EXHIBIT 4.8
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Equinix, Inc.
200,000 Units Consisting of
$200,000,000 of
13% Senior Notes due 2007
and
Warrants to Purchase 2,251,000
Shares of Common Stock
PURCHASE AGREEMENT
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Dated as of November 24, 1999
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Equinix, Inc.
200,000 Units Consisting of
$200,000,000 of
13% Senior Notes due 2007
and
Warrants to Purchase 2,251,000
Shares of Common Stock
PURCHASE AGREEMENT
November 24, 1999
Xxxxxxx Xxxxx Xxxxxx Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx, Sachs & Co.
c/o Xxxxxxx Xxxxx Xxxxxx Inc.
as Representative of the Initial Purchasers
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Equinix, Inc., a corporation organized under the laws of the State of
Delaware (the "Company"), proposes to issue and sell to the several parties
named on Schedule I hereto (the "Initial Purchasers"), for whom Xxxxxxx Xxxxx
Barney Inc. (the "Representative") is acting as representative, 200,000,000
units (the "Units"), consisting of $200,000,000 aggregate principal amount of
the Company's 13% Senior Notes due 2007 (the "Notes") and an aggregate of
200,000 Warrants (each, a "Warrant") each entitling the holder to purchase
11.255 shares of the Company's Common Stock (the "Common Shares"). Each Unit
will consist of $1,000 principal amount of Notes and one Warrant. The Units,
Notes and Warrants are hereinafter referred to collectively as the "Securities."
The Notes are to be issued under an indenture (the "Indenture") dated
as of December 1, 1999 between the Company and State Street Bank and Trust
Company, as trustee (the "Trustee"). The Warrants are to be issued under a
warrant agreement (the "Warrant Agreement") dated as of December 1, 1999 between
the Company and State Street Bank and Trust Company, as warrant agent (the
"Warrant Agent"). State Street Bank and Trust Company will serve as the unit
agent (the "Unit Agent") for the Units.
On the Closing Date (as defined herein) and simultaneously with
delivery and payment pursuant to Section 3 hereof, the Company will place
approximately $36,837,000 (representing that portion of the proceeds from the
sale of the Securities by the Company to the Initial Purchasers that will be
sufficient to pay when due the first 3 interest payments on the Notes) (the
"Escrow Amount") into a collateral account and will pledge such account to the
Trustee, for the benefit of the holders of the Notes and the Trustee (in its
capacity as such under the Indenture) pursuant to the Escrow Agreement, dated as
of December 1, 1999 (the "Escrow Agreement") among the Company, State Street
Bank and Trust Company, as escrow agent (the
"Escrow Agent"), and the Trustee, pending release in accordance with the terms
of the Escrow Agreement.
The Initial Purchasers and the direct and indirect transferees of the
Notes will be entitled to the benefits of a Registration Rights Agreement (the
"Registration Rights Agreement") dated as of December 1, 1999, between the
Company and the Initial Purchasers, pursuant to which the Company will agree to
register the Notes under the Act subject to the terms and conditions therein
specified. The Initial Purchasers and the direct and indirect transferees of
the Warrants will be entitled to the benefits of a Common Stock Registration
Rights Agreement (the "Common Stock Registration Rights Agreement"), dated as of
December 1, 1999, by and among the Company, the Investors (as defined therein)
and the Initial Purchasers, pursuant to which holders of the Warrants will have
(i) certain rights to Demand Registrations (as defined therein) or Piggy-Back
Registrations (as defined therein), (ii) a Tag-Along Right (as defined therein)
and (iii) a requirement to sell Warrants or other Registrable Securities (as
defined therein), in each case, in accordance with the provisions of the Common
Stock Registration Rights Agreement.
The sale of the Securities to the Initial Purchasers will be made
without registration of the Securities under the Act in reliance upon exemptions
from the registration requirements of the Act. In connection with the sale of
the Securities, the Company has prepared a preliminary offering memorandum,
dated November 19, 1999 (including any and all exhibits thereto and any
information incorporated by reference therein, the "Preliminary Memorandum"),
and a final offering memorandum, dated November 24, 1999 (including any and all
exhibits thereto and any information incorporated by reference therein, the
"Final Memorandum"). Each of the Preliminary Memorandum and the Final
Memorandum sets forth certain information concerning the Company and the
Securities. The Company hereby confirms that it has authorized the use of the
Preliminary Memorandum and the Final Memorandum, and any amendment or supplement
thereto, in connection with the offer and sale of the Securities by the Initial
Purchasers.
The Company understands that the Initial Purchasers propose to make an
offering of the Securities only on the terms and in the manner set forth in the
Final Memorandum and herein as soon as the Initial Purchasers deem advisable
after this Agreement has been executed and delivered, to persons in the United
States whom the Initial Purchasers reasonably believe to be qualified
institutional buyers ("QIBs") as defined in Rule 144A under the Act, as such
rule may be amended from time to time ("Rule 144A"), in transactions under Rule
144A, and outside the United States to certain persons in reliance on Regulation
S under the Act.
The Indenture, the Warrant Agreement, the Securities, the Exchange
Securities (as defined in the Registration Rights Agreement), the Registration
Rights Agreement, the Common Stock Registration Rights Agreement and the Escrow
Agreement are referred to collectively as the "Securities Documents" and this
Agreement and the Securities Documents are collectively referred to as the
"Operative Documents." The term "you" as used herein shall mean the
Representative and the term "Initial Purchasers" as used herein shall mean the
Initial Purchasers listed on Schedule I. Certain terms used herein are defined
in Section 17 hereof and certain other terms used herein and not otherwise
defined have the meanings ascribed to such terms in the Final Memorandum.
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1. Representations and Warranties. The Company represents and
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warrants to and agrees with each Initial Purchaser that:
(a) The Preliminary Memorandum, at the date thereof, did not
contain 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. The Final Memorandum (as
supplemented or amended) does not, and at the Closing Date will not, contain 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; provided, however, that the Company makes no
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representation or warranty as to the information contained in or omitted from
the Preliminary Memorandum or the Final Memorandum, or any amendment or
supplement thereto, in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of the Initial Purchasers
specifically for inclusion therein.
(b) Neither the Company nor any of its affiliates (as defined in
Rule 501(b) of Regulation D under the Act, an "Affiliate") has, directly or
indirectly, made offers or sales of any security, or solicited offers to buy any
security, which is or will be integrated with the sale of the Securities in a
manner that would require the registration of the Securities under the Act.
(c) The Securities satisfy the eligibility requirements of Rule
144A(d)(3) under the Act.
(d) Neither the Company nor any of its Affiliates or any person
(other than the Initial Purchasers, as to which the Company makes no
representation) acting on the Company's behalf has engaged, in connection with
the offering of the Securities, (A) in any form of general solicitation or
general advertising within the meaning of Regulation D under the Act, (B) in any
directed selling efforts within the meaning of Rule 902 under the Act in the
United States in connection with the Securities being offered and sold pursuant
to Regulation S under the Act, (C) in any manner involving a public offering
within the meaning of Section 4(2) of the Act or (D) in any action which would
require the registration of the offering and sale of the Securities pursuant to
this Agreement or which would violate applicable state "blue sky" laws.
(e) Assuming that the representations and warranties of the
Initial Purchasers contained in Section 4 are true, correct and complete, and
assuming compliance by the Initial Purchasers with their covenants in Section 4,
and assuming that the representations and warranties deemed to be made by non-
U.S. persons and QIBs purchasing Securities are true and correct as of the
Closing Date, it is not necessary in connection with the offer, sale and
delivery of the Securities to the Initial Purchasers in the manner contemplated
by, or in connection with the initial resale of such Securities by the Initial
Purchasers in accordance with, this Agreement to register the Securities under
the Act or to qualify the Indenture under the Trust Indenture Act.
(f) The Company is not, and after giving effect to the offering
and sale of the Securities and the application of the proceeds therefrom as
described in the Final
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Memorandum will not be, an "investment company" or a company "controlled" by an
"investment company" as such terms are defined in the Investment Company Act.
