Exhibit 1.1
CompleTel Europe N.V.
27,200,000 Ordinary Shares
Underwriting Agreement
New York, New York
March , 2000
Salomon Brothers International Limited
Xxxxxxx Xxxxx International
Xxxxxxx Xxxxx International
Paribas
As Representatives of the several Underwriters
c/o Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X.X.
Ladies and Gentlemen:
CompleTel Europe N.V., a limited liability company (naamloze
vennootschap, or N.V.) incorporated under Dutch law, with its corporate seat at
Amsterdam, The Netherlands (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, ordinary shares (the "Ordinary
Shares"), [_]0.10 nominal value per Ordinary Share, of the Company (said
Ordinary Shares to be issued and sold by the Company being hereinafter called
the "Underwritten Shares"). The Company also proposes to grant to the
Underwriters an option to purchase up to 4,080,000 additional Ordinary Shares to
cover overallotments (the "Option Shares" and together with the Underwritten
Shares, the "Shares").
The offering of Shares by the Underwriters is expected to comprise an
offering of Shares to institutional investors and other purchasers under
applicable exemptions outside the United States and to retail investors in
France in reliance on Regulation S under the Act and an offering through selling
agents designated by the Underwriters of Shares in the United States (the
"Global Offering").
As part of the Global Offering contemplated by this Underwriting
Agreement, the Underwriters have agreed to reserve up to 2,000,000 Shares out of
the Global Offering for sale to employees, officers or directors of, or persons
otherwise associated with and identified
by, the Company and its Subsidiaries (collectively, "Participants"), as set
forth in the Prospectuses under the heading "Underwriting" (the "Directed Share
Program"). The Shares to be sold by the Underwriters pursuant to the Directed
Share Program (the "Directed Shares") will be sold by them at the initial public
offering price. Any Directed Shares not orally confirmed for purchase by any
Participants by the end of the Business Day on which the Underwriting Agreement
is executed will be offered for sale by the Underwriters as set forth in the
Prospectuses and the Agreement Among Underwriters.
Madison Dearborn Partners and LPL Telecom, Europe, L.P. have indicated
their intent to purchase Ordinary Shares in the offering for an aggregate
purchase price of $34 million.
The use of the neuter in this Underwriting Agreement shall include the
feminine and masculine wherever appropriate.
Certain terms used in this Underwriting Agreement are defined in
Section 21 hereof.
1. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, each Underwriter as set forth below
in this Section 1.
(a) The Company has filed with the Commission a registration
statement (file number 333-30834) on Form F-1, including the related U.S.
Preliminary Prospectus, for the registration under the Act of the offering
and sale of the Shares. The Company has filed one or more amendments
thereto, including the related U.S. Preliminary Prospectus, which have
previously been furnished to you. The Company will next file with the
Commission either (1) prior to the Effective Date of the Registration
Statement, a further amendment to the Registration Statement (including the
form of U.S. Prospectus) or (2) after the Effective Date of the
Registration Statement, the U.S. Prospectus in accordance with Rules 430A
and 424(b). In the case of clause (2), the Company has included in the
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 the Registration Statement and the U.S.
Prospectus with respect to the Shares and the offering thereof. As filed,
such amendment and form of final U.S. Prospectus, or such U.S. Prospectus,
as the case may be, shall contain all Rule 430A Information, together with
all other such required information, with respect to the underlying Shares
and the offering thereof, and, except to the extent the Representatives
shall agree 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
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changes (beyond that contained in the latest U.S. Preliminary Prospectus)
as the Company has advised you, prior to the Execution Time, will be
included or made therein.
It is understood that three forms of prospectuses are to be used in
connection with the Global Offering and sale of the Shares: a U.S.
Prospectus relating to the Shares which are to be offered and sold to
United States and Canadian persons, an International Prospectus relating to
the Shares which are to be offered and sold to persons other than United
States, Canadian or French persons, and a French Prospectus relating to the
Shares which are to be offered and sold to French persons. The U.S.
Prospectus and the International Prospectus are identical except for the
outside front cover page, page ii of the International Prospectus (which is
not included in the U.S. Prospectus) and the outside back cover page.
(b) On the Effective Date, the Registration Statement did or will,
and when the U.S. Prospectus is first filed (if required) in accordance
with Rule 424(b) and on the Closing Date (as defined in this Underwriting
Agreement) and on any date on which Option Shares are purchased, if such
date is not the Closing Date (a "settlement date"), the U.S. Prospectus
(and any supplements thereto) will comply in all material respects with the
applicable requirements of the Act and the 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,
the Prospectus, if not filed pursuant to Rule 424(b), did not and will not,
and on the date of any filing pursuant to Rule 424(b) and on the Closing
Date and any settlement date, the 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, however, that the Company makes no representations or
warranties as to the information contained in or omitted from the
Registration Statement, or the Prospectuses (or any supplement thereto), in
reliance upon and in conformity with information furnished herein or in
writing to the Company by or on behalf of any Underwriter through the
Representatives specifically for inclusion in the Registration Statement or
the Prospectuses (or any supplement thereto). It is understood that the
information that has been furnished in writing by or on behalf of the
several Underwriters for inclusion in the Registration Statement,
Preliminary Prospectuses or the Prospectuses is limited to (A) the names of
the Underwriters and their respective participation in the sale of the
Shares as set forth in the two charts under the heading "Underwriting" in
the Preliminary Prospectuses or Prospectuses, (B) the statements set forth
in the last paragraph on the front cover page of the Preliminary
Prospectuses or Prospectuses regarding delivery of the
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Shares and (C) the statements set forth in the chart in paragraph one, the
last sentence of the second paragraph, the penultimate sentence of the
seventh paragraph, the last sentence of the eighth paragraph and the
statements set forth in the third, fifth, eleventh, twelfth and twenty-
first (which information has been furnished in writing on behalf of Paribas
only) paragraphs under the heading "Underwriting" in the Preliminary
Prospectuses or Prospectuses.
(c) The Company has filed a preliminary prospectus (the "French
Preliminary Prospectus") with the Commission des Operations de Bourse
("COB") established in accordance with the Ordinance of September 28, 1967
establishing the Commission des Operations de Bourse, as amended, and any
other applicable requirements of French law (the "French Securities Laws").
The French Preliminary Prospectus has been approved by the COB and the
Ordinary Shares have been approved for listing on the Premier Marche of the
Paris Bourse. Prior to the Closing Time, the Company will file a prospectus
(the "French Final Prospectus" and together with the French Preliminary
Prospectus, the "French Prospectuses") with the COB and will receive
approval therefor. The International Prospectus filed with the French
Preliminary Prospectus, and to be filed with the French Final Prospectus,
is and will be wholly incorporated and made a part of the French
Prospectuses through its filing therewith. To the extent that the French
Preliminary Prospectus summarizes information contained in the Registration
Statement, and to the extent that the French Final Prospectus will
summarize information contained in the Registration Statement, such
summaries fairly summarize and will fairly summarize the summarized
portions of the Registration Statement to which they relate. The French
Prospectuses do not contain any material information which is not contained
in the Registration Statement.
(d) Each of the Company and the Subsidiaries has been duly
incorporated and is validly existing as a corporation under the laws of the
jurisdiction in which it is incorporated with full corporate power to own
or lease, as the case may be, and to operate its properties and conduct its
business as described in the Prospectuses, and is duly qualified to do
business as a foreign corporation and is in good standing under the laws of
each jurisdiction which requires such qualification, except where the
failure to be so qualified or be in good standing would not, individually
or in the aggregate, have a material adverse effect on the business,
condition (financial or otherwise), assets, earnings, results of
operations, business affairs, business prospects or properties of the
Company and the Subsidiaries, taken as a whole (a "Material Adverse
Effect").
(e) Except as described in the Prospectuses, all the outstanding
shares in the capital of each Subsidiary have been duly and validly
authorized and issued and are fully paid and non-assessable and all the
outstanding shares of capital stock of the
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Subsidiaries are beneficially owned by the Company free and clear of any
perfected security interests, liens or encumbrances.
(f) The Company's authorized, issued and outstanding equity
capitalization is as set forth in the Prospectuses. The outstanding
Ordinary Shares have been duly and validly authorized and issued and are
fully paid and non-assessable. The Shares being sold under this
Underwriting Agreement by the Company have been duly and validly
authorized, and, when issued and delivered to the Underwriters in
accordance with this Underwriting Agreement, will be validly issued, fully
paid and non-assessable. The certificates for the Shares comply with Dutch
law. The holders of outstanding shares of capital stock of the Company are
not entitled to any preemptive or other rights to subscribe for the Shares.
Except as disclosed in the Prospectuses, 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. The
Shares are freely transferable by the Company to or for the account of the
several Underwriters, their designees and the initial purchasers thereof,
and except as set forth in the Prospectuses there are no restrictions on
subsequent transfers of the Shares.
(g) The capital stock of the Company conforms in all material
respects to the description thereof contained in the Prospectuses. The
articles of association described in the Prospectuses under the heading
"Description of Capital Stock" were adopted by the Company's shareholders
on March [ ], 2000 and are in full force and effect.
(h) The statements in the Prospectuses under the heading "Taxation"
fairly summarize the matters therein described.
(i) This Underwriting Agreement has been duly and validly
authorized, executed and delivered by the Company and (assuming the due
authorization, execution and delivery by the Underwriters) constitutes a
valid and legally binding agreement of the Company, enforceable against the
Company in accordance with its terms.
(j) There is no franchise, contract or other document of a
character required to be described in the Registration Statement or
Prospectuses, or to be filed as an exhibit thereto, which is not described
or filed as required; and the description of each such contract, franchise
or document in the Prospectuses is a fair description thereof in all
material respects; and each such franchise, contract or other document to
which the Company is a party, assuming due authorization, execution and
delivery thereof by all parties thereto, is enforceable against the Company
in accordance with
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its terms and is in full force and effect and to the Company's best
knowledge, is a legal, valid and binding obligation of the other parties
thereto.
(k) No consent, approval, authorization, filing with or order of
any court or governmental or regulatory agency or body is required under
Dutch, French or U.S. federal law or the laws of any state or political
subdivision thereof in connection with the transactions contemplated in
this Underwriting Agreement, except (i) such as have been obtained or made
or, (ii) such as may be required under the blue sky or similar laws of any
jurisdiction in connection with the purchase and distribution of the Shares
by the Underwriters in the manner contemplated in this Underwriting
Agreement and the Prospectuses.
