination by notice given by
you to the Company, if (a) after the execution and delivery of this Agreement
and prior to the Closing Date (i) trading generally shall have been suspended or
materially limited on or by, as the case may be, any of the New York Stock
Exchange, the American Stock Exchange, the National Association of Securities
Dealers, Inc., the Chicago Board of Options Exchange, the Chicago Mercantile
Exchange, the Chicago Board of Trade or the Vancouver Stock Exchange, (ii)
trading of any securities of the Company shall have been suspended on any
exchange or in any over-the-counter market, (iii) a general moratorium on
commercial banking activities in New York shall have been declared by either
federal or New York State authorities or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis that, in your judgment, is material and adverse and (b) in
the case of any of the events specified in clauses (a)(i) through (iv), such
event singly or together with any other such event makes it, in your judgment,
impracticable to market the Notes on the terms and in the manner contemplated in
the Prospectus.
16
15
IX.
This Agreement shall become effective upon the later of (x)
execution and delivery hereof by the parties hereto and (y) release of
notification of the effectiveness of the Original Registration Statement by the
Commission.
If, on the Closing Date, any one or more of the Underwriters shall
fail or refuse to purchase Notes that it or they have agreed to purchase
hereunder on such date, and the principal amount of Notes which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not more
than one-tenth of the total principal amount of the Notes to be purchased on
such date, the other Underwriters shall be obligated severally in the
proportions that the principal amount of Notes set forth opposite their
respective names in Schedule I bears to the principal amount of Notes set forth
opposite the names of all such nondefaulting Underwriters, or in such other
proportions as you may specify, to purchase the Notes which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date; provided that in no event shall the principal amount of Notes that any
Underwriter has agreed to purchase pursuant to Article II be increased pursuant
to this Article IX by an amount in excess of one-ninth of such principal amount
of Notes without the written consent of such Underwriter. If, on the Closing
Date, any Underwriter or Underwriters shall fail or refuse to purchase Notes and
the aggregate principal amount of Notes with respect to which such default
occurs is more than one-tenth of the principal amount of Notes to be purchased
on such date, and arrangements satisfactory to you and the Company for the
purchase of such Notes are not made within 36 hours after such default, this
Agreement shall terminate without liability on the part of any nondefaulting
Underwriter or the Company. In any such case either you or the Company shall
have the right to postpone the Closing Date but in no event for longer than
seven days, in order that the required changes, if any, in the Registration
Statement and in the Prospectus or in any other documents or arrangements may be
effected. Any action taken under this paragraph shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters, or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder.
17
16
This Agreement may be signed in two or more counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
The Company hereby (i) acknowledges that it has irrevocably
designated and appointed Xxxxxx Xxxxxxxx Frome & Xxxxxxxxxx LLP, 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx X. Xxxxx, Esq. (together with
any successor, the "Process Agent"), as its authorized agent upon which process
may be served in any suit, action or proceeding arising out of or relating to
this Agreement or the transactions contemplated herein, that may be instituted
in any federal or state court in the State of New York, or brought under federal
or state securities laws, and acknowledges that the Process Agent has accepted
such designation, (ii) agrees that service of process upon the Process Agent and
written notice of such service to the Company (mailed or delivered to its Chief
Executive Officer at its principal office at 4317 N.E. Xxxxxxxx Way, Vancouver,
Washington 98662), shall be deemed in every respect effective service of process
upon the Company in any such suit, action or proceeding and (iii) agrees to take
any and all action, including the execution and filing of any and all such
documents and instruments as may be necessary to continue such designation and
appointment of the Process Agent in full force and effect so long as any of the
Notes shall be outstanding. The Company hereby agrees to submit to the
nonexclusive jurisdiction of any federal or state court in the State of New York
in any such suit, action or proceeding arising out of or relating to this
Agreement or the transactions contemplated herein, the Indenture or the Notes.
To the extent that the Company has or hereafter may acquire any
immunity from jurisdiction of any court or from any legal process (whether
through service of notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to itself or its property, it
hereby irrevocably waives such immunity in respect of its obligations under this
Agreement, the Indenture or the Notes, to the extent permitted by law.
Any notice required or permitted to be given hereunder shall be
given in writing and shall be deemed effective three days after deposit in the
United States mail (certified or registered, return receipt requested), postage
prepaid, or when received if personally delivered, addressed as follows:
To the Underwriters: To the Company:
Xxxxxx Xxxxxxx & Co. GST Telecommunications, Inc.
Incorporated 0000 X.X. Xxxxxxxx Xxx
0000 Xxxxxxxx Xxxxxxxxx, Xxxxxxxxxx 00000
Xxx Xxxx, Xxx Xxxx 00000 Attention: Chief Executive Officer
Attention: Xxxxx Xxxxx
18
17
with a copy to: with a copy to:
Shearman & Xxxxxxxx Xxxxxx Xxxxxxxx Frome &
000 Xxxxxxxxx Xxxxxx Xxxxxxxxxx XXX
Xxx Xxxx, Xxx Xxxx 00000 000 Xxxx Xxxxxx
Xxxxxxxxx: Xxxxx X. Xxxxxxx, Esq. Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxx, Esq.
or to such other address of which written notice is given to the other.