(g) The Company has not paid or agreed to pay to any person any
compensation for soliciting another to purchase any of the Securities (except as
contemplated by this Agreement).
(h) The Company has not taken, directly or indirectly, any
action designed to cause or to result in, or that has constituted or that might
reasonably be expected to constitute, the stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the
Securities.
(i) The information provided by the Company pursuant to Section
5(g) hereof will not, at the date thereof, contain 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.
(j) The only subsidiaries (direct and indirect) of the Company
on the Closing Date will be those listed on Schedule II hereto (each of such
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subsidiaries are referred to herein as the "Subsidiaries"). Each of the Company
and the Subsidiaries has been duly incorporated, is validly existing and in good
standing under the laws of its jurisdiction of incorporation or organization,
with full requisite corporate or other power and authority to own, lease and
operate its properties and conduct its business as described in the Final
Memorandum, 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 could not reasonably
be expected to have a material adverse effect on (i) the business, condition
(financial or otherwise), assets, earnings, results of operations, business
affairs or business prospects of the Company or (ii) the ability of the Company
to duly and punctually perform any of its obligations under the Operative
Documents or to consummate the transactions contemplated hereby and thereby (a
"Material Adverse Effect"); and, to the knowledge of the Company, no revocation
or limitation or variation of any such authorization or approval, is threatened.
(k) All the outstanding shares of capital stock of the Company
and the Subsidiaries have been duly and validly authorized and issued and are
fully paid and nonassessable, and were not issued in violation of preemptive or
similar rights, and all outstanding shares of capital stock of the Subsidiaries
are owned by the Company free and clear of any security interests, claims,
liens, encumbrances or restrictions on transferability (other than those imposed
by the Act, state securities or "Blue Sky" laws and other similar laws of the
relevant jurisdiction of incorporation or organization) or voting. Except as
pursuant to the Common Stock Registration Rights Agreement and except as
otherwise set forth in the Final Memorandum, no options, warrants or other
rights to purchase, agreements or other obligations to issue, or other rights to
convert any obligation into, or exchange any securities for, shares of capital
stock or equity interests of the Company or any Subsidiary are outstanding and
no holder of securities of the Company or any Subsidiary is entitled to have
such securities registered under the Act.
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(l) As of the Closing Date, the Company will have the
authorized, issued and outstanding capitalization set forth in the Final
Memorandum under the heading "Capitalization."
(m) The Company has the requisite corporate power and authority
to execute, deliver and perform its obligations under the Units. The Units have
been duly and validly authorized by the Company and, when executed and delivered
by the Company (assuming the due countersignature, execution and delivery by the
Unit Agent), will constitute valid and legally binding obligations of the
Company, enforceable against the Company in accordance with their terms, except
that the enforcement thereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other similar laws (and
judicially developed doctrines in the area such as substantive consolidation or
equitable subordination) now or hereafter in effect relating to or affecting
creditors' rights generally, or (ii) general principles of equity and the
discretion of the court before which any proceeding therefor may be brought
(regardless of whether such enforcement is considered in a proceeding at law or
in equity) (collectively, the "Enforceability Limitations").
(n) The Company has the requisite corporate power and authority
to execute, deliver and perform its obligations under the Notes and the Exchange
Securities. The Notes and the Exchange Securities have been duly and validly
authorized by the Company for issuance. The Notes, when executed, authenticated
and issued in accordance with the provisions of the Indenture, and delivered to
and paid for by the Initial Purchasers in accordance with the terms hereof, will
have been duly executed, issued and delivered and (assuming the due
authentication by the Trustee) will constitute valid and legally binding
obligations of the Company, entitled to the benefits of the Indenture and
enforceable against the Company in accordance with their terms, and the Exchange
Securities, when executed, authenticated, issued and delivered in the manner
contemplated by the Registration Rights Agreement and the Indenture, will have
been duly executed, issued and delivered and (assuming the due authentication by
the Trustee) will constitute valid and legally binding obligations of the
Company, entitled to the benefits of the Indenture and enforceable against the
Company in accordance with their terms, except, in each case, that the
enforcement thereof may be limited by the Enforceability Limitations. The Notes
are in the form contemplated by the Indenture.
(o) The Company has the requisite corporate power and authority
to execute, deliver and perform its obligations under the Indenture. The
Indenture has been duly and validly authorized by the Company and, when executed
and delivered by the Company (assuming the due authorization, execution and
delivery by the Trustee), will constitute a valid and legally binding agreement
of the Company, enforceable against the Company in accordance with its terms,
except that the enforcement thereof may be limited by the Enforceability
Limitations.
(p) The Company has the requisite corporate power and authority
to execute, deliver and perform its obligations under the Warrant Agreement. The
Warrant Agreement has been duly and validly authorized by the Company and, when
executed and delivered by the Company (assuming the due authorization, execution
and delivery by the Trustee), will constitute a valid and legally binding
agreement of the Company, enforceable
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against the Company in accordance with its terms, except that the enforcement
thereof may be limited by the Enforceability Limitations.
(q) The Company has the requisite corporate power and authority to
execute, deliver and perform its obligations under the Warrants. The Warrants
have been duly and validly authorized by the Company and, when executed and
delivered by the Company (assuming the due countersignature, execution and
delivery by the Warrant Agent), will constitute valid and legally binding
obligations of the Company, enforceable against the Company in accordance with
their terms, except that the enforcement thereof may be limited by the
Enforceability Limitations.
(r) The Common Shares have been duly reserved for issuance by the
Company for issuance upon exercise of the Warrants in sufficient number to cover
the exercise of all of the Warrants, and the issuance of the Common Shares upon
exercise of the Warrants has been duly authorized, and the Common Shares, when
delivered upon exercise of and in accordance with the terms of the Warrant
Agreement, will be validly issued, fully paid and non-assessable, and except as
set forth in the Final Memorandum no holder of any securities of the Company has
any preemptive or other similar rights to subscribe for or to purchase any
common stock of the Company arising by operation of the General Corporation Law
of the State of Delaware, under the Certificate of Incorporation or bylaws of
the Company or pursuant to the terms of any agreement or instrument to which the
Company is a party.
(s) The Company has the requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement. This
Agreement has been duly and validly authorized, executed and delivered by the
Company and (assuming the due authorization, execution and delivery by the
Initial Purchasers) constitutes a valid and legally binding agreement of the
Company, enforceable against the Company in accordance with its terms, except
that the enforcement thereof may be limited by the Enforceability Limitations
and except as rights to indemnification and contribution may be limited under
applicable law.
(t) The Company has the requisite corporate or other power and
authority to execute, deliver and perform its obligations under the Common Stock
Registration Rights Agreement. The Common Stock Registration Rights Agreement
has been duly and validly authorized by the Company and, when executed and
delivered by the Company (assuming the due authorization, execution and delivery
by the Initial Purchasers and the Investors), will constitute a valid and
legally binding agreement of the Company, enforceable against the Company in
accordance with its terms, except that the enforcement thereof may be limited by
the Enforceability Limitations and except as rights to indemnification and
contribution may be limited under applicable law.
(u) The Company has the requisite corporate power and authority to
execute, deliver and perform its obligations under the Registration Rights
Agreement. The Registration Rights Agreement has been duly and validly
authorized by the Company and, when executed and delivered by the Company
(assuming the due authorization, execution and delivery by the Initial
Purchasers), will constitute a valid and legally binding agreement of the
Company, enforceable against the Company in accordance with its terms, except
that the enforcement thereof may be limited by the Enforceability Limitations.
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(v) The Company has the requisite corporate power and authority
to execute, deliver and perform its obligations under the Escrow Agreement. The
Escrow Agreement has been duly and validly authorized by the Company and, when
executed and delivered by the Company (assuming the due authorization, execution
and delivery by the Escrow Agent and the Trustee), will constitute a valid and
legally binding agreement of the Company, enforceable against the Company in
accordance with its terms, except that the enforcement thereof may be limited by
the Enforceability Limitations.