(l) Neither the issue and sale of the Shares, the consummation of
any other of the transactions contemplated in this Underwriting Agreement,
nor the fulfillment of the terms hereof or thereof will conflict with,
result in a breach or violation of, or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to, (i) the articles of association of the Company or
the constituent documents of any of its subsidiaries, (ii) the terms of any
indenture, contract, lease, mortgage, deed of trust, note agreement, loan
agreement, permit, license, franchise or other agreement, obligation,
condition, covenant or instrument to which the Company or any of its
subsidiaries is a party or bound or to which its or their property is
subject, or (iii) any statute, law, rule, regulation, judgment, order or
decree applicable to the Company or any of the Subsidiaries, of any court,
regulatory body, administrative agency, governmental body, arbitrator or
other authority having jurisdiction over the Company or any of the
Subsidiaries or any of its or their properties, except, with respect to
clause (ii) or (iii) above, such as would not individually or in the
aggregate have (A) a material adverse effect on the performance of this
Underwriting Agreement or the consummation of any of the transactions
contemplated herein or (B) a Material Adverse Effect.
(m) The Company is not and, after giving effect to the offering and
sale of the Shares and the application of the proceeds thereof as described
in the Prospectuses, will not be an "investment company" as defined in the
Investment Company Act of 1940, as amended (the "1940 Act") or an
investment institution as defined in the Dutch Act on the supervision of
investment institutions (Wet toezicht beleggingsinstellingen).
(n) No holders of securities of the Company have rights to the
registration of such securities under the Registration Statement except for
such rights that have been validly waived.
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(o) The consolidated historical financial statements and schedules
of the Company and the Subsidiaries (including the related notes) included
in the Registration Statement and the Prospectuses present fairly in all
material respects the financial condition, results of operations, changes
in financial position and cash flows as of the dates and for the periods
indicated, comply as to form with the applicable accounting requirements of
the Act and have been prepared in conformity with United States generally
accepted accounting principles ("U.S. GAAP") applied on a consistent basis
throughout the periods indicated (except as otherwise noted therein). The
summary and selected financial data included in the Registration Statement
and the Prospectuses fairly present in all material respects, on the basis
stated in the Registration Statement and the Prospectuses, the information
included therein. The pro forma financial statements included in the
Prospectuses and the Registration Statement include assumptions that
provide a reasonable basis for presenting the significant effects directly
attributable to the transactions and the events described therein, the
related pro forma adjustments give appropriate effect to those assumptions,
and the pro forma adjustments reflect proper application of those
adjustments to the historical financial statement amounts in the pro forma
financial statements included in the Prospectuses and the Registration
Statement. The pro forma financial statements included in the Prospectuses
and the Registration Statement comply as to form in all material respects
with the applicable accounting requirements of Regulation S-X under the Act
and the pro forma adjustments have been properly applied to the historical
amounts in the compilation of those statements.
(p) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of the Subsidiaries or its or their property is pending or,
to the knowledge of the Company, threatened that could reasonably be
expected to have (i) a material adverse effect on the performance of this
Underwriting Agreement or the consummation of any of the transactions
contemplated herein or (ii) a Material Adverse Effect, whether or not
arising from transactions in the ordinary course of business, except as set
forth or contemplated in the Prospectuses (exclusive of any supplement
thereto).
(q) Each of the Company and the Subsidiaries owns or leases all such
properties as are necessary to the conduct of its operations as presently
conducted. Any real property and buildings held under lease by the Company
or any of the Subsidiaries are held under valid, subsisting and enforceable
leases, with such exceptions as are not material and do not interfere with
the use made or proposed to be made of such property and buildings by the
Company or any of the Subsidiaries, in each case except as described in or
contemplated in the Prospectuses.
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(r) Neither the Company nor any of the Subsidiaries is in violation
or default of (i) any provision of its articles of association or other
constituent documents, (ii) the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other agreement,
obligation, condition, covenant or instrument to which it is a party or
bound or to which its property is subject, or (iii) any statute, law, rule,
regulation, judgment, order or decree applicable to the Company or any of
the Subsidiaries of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction over
the Company or any of the Subsidiaries or any of its or their properties,
except, with respect to clause (ii) or (iii) above, such as would not
individually or in the aggregate, have (A) a material adverse effect on the
performance of this Underwriting Agreement or the consummation of any of
the transactions contemplated herein or (B) a Material Adverse Effect.
(s) Xxxxxx Xxxxxxxx LLP, who have certified certain financial
statements of the Company and the Subsidiaries and delivered their report
with respect to the audited consolidated financial statements and schedules
included in the Registration Statement and the Prospectuses, are
independent public accountants with respect to the Company within the
meaning of the Act and the applicable published rules and regulations
thereunder.
(t) The Company has not taken, directly or indirectly, any action
designed to cause or to result in, or that has constituted or which might
reasonably be expected to constitute under the Exchange Act or otherwise,
the stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares, provided, however,
that this provision shall not apply to any trading or stabilization
activities conducted by the Underwriters.
(u) Each of the Company and the Subsidiaries possesses all licenses,
permits, certificates and other authorizations issued by the appropriate
Dutch, U.S., federal and state regulatory authorities, or foreign national
and local governmental or regulatory authorities necessary to conduct its
business as currently conducted, except in any case in which the failure so
to possess any such license, permit, certificate or other authorization
would not, individually or in the aggregate, have a Material Adverse
Effect. Neither the Company nor any of the Subsidiaries has received any
notice of proceedings relating to the revocation or modification of any
such license, permit, certificate or authorization which, singly or in the
aggregate, if the subject of an unfavorable decision ruling or findings,
would have a Material Adverse Effect, whether or not arising from
transactions in the ordinary course of business, except as set forth in the
Prospectuses (exclusive of any supplement thereto).
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(v) No labor dispute with the employees of the Company or any of the
Subsidiaries exists or, to the Company's best knowledge, is threatened, and
the Company is not aware of any existing labor disturbance by any of its or
any of the Subsidiaries' employees, that could have a Material Adverse
Effect, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Prospectuses
(exclusive of any supplement thereto).
(w) Each of the Company and the Subsidiaries is insured by insurers
of recognized financial responsibility against such losses and risks and in
such amounts as are prudent and customary in the businesses in which it is
engaged. All policies of insurance insuring the Company or any of the
Subsidiaries or their respective businesses, assets, employees, officers
and directors are in full force and effect, except as would not have a
Material Adverse Effect; each of the Company and the Subsidiaries is in
compliance with the terms of such policies and instruments in all material
respects; and there are no claims by the Company or any of the Subsidiaries
under any such policy or instrument as to which any insurance company is
denying liability or defending under a reservation of rights clause. The
Company has no reason to believe that either the Company or any of the
Subsidiaries will not be able to renew its existing insurance coverage as
and when such coverage expires or to obtain similar coverage from similar
insurers as may be necessary to continue its business at a cost that would
not have a Material Adverse Effect, 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 Prospectuses (exclusive of any supplement
thereto).
(x) None of the Company's Subsidiaries is currently prohibited,
directly or indirectly, from paying any dividends to the Company, from
making any other distribution on its capital stock, from repaying to the
Company any loans or advances to it from the Company or from transferring
any of its property or assets to the Company or the other Subsidiary,
except as described in or contemplated in the Prospectuses.
(y) The Company and the Subsidiaries own, possess, license or have
other rights to use, on reasonable terms, all patents, patent applications,
trademarks, service marks, trade and service xxxx registrations, trade
names, licenses, copyrights, inventions, trade secrets, technology, know-
how and other intellectual property (collectively, the "Intellectual
Property") necessary for the conduct of the Company's business as now
conducted, and as described in the Prospectuses, except where the failure
to so own, possess, license or have other rights to use the Intellectual
Property would not, individually or in the aggregate, have a Material
Adverse Effect, whether or not arising from the ordinary course of business
and, except as disclosed in the Prospectuses, neither the Company nor any
of its Subsidiaries has received any notice of infringement of or conflict
with (or knows of any such infringement of or conflict with)
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asserted rights of others with respect to any of such intellectual property
which, if such assertion of infringement or conflict were sustained, would
result in any Material Adverse Effect.
(z) The Company has taken such investigatory and remediary action
to confront the Year 2000 Problem as it deemed necessary and based on this
action the Company has no reason to believe, and does not believe, that the
Year 2000 Problem has had or will have a Material Adverse Effect or has
resulted or will result in any material loss or interference with the
Company's business or operations. The "Year 2000 Problem" as used herein
means any significant risk that computer hardware or software used in the
receipt, transmission, processing, manipulation, storage, retrieval,
retransmission or other utilization of data or in the operation of
mechanical or electrical systems of any kind is not functioning or will not
function, in the case of dates or time periods occurring after December 31,
1999, at least as effectively as in the case of dates or time periods
occurring prior to January 1, 2000;
(aa) The Company has filed all Dutch, U.S., foreign, federal, state
and local tax returns that are required to be filed or has requested
extensions thereof, except in any case in which the failure so to file
would not have a Material Adverse Effect, whether or not arising from
transactions in the ordinary course of business, except as set forth in or
contemplated in the Prospectuses (exclusive of any supplement thereto) and
has paid all taxes required to be paid by it and any other assessment, fine
or penalty levied against it, to the extent that any of the foregoing is
due and payable, except for any such assessment, fine or penalty that is
currently being contested in good faith or as would not have a Material
Adverse Effect, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the
Prospectuses (exclusive of any supplement thereto).
(bb) No Underwriter or holder of Shares is or will be deemed to be
resident, domiciled, carrying on business or subject to taxation in The
Netherlands solely by reason of the execution, delivery, consummation or
enforcement of this Underwriting Agreement.
(cc) Each of the Company and the Subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management's general
or specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with U.S. GAAP and
to maintain asset accountability; (iii) access to assets is permitted only
in accordance with management's general or specific authorization; and (iv)
the recorded accountability for assets is compared with the existing assets
at reasonable intervals and appropriate action is taken with respect to any
differences.
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(dd) The Company represents and warrants that (i) the Registration
Statement, the Prospectuses and the Preliminary Prospectuses comply and in
the case of France, the French Preliminary Prospectus and the French
Prospectus comply, and any further amendments or supplements thereto will
comply, with any applicable laws or regulations of jurisdictions in which
such prospectuses, as amended or supplemented, if applicable, are
distributed in connection with the Directed Share Program, and (ii) no
authorization, approval, consent, license, order, registration or
qualification of or with any government, governmental instrumentality or
court, other than such as have been obtained, is necessary under the
securities laws and regulations of jurisdictions in which the Directed
Shares are offered outside the United States.