19
This Agreement shall be governed by the laws of the State of New
York.
Very truly yours,
GST TELECOMMUNICATIONS, INC.
By______________________________
Name:
Title:
Accepted, November [__], 1997
XXXXXX XXXXXXX & CO.
INCORPORATED
BEAR, XXXXXXX & CO. INC.
CREDIT SUISSE FIRST BOSTON
CORPORATION
By Xxxxxx Xxxxxxx & Co.
Incorporated
By__________________________
Authorized Signatory
20
SCHEDULE I
Principal Amount
Underwriter To Be Purchased
Xxxxxx Xxxxxxx & Co. Incorporated.......................
Bear, Xxxxxxx & Co. Inc.................................
Credit Suisse First Boston Corporation..................
Total.............................................. 200,000,000
===========
21
EXHIBIT A
OPINION OF U.S. COUNSEL FOR THE COMPANY
The opinion of the U.S. counsel for the Company to be delivered
pursuant to Article V(d) of the Underwriting Agreement shall be to the effect
that:
(A) Each Specified Subsidiary has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority
to own or lease its property and to conduct its business as described in
the Prospectus and is duly qualified or licensed to transact business and
is in good standing as a foreign corporation in each jurisdiction in which
the conduct of its business or its ownership or leasing of property
requires such qualification or licensing, except to the extent that the
failure to be so qualified or licensed or be in good standing would not
have a material adverse effect on the properties, assets, prospects,
condition, financial or otherwise, business or operations of the Company
and its subsidiaries, taken as a whole; and to such counsel's knowledge,
after due inquiry (i) the only direct subsidiaries of the Company are GST
USA, Inc., GST Call America, Inc., TotalNet Communications, Inc., and GST
Action Telecom, Inc. and (ii) the Company owns all the outstanding shares
of capital stock of such subsidiaries free and clear of any claims, liens,
pledges, or other encumbrances;
(B) assuming due authorization, execution and delivery by the
Company, the Indenture is a valid and binding agreement of the Company,
enforceable in accordance with its terms except as (a) the enforceability
thereof may be limited by the effect of applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally and (b) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability,
and the Indenture has been duly qualified under the Trust Indenture Act;
(C) assuming due authorization of the Notes, the Notes will, when
executed and authenticated in accordance with the terms of the Indenture
and delivered to and paid for by the Underwriters in accordance with the
terms of the Underwriting Agreement, be entitled to the benefits of the
Indenture and will be valid and binding obligations of the Company,
enforceable in accordance with their terms except as (a) the
enforceability thereof may be limited by the effect of applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally and (b) rights of acceleration and
the availability of equitable remedies may be limited by equitable
principles of general applicability;
(D) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, the Underwriting
Agreement (including the issuance, sale and delivery of the Notes), the
Indenture and the Notes will not contravene (i) any provision of
applicable law, (ii) to such counsel's knowledge, any agreement or
22
A-2
other instrument binding upon the Company that is material to the Company
and its subsidiaries, taken as a whole, or (iii) to such counsel's
knowledge, any judgment, order or decree of any governmental body, agency
or court having jurisdiction over the Company, and no consent, approval,
authorization or order of, or qualification with, any governmental body or
agency is required for the performance by the Company of its respective
obligations under the Underwriting Agreement, the Indenture and the Notes;
(E) the Registration Statement has become effective under the
Securities Act; and, to our knowledge, no stop order suspending the
effectiveness of the Registration Statement or suspending or preventing
the use of the Prospectus has been issued and no proceedings for that
purpose have been instituted or are threatened by the Securities and
Exchange Commission;
(F) after due inquiry, such counsel does not know of any legal or
governmental proceedings pending or threatened to which the Company or any
of the Specified Subsidiaries is a party or to which any of the properties
of the Company or any of the Specified Subsidiaries is subject that are
required to be described in the Registration Statement or Prospectus and
are not so described or of any statutes, regulations, contracts or other
documents that are required to be described in the Registration Statement
or the Prospectus or to be filed as exhibits to the Registration Statement
that are not described or filed as required;
(G) The Company is not and after giving effect to the offering and
sale of the Notes and the application of the proceeds thereof as described
in the Prospectus, will not be an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended;
(H) the statements (1) in the Prospectus under the captions
"Management --Employment and Other Agreements," "Certain Transactions,"
"Description of Certain Indebtedness and Redeemable Preferred Shares,"
"Description of the Notes," "Business -- Legal Proceedings," and "Certain
United States Federal Income Tax Considerations" and (2) in the
Registration Statement in Item 15, insofar as such statements constitute a
summary of the legal matters, documents or proceedings referred to
therein, fairly present the information called for with respect to such
legal matters, documents and proceedings and summarize in all material
respects the matters referred to therein; and
(I) such counsel (1) is of the opinion that the Registration
Statement and Prospectus (except for financial statements and schedules
and other financial data included therein as to which such counsel need
not express any opinion) comply as to form in all material respects with
the Securities Act and the rules and regulations of the Commission
thereunder, (2) believes that (except for financial statements and
schedules and other financial data included therein and the Statement of
Eligibility and Qualification
23
A-3
(Form T-1) of the Trustee under the Trust Indenture Act, as to which such
counsel need not express any belief) the Registration Statement and the
prospectus included therein at the time the Registration Statement became
effective did not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading and (3) believes that (except
for financial statements and schedules and other financial data included
therein as to which such counsel need not express any belief) the
Prospectus does not contain 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;
With respect to paragraph (I) above, counsel may state that their
opinion and belief are based upon their participation in the preparation of the
Registration Statement and Prospectus and any amendments or supplements thereto
and review and discussion of the contents thereof, but are without independent
check or verification except as specified.