(w) The Securities Documents conform in all material respects to
the descriptions thereof in the Final Memorandum.
(x) No consent, waiver, approval, authorization, license,
qualification, registration, filing with or order of any court or governmental
agency or body (whether domestic or foreign) is required in connection with the
issuance and sale of the Securities or the Exchange Securities or the
performance by the Company of its obligations under the Operative Documents, or
for the consummation of any of the transactions contemplated hereby or thereby,
except (i) as has already been acquired or as of the Closing Date will be
acquired or (ii) such as may be required (A) in connection with the registration
under the Act of the Exchange Securities or the Warrants, pursuant to the
Registration Rights Agreement or the Common Stock Registration Rights Agreement,
as applicable, (B) in order to qualify the Indenture under the Trust Indenture
Act or (C) by state securities or "blue sky" laws in connection with the offer
and sale of the Securities or the registration thereof or of the Exchange
Securities pursuant to the Registration Rights Agreement or the Common Stock
Registration Rights Agreement, as applicable; all consents, waivers, approvals,
authorizations, licenses, qualifications, registrations, filings or orders which
are required to be obtained by the Closing Date will be obtained by such date
and will be in full force and effect on the Closing Date.
(y) The execution, delivery or performance of the Operative
Documents by the Company will not contravene (i) the certificate of
incorporation or bylaws of the Company or any of the Subsidiaries, (ii) the
terms of any indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement, note or other agreement, obligation, condition,
covenant, license, permit or instrument to which the Company or any of the
Subsidiaries is a party or bound or to which 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 (whether foreign or
domestic) having jurisdiction over the Company or any of the Subsidiaries or any
of their properties.
(z) At the time of deposit with the Escrow Agent of the Escrow
Amount, no Lien (as such term is defined in the Indenture) exists upon such
Collateral (as such term is defined in the Escrow Agreement) and no right or
option to acquire the same exists in favor of any other person or entity, except
for the pledge and security interest in favor of the Trustee for the benefit of
the holders of the Securities and the Trustee (in its capacity as such under the
Indenture) to be created or provided for in the Escrow Agreement, which pledge
and security interest shall constitute a first priority perfected pledge and
security interest in and to all of the Collateral.
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(aa) The consolidated historical financial statements and
schedules of the Company and its consolidated subsidiaries included in the Final
Memorandum present fairly in all material respects the financial condition,
results of operations and cash flows of the Company and its consolidated
subsidiaries 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 generally accepted accounting principles in the United States
("GAAP"), applied on a consistent basis throughout the periods involved (except
as otherwise noted therein); the selected financial data set forth under the
captions "Selected Consolidated Financial Data" and "Capitalization" in the
Final Memorandum fairly present, on the basis stated in the Final Memorandum,
the information included therein. KPMG LLP, which has examined such financial
statements as set forth in the report included in the Final Memorandum, is an
independent public accounting firm with respect to the Company and the
Subsidiaries within the meaning of Regulation S-X under the Act.
(bb) Neither the Company nor any of the Subsidiaries has
sustained since the date of the latest audited financial statements included in
the Final Memorandum any material 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 Final Memorandum; and, since
the respective dates as of which information is given in the Final Memorandum,
there has not been any the material adverse change, or any development involving
a prospective material adverse change, in or affecting the business, condition
(financial or otherwise), assets, earnings, results of operations, business
affairs or business prospects of the Company.
(cc) No legal action, suit or proceeding, inquiry or
investigation by or before any court or governmental agency, authority or body
or any arbitrator (whether domestic or foreign) involving the Company or any of
the Subsidiaries or its or their property is pending or, to the knowledge of the
Company, threatened against the Company or any of the Subsidiaries that (i)
could reasonably be expected to have a material adverse effect on the
performance of the Operative Documents, or the consummation of any of the
transactions contemplated hereby or thereby or (ii) could reasonably be expected
to have a Material Adverse Effect.
(dd) Neither the Company nor any of the Subsidiaries is in
violation or default of (i) any provision of its articles of incorporation or
bylaws; (ii) the terms of any indenture, contract, lease, mortgage, deed of
trust, note agreement, loan agreement, note or other agreement, obligation,
condition, covenant, license, permit 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 (whether foreign or domestic) applicable
to the Company or any of the Subsidiaries of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority (whether
domestic or foreign) having jurisdiction over the Company or any of the
Subsidiaries or any of their properties.
(ee) Each of the Company and the Subsidiaries has obtained all
consents, approvals, orders, licenses, certificates, permits and other
authorizations (collectively, the "Licenses") issued by the appropriate federal,
state or foreign national governmental or regulatory authorities necessary to
own, lease, license and use its properties and assets to conduct its businesses
in the manner described in the Final Memorandum, except to the extent that the
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failure to so obtain would not have a Material Adverse Effect. None of the
Company or the Subsidiaries has received any notice of proceedings relating to
the revocation or modification of any License and no event has occurred which
allows, or after notice or lapse of time, or both, would allow, revocation or
termination thereof or result in any other material impairment of the rights of
the holder of any such License, and the Licenses referred to above place no
restrictions on the Company or any of the Subsidiaries that are not described in
the Final Memorandum, except where such restrictions could not, singly or in the
aggregate, reasonably be expected to have or result in a Material Adverse
Effect.
(ff) There are no stamp or other issuance of transfer taxes or
duties or other similar fees or charges under Federal law or the laws of any
state, or any political subdivision thereof, required to be paid in connection
with the execution and delivery of this Agreement or the issuance or sale by the
Company of the Notes.
(gg) Each of the Company and the Subsidiaries has filed all
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) except as set forth in or
contemplated in the Final Memorandum 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, except as contemplated in the Final Memorandum.
(hh) No labor dispute with the employees of the Company or any of
the Subsidiaries exists or, to the knowledge of the Company, is threatened or
imminent that could result in a Material Adverse Effect, and the Company is not
aware of any existing or imminent labor disturbance by the employees of any of
its or the Subsidiaries' principal suppliers, contractors or customers.
(ii) All descriptions in the Final Memorandum of contracts and
other documents to which the Company or any of the Subsidiaries is a party are
accurate in all material respects; there are no contracts, indentures,
mortgages, loan agreements, notes, leases, licenses, permits or other
instruments that (i) would be required to be described in Part I of a
registration statement on Form S-1 under the Act or (ii) if terminated,
breached, rescinded or revoked could reasonably be expected to have or result in
a Material Adverse Effect (collectively, "Material Contracts") that are not
described or referred to in the Final Memorandum and listed on Schedule III
hereto.
(jj) Except as described in the Final Memorandum, including the
financial statements and notes thereto included therein, each of the Company and
the Subsidiaries has good and marketable title to all real and personal property
described in the Final Memorandum as being owned by it and good and marketable
title to a leasehold estate in the real and personal property described in the
Final Memorandum as being leased by it, free and clear of all liens, charges,
encumbrances or restrictions, except to the extent the failure to have such
title or the existence of such liens, charges, encumbrances or restrictions
could not, individually or in the aggregate, reasonably be expected to have or
result in a Material Adverse Effect.
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(kk) The statistical and market-related data included in the
Final Memorandum 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.
(ll) None of the Company nor any of the Subsidiaries nor any
agent thereof acting on behalf of them has taken, and none of them will take,
any action that might cause this Agreement or the issuance or sale of the
Securities to violate Regulation T (12 C.F.R. Part 220), Regulation U (12 C.F.R.
Part 221) or Regulation X (12 C.F.R. Part 224) of the Board of Governors of the
Federal Reserve System.
(mm) The Company and each of 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 generally accepted
accounting principles in the United States 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.