(ee) The Company and the Subsidiaries are (i) to the Company's
knowledge, in compliance with any and all Dutch, U.S., 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") applicable to
conduct their respective businesses, (ii) have received and are in
compliance with all permits, licenses or other approvals required of them
under applicable Environmental Laws to conduct their respective businesses
and (iii) have not received notice of any actual or potential liability for
the investigation or remediation of any disposal or release of hazardous or
toxic substances or wastes, pollutants or contaminants, except where such
non-compliance with Environmental Laws, failure to receive required
permits, licenses or other approvals, or liability would not, individually
or in the aggregate, have a Material Adverse Effect, whether or not arising
from transactions in the ordinary course of business, except as set forth
in the Prospectuses.
(ff) Each of the Company and the Subsidiaries has fulfilled its
obligations, if any, under the minimum funding standards of Xxxxxxx 000 xx
xxx Xxxxxx Xxxxxx Employee Retirement Income Security Act of 1974 ("ERISA")
and the regulations and published interpretations thereunder with respect
to each "plan" (as defined in Section 3(3) of ERISA and such regulations
and published interpretations) in which employees of the Company and the
Subsidiaries are eligible to participate (other than any "multiemployer
plan" within the meaning of Section 4001(a)(3) of ERISA) and each such plan
(other than any "multiemployer plan" within the meaning of Section
4001(a)(3) of ERISA) is in compliance in all material respects with the
presently applicable provisions of ERISA and the United States Internal
Federal Revenue Code of 1986, as amended and such regulations and published
interpretations, except where such failure to fulfill or such non-
compliance would not, individually or in the aggregate, have a Material
Adverse Effect. The Company and the Subsidiaries have not incurred any
unpaid liability to the Pension Benefit Guaranty Corporation (other than
for the payment of premiums in the ordinary course) or to any such plan
under Title IV of
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ERISA, except such as would not, individually or in the aggregate, have a
Material Adverse Effect.
(gg) The Subsidiaries are (i) the only significant subsidiaries of
the Company as defined by Rule 1.02 of Regulation S-X or (ii) all of the
Company's subsidiaries whose property, assets, rights or operations are
material to the business, condition (financial or otherwise), earnings,
business affairs or business prospects of the Company and its subsidiaries
taken as a whole.
(hh) The statistical and market-related data included in the
Registration Statement, the Prospectuses and the Preliminary Prospectuses
(the "Primary Offering Materials") and any further amendments or
supplements thereto prior to Closing (the "Supplemental Offering
Materials," and together with the Primary Offering Materials, the "Offering
Materials") are based on or derived from independent sources which the
Company believes to be reliable and accurate in all material respects or
represent the Company's good faith estimates that are made on the basis of
data derived from such sources.
(ii) None of the Company, its Subsidiaries or any of their
properties or assets has immunity from the jurisdiction of any court or
from any legal process (whether through service or notice, attachment in
aid of execution, executing or otherwise) under the laws of The Netherlands
or other applicable laws.
(jj) To ensure the legality, validity, enforceability or
admissibility into evidence of this Underwriting Agreement or any other
document to be furnished thereunder, it is not necessary that this
Underwriting Agreement, or any other document be filed or recorded with any
court or other authority in The Netherlands or any other jurisdiction.
(kk) The Company has the power to submit and on the Closing Date
will have taken all necessary corporate action to submit to the non-
exclusive jurisdiction of the federal and state courts in New York City,
New York, and to waive immunity in respect of this Underwriting Agreement
and such submission will be binding upon the Company.
(ll) Any certificate signed by any officer of the Company or any of
the Subsidiaries, in his or her capacity as a managing director or as an
officer of the Company or any of the Subsidiaries, and delivered to you or
counsel for the Underwriters in connection with this Underwriting Agreement
shall be deemed to be a representation and warranty by the Company to each
Underwriter as to the matters covered thereby.
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1A. Representations and Warranties of the Underwriters. Each of the
Underwriters represents and warrants to, and agrees with, the Company as set
forth below in this Section 1A.
(a)(i) It has not offered or sold and, prior to the date six months
after the closing date for the sale of the Shares to the Underwriters, will
not offer or sell, any Shares to persons in the United Kingdom except to
persons whose ordinary activities involve them in acquiring, holding,
managing or disposing of investments, as principal or agent, for the
purposes of their businesses or otherwise in circumstances which have not
resulted and will not result in an offer to the public in the United
Kingdom within the meaning of the Public Offers of Securities Regulations
1995, (ii) it has complied and will comply with all applicable provisions
of the Financial Services Xxx 0000, and (iii) it has and will distribute
any document relating to the Shares in the United Kingdom only to a person
who is of a kind described in Article 11(3) of the Financial Services Xxx
0000 (Investment Advertisements) (Exemptions) Order 1996 (as amended) or is
a person to whom such document may otherwise lawfully be distributed.
(b)(i) It has only offered and sold and will only offer and sell
Shares in the Federal Republic of Germany in accordance with the provisions
of the Securities Sales Prospectus Act of December 13, 1990, as amended
(Wertpapier-Verkaufsprospektgesetz) and any other laws applicable in the
Federal Republic of Germany governing the issue, sale and offering of
securities and (ii) any resale of Shares in the Federal Republic of Germany
will only be made in accordance with the provisions of the Securities Sales
Prospectus act and any other laws applicable in the Federal Republic of
Germany governing the sale and offering of securities.
(c)(i) The sale of the Shares in the Republic of Italy shall be
effected in accordance with all Italian securities, tax and other
applicable laws and regulations, and (ii) it will not offer, sell or
deliver any Shares or distribute copies of this prospectus or any other
document relating to the Shares in the Republic of Italy unless such offer,
sale or delivery of the Shares or distribution of copies of this prospectus
or any other document relating to the Shares in the Republic of Italy is:
(x) made by an investment firm, bank or financial intermediary permitted to
conduct such activities in the Republic of Italy in accordance with
Legislative Decree No. 385 dated September 1, 1993 ("Decree No. 385"),
Legislative Decree No. 58 dated February 24, 1998, Commissione Xxxxxxxxx
xxx xx Xxxxxxx x xx Xxxxx Xxxxxxxxxx Xx. 00000 dated May 14, 1999 and any
other applicable laws and regulations, (y) in compliance with Article 129
of Decree No. 385 and the implementing instructions of the Bank of Italy,
pursuant to which the issue, trading or placement of securities in Italy is
subject prior to notification to the Bank of Italy, unless an exemption
applies, and (z) in compliance with any other
-13-
applicable notification requirement or limitation which may be imposed by
Commissione Nazionale per le Societa e la Borsa or the Bank of Italy or any
other Italian regulatory authority.
2. Purchase and Sale.
-----------------
(a) Subject to the terms and conditions and in reliance upon the
representations and warranties set forth in this Underwriting Agreement, 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
US$ per Ordinary Share with respect to Ordinary Shares sold in the United
States and per Ordinary Share with respect to Ordinary Shares sold
outside the United States, the amount of Underwritten Shares set forth opposite
such Underwriter's name in Schedule I to this Underwriting Agreement.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties set forth in this Underwriting Agreement, the
Company hereby grants an option to the several Underwriters to purchase,
severally and not jointly, up to Option Shares at the same
purchase price per Ordinary Share as the Underwriters shall pay for the
Underwritten Shares. Said option may be exercised to cover sales of Ordinary
Shares in excess of the number of Underwritten Shares. 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 Prospectuses upon written or telegraphic
notice by Salomon Brothers International Limited and Xxxxxxx Xxxxx International
(the "Joint Global Coordinators") to the Company setting forth the number of
shares of the Option Shares as to which the several Underwriters are exercising
the option and the settlement date. The number of Option Shares to be purchased
by each Underwriter shall be the same percentage of the total number of shares
of the Option Shares to be purchased by the several Underwriters as the
percentage such Underwriter is purchasing of the total Underwritten Shares,
subject to such adjustments as you in your absolute discretion shall make to
eliminate any fractional shares.
3. Delivery and Payment. Delivery of and payment for the
Underwritten Shares and the Option Shares (if the option provided for in
Section 2(b) hereof shall have been exercised on or before the 2nd Business Day
prior to the Closing Date) shall be made at 10:00 AM, New York City time,
on , 2000, or such later date not later than Business Days
after the foregoing date as the Representatives shall designate, which date and
time may be postponed by agreement among the Representatives and the Company or
as provided in Section 9 hereof (such date and time of delivery and payment for
the Shares being herein called in this Underwriting Agreement, the "Closing
Date"). Delivery of the Shares 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 respective aggregate
-14-
purchase prices of the Shares being sold by the Company to or upon the order of
the Company by wire transfer payable in same day funds to the accounts specified
by the Company.
If the option provided for in Section 2(b) hereof is exercised after
the 2nd Business Day prior to the Closing Date, the Company will deliver (at the
expense of the Company) to the Representatives any Option Shares not delivered
to the depositary or its nominee pursuant to the deposit agreement in such names
and denominations as the Representatives shall have requested 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 of U.S. dollars and
payable in same day funds to the accounts specified by the Company. If
settlement for the Option Shares occurs after the Closing Date, the Company will
deliver to the Representatives on the settlement date for the Option Shares, and
the obligation of the Underwriters to purchase the Option Shares 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
Underwriters propose to offer the Shares for sale to the public in the United
States and France as set forth in the Prospectuses.
5. Agreements. (I) The Company and the several Underwriters agree
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. The Company will promptly file, if not
previously filed, the French Final Prospectus with the COB, and will use
its best efforts to obtain prior to the Closing Time the final approval
therefor. Prior to the termination of the offering of the Shares, the
Company will not file any amendment of the Registration Statement or
supplement to the U.S. Prospectus or any Rule 462(b) Registration Statement
or any amendment or supplement to the French Final Prospectus 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
U.S. Prospectus is otherwise required under Rule 424(b), the Company will
cause the U.S. 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 U.S. Prospectus, and any supplement thereto, shall have been filed (if
required) with the Commission pursuant to Rule 424(b) or when any
-15-
Rule 462(b) Registration Statement shall have been filed with the
Commission, (3) when the French Final Prospectus has been filed with the
COB and when the final approval therefor has been obtained, (4) when, prior
to termination of the offering of the Shares, any amendment to the
Registration Statement or the French Final Prospectus shall have been filed
or become effective, (5) 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 U.S. Prospectus or for
any additional information or of any request by the COB or the
ParisBourseSBF S.A. (the "ParisBourse") or their respective staffs for any
amendment of the French Final Prospectus, or for any supplement to the
French Final Prospectus or for any additional information, (6) 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, (7) of the issuance of any stop order or
similar instruction from the COB or the ParisBourse with respect to the
offering of the Shares or the use of the French Final Prospectus, (8) when
the dispensation pursuant to Section 4 of the 1995 Act on the supervision
of the securities trade (Wet toezicht effectenverkeer 1995) has been
granted and (9) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Shares for sale in
any jurisdiction or the initiation or threatening of any proceeding for
such purpose. The Company will use its best efforts to prevent the issuance
of any stop order and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a prospectus relating to the Shares is
required to be delivered under the Act, any event occurs as a result of
which the U.S. 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 to amend
the Registration Statement or supplement the U.S. Prospectus to comply with
the Act or the rules thereunder, the Company promptly will (1) notify the
Representatives of any such event; (2) prepare and file with the Commission
and with the COB, subject to the second sentence of paragraph (i)(a) of
this Section 5, an amendment or supplement which will correct such
statement or omission or effect such compliance; and (3) supply any
supplemental U.S. Prospectus to you in such quantities as you may
reasonably request.