24
EXHIBIT B
OPINION OF CANADIAN COUNSEL FOR THE COMPANY
The opinion of Canadian counsel for the Company to be delivered
pursuant to Article V(e) of the Underwriting Agreement shall be to the effect
that:
(A) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation and has the corporate power and authority to own its
property and to conduct its business as described in the Prospectus and is
duly qualified or licensed to transact business and is in good standing as
a foreign corporation in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification or licensing, except to the extent that the failure to be so
qualified or licensed or be in good standing would not have a material
adverse effect on the properties, assets, prospects, condition, financial
or otherwise, business or operations of the Company and its subsidiaries,
taken as a whole;
(B) the Underwriting Agreement has been duly authorized, executed
and delivered by the Company;
(C) the Notes have been duly authorized and, when executed,
authenticated and delivered to and paid for by the Underwriters in
accordance with the terms of the Indenture and the Underwriting Agreement,
will (a) be valid and binding obligations of the Company enforceable
against the Company in accordance with their terms and (b) be entitled to
the benefits of the Indenture.
(D) the Indenture has been duly authorized, executed and delivered
by the Company;
(E) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, the Underwriting
Agreement (including the issuance, sale and delivery of the Notes), the
Indenture and the Notes will not contravene (i) any provision of
applicable British Columbia or federal Canadian law, (ii) the certificate
of incorporation or by-laws of the Company, (iii) to such counsel's
knowledge, any agreement or other instrument binding upon the Company that
is material to the Company and its subsidiaries, taken as a whole or (iv)
to such counsel's knowledge any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company
and no consent, approval, authorization or order of, or qualification
with, any governmental body or agency in Canada is required for the
performance by the Company of its obligations under the Underwriting
Agreement and the Indenture;
(F) the statements in the Prospectus under the captions "Risk
Factors--Risks of Investment in a Canadian Corporation" and
"Enforceability of Civil Liabilities Against
25
B-2
Foreign Persons" insofar as such statements constitute summaries of the
legal matters, documents or proceedings referred to therein, fairly
present the information called for with respect to such legal matters,
documents and proceedings and fairly summarize the matters referred to
therein;
(G) after due inquiry, such counsel is not aware of any Canadian
legal or governmental proceeding pending or threatened to which the
Company or any of its subsidiaries is a party or to which any of the
properties of the Company or any of its subsidiaries is subject other than
proceedings fairly summarized in all material respects in the Prospectus
and proceedings which are not likely to have a material adverse effect on
the Company and its subsidiaries, taken as a whole.
26
EXHIBIT C
OPINION OF SPECIAL REGULATORY COUNSEL FOR THE COMPANY
The opinion of special regulatory counsel for the Company to be
delivered pursuant to Article V(g) of the Underwriting Agreement shall be to the
effect that:
(A) The Company and its subsidiaries have all necessary permits,
licenses, authorizations, consents and approvals and have made all
necessary filings required under any federal, state, local or foreign
supranational, national or regional law, regulation or rule, and have
obtained all necessary authorizations, consents and approvals from other
persons, material to the conduct of their respective businesses, in each
case except to the extent that the failure to obtain such permits,
licenses, authorizations, consents or approvals or to make such filings
would not, singly or in the aggregate, have a material adverse effect on
the properties, assets, prospects, condition, financial or otherwise,
business or operations of the Company and its subsidiaries, taken as a
whole; and except as accurately described in all material respects in the
Prospectus, the Company and its subsidiaries have not received any notice
of proceedings which remain unresolved relating to revocation or
modification of any such permits, licenses, authorizations, consents or
approvals, nor is the Company or any of its subsidiaries in violation of,
or in default under, any such license, authorization, consent or approval
or any federal, state, local or foreign supranational, national or
regional law, regulation or rule or any decree, order or judgment
applicable to the Company or any of its subsidiaries the effect of which
could have a material adverse effect on the properties, assets, prospects,
condition, financial or otherwise, business or operations of the Company
and its subsidiaries, taken as a whole; and
(B) the statements in the Prospectus under the captions "Risk
Factors--Government Regulation" and "Business--Regulation", insofar as
such statements constitute a summary of the legal matters, licenses,
documents, procedures or proceedings referred to therein, fairly summarize
the matters referred to therein.
27
EXHIBIT D
[INSERT LOCAL REGULATORY OPINIONS]