(nn) The Company and each of the Subsidiaries are 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 they
are engaged; and neither the Company nor any such Subsidiary has any reason to
believe that it will not be able to renew its existing insurance coverage as and
when such coverage expires or to obtain similar coverage from similar insurers
as may be necessary to continue its business at a cost that would not have a
Material Adverse Effect except as described in or contemplated by the Final
Memorandum.
(oo) The Company and the Subsidiaries possess or have applied for
the patents, patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks, service marks and
trade names (collectively, "Intellectual Property") presently employed by them
in connection with the businesses now operated by them, and neither the Company
nor any of the Subsidiaries has received any notice of infringement of or
conflict with asserted rights of others with respect to the foregoing except as
could not have a Material Adverse Effect. To the Company's knowledge, the use of
such Intellectual Property in connection with the business and operations of the
Company and its subsidiaries does not infringe on the rights of any person.
(pp) The Company and the Subsidiaries (i) are, to its knowledge,
in compliance with any and all applicable foreign, federal, state and local laws
and regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws") and (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 as described in the
Final Memorandum, except where such non-compliance with Environmental Laws,
failure to receive
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required permits, licenses or other approvals, or liability would not have a
Material Adverse Effect.
(qq) Except as described in the Final Memorandum, the Company and
the Subsidiaries are implementing a comprehensive, detailed program to analyze
and address the risk that the computer hardware and software used by them may be
unable to recognize and properly execute date-sensitive functions involving
certain dates prior to and any dates after December 31, 1999 (the "Year 2000
Problem"), and reasonably believe that such risk will be remedied on a timely
basis without material expense and will not have a Material Adverse Effect.
(rr) Each of the Company and its 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, as amended
("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 its
subsidiaries are eligible to participate and each such plan is in compliance in
all material respects with the presently applicable provisions of ERISA and such
regulations and published interpretations; the Company and its 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 ERISA.
(ss) No subsidiary of the Company is currently prohibited,
directly or indirectly, from paying any dividends to the Company, from making
any other distributions on such Subsidiary's capital stock, from repaying to the
Company any loans or advances to such Subsidiary from the Company or from
transferring any of such Subsidiary's property or assets to the Company or any
other subsidiary of the Company except as described in the Final Memorandum.
(tt) Neither the Company nor any of the Subsidiaries is a
"holding company" or a "subsidiary company" of a holding company, or an
"affiliate" thereof required to be registered under the Public Utility Holding
Company Act of 1935, as amended.
(uu) Neither the Company nor any of its subsidiaries nor, to the
Company's knowledge, any employee or agent of the Company or any subsidiary has
made any payment of funds of the Company or any subsidiary or received or
retained any funds in violation of any provision of the Foreign Corrupt
Practices Act of 1977, as amended.
Any certificate signed by any officer or authorized signatory of the
Company and delivered to any of the Initial Purchasers or counsel for the
Initial Purchasers in connection with the offering of the Securities shall be
deemed a representation and warranty by the Company as to matters covered
thereby, to each Initial Purchaser.
2. Purchase and Sale. Subject to the terms and conditions and in
-----------------
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to the Initial Purchasers, and each Initial Purchaser agrees,
severally and not jointly, to purchase from the Company, at an aggregate
purchase price of $194,000,000, representing approximately $970 per
11
Unit, the respective number of Units set forth on Schedule I opposite such
Initial Purchaser's name.
3. Delivery and Payment. Delivery of and payment for the Securities
--------------------
shall be made at 9:00 A.M., New York City time, on December 1, 1999, or at such
time on such later date as the Initial Purchasers shall designate, which date
and time may be postponed by agreement between the Initial Purchasers and the
Company or as provided in Section 9 hereof (such date and time of delivery and
payment for the Securities being herein called the "Closing Date"). Delivery of
the Securities shall be made to the Representative for the respective accounts
of the several Initial Purchasers against payment by the several Initial
Purchasers of the purchase price thereof by wire transfer of immediately
available funds to the account specified by the Company and in accordance with
the Escrow Agreement, as applicable. Delivery of the Securities shall be made
through the facilities of The Depository Trust Company unless the Representative
shall otherwise instruct.
4. Offering by Initial Purchasers.
------------------------------
(a) Each Initial Purchaser, severally and not jointly,
represents and warrants that such Initial Purchaser is a QIB. Each Initial
Purchaser, severally and not jointly, agrees with the Company that (i) it will
not solicit offers for, or offer or sell, the Securities by any form of general
solicitation or general advertising (as those terms are used in Regulation D
under the Act) or in any manner involving a public offering within the meaning
of Section 4(2) of the Act and (ii) it will solicit offers for such Securities
only from, and will offer such Securities only to, persons that it reasonably
believes to be (A) in the case of offers in the United States, QIBs or other
institutional accredited investors (as defined in Rule 501(a)(1),(2),(3) or (7)
under the Act) ("institutional accredited investors") and (B) in the case of
offers outside the United States, to persons other than U.S. persons ("foreign
purchasers," which term shall include dealers or other professional fiduciaries
in the United States acting on a discretionary basis for foreign beneficial
owners (other than an estate or trust)) in reliance upon Regulation S under the
Act that, in each case, in purchasing such Securities are deemed to have
represented and agreed as provided in the Final Memorandum under the caption
"Notice to Investors."
(b) Each Initial Purchaser, severally and not jointly,
represents, warrants, and agrees with respect to offers and sales outside the
United States that:
(i) such Initial Purchaser understands that no action has
been or will be taken in any jurisdiction by the Company that would permit a
public offering of the Securities, or possession or distribution of either the
Final Memorandum or any other offering or publicity material relating to the
Securities, in any country or jurisdiction where action for that purpose is
required;
(ii) such Initial Purchaser will comply with all
applicable laws and regulations in each jurisdiction in which it acquires,
offers, sells or delivers Securities or has in its possession or distributes
either the Final Memorandum or any such other material, in all cases at its own
expense;
12
(iii) the Securities have not been registered under the Act
and may not be offered or sold within the United States or to, or for the
account or benefit of, U.S. persons except in accordance with Rule 144A or
Regulation S under the Act or pursuant to another exemption from the
registration requirements of the Act; and
(iv) such Initial Purchaser has offered the Securities and
will offer and sell the Securities (A) as part of their distribution at any time
and (B) otherwise until (I) one year after the later of the commencement of the
offering and the Closing Date (in the case of the Units and the Warrants) or
(II) 40 days after the later of the commencement of the offering of the
Securities and the Closing Date (in the case of the Notes), and in either case,
only in accordance with Rule 903 of Regulation S or as otherwise permitted in
Section 4(a); accordingly, subject to the foregoing, neither such Initial
Purchaser, nor its Affiliates have engaged or will engage in any directed
selling efforts (within the meaning of Regulation S) with respect to the
Securities, and any such Initial Purchaser and its Affiliates have complied and
will comply with the offering restrictions requirement of Regulation S.
5. Agreements of the Company. The Company agrees with each Initial
-------------------------
Purchaser that:
(a) The Company will furnish to each Initial Purchaser and to
counsel for the Initial Purchasers, without charge, during the period referred
to in paragraph (c) below, as many copies of the Final Memorandum and any
amendments and supplements thereto as each Initial Purchaser and counsel for the
Initial Purchasers may reasonably request.
(b) The Company will not at any time make any amendment or
supplement to the Preliminary Memorandum or the Final Memorandum to which the
Initial Purchasers reasonably object.