(c) As soon as practicable, the Company will timely file such
reports pursuant to the Exchange Act as are necessary in order to make
generally available to its security holders and to the Representatives an
earnings statement or statements covering the 12 month period ending
December 31, 2000 of the Company and the
-16-
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 the Representatives and counsel for
the Underwriters, without charge, signed copies 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 U.S. Preliminary Prospectus and U.S. Prospectus
and any supplement thereto as the Representatives may reasonably request.
(e) The Company will arrange, if necessary, for the qualification of
the Shares 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 distribution of the Shares, provided,
however, that in no event shall the Company be obligated to qualify to do
business in any jurisdiction where it is not now so qualified or to take
any action that would subject it to service of process in suits, other than
those arising out of the offering or sale of the Shares, in any
jurisdiction where it is not now so subject.
(f) Except pursuant to this Underwriting Agreement, the Company will
not, without the prior written consent of the Joint Global Coordinators
offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter
into any transaction which is designed to, or might reasonably be expected
to, result in the disposition (whether by actual disposition or effective
economic disposition due to cash settlement or otherwise) by the Company)
directly or indirectly, including the filing (or participation in the
filing) of a registration statement with the Commission in respect of, or
establish or increase a put equivalent position or liquidate or decrease a
call equivalent position within the meaning of Section 16 of the Exchange
Act, any Shares or any securities convertible into, or exercisable, or
exchangeable for, Shares; or publicly announce an intention to effect any
such transaction, for a period of 180 days after the date of this
Underwriting Agreement, provided, however, that the Company may issue and
sell Shares pursuant to any employee stock option plan or stock ownership
plan and may file a Form S-8 with respect thereto.
(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 Shares.
-17-
(h) The Company agrees to pay the costs and expenses relating to the
following matters: (i) the fees and expenses of its counsel (including
local counsel), and accountants in connection with the issuance of the
Shares, (ii) the preparation, printing or reproduction and filing with the
Commission of the Registration Statement (including financial statements
and exhibits thereto), the Preliminary Prospectus, the Prospectus, the
French Preliminary Prospectus, the French Final Prospectus, and each
amendment or supplement to any of them and mailing and delivering
(including postage, air freight charges and charges for counting and
packing) copies thereof to the initial purchasers and dealers; (iii) all of
the Company's and its representatives' (but excluding the Underwriters')
expenses relating to the road show for the offering of the Shares,
including the transportation and other expenses incurred by or on behalf of
Company representatives in connection with presentations to prospective
purchasers of the Shares; provided that in any event all expenses relating
to any chartered or private airplane shall be borne by the Company; (iv)
the preparation, printing, authentication, issuance and delivery of
certificates for the Shares, including any stamp or transfer taxes in
connection with the original issuance and sale of the Shares; (v) the
registration of the Shares under the Exchange Act and the listing of the
Shares on the Premier Marche of the ParisBourse and The Nasdaq National
Market, Inc., respectively; (vi) any filings required to be made with the
National Association of Securities Dealers, Inc. (the "NASD") (including
filing fees and the reasonable fees and expenses of counsel for the
Underwriters relating to such filings); (vii) the fees and expenses of the
Authorized Agent (as defined in Section 14 hereof); (viii) the cost and
charges of any transfer agent or registrar; and (ix) all other costs and
expenses incident to the performance by the Company of its obligations
under this Underwriting Agreement.
(i) The Company agrees that, in connection with the Directed Share
Program, the Company will ensure that the Directed Shares will be
restricted to the extent required by the NASD or the NASD rules from sale,
transfer, assignment, pledge or hypothecation for a period of three months
following the date of the effectiveness of the Registration Statement.
Salomon Brothers International Limited will notify the Company in writing
as to which Participants will need to be so restricted. The Company will
direct the removal of the transfer restrictions upon the expiration of such
period of time.
(j) The Company covenants with the Underwriters that the Company
will comply with all applicable securities and other applicable laws, rules
and regulations in each foreign jurisdiction in which the Directed Shares
are offered in connection with the Directed Share Program.
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Underwritten Shares and the
Option Shares, as the case may be,
-18-
shall be subject to the accuracy of the representations and warranties on the
part of the Company contained in this Underwriting Agreement 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
under this Underwriting Agreement 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 New York City time 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 U.S. Prospectus, or any supplement thereto,
is required pursuant to Rule 424(b), the U.S. 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 proceedings for that
purpose shall have been instituted or threatened.
(b) The Company shall have filed the French Final Prospectus with
the COB no later than [ ] following the determination of
the public offering price and shall have received final approval from the
COB of the French Final Prospectus by no later than [ ]
following the date of determination of the public offering price, and no
stop order or similar instruction from the COB or the ParisBourse with
respect to the offering of the Shares or the use of the French Final
Prospectus shall have been issued.
(c) The Company shall have requested and caused Stibbe Simont
Xxxxxxx Duhot, special Netherlands 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 that:
(i) the Company has been duly incorporated and is validly
existing under the laws of The Netherlands as a legal entity in the form of
a "naamloze vennootschap";
(ii) the Company has an authorized capitalization as set forth
in the Prospectuses and the Underwritten Shares have been duly authorized
and validly issued in accordance with the laws of The Netherlands and the
provisions of the articles of
-19-
association applicable thereto and are fully paid and non-assessable, and
the issuance of such shares is not subject to any preemptive or similar
rights;
(iii) the Option Shares have been duly authorized and will,
when issued by the Company in a manner and on the terms as referred to in
this Agreement, be validly issued in accordance with the laws of The
Netherlands and the provisions of the articles of association applicable
thereto, and subject to the payment by the Underwriters for Option Shares
and the manner and on the terms as referred to in this Agreement, will be
fully paid and non-assessable, and the issuance of such shares will not be
subject to any pre-emptive or similar rights.
(iv) according to shareholders' register of the Company the
Shares are free of rights of pledge ("pandrecht") or rights of usufruct
("vruchtgebruik");
(v) the Company has the corporate power and authority to
enter into and perform the obligations on its part to be performed under
this Agreement, and the Company has the corporate power and authority to
conduct its business as described in the Prospectuses;
(vi) the execution and delivery by the Company of this
Agreement and the performance by the Company of its obligations thereunder
have been duly authorized by the Company;
(vii) to the extent governed by the laws of The Netherlands,
this Agreement has been duly executed and delivered by the Company;
(viii) the execution and delivery by the Company of, and the
performance by the Company of its obligations under this Agreement do not
violate any provisions of the law of The Netherlands or any of the
provisions of the articles of association of the Company;
(ix) in order to ensure the legality, validity,
enforceability or admissibility in evidence of this Agreement, it is not
necessary that it be filed, recorded or enrolled with any public authority,
governmental agency or governmental department of The Netherlands
(excluding, for the avoidance of doubt, a court in connection with legal
proceedings insofar as the enforceability and admissibility in evidence are
concerned), or that any stamp, registration or similar tax or charge be
paid in The Netherlands, except for certain court fees in connection with
legal proceedings;
(x) the choice of New York law as the law expressed to be
governing this Agreement will be recognized as the law governing this
Agreement and
-20-
accordingly the courts of The Netherlands should apply New York law as the
law expressed to be governing this Agreement;
(xi) the submission to the jurisdiction of any state or
federal court located in the Borough of Manhattan, The City of New York,
New York (each a "New York Court") and/or the irrevocable waiver of any
objection to the laying of venue of a proceeding in such court and of any
immunity to jurisdiction of such court, to which it is or may become
entitled, will, according to the courts of The Netherlands duly applying
New York law as the law governing this Agreement (including such submission
and waiver), be valid and binding on the Company; and, except as described
in the Prospectus, a judgment obtained in a New York Court arising out of
or in relation to the obligations of the Company under this Underwriting
Agreement would be enforceable against the Company in the courts of The
Netherlands;
(xii) all authorizations, consents or approvals of, or
registrations or filings with, any governmental department or regulatory
authority of or within The Netherlands which are required for the offer of
the Shares have been obtained or made and are in full force and effect;
(xiii) the statements as to the laws of The Netherlands and
the articles of association of the Company, in the Prospectus under the
headings "Management --Supervisory Board and Board of Management,"
"Description of Capital Stock" (except for the statements under the
subheadings "-- Description of equity registration and other rights" and
"--private equity investors' registration rights" and "Share Certificates
and Transfer," are correct in all material respects and the Shares conform
to the description of the Shares in such statements and the articles of
association of the Company;
(xiv) the Board of Management of the Company has in its
resolutions on , 2000 validly resolved to exclude the pre-emptive
rights of shareholders in respect of the issue of the Shares by the
Company and no other action is required to exclude such pre-emptive rights;
(xv) the statements in the Prospectuses under the caption
"Taxation --Netherlands Taxation" fairly and accurately summarize the
material tax laws and regulations referred to therein;
(xvi) except as described or disclosed in the Registration
Statement, no capital duty, stamp duty or other issuance or transfer taxes
or duties are payable in The Netherlands in connection with or as a result
of the sale and delivery of the Shares by the Company to or for the
respective account of the Underwriters or to any purchasers
-21-
procured by the Underwriters, in either case in the matter contemplated
herein or the sale and delivery by the Underwriters of the Shares to the
initial purchasers thereof in the manner contemplated herein;
(xvii) neither the issue and sale of the Shares, nor the
consummation of any other of the transactions herein contemplated nor the
fulfillment of the terms hereof will conflict with, result in a breach or
violation of or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or its subsidiaries pursuant to, (i) the
articles of association of the Company or its Dutch subsidiaries, or (ii)
any statute, law, rule, regulation or, to the best of such counsel's
knowledge, judgment, order or decree applicable to the Company or its
subsidiaries of any Netherlands court, regulatory body, administrative
agency, governmental body, arbitrator or other authority having
jurisdiction over the Company or its subsidiaries or any of its or their
properties; and
(xviii) to the best of such counsel's knowledge and other than
as set forth in any Prospectus, there are no legal or governmental
proceedings pending in The Netherlands to which the Company or any of its
Dutch subsidiaries is a party or of which any property of the Company or
any of its Dutch subsidiaries is the subject which, if determined adversely
to the Company or any of its Dutch subsidiaries, would individually or in
the aggregate have a material adverse effect on the current or future
consolidated financial position, shareholders' equity or results of
operations of the Company and its subsidiaries; and, to the best of such
counsel's knowledge, no such proceedings are threatened or contemplated by
any Dutch governmental agency or threatened by others.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of the United States, to the extent they
deem proper and specified in such opinion, upon the opinion of Holme
Xxxxxxx & Xxxx LLP and (B) as to matters of fact, to the extent they deem
proper, on certificates of responsible officers of the Company; provided,
however, that all such certificates shall be reasonably satisfactory to the
Representatives in all material respects and attached to such counsel's
opinion. References to the Prospectuses in this paragraph (c) include any
supplements thereto at the Closing Date.
(d) The Company shall have requested and caused Oppenhoff and
Xxxxxx, German 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 opining that:
-22-
(i) the Offering Materials comply, with any applicable
German laws or regulations concerning the distribution of offering
materials in connection with the offering of Ordinary Shares to employees
of CompleTel GmbH; except for the Offering Materials, no information or
other materials are required to be delivered to employees of CompleTel GmbH
in connection with the offer, sale and issuance of Ordinary Shares to
employees of CompleTel GmbH;
(ii) no authorization, approval, consent, license, order,
registration or qualification of or with any government, governmental
instrumentality or court in Germany, other than such as have been obtained,
is necessary in connection with the offer, sale and issuance of Ordinary
Shares to employees of CompleTel GmbH;
(iii) the offer, sale and issuance of the Directed Shares to
employees of the Company and its subsidiaries will not conflict with,
result in a breach or violation of or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or its subsidiaries
pursuant to any statute, law, rule, regulation, judgment, order or decree
applicable to the Company or its subsidiaries of any court, regulatory
body, administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Company or its subsidiaries or any
of its or their properties;
(iv) CompleTel GmbH is duly incorporated under German law;
(v) the issued share capital of CompleTel GmbH amounts to
39,509,350 divided into 3 shares of 12,800, 12,800 and 39,483,750,
respectively each, that all of such shares are owned by CompleTel Holding I
B.V.;
(vi) to such counsel's knowledge based solely on a review of
the articles of association and share accounts, the issued share capital of
CompleTel GmbH (a) has been validly issued and the nominal cash amounts to
be contributed have been paid to CompleTel GmbH's accounts, and (b) has not
been issued in violation of any pre-emptive or similar rights;
(vii) except as described below, the shares comprising the
issued share capital of CompleTel GmbH are, based only on our review of the
articles of association of CompleTel GmbH and the share accounts of
CompleTel GmbH, free and clear of any security interests, claims, liens,
encumbrances or restrictions on transferability or voting;
(A) Pursuant to a notarial deed, roll of deeds A/Prot,
of the notary Xxxxxxx Xxxxx (Basle, Switzerland) the shares
comprising the issued share capital of CompelTel GmbH are fully
pledged in favor of certain banks and
-23-
financial institutions in order to secure their respective claims
under a 265 million credit agreement dated January 6, 2000 (the
"Credit Agreement"). The share pledge extends to all present and
future rights to receive dividends in relation to the shares. The
voting rights remain with the shareholder of CompleTel GmbH. The
shares may not be transferred to third parties without the prior
written consent of the banks.
(viii) except as set forth in the Prospectuses and except as
would not have a Material Adverse Effect, CompleTel GmbH has full power and
capacity to own, lease and operate its properties and conduct its business
in Germany and the class 3 license and class 4 license granted by the
Regulierungsbehorde fur Telekommunikation und Post (the "German Licenses")
obtained by CompleTel GmbH allow CompleTel GmbH to deploy and operate its
network and services in certain areas in Germany as set out in the
Prospectuses;
(ix) to such counsel's knowledge, CompleTel GmbH has not
received any notice of proceedings relating to the suspension or revocation
of the German Licenses which, individually or in aggregate, if the subject
of an unfavorable decision, ruling or finding, could have a Material
Adverse Effect on the German Licenses; and
(x) the statements in the Prospectuses to the extent Germany
is concerned under the headings "Prospectus Summary", "Risk Factors--We may
not be able to obtain and maintain licenses, permits, rights-of-way and
leased capacity to successfully build and operate our business", "Risk
Factors--Our need to comply with extensive government regulation and
licensing requirements could increase our costs and slow our growth",
"Business--Regulation--Overview" and "--Germany" fairly summarize the
status of German telecommunications regulatory matters with respect to
CompleTel GmbH.
In rendering such opinion, such counsel may rely as to matters of
fact, to the extent they deem proper, on certificates of responsible
officers of the Company and public officials; provided, however, that all
such certificates and statements shall be reasonably satisfactory to the
Representatives in all material respects and attached to such counsel's
opinion.
(e) The Company shall have requested and caused Holme Xxxxxxx & Xxxx
International Limited, U.K. counsel for the Company, to have furnished to
the Representatives their opinion, dated the Closing Date and addressed to
the Representatives opining that
-24-
(i) the Primary Offering Materials comply, and the
Supplemental Offering Materials will comply, with any applicable U.K. laws
or regulations concerning the distribution of Offering Materials in
connection with the Directed Share Program for the offer, sale and issuance
of Directed Shares to employees of the Company and its U.K. subsidiaries;
except for the Offering Materials, no information or other materials are
required to be delivered to participants in the Directed Share Program in
connection with the offer, sale and issuance of Directed Shares to
employees of the Company and its subsidiaries in the U.K.
(ii) no authorization, approval, consent, license, order,
registration or qualification of or with any government, governmental
instrumentality or court in the U.K., other than such as have been
obtained, is necessary in connection with the offer, sale and issuance of
Directed Shares to employees of the Company and its subsidiaries in the
U.K.;
(iii) Each of Completel UK Limited and iPcenta Limited (the
"U.K. Subsidiaries") is a company duly incorporated and existing with
limited liability under the laws of England and has, pursuant to its
memorandum of association, the full requisite power and authority to own,
lease and operate its properties and conduct its business as described
under the headings "Prospectus Summary" and "Business" in the Prospectuses;
(iv) The authorized share capital of iPcenta Limited is
(Pounds)250,000 divided into ordinary shares authorised to be issued of
(Pounds)1 each, of which one share has been issued and fully paid up to
date. The authorised share capital of CompleTel UK Limited is
(Pounds)50,000,000 divided into 50,000,000 ordinary shares of (Pounds)1
each, of which 2 ordinary shares have been issued and fully paid up to
date. To such counsel's knowledge based on a review of the respective
articles of association and share accounts, all such issued shares are
fully paid and were not issued in violation of any pre-emptive or similar
rights in respect of the share capital of CompleTel UK Limited or iPcenta
Limited. Except as set out in the Prospectuses and to the best of such
counsel's knowledge, all issued shares in the share capital (i) of
CompleTel UK Limited are owned by CompleTel Holdings I B.V. and (ii) of
iPcenta Limited are owned by CompleTel UK Limited and, in each case, are
(subject to the pledges pursuant to the Credit Agreement free and clear of
any security interests, claims, liens, encumbrances, or restrictions on
transferability (other than those imposed under the Companies Xxx 0000 (as
amended or substituted from time to time) or voting;
(f) the Company shall have requested and caused Xxxxxx Xxxxx Sapte,
U.K. regulatory counsel for the Company, to have furnished to the
Representatives
-25-
their opinion, dated the Closing Date and addressed to the Representatives,
opining that:
(i) a license dated January 11, 1999 issued by the Secretary
of State for Trade and Industry under section 7 of the Telecommunications
Xxx 0000 ("the PTO Licence") and a standard International Simple Voice
Resale License under the Telecommunications Xxx 0000 (the "ISVR License")
(together the "U.K. Licenses") have been granted to CompleTel UK Limited;
(ii) the UK Licenses provide all the necessary regulatory and
statutory authority which CompleTel UK Limited would require to perform its
business as the provider of telecommunications services, including
Internet-related services, in the United Kingdom as described in the
Prospectuses. To the extent that CompleTel UK Limited and or iPcenta
operates such services as are authorized under a class license, CompleTel
UK Limited and iPcenta are authorized under a class license to provide
publicly available telecommunications services in the United Kingdom
without making an application;
(iii) the Department for Trade and Industry (the "DTI"), has
confirmed verbally that they have not issued any notice of proceedings
relating to the revocation or modification of either of the UK Licenses or
any class license which may apply to CompleTel UK Limited, other than in
the course of modification of similar licenses for reasons of legislative
or regulatory reform, and have confirmed that they have not received any
recommendation from the Director of the Office of Telecommunications
("OFTEL") to revoke or modify the UK Licenses or a class license (other
than as described above), the DTI and OFTEL being the relevant
telecommunications and licensing authorities. The DTI have also confirmed
verbally that based on the changes in the shareholders of CompleTel UK
Limited, provided CompleTel UK Limited complies with its obligations under
the UK Licenses and the class license, no grounds for revocation exist;
(iv) except for the changes to the Shareholding of CompleTel
UK Limited referred to in paragraph (iii) above and discussed therein, to
such counsel's knowledge, no event has occurred which allows, or after
notice or lapse of time, or both, would allow, revocation or termination of
either of the Licenses or a class license or would result in any other
material impairment of the rights of CompleTel UK Limited as the holder of
the UK Licenses or a class license;
In rendering such opinion, such counsel may rely as to matters of
fact, to the extent they deem proper, on certificates of responsible
officers of the Company and public officials; provided, however, that all
such certificates and statements shall be
-26-
reasonably satisfactory to the Representatives in all material respects and
attached to such counsel's opinion.