(c) The Company will immediately notify each Initial Purchaser
and confirm such notice in writing of (x) any filing made by the Company
relating to the offering of the Securities with any securities exchange or any
other regulatory body in the United States or any other jurisdiction and (y)
prior to the completion of the placement of the Securities by the Initial
Purchasers as evidenced by a notice in writing from the Initial Purchasers to
the Company, any event as a result of which the Final Memorandum would include
any untrue statements of 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 is necessary to amend or
supplement the Final Memorandum to comply with applicable law. In such event or
if at any time prior to completion of the distribution of the Securities by the
Initial Purchasers to purchasers who are not their affiliates (as determined by
the Initial Purchasers) any other event shall occur or condition shall exist as
a result of which it is necessary, in the opinion of the Initial Purchasers or
counsel for the Initial Purchasers, to amend or supplement the Final Memorandum
in order that the Final Memorandum, as then amended or supplemented, will not
include an 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 existing at the time it is delivered to a purchaser, not
misleading or if in the opinion of the Initial Purchasers or counsel for the
Initial Purchasers, such amendment or supplement is necessary to comply with
applicable law, the Company will, subject to paragraph (b) of this Section 5,
promptly prepare, at its own expense,
13
such amendment or supplement as may be necessary to correct such untrue
statement or omission or to effect such compliance, so that as so amended or
supplemented, the statements in the Final Memorandum will not include an 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 existing at
the time it is delivered to a purchaser, not misleading or so that such Final
Memorandum as so amended or supplemented will comply with applicable law, as the
case may be, and furnish to the Initial Purchasers such number of copies of such
amendment or supplement as the Initial Purchasers may reasonably request. The
Company agrees to notify the Initial Purchasers in writing to suspend use of the
Final Memorandum as promptly as practicable after the occurrence of an event
specified in this paragraph (c), and the Initial Purchasers hereby agree upon
receipt of such notice from the Company to suspend use of the Final Memorandum
until the Company has amended or supplemented the Final Memorandum to correct
such misstatement or omission or to effect such compliance.
(d) Neither the Company nor any of its Affiliates will solicit
any offer to buy or offer or sell the Securities or the Exchange Securities by
means of any form of general solicitation or general advertising (as such terms
are used in Regulation D under the Act), or by means of any directed selling
efforts (as defined in Rule 902 under the Act) in the United States in
connection with the Securities being offered and sold pursuant to Regulation S
or in any manner involving a public offering within the meaning of Section 4(2)
of the Act prior to the effectiveness of a registration statement with respect
to the Securities or the Exchange Securities, as applicable.
(e) Neither the Company nor any of its Affiliates will offer,
sell or solicit offers to buy or otherwise negotiate in respect of any security
(as defined in the Act) which could be integrated with the sale of the
Securities in a manner that would require the registration of the Securities
under the Securities Act.
(f) The Company (A) will, so long as the Notes are outstanding,
furnish to the Trustee and the holders of the Notes, the reports and other
information required to be furnished in accordance with the Indenture, whether
or not the Company has a class of securities registered under the Exchange Act,
and (B) will furnish to the Initial Purchasers copies of all such reports and
information, together with such other documents, reports and information as
shall be furnished by the Company to the holders of the Securities or to the
Trustee.
(g) At all times prior to the registration of the Securities
under the Act, so long as the Securities are outstanding, the Company will
furnish to holders of Securities and prospective purchasers of Securities
designated by such holders, upon request of such holders or such prospective
purchasers, the information required to be delivered pursuant to Rule 144A(d)(4)
under the Act to permit compliance with Rule 144A in connection with resales of
the Securities.
(h) The Company will not for a period of 180 days following the
Closing Date, without the prior written consent of Xxxxxxx Xxxxx Xxxxxx Inc.,
offer, sell or contract to sell, grant any other option to purchase 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
14
otherwise) by the Company or any Affiliate of the Company or any person in
privity with the company or any Affiliate of the Company), directly or
indirectly, any debt securities issued or guaranteed by the Company (other than
the Securities) except to the extent contemplated by the Registration Rights
Agreement or the Final Memorandum.
(i) The Company will cause and maintain the eligibility of the
Securities for clearance and settlement through DTC.
(j) Prior to the Closing Date, the Company will furnish to each
Initial Purchaser, if and as soon as they have been prepared, a copy of any
unaudited interim consolidated financial statements of the Company for any
period subsequent to the period covered by the most recent financial statements
of the Company appearing in the Final Memorandum which have been prepared in the
ordinary course of business.
(k) The Company will arrange for the registration and
qualification of the Securities for offering and sale under the applicable
securities or "blue sky" laws of such states and other jurisdictions as the
Initial Purchasers may reasonably designate in connection with the resale of the
Securities as contemplated by this Agreement and the Final Memorandum and to
continue such qualifications in effect for as long as may be necessary to
complete the distribution of the Securities; provided that in no event shall the
--------
Company be obligated to (i) qualify as a foreign corporation or as a dealer in
securities in any jurisdiction where it would not otherwise be required to so
qualify but for this Section 5(k), (ii) file any general consent to service of
process in any jurisdiction where it is not at the Closing Date then so subject
or (iii) subject itself to taxation in any such jurisdiction if it is not so
subject. The Company will file such statements and reports as may be required by
the laws of each jurisdiction in which the Securities have been qualified as
above provided. The Company shall promptly advise the Initial Purchasers of the
receipt by the Company of any notification with respect to the suspension of the
qualification or exemption from qualification of the Securities for offering or
sale in any jurisdiction or the institution, threatening or contemplation of any
proceeding for such purpose.
(l) Subject to the provisions of the Escrow Agreement, the
Company expects to use the proceeds received from the Offering in the manner
specified in the Final Memorandum under the heading "Use of Proceeds."
(m) During the two year period following the Closing Date, the
Company will use reasonable efforts to ensure that its Affiliates do not resell
any Securities that constitute "Restricted Securities" under Rule 144 under the
Act that have been acquired by any of them.
(n) Pursuant to the Escrow Agreement, the Company will deposit
the Escrow Amount into a collateral account and will take all actions necessary
to pledge, assign and set over to the Trustee, for the benefit of the holders of
the Securities and the Trustee (in its capacity as such under the Indenture),
and irrevocably grant to the Trustee for the benefit of the holders of the
Securities and the Trustee (in its capacity as such under the Indenture) a first
priority perfected security interest in, all of its respective right, title and
interest in such collateral account, all funds held therein and all other
Collateral (as such term is defined in the Escrow
15
Agreement) held by the Escrow Agent or on its behalf, in order to secure the
obligations under the Escrow Agreement and the Securities.
(o) Whether or not any sale of the Securities is consummated,
the Company agrees to pay and bear all costs and expenses incident to the
performance of all of their obligations under this Agreement, including (i) the
preparation and printing of the Preliminary Memorandum, the Final Memorandum and
any amendments or supplements thereto and the cost of furnishing copies thereof
to the Initial Purchasers, (ii) the preparation, issuance, printing and
distribution of the Operative Documents, (iii) the delivery to the Initial
Purchasers of the Securities, including any stamp or other taxes in connection
with the original issuance and sale of the Securities, (iv) the fees and
disbursements of the Company's counsel and accountants, (v) the qualification of
the Securities under the applicable state securities or "blue sky" laws in
accordance with the provisions of Section 5(k) hereof including filing fees and
reasonable fees and disbursements of counsel to the Initial Purchasers in
connection therewith and in connection with the preparation of any survey of
state securities or "blue sky" laws or legal investment memoranda, (vi) any fees
charged by rating agencies for rating the Securities, (vii) any fees associated
with establishing or maintaining the escrow account in connection with the
Escrow Agreement, (viii) the fees and expenses of the Trustee, the Warrant
Agent, the Unit Agent, the Escrow Agent and any paying agent, including the fees
and disbursements of their counsel, (ix) all expenses (including travel
expenses) of the Company in connection with any meetings with prospective
investors in the Securities (other than expenses for meeting facilities for the
road show) and (x) all expenses and listing fees in connection with the
application for designation of the Securities as PORTAL securities and the
eligibility of the Units, the Notes, the Exchange Securities, and the Warrants
for clearance through The Depository Trust Company. Notwithstanding any of the
foregoing, it is understood that except as expressly set forth in subclause (v)
of this clause (p), the Initial Purchasers shall pay all fees and expenses of
the Initial Purchasers' legal counsel and all of the Initial Purchasers' travel
(excluding any chartered jet), stabilization and other out-of-pocket expenses,
including meeting facilities for meetings with prospective investors.