(g) The Company shall have requested and caused Stibbe Simont
Xxxxxxx Duhot, French counsel for the Company, to have furnished to the
Representatives their opinion, dated the Closing Date and addressed to the
Representatives, opining that:
(i) CompleTel S.A.S. is duly incorporated under French law
and is validly existing as a societe par actions simplifiee;
(ii) except as set forth in the Prospectuses and except as
would not have a Material Adverse Effect, CompleTel S.A.S. has full power
and capacity to own, lease and operate its properties and conduct its
business in France and the licenses granted pursuant to a decision of the
French Ministry in charge of Telecommunications dated November 17, 1998 and
published in the French "Journal Officiel de la Republique Francaise" date
December 13, 1998, the authorization to establish and operate a public
network and provide public telephone services as defined under Articles
L.32, L.33 and L.34 of the CPT (the"Authorization") obtained by CompleTel
S.A.S. allows CompleTel S.A.S. to deploy and operate its network and
services in in the French markets set out in the Prospectuses;
(iii) the issued share capital of CompleTel S.A.S. amounts to
FF 342,392,800 divided into 3,423,928 ordinary shares of FF 100 each, that
3,406,370 of such shares are owned by CompleTel Holding I BV, 17,500 of
such shares are owned by CompleTel Holding II BV and that 58 shares of such
shares are owned by CompleTel SPC;
(iv) to such counsel's knowledge, based on a review of the
articles of association and share accounts, the issued share capital of
CompleTel S.A.S. has been validly issued and is fully paid up and has not
been issued in violation of any pre-emptive or similar rights;
(v) except as described in the Prospectus, the shares
comprising the issued share of CompleTel S.A.S. are, based on a review of
the articles of association of CompleTel S.A.S. and the share accounts of
CompleTel S.A.S., free and clear of any security interests, claims, liens,
encumbrances or restrictions on transferability or voting;
(vi) to such counsel's knowledge, CompleTel S.A.S. has not
received any notice of proceedings relating to suspension or revocation of
the Authorization which,
-27-
individually or in aggregate, if the subject of an unfavorable decision,
ruling or finding, could have a Material Adverse Effect on the
Authorization;
(vii) the statements in the Prospectus to the extent they
relate to France under the headings "Prospectus Summary", "Risk Factors" --
We may not be able to obtain and maintain licenses, permits, rights-of-way
and leased capacity to successfully build and operate our business", "Risk
Factors -- Our need to comply with extensive government regulation and
licensing requirements could increase our costs and slow our growth",
"Business -- Regulation -- Overview" and "-- France" fairly summarize the
status of France telecommunications regulatory matters with respect to
CompleTel S.A.S.;
(viii) CompleTel S.A.S. has full power and capacity to own,
lease and operate its properties and conduct its business in France;
(ix) CompleTel Services S.A.S. is duly incorporated under
French law and is validly existing as a societe par actions simplifiee;
(x) the issued share capital of CompleTel Services S.A.S.
amounts to FF 250,000 divided into 2,500 ordinary shares of FF 100 each.
2,499 of which are owned by CompleTel Holding I BV and 1 of which is owned
by CompleTel Holding II BV;
(xi) to such counsel's knowledge, based on a review of the
articles of association and share accounts, the issued share capital of
CompleTel Services S.A.S. has been validly issued and is fully paid up and
has not been issued in violation of any pre-emptive or similar rights;
(xii) except as described in the Prospectus, the shares
comprising the issued share capital of CompleTel Services S.A.S. are, based
on a review of the articles of association of CompleTel Services S.A.S. and
share accounts of CompleTel S.A.S., free and clear of any security
interests, claims, liens, encumbrances or restrictions on transferability
or voting;
(xiii) CompleTel Services S.A.S. has full power and capacity
to own, lease and operate its properties and conduct its business in
France; (xiv) Acces et Solutions Internet S.A.R.L. is duly incorporated
under French law;
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(xv) the issued share capital of Acces et Solutions Internet
S.A.R.L. amounts to FF 125,000 divided into 125 ordinary shares of FF 1,000
each all of which are owned by CompleTel S.A.S.;
(xvi) to such counsel's knowledge, based on a review of the
articles of association and share accounts, the issued share capital of
Acces et Solutions Internet S.A.R.L. has been validly issued and is fully
paid up and has not been issued in violation of any pre-emptive or similar
rights;
(xvii) except as described in the Prospectus, the shares
comprising the issued share capital of Acces et Solutions Internet S.A.R.L.
are, based on a review of the articles of association of Acces et Solutions
Internet S.AR.L. and share accounts of Acces et Solutions Internet
S.A.R.L., free and clear of any security interests, claims, liens,
encumbrances or restrictions on transferability or voting; and
(xviii) Acces et Solutions Internet S.A.R.L. has full power and
capacity to own, lease and operate its properties and conduct its business
in France.
(h) The Company shall have furnished to the Representatives the
opinion of Shearman & Sterling, French securities law counsel for the
Company, dated the Closing Date and addressed to the Representatives,
opining that:
(i) on the dates that the French Preliminary Prospectus and
the French Final Prospectus received visas from the COB, respectively they
conformed as to form in all material respects to the requirements of the
French Securities Laws;
(ii) the International Prospectus filed with the French
Prospectuses is wholly incorporated and made a part of the French
Prospectuses through its filing therewith;
(iii) to the extent that the French Prospectuses summarize
information contained in the International Prospectus, such summaries
fairly summarize the sections of the International Prospectus to which they
relate;
(iv) the French Final Prospectus has been filed with the
COB and has received the final approval thereof; the Shares have been
approved for listing on the Premier Marche of the Paris Bourse; no
opposition to listing has been notified by the COB with respect to the
offering of Shares; and
(v) no consent, approval, authorization, filing with or
order of any court or governmental agency or body is required in connection
with the transactions contemplated herein, except such as have been
obtained under the French Securities Laws
-29-
in connection with the purchase and distribution of the Shares by the
Underwriters in the manner contemplated in this Agreement and in the
Prospectus and such other approvals (specified in such opinion) as have
been obtained.
In rendering such opinion, such counsel may rely as to matters of fact
on the representations of the Company contained in Section 1 hereof and, to
the extent they deem proper, on certificates of responsible officers of the
Company and public officials; provided, however, that all such certificates
and statements shall be reasonably satisfactory to the Representatives in
all material respects and attached to such counsel's opinion.
(i) The Company shall have furnished to the Representatives the
opinion of Xxxxx Xxxxxxx & Xxxx XXX, Xxxxxx Xxxxxx counsel for the Company,
dated the Closing Date and addressed to the Representatives, opining that:
(i) to the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding by or before any United States
Federal or Colorado 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 in the Prospectus, and there is
no franchise, contract or other document of a character required to be
described in the Registration Statement or Prospectus, or to be filed as an
exhibit thereto, which is not described or filed as required;
(ii) to the knowledge of such counsel, except as could not be
reasonably expected to have a Material Adverse Effect, neither the Company
nor any of its subsidiaries is in violation of or default under (i) any
statute, law, rule, regulation, judgment, order or decree applicable to the
Company or any of its subsidiaries of any Colorado court or United States
federal court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company or any
of its subsidiaries, or (ii) any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument filed as an exhibit to the
Registration Statement or the Company's registration statement on Form S-4
(File No. (333-82305) to which the Company or any of its subsidiaries is a
party or by which it or any of them or any of their respective properties
is bound;
(iii) the Registration Statement has become effective under the
Act; any required filing of the 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
-30-
instituted or threatened and the Registration Statement and the Prospectus
(other than the financial statements and other financial information
contained therein, 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 rules thereunder;
(iv) to the extent governed by the laws of the State of New
York, this Agreement has been duly executed and delivered by the Company;
(v) the Company is not and, after giving effect to the
offering and sale of the Shares and the application of the proceeds thereof
as described in the Prospectus, will not be, an "investment company" as
defined in the Investment Company Act of 1940, as amended;
(vi) no consent, approval, authorization, filing with or
order of any United States federal or Colorado court or governmental agency
or body is required in connection with the transactions contemplated
herein, except such as have been obtained under the Act and such as may be
required under the blue sky laws of any United States jurisdiction in
connection with the purchase and distribution of the Shares by the
Underwriters in the manner contemplated in this Underwriting Agreement and
in the Prospectus and such other approvals (specified in such opinion) as
have been obtained;
(vii) neither the issue and sale of the Shares, nor the
consummation of any other of the transactions herein contemplated in the
manner herein contemplated nor the fulfillment of the terms hereof by the
Company will conflict with, result in a breach or violation of or
imposition of any lien, charge or encumbrance upon any property or assets
of the Company or its subsidiaries pursuant to, (i) the terms of any
indenture, mortgage, deed of trust, loan agreement or other agreement, or
instrument filed as an exhibit to the Registration Statement or the
Company's registration statement on Form S-4 (File No. 333-82305) to which
the Company or its subsidiaries is a party or bound or to which its or
their property is subject, or (ii) any statute, law, rule, regulation,
judgment, order or decree applicable to the Company or its subsidiaries of
any United States Federal or State of Colorado court, regulatory body,
administrative agency, governmental body, arbitrator or other authority
having jurisdiction over the Company or its subsidiaries or any of its or
their properties;
(viii) to such counsel's knowledge, no holders of securities of
the Company have rights to the registration of such securities under the
Registration Statement;
(ix) the statements as to the Company under the heading
"Description of Capital Stock--Description of Equity Registration and Other
Rights" and "-- Private
-31-
Equity Investors' Registration Rights", are correct in all material
respects and accurately describe the matters summarized therein; and
(x) under the laws of the State of New York relating to
personal jurisdiction, the Company has, pursuant to Section 14 of this
Underwriting Agreement, validly and irrevocably submitted to the personal
jurisdiction of any New York Court with the requisite subject matter
jurisdiction in any action arising out of or relating to this Underwriting
Agreement or the transactions contemplated hereby, has validly and
irrevocably waived any objection to the venue of a proceeding in any such
court, and has validly appointed the Authorized Agent (as defined in
Section 14 of this Underwriting Agreement) as its authorized agent for the
purpose described in Section 14 hereof; and service of process effected on
such agent in the manner set forth in Section 14 hereof will be effective
to confer valid personal jurisdiction over the Company.
(xi) the statements in the Prospectuses under the caption
"Taxation -- U.S. Federal Income Tax" fairly and accurately describe the
material tax laws and regulations referred to therein.
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of the
Company, representatives of the independent accountants of the Company,
representatives of the Underwriters and representatives of counsel to the
Underwriters at which the contents of the Registration Statement and
Prospectus and related matters were discussed and, although such counsel is
not passing upon and does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement and Prospectus (except as to matters referred to in paragraph
(ix) and (xi) above), on the basis of the foregoing, no facts have come to
its attention that would lead such counsel to believe that the Registration
Statement, as of its date or as of the Closing Time, contained or contains
an untrue statement of a material fact or omitted or omits to state a
material fact necessary to make the statements therein not misleading, or
that the Prospectus, as of its date or as of the Closing Time, contained or
contains an 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 (it
being understood that such counsel has not been requested to and need not
express any comment with respect to the financial statements and the notes
thereto and the other financial data included in the Registration Statement
and Prospectus);
In rendering such opinion, such counsel may rely (A) as to matters of
fact on the representations of the Company contained in Section 1 hereof
and, to the extent they deem proper, on certificates of responsible
officers of the Company and public
-32-
officials (B) as to matters involving the application of laws of the
Netherlands, upon the opinion of Stibbe Simont Xxxxxxx Duhot, and (C) as to
paragraph (v) upon the opinion of Xxxxxxx Berlin Shereff Xxxxxxxx LLP;
provided, however, that all such certificates, statements and opinions shall
be satisfactory to the Representatives in all material respects and attached
to such counsel's opinion. References to the Prospectuses in this paragraph
(i) include any supplements thereto at the Closing Date.
(j) The Representatives shall have received from De Brauw Blackstone
Westbroek P.C., special counsel for the Underwriters, dated the Closing Date
and addressed to the Representatives on behalf of the Underwriters, with
respect to the validity and non-assessability of the Shares and the accuracy
of the description of the Company's share capital as set out under the
heading "Description of Capital Stock" in the Preliminary Prospectuses and
the Prospectuses 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 on
matters.
(k) The Representatives shall have received from Xxxxxx Xxxxxx &
Xxxxxxx, 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 Shares, the
Registration Statement, the Prospectuses (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.
(l) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the chairman of the board of
management or the president and the principal financial or accounting
officer of the Company, dated the Closing Date, to the effect that the
signers of such certificate have carefully examined the Registration
Statement, the Prospectuses, any supplements to the Prospectuses and this
Underwriting Agreement and that:
(i) the representations and warranties of the Company in this
Underwriting 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 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
-33-
(iii) since the date of the most recent financial statements
included in the Prospectuses (exclusive of any supplement thereto), there
has been no material adverse change in the business, condition (financial or
otherwise), assets, earnings, results of operations, business affairs,
business prospects or properties of the Company and the 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 Prospectuses
(exclusive of any supplement thereto).
(m) The Company shall have requested and caused Xxxxxx Xxxxxxxx LLP to
have furnished to the Representatives at the Execution Time and at the
Closing Date a letter or letters, dated respectively as of the Execution
Time and as of the Closing Date, in form and substance satisfactory to the
counsel for the Underwriters.
(n) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included
in the 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 action, order or decree,
otherwise than as set forth or contemplated in the Prospectus, and (ii)
since the respective dates as of which information is given in the
Prospectus there shall not have been any change in the capital stock or
long-term debt of the Company or any of its subsidiaries or any change, or
any development involving a prospective change, in or affecting the general
affairs, management, financial position, shareholders' equity or results of
operations of the Company and its subsidiaries, otherwise than as set forth
or contemplated in the Prospectus, the effect of which, in any such case
described in clause (i) or (ii), is in the judgment of the Representatives
so material and adverse as to make it impracticable or inadvisable to
proceed with the public offering or the delivery of the Shares being
delivered at the Closing Time on the terms and in the manner contemplated in
the Prospectus.
(o) On or after the date hereof (i) no downgrading shall have occurred
in the rating accorded the Company's debt securities by any "nationally
recognized statistical rating organization", as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such
organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any of the
Company's debt securities.
(p) At the Execution Time, the Company shall have furnished to the
Representatives a letter substantially in the form of Exhibit A hereto from
each officer and director of the Company and each shareholder of the Company
listed in Schedule II hereto.
-34-
(q) The Shares shall have been listed and admitted and authorized for
trading on the Premier Marche of the ParisBourse and included for quotation
on The Nasdaq National Market, Inc., and satisfactory evidence of all such
actions shall have been provided to the Representatives.
(r) 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
Underwriting Agreement, or if any of the opinions and certificates mentioned
above or elsewhere in this Underwriting Agreement shall not be in all material
respects reasonably satisfactory in form and substance to the Representatives
and counsel for the Underwriters, this Underwriting Agreement and all
obligations of the Underwriters hereunder may be canceled at, or at any time
prior to, the Closing Date by the Representatives. Notice of such cancellation
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 will be
delivered at the offices of Xxxxxx Xxxxxx & Xxxxxxx, counsel for the
Underwriters at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
7. Commissions, Costs and Expenses. In consideration of the agreement
by the Underwriters to subscribe for the Underwritten Shares and the Option
Shares (subject to the option for the Option Shares referred to in the preamble
above being duly exercised in accordance with Section 3 of this Underwriting
Agreement), the Company shall pay to the Underwriters on the Closing Date, or on
the date on which such Option Shares are purchased, as the case may be, a
combined management and underwriting commission of % per cent of the principal
amount of the Underwritten Shares or the Option Shares, as the case may be.
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, the Exchange Act or the French Company Law of July 24,
1966, as amended and implemented by local regulations (the "French Company
Laws") 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 otherwise, 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 originally filed or
in any amendment thereof, or in the U.S. or International Preliminary
Prospectus or in either of the Prospectuses, or in any amendment thereof or
supplement thereto, or arise out of or are
-35-
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.
Mutatis mutandis, the Company, subject to the provisions of this
Section 8(a), 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 the Act, the Exchange Act or
the French Company Laws against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them become subject under
the French Securities Laws 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
French Preliminary Prospectus or in the French 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;
provided, further that the Company agrees to indemnify and hold harmless each
Underwriter ,Xxxxxxx Xxxxx Xxxxxx XX or Xxxxxxx Xxxxx Xxxxx Inc. et Cie, their
respective directors, officers, employees and agents and each person who
controls any Underwriter or Xxxxxxx Xxxxx Xxxxxx XX or Xxxxxxx Xxxxx Xxxxx Inc.
et Cie 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 French Securities Laws or otherwise
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon the performance by Xxxxxxx Xxxxx Xxxxxx
XX or Xxxxxxx Xxxxx Xxxxx Inc. et Cie of their role as Banques Introductrices
for the Company with the COB.
This indemnity agreement will be in addition to any liability which
the Company may otherwise have.
(b) The Company agrees to indemnify and hold harmless each of
Salomon Brothers International Limited and Xxxxxxx, Xxxxx International and each
person, if any, who controls Salomon Brothers International Limited or Xxxxxxx
Xxxxx International, respectively, within the meaning of the Act or the Exchange
Act (the "Xxxxxxx Xxxxx Barney Entities" and the "Xxxxxxx Xxxxx Entities,"
respectively) 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)
-36-
related to, arising out of, or in connection with the Directed Share Program,
provided that, the Company shall not be responsible under this subparagraph for
any losses, claim, damages or liabilities (or expenses relating thereto) that
are finally judicially determined to have resulted from the bad faith or gross
negligence of any Xxxxxxx Xxxxx Xxxxxx Entity or Xxxxxxx Sachs Entity.
(c) 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 Exchange Act, to the same extent as the
foregoing indemnity 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 in paragraph
(a). This indemnity agreement will be in addition to any liability which any
Underwriter may otherwise have.
(d) 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), (b) or (c) 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, 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 the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying 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
-37-
general allegations or circumstances, be liable for the 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 Salomon Brothers International Limited. 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 proceeding in respect of which
indemnification or contribution may be sought under this Underwriting Agreement
(whether or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from liability arising out of
such claim, action, suit or proceeding. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written
consent.
(e) In the event that the indemnity provided in paragraph (a), (b)
or (c) 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 and by the
Underwriters from the offering of the Shares; 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 Shares) be responsible for any
amount in excess of the underwriting discount or commission applicable to the
Shares purchased by such Underwriter hereunder. If the allocation provided by
the immediately preceding sentence is unavailable for any reason, the Company
and the Underwriters shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company and of the Underwriters 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 U.S. Prospectus. Relative fault shall be determined by
reference to, among other things, whether 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 or the Underwriters, 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 (e), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution
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from any person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 9, each person who controls an Underwriter within the
meaning of either the Act, the Exchange Act or the French Company Laws and each
director, officer, employee and agent of an Underwriter shall have the same
rights to contribution as such Underwriter, and each person who controls the
Company within the meaning of either the Act, the Exchange Act or the French
Company Laws, 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 (e).
9. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Shares agreed to be purchased by such
Underwriter or Underwriters under this Underwriting Agreement 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 Shares set forth opposite their names in Schedule I hereto bears to the
aggregate amount of Shares set forth opposite the names of all the remaining
Underwriters) the Shares which the defaulting Underwriter or Underwriters agreed
but failed to purchase; provided, however, that in the event that the aggregate
amount of Shares which the defaulting Underwriter or Underwriters agreed but
failed to purchase shall exceed 10% of the aggregate amount of Shares 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
Shares, and if such nondefaulting Underwriters do not purchase all the Shares,
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 Prospectuses 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 under this Underwriting Agreement.
10. Termination. This Underwriting 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 Shares, if prior to such
time (i) trading in the Company's Ordinary Shares shall have been suspended by
the Commission, the Commission des Operations de Bourse or the Nasdaq National
Market, Inc., trading in the Company's Ordinary Shares shall have been suspended
by the ParisBourse, trading in securities generally on the New York Stock
Exchange, The Nasdaq National Market, Inc. or the ParisBourse shall have been
suspended or limited or minimum prices shall have been established on the
ParisBourse or The Nasdaq National Market, Inc., (ii) a general moratorium on
commercial banking activities in New York, London or Paris shall have been
declared by the relevant authorities; (iii) there
-39-
shall have occurred any outbreak or escalation of hostilities involving the
United States, the U.K. or France, declaration by the United States, the U.K. or
France 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, impracticable or inadvisable to proceed with the offering or
delivery of the prospectus as contemplated by the U.S. Prospectus (exclusive of
any supplement thereto); (iv) there occurs an adverse change or development
involving a prospective change in U.S. or Dutch taxation affecting the Company,
the Shares or the transfer thereof or the imposition of exchange controls by the
United States or The Netherlands; (v) there occurs any change in national or
international financial, political or economic conditions or currency exchange
rates or exchange controls as would in the view of the Representatives be likely
to prejudice materially the success of the offering and distribution of the
Shares or dealings in the Shares in the secondary market, or (vi) any material
adverse change occurs in the existing financial, political or economic
conditions in the United States, the United Kingdom and France or elsewhere
which, in the judgment of the Representatives would materially and adversely
affect the financial markets or the market for the shares and other equity
securities;
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 or controlling persons referred to in Section 8 hereof,
and will survive delivery of and payment for the Shares. The provisions of
Sections 1A, 7 and 8 hereof shall survive the termination or cancellation of
this Underwriting Agreement.