6. Conditions to the Obligations of the Initial Purchasers. The
-------------------------------------------------------
obligations of the Initial Purchasers to purchase the Securities shall be
subject to the accuracy of the representations and warranties on the part of the
Company contained herein on the date hereof and on the Closing Date, to the
accuracy of the statements of the Company made in any certificates pursuant to
the provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) On the Closing Date, the Initial Purchasers shall have
received the opinions of Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx &
Xxxxxxxxx, LLP and Xxxx Xxxx Xxxx & Freidenrich LLP, counsel for the Company,
dated as of the Closing Date, in form and substance reasonably satisfactory to
the Initial Purchasers and counsel to the Initial Purchasers, collectively and
substantially to the effect that:
(i) Each of the Company and its Subsidiaries has been duly
incorporated, is validly existing and in good standing under the laws of its
jurisdiction of incorporation, with full requisite corporate or other power and
authority to own, lease and operate its properties and conduct its business as
described in the Final Memorandum, and is
16
duly qualified to do business as a foreign corporation and is in good standing
under the laws of California, Virginia and New Jersey.
(ii) All the outstanding shares of capital stock of the
Company and the Subsidiaries have been duly and to the knowledge of such counsel
validly authorized and issued and are fully paid and nonassessable and, except
as otherwise set forth in the Final Memorandum, all outstanding shares of
capital stock of the Subsidiaries are owned by the Company free and clear of any
security interest and, to the knowledge of such counsel, any other security
interests, claims, liens, or encumbrances.
(iii) To the knowledge of such counsel, except as set forth
in the Final Memorandum, no options (other than options granted under the 1998
Stock Plan which options are issued under the reserve described in the Final
Memorandum), warrants or other rights to purchase, agreements or other
obligations to issue or other rights to convert any obligation into, or exchange
any securities for, shares of equity interests of the Company are outstanding.
(iv) The Company's authorized capitalization is as set
forth in the Final Memorandum under the heading "Capitalization".
(v) To the knowledge of such counsel, there is no pending
action, suit or proceeding or written threat thereof by or before any court or
governmental agency, authority or body or any arbitrator involving the Company
or any of its subsidiaries or its or their property that is not adequately
disclosed in the Final Memorandum, except in each case for such proceedings
that, if the subject of an unfavorable decision, ruling or finding would not
singly or in the aggregate, have a Material Adverse Effect.
(vi) Neither the execution and delivery of the Operative
Documents nor the consummation of any of the transactions therein contemplated,
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 asset of the Company or its subsidiaries pursuant to, (i)
the charter or by-laws of the Company's subsidiaries; (ii) the terms of any
Material Contract; or (iii) any statute, law, rule, regulation or, to the
knowledge of such counsel, any 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 any of its subsidiaries or any of their properties.
(vii) The Company has the requisite corporate power and
authority to execute, deliver and perform its obligations under this Agreement.
This Agreement has been duly authorized executed and delivered by the Company.
(viii) The Company has the requisite corporate power and
authority to execute, deliver and perform its obligations under the Units. The
Units have been duly and validly authorized by the Company and, when executed
and delivered by the Company (assuming the due countersignature, execution and
delivery by the Unit Agent), will constitute a valid and legally binding
obligations of the Company, enforceable against the Company in
17
accordance with their terms, except that the enforcement thereof may be limited
by the Enforceability Limitations.
(ix) The Company has the requisite corporate power and
authority to execute, deliver and perform its obligations under the Notes and
the Exchange Securities. The Notes and the Exchange Securities have been duly
and validly authorized by the Company for issuance. The Notes, when executed,
authenticated and issued in accordance with the provisions of the Indenture, and
delivered to and paid for by the Initial Purchasers in accordance with the terms
hereof, will have been duly executed, issued and delivered and (assuming the due
authentication by the Trustee) will constitute valid and legally binding
obligations of the Company, entitled to the benefits of the Indenture and
enforceable against the Company in accordance with their terms, and the Exchange
Securities, when executed, authenticated, issued and delivered in the manner
contemplated by the Registration Rights Agreement and the Indenture, will have
been duly executed, issued and delivered and (assuming the due authentication by
the Trustee) will constitute valid and legally binding obligations of the
Company, entitled to the benefits of the Indenture and enforceable against the
Company in accordance with their terms, except, in each case, that the
enforcement thereof may be limited by the Enforceability Limitations. The Notes
are in the form contemplated by the Indenture.
(x) The Company has the requisite corporate power and
authority to execute, deliver and perform its obligations under the Warrants.
The Warrants have been duly and validly authorized by the Company and, when
executed and delivered by the Company (assuming the due countersignature,
execution and delivery by the Warrant Agent), will constitute a valid and
legally binding obligations of the Company, enforceable against the Company in
accordance with their terms, except that the enforcement thereof may be limited
by the Enforceability Limitations.
(xi) The Common Shares have been duly reserved for
issuance by the Company upon exercise of the Warrants in sufficient number to
cover the exercise of all of the Warrants, and the issuance of the Common Shares
upon exercise of the Warrants has been duly authorized, and the Common Shares,
when delivered upon exercise of and in accordance with the terms of the Warrant
Agreement, will be validly issued, fully paid and non-assessable, and no holder
of any securities of the Company has any preemptive or other similar rights to
subscribe for or to purchase any common stock of the Company arising by
operation of the General Corporation Law of the State of Delaware, under the
Certificate of Incorporation or bylaws of the Company or pursuant to the terms
of any material contract listed on Schedule III hereto.
(xii) The Company has the requisite corporate power and
authority to execute, deliver and perform its obligations under the Indenture.
The Indenture has been duly and validly authorized, executed and delivered by
the Company and (assuming the due authorization, execution and delivery by the
Trustee) constitutes a valid and legally binding agreement of the Company,
enforceable against the Company in accordance with its terms, except that the
enforcement thereof may be limited by the Enforceability Limitations.
(xiii) The Company has the requisite corporate power and
authority to execute, deliver and perform its obligations under the Warrant
Agreement. The
18
Warrant Agreement has been duly and validly authorized, executed and delivered
by the Company and (assuming the due authorization, execution and delivery by
the Trustee) constitutes a valid and legally binding agreement of the Company,
enforceable against the Company in accordance with its terms, except that the
enforcement thereof may be limited by the Enforceability Limitations.
(xiv) The Company has the requisite corporate or other
power and authority to execute, deliver and perform its obligations under the
Common Stock Registration Rights Agreement. The Common Stock Registration Rights
Agreement has been duly and validly authorized, executed and delivered by the
Company and (assuming the due authorization, execution and delivery by the
Initial Purchasers and the Investors) constitutes a valid and legally binding
agreement of the Company, enforceable against the Company in accordance with its
terms, except that the enforcement thereof may be limited by the Enforceability
Limitations.
(xv) The Company has the requisite corporate power and
authority to execute, deliver and perform its obligations under the Registration
Rights Agreement. The Registration Rights Agreement has been duly and validly
authorized, executed and delivered by the Company and (assuming the due
authorization, execution and delivery by the Initial Purchasers) constitutes a
valid and legally binding agreement of the Company, enforceable against the
Company in accordance with its terms, except that the enforcement thereof may be
limited by the Enforceability Limitations.
(xvi) The Company has the requisite corporate power and
authority to execute, deliver and perform its obligations under the Escrow
Agreement. The Escrow Agreement has been duly and validly authorized, executed
and delivered by the Company and (assuming the due authorization, execution and
delivery by the Escrow Agent and the Trustee) constitutes a valid and legally
binding agreement of the Company, enforceable against the Company in accordance
with its terms, except that the enforcement thereof may be limited by the
Enforceability Limitations.
(xvii) The Escrow Agreement creates a valid and perfected
security interest in favor of the Trustee in all right, title and interest of
the Company in and to the Escrow Account and the Collateral (as such term is
defined in the Escrow Agreement) (such counsel need not express an opinion as to
the priority of the security interest in the collateral created by the Escrow
Agreement).
(xviii) The Securities, the Exchange Securities, the
Indenture, the Escrow Agreement, the Common Stock Registration Rights Agreement,
the Registration Rights Agreement and the Common Shares conform in all material
respects to the descriptions thereof in the Final Memorandum.
(xix) The statements in the Final Memorandum under the
heading "Certain United States Federal Tax Considerations" provide a fair and
accurate summary of the matters therein described.
19
(xx) No consent, approval, authorization, filing with or
order of any court or governmental agency or body under the Federal laws of the
United States or the laws of the State of New York or under the General
Corporation Law of the State of Delaware is required in connection with the due
authorization, execution and delivery of the Operative Documents by the Company,
or for the offering, issuance, sale or delivery of the Securities or the
Exchange Securities or for the resale by you in accordance with the terms of
this Agreement, except such as will be obtained under the Act and the Trust
Indenture Act in connection with the registration of the Exchange Securities or
the Securities, as the case may be, as contemplated by the Registration Rights
Agreement and the Common Stock Registration Rights Agreement and such as may be
required under the blue sky or securities laws of any state or foreign
jurisdiction or the NASD or and such other approvals (specified in such opinion)
as have been obtained.
(xxi) The Company is not and, after giving effect to the
offering and sale of the Securities and the application of the proceeds thereof
as described in the Final Memorandum, will not be an "investment company"
required to be registered under the Investment Company Act without taking
account of any exemption arising out of the number of holders of the Company's
securities.
(xxii) Assuming the Securities are issued and sold under the
circumstances contemplated by this Agreement and the representations and
warranties of the Company and the Initial Purchasers set forth herein are true
and correct, it is not necessary in connection with the offer, sale and delivery
of the Securities to the Initial Purchasers in the manner contemplated by this
Agreement or in connection with the initial resale of the Securities by the
Initial Purchasers in accordance with this Agreement to register the Securities
under the Act or to qualify the Indenture under the Trust Indenture Act.
In addition, such counsel shall state that in addition to rendering
legal advice and assistance to the Company in the course of the preparation of
the Final Memorandum, involving, among other things, discussions and inquiries
concerning various legal matters and the review of certain corporate records,
documents and proceedings, such counsel also participated in conferences with
certain officers and other representatives of the Company, including its
independent certified public accountants and with the Initial Purchasers and
their counsel, at which the contents of the Final Memorandum and related matters
were discussed. Such counsel may state that such counsel has not, however,
independently verified the accuracy, completeness or fairness of the information
contained in the Final Memorandum. However, based upon such participation, such
counsel shall state it believes that the Final Memorandum (except for financial
statements and schedules and other financial data derived therefrom, as to which
such counsel expresses no belief), as of its date and as of the Closing Date,
did not and does not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
In rendering such opinions, such counsel may rely (A) as to matters
including the application of laws of any jurisdiction other than the Federal law
of the United States, the General Corporation Law of the State of Delaware, the
laws of the State of California and the laws of the State of New York, to the
extent they deem proper and specified in such opinion, upon the opinion of other
counsel of good standing whom they believe to be reliable and who are
20
satisfactory to counsel of the Initial Purchasers, (B) as to matters of fact, to
the extent such counsel deems proper, on representations or certificates of
responsible officers of the Company and certificates of public officials and (C)
on the representations, warranties, convenants and agreements of the Company and
the Initial Purchasers in this Agreement.
(b) The Initial Purchasers shall have received an opinion from
Xxxxxx Xxxxxx & Xxxxxxx, counsel for the Initial Purchasers, dated the Closing
Date, in form and substance reasonably satisfactory to the Initial Purchasers.
(c) The following conditions contained in clause (i) and (ii) of
this subsection (c) shall have been satisfied at and as of the Closing Date, and
the Company shall have furnished to the Initial Purchasers a certificate of the
Company, signed by 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 Final Memorandum, any amendment
or supplement to the Final Memorandum and this Agreement and that:
(i) the representations and warranties of the Company in
this Agreement are true and correct in all material respects on and as of the
Closing Date with the same effect as if made on the Closing Date, and the
Company has complied with all the agreements and satisfied all the conditions on
its part to be performed or satisfied hereunder at or prior to the Closing Date;
and
(ii) since the date of the most recent financial statements
included in the Final Memorandum, there has been no material adverse change in
the condition (financial or otherwise), prospects, earnings, business 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 by the Final Memorandum.
(d) The Securities shall have been (i) designated as PORTAL-
eligible securities in accordance with the rules and regulations of the NASD and
(ii) declared eligible for clearance and settlement through The Depository Trust
Company, the Euroclear System and Cedelbank.
(e) On the date hereof and at the Closing Date, KPMG LLP shall
have furnished to the Initial Purchasers a letter or letters, dated respectively
as of the date hereof and as of the Closing Date, in form and substance
satisfactory to the Initial Purchasers and counsel to the Initial Purchasers,
confirming that they are independent accountants within the meaning of Rule 101
of the Code of Professional Conduct of the American Institute of Certified
Public Accountants and containing statements and information of the type
ordinarily included in accountants' "comfort letters" to Initial Purchasers with
respect to financial statements and certain financial information contained in
the Final Memorandum.
(f) Subsequent to the date hereof or, if earlier, the dates as
of which information is given in the Final Memorandum (exclusive of any
amendment or supplement thereto), there shall not have been any change, or any
development involving a prospective change, in or affecting the business or
properties of the Company or the Subsidiaries the effect of which is, in the
sole judgment of the Representative, so material and adverse as to make it
21
impractical or inadvisable to proceed with the purchase and the delivery of the
Securities as contemplated by the Final Memorandum (exclusive of any amendment
or supplement thereto).
(g) All government authorizations required in connection with
the issue and sale of the Securities as contemplated under this Agreement and
the performance of the Company's obligations hereunder and under the Operative
Documents shall be in full force and effect and the Company shall deliver copies
of such authorizations to the Initial Purchasers.
(h) Each of the Operative Documents shall have been executed and
delivered by each of the parties thereto.
(i) Prior to the Closing Date, the Company shall have furnished
to the Initial Purchasers such further information, certificates and documents
as the Initial Purchasers may reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representative and counsel for the Initial Purchasers, this
Agreement and all obligations of the Initial Purchasers hereunder may be
canceled at, or at any time prior to, the Closing Date by the Representative.
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 shall be
delivered at the offices of Xxxxxx Xxxxxx & Xxxxxxx, 00 Xxxx Xxxxxx, Xxx Xxxx,
XX 00000, on the Closing Date.
7. Reimbursement of Expenses. If the sale of the Securities
-------------------------
provided for herein is not consummated because any condition to the obligations
of the Initial Purchasers set forth in Section 6 hereof is not satisfied because
of any refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Initial Purchasers, the Company will reimburse the Initial
Purchasers on demand for all out-of-pocket expenses (including reasonable fees
and disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Securities.
8. Indemnification and Contribution. (a) The Company agrees to
--------------------------------
indemnify and hold harmless each Initial Purchaser, the directors, officers,
employees and agents of each Initial Purchaser and each person who controls any
Initial Purchaser within the meaning of either the Act or the Exchange Act
against any and all losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject under the Act, the Exchange Act or
other Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Preliminary Memorandum, the Final
Memorandum (or in any supplement or amendment thereto) or any information
provided by the Company to any holder or prospective purchaser of Securities
pursuant to Section 5(g) (or in any supplement or amendment thereto), or arise
out of or are
22
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, in
the light of the circumstances under which they were made, 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 in
the Preliminary Memorandum or the Final Memorandum, or in any amendment thereof
or supplement thereto, in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Initial Purchasers
through the Representative specifically for inclusion therein; and provided,
--------
further, that the Company will not be liable to an Initial Purchaser with
-------
respect to any Preliminary Memorandum to the extent that the Company shall
sustain the burden of proof of providing that any such loss, claim, damage,
liability or action resulted from the fact that such Initial Purchaser, in
contravention of a requirement of this Agreement or applicable law, sold Units
to a person to whom such Initial Purchaser failed to send or give, at or prior
to the Closing Date, a copy of the Final Memorandum as then amended or
supplemented if (i) the Company has previously furnished copies thereof to the
Initial Purchasers and the loss, claim, damage, liability or action of such
Initial Purchaser resulted from an untrue statement or omission or alleged
untrue statement or omission of a material fact contained in or omitted from the
Preliminary Memorandum which was corrected in the Final Memorandum as, if
applicable, amended or supplemented prior to the Closing Date and (ii) giving or
sending such Final Memorandum by the Closing Date to the party or parties
asserting such loss, claim, damage, liability or action would have constituted a
defense to the claim asserted by such person. This indemnity agreement will be
in addition to any liability which the Company may otherwise have.