12. Notices. All communications under this Underwriting Agreement
will be in writing and effective only on receipt, and, if sent to the
Representatives, will be mailed, delivered or telefaxed c/o Xxxxxxx Xxxxx Xxxxxx
Inc. General Counsel (fax no.: (000) 000-0000) and confirmed to such General
Counsel at Salomon Brothers International Limited, Victoria Plaza, 111
Buckingham Palace Road, London SW1W OSB, England, Attention: General Counsel and
c/o Goldman Xxxxx International Equity Capital Markets (fax no.: 44.171.774-
1000) and confirmed at Xxxxxxx Sachs International, Peterborough Court, 000
Xxxxx Xxxxxx, Xxxxxx XX0X 0XX, Xxxxxxx, Attention: Equity Capital Markets; or,
if sent to the Company, will be mailed or delivered to General Counsel and
confirmed to it at Xxxxxxxx 000, 0000 XX Xxxxxxxxx, Xxx Xxxxxxxxxxx, Attention:
Legal Department.
13. Successors. This Underwriting Agreement will inure to the
benefit of and be binding upon the parties hereto and their respective
successors and the officers and directors and controlling persons referred to in
Section 8 hereof, and no other person will have any right or obligation under
this Underwriting Agreement.
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14. Jurisdiction. The Company agrees that any suit, action or
proceeding against the Company brought by any Underwriter, by the directors,
officers, employees and agents of any Underwriter or by any person who controls
any Underwriter, arising out of or based upon this Underwriting Agreement or the
transactions contemplated hereby may be instituted in any New York Court; and
waives any objection which it may now or hereafter have to the laying of venue
of any such proceeding, and irrevocably accepts and submits to the non-exclusive
jurisdiction of such courts in any suit, action or proceeding. The Company has
appointed CT Corporation System, in care of CT Corporation System, 000 0xx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 as its authorized agent (the
"Authorized Agent"), upon whom process may be served in any suit, action or
proceeding arising out of or based upon this Agreement or the transactions
contemplated herein which may be instituted in any New York by any Underwriter,
by the directors, officers, employees and agents of any Underwriter or by any
person who controls any Underwriter and expressly accepts the non-exclusive
jurisdiction of any such court in respect of any such suit, action or
proceeding. The Company hereby represents and warrants that the Authorized Agent
has accepted such appointment and has agreed to act as said agent for service of
process, and the Company agrees to take any and all action, including the filing
of any and all documents that may be necessary to continue such appointment in
full force and effect as aforesaid. Service of process upon the Authorized Agent
shall be deemed, in every respect, effective service of process upon the
Company. Notwithstanding the foregoing, any action arising out of or based upon
this Agreement may be instituted by any Underwriter, by the directors, officers,
employees and agents of any Underwriter or by any person who controls any
Underwriter, in any other court of competent jurisdiction. The provisions of
this Section 15 shall survive any termination of the Underwriting Agreement, in
whole or in part.
15. Applicable Law. This Underwriting 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.
16. Currency. Each reference in this Underwriting Agreement to U.S.
dollars (the "relevant currency") is of the essence. To the fullest extent
permitted by law, the obligations of the Company in respect of any amount due
under this Underwriting Agreement will, notwithstanding any payment in any other
currency (whether pursuant to a judgment or otherwise), be discharged only to
the extent of the amount in the relevant currency that the party entitled to
receive such payment may, in accordance with its normal procedures, purchase
with the sum paid in such other currency (after any premium and costs of
exchange) on the Business Day immediately following the day on which such party
receives such payment. If the amount in the relevant currency that may be so
purchased for any reason falls short of the amount originally due, the Company
will pay such additional amounts, in the relevant currency, as may be necessary
to compensate for the shortfall. If, alternatively, the amount in the
-41-
relevant currency that may be so purchased for any reason exceeds the amount
originally due, the party entitled to receive such original amount will return
such excess amounts, in the relevant currency, to the Company. Any obligation of
the Company not discharged by such payment will, to the fullest extent permitted
by applicable law, be due as a separate and independent obligation and, until
discharged as provided herein, will continue in full force and effect.
17. Waiver of Immunity. To the extent that the Company has or
hereafter may acquire any immunity (sovereign or otherwise) from any legal
action, suit or proceeding, from jurisdiction of any court or from set-off or
any legal process (whether service or notice, attachment in aid or otherwise)
with respect to itself or any of its property, the Company hereby irrevocably
waives and agrees not to plead or claim such immunity in respect of its
obligations under this Underwriting Agreement.
18. Counterparts. This Underwriting 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.
19. Headings. The section headings used in this Underwriting
Agreement are for convenience only and shall not affect the construction hereof.
20. Definitions. The terms which follow, when used in this
Underwriting Agreement, shall have the meanings indicated.
"Act" shall mean the United States Securities Act of 1933, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday
and Friday that is not a day on which banking institutions in Xxx Xxxx xx Xxx
Xxxx, Xxx Xxxx, Xxxxx, Xxxxxx or London, England are authorized or obligated by
law, executive order or regulation to close.
"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 becomes effective.
"Exchange Act" shall mean the United States Securities Exchange Act of
1934, as amended, and the rules and regulations of the Commission promulgated
thereunder.
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"Execution Time" shall mean the date and time that this Underwriting
Agreement is executed and delivered by the parties hereto.
"International Preliminary Prospectus" shall mean any preliminary
prospectus with respect to the offering of the Shares outside of the United
States and France.
"International Prospectus" shall mean such form of prospectus with
respect to the offering of the Shares outside of the United States and France.
"New York Courts" shall mean the state or federal courts located in
the Borough of Manhattan, The City of New York, New York.
"Preliminary Prospectuses" and the "Preliminary Prospectus" shall mean
the U.S. Preliminary Prospectus and the International Preliminary Prospectus.
"Prospectuses" and the "Prospectus" shall mean the U.S. Prospectus and
the International Prospectus.
"Registration Statement" shall mean the registration statement
referred to in paragraph 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 424", "Rule 430A" and "Rule 462" refer to such rules under the
Act.
"Rule 430A Information" shall mean information with respect to the
Shares 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.
"Subsidiary" shall mean each of CompleTel ECC B.V., CompleTel S.A.S.,
CompleTel Services S.A.S., CompleTel GmbH, CompleTel UK Limited, iPcenta Limited
and Acces et Solutions Internet S.A.R.L.
-43-
"United States or Canadian Person" shall mean any person who is a
national or resident of the United States or Canada, any corporation,
partnership, or other entity created or organized in or under the laws of the
United States or Canada or of any political subdivision thereof, or any estate
or trust the income of which is subject to United States or Canadian Federal
income taxation, regardless of its source (other than any non-United States or
non-Canadian branch of any United States or Canadian Person), and shall include
any United States or Canadian branch of a person other than a United States or
Canadian Person.
"U.S." or "United States" shall mean the United States of America
(including the states thereof and the District of Columbia), its territories,
its possessions and other areas subject to its jurisdiction.
"U.S. Preliminary Prospectus" shall mean any preliminary prospectus
with respect to the offering of the Shares referred to in paragraph 1(a) above
and any preliminary prospectus with respect to the offering of the Shares, as
the case may be, included in the Registration Statement at the Effective Date
that omits Rule 430A Information.
"U.S. Prospectus" shall mean the prospectus relating to the Shares
that is first filed pursuant to Rule 424(b) after the Execution Time or, if no
filing pursuant to Rule 424(b) is required, shall mean the form of final
prospectus relating to the Shares included in the Registration Statement at the
Effective Date.
"Underwriting Agreement" shall mean this agreement relating to the
sale of the Shares by the Company to the Underwriters.
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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,
CompleTel Europe N.V.
By:
----------------------------------
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Salomon Brothers International Limited
By:
-----------------------------------
Name:
Title:
Xxxxxxx Xxxxx International
By:
-----------------------------------
Name:
Title:
For themselves and the other several U.S.
Representatives and Underwriters.
-45-
Annex A
List of Subsidiaries
SCHEDULE I
U.S. Underwriter Number of Underwritten Shares
---------------- -----------------------------
Salomon Brothers International Limited.......
Xxxxxxx, Xxxxx International.................
Paribas......................................
Xxxxxxx Xxxxx International..................
SCHEDULE II
LIST OF SIGNATORIES TO LETTER ATTACHED AS EXHIBIT A
EXHIBIT A
CompleTel Europe N.V.
Public Offering of Ordinary Shares
, 2000
Xxxxxxx Xxxxx Barney Inc.
Salomon Brothers International Limited
Xxxxxxx, Xxxxx & Co.
Xxxxxxx Xxxxx International
Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated
Xxxxxxx Xxxxx International
Paribas Corporation
Paribas
As Representatives of the several Underwriters
c/o Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X.X.
Ladies and Gentlemen:
This letter is being delivered to you in connection with the proposed
Underwriting Agreement (the "Underwriting Agreement"), between CompleTel Europe
N.V., a public limited company (naamloze vennootschap, or N.V.) incorporated
under Dutch law (the "Company"), and you as representatives of the group of
Underwriters named therein, relating to an underwritten public offering of
ordinary shares (the "Ordinary Shares"), of the Company.
In order to induce you and the other Underwriters to enter into the
Underwriting Agreement, the undersigned will not, without the prior consent of
Salomon Brothers International Limited or Xxxxxxx Xxxxx International, offer,
sell, contract to sell, pledge or otherwise dispose of (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise), directly or indirectly, or announce the offering, of any Ordinary
Shares or any securities convertible into, or exercisable or exchangeable for,
Ordinary Shares, for a period of 180 days following the date of the Underwriting
Agreement, other than
Directed Shares/a/ (as defined in the Underwriting Agreements), or Ordinary
Shares disposed of as bona fide gifts approved by Salomon Brothers International
Limited and Xxxxxxx Xxxxx International.
If for any reason the Underwriting Agreement shall be terminated prior to
the Closing Date (as defined in the Underwriting Agreement), the agreement set
forth above shall likewise be terminated.
Yours very truly,
Signature of officer, director, employee
or shareholder
Name and address of officer, director,
employee or shareholder
______________
/a/ Directed Shares are Ordinary Shares from the offering that are expected to
be subject to priority allocation to the Company's employees, officers and
directors.
-2-