(b) Each Initial Purchaser severally, and not jointly, agrees to
indemnify and hold harmless the Company, each of its directors, each of its
officers, and each person who controls the Company within the meaning of either
the Act or the Exchange Act, to the same extent as the foregoing indemnity from
the Company to each Initial Purchaser, but only with reference to written
information relating to such Initial Purchaser furnished to the Company by or on
behalf of such Initial Purchaser through the Representative specifically for
inclusion in the Preliminary Memorandum or the Final Memorandum (or in any
amendment or supplement thereto). This indemnity agreement will be in addition
to any liability which any Initial Purchaser may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses;
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in
23
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 (in addition to local counsel), and the indemnifying party
shall bear the reasonable fees, costs and expenses of such separate counsel if
(i) the use of counsel chosen by the indemnifying party to represent the
indemnified party would present such counsel with a conflict of interest; (ii)
the actual or potential defendants in, or targets of, any such action include
both the indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party; (iii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution of
such action; or (iv) the indemnifying party shall authorize in writing the
indemnified party to employ separate counsel at the expense of the indemnifying
party. An indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
(i) includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding and (ii) does
not include a statement as to or an admission of fault, culpability or failure
to act by or on behalf of any indemnified party.
(d) In the event that the indemnity provided in paragraph (a) or
(b) of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Initial Purchasers 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 or
one or more of the Initial Purchasers, as applicable, may be subject in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and by the Initial Purchasers on the other from the
offering of the Securities; provided, however, that in no case shall any Initial
-------- -------
Purchaser (except as may be provided in any agreement among the Initial
Purchasers relating to the offering of the Securities) be responsible for any
amount in excess of the purchase discount or commission applicable to the
Securities purchased by such Initial Purchaser hereunder. If the allocation
provided by the immediately preceding sentence is unavailable for any reason,
the Company and the Initial Purchasers shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and of the Initial Purchasers on the other
in connection with the statements or omissions which resulted in such Losses, as
well as any other relevant equitable considerations. Benefits received by the
Company shall be deemed to be equal to the total net proceeds from the offering
(before deducting expenses) received by the Company, and benefits received by
the Initial Purchasers shall be deemed to be equal to the total purchase
discounts and commissions received by the Initial Purchasers from the Company in
connection with the purchase of the Securities hereunder. Relative fault shall
be determined by reference to, among other things, whether any untrue or any
alleged untrue statement or the omission or alleged
24
omission to state a material fact relates to information provided by the Company
on the one hand or the Initial Purchasers on the other, the intent of the
parties and their relative knowledge, account information and opportunity to
correct or prevent such untrue statement or omission. The Company and the
Initial Purchasers agree that it would not be just and equitable if contribution
were determined by pro rata allocation or any other method of allocation which
does not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each person who
controls an Initial Purchaser within the meaning of either the Act or the
Exchange Act and each director, officer, employee and agent of an Initial
Purchaser shall have the same rights to contribution as such Initial Purchaser,
and each person who controls the Company within the meaning of either the Act or
the Exchange Act and each officer and director of the Company shall have the
same rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (d).
9. Default by an Initial Purchaser. If any one or more of the
-------------------------------
Initial Purchasers shall fail to purchase and pay for any of the Securities
agreed to be purchased by such Initial Purchaser hereunder and such failure to
purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Initial Purchasers shall be
obligated severally to take up and pay for (in the respective proportions which
the principal number of Units set forth opposite their names in Schedule I
hereto bears to the aggregate number of Units set forth opposite the names of
all the remaining Initial Purchasers) the Securities which the defaulting
Initial Purchaser or Initial Purchasers agreed but failed to purchase; provided,
--------
however, that in the event that the aggregate number of Units which the
-------
defaulting Initial Purchaser or Initial Purchasers agreed but failed to purchase
shall exceed 10% of the aggregate number of Units set forth in Schedule I
hereto, the remaining Initial Purchasers shall have the right to purchase all,
but shall not be under any obligation to purchase any, of the Securities, and if
such nondefaulting Initial Purchasers do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Initial
Purchaser or the Company. In the event of a default by any Initial Purchaser as
set forth in this Section 9, the Closing Date shall be postponed for such
period, not exceeding five Business Days, as the Representative shall determine
in order that the required changes in the Final Memorandum or in any other
documents or arrangements that may be effected. Nothing contained in this
Agreement shall relieve any defaulting Initial Purchaser of its liability, if
any, to the Company or any nondefaulting Initial Purchaser for damages
occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in
-----------
the absolute discretion of the Representative, by notice given to the Company
prior to delivery of and payment for the Securities, if at any time prior to
such time (i) a banking moratorium shall have been declared either by Federal or
New York State authorities or (ii) trading in securities generally on the New
York Stock Exchange or NASDAQ National Market shall have been suspended or
limited or minimum prices shall have been established on such Exchange or the
NASDAQ National Market, or (iii) there shall have occurred any material adverse
change in the financial markets in the United States or any outbreak or
escalation of hostilities, national or international emergency or war or other
calamity or crisis, or any change or development involving a change in national
or international political, financial or economic conditions, the
25
effect of which on financial markets is such as to make it, in the sole judgment
of the Representative, impracticable or inadvisable to proceed with the offering
or delivery of the Securities as contemplated by the Final Memorandum (exclusive
of any amendment or supplement thereto). If this Agreement is terminated
pursuant to this Section 10, such termination shall be without liability of any
party to any other party.
11. Representations and Indemnities to Survive. The respective
------------------------------------------
agreements, representations, warranties, indemnities and other statements of the
Company and its officers and of the Initial Purchasers 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 the Initial Purchasers 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 Securities. The
provisions of Sections 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and
-------
effective only on receipt and should be mailed and delivered. Notices to the
Initial Purchasers shall be directed to Xxxxxxx Xxxxx Barney Inc., Seven Xxxxx
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: General Counsel; and notices
to the Company shall be directed to Equinix, Inc., 000 Xxxxxxxx Xxxxxx, Xxxxxxx
Xxxx, Xxxxxxxxxx 00000, Attention: Chief Financial Officer, with a copy to
Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxxxxx Xxxxxxxx & Xxxxxxxxx, LLP, 000 Xxxxxxxxxxxx
Xxxxx, Xxxxx Xxxx, XX 00000, Attention: Xxxxx X. Xxxxxxx.
13. Successors. This 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,
except as expressly set forth in Section 5(g) hereof, no other person will have
any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and construed
--------------
in accordance with the laws of the State of New York applicable to contracts
made and to be performed within the State of New York.
15. Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. Headings. The section headings used herein are for convenience
--------
only and shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in this
-----------
Agreement, shall have the meanings indicated.
"Affiliate" shall have the meaning specified in Rule 501(b) of
Regulation D.
"Act" shall mean the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
26
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in The City of New York.
"Commission" shall mean the Securities and Exchange Commission.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Investment Company Act" shall mean the Investment Company Act of
1940, as amended, and the rules and regulations of the Commission thereunder.
"NASD" shall mean the National Association of Securities Dealers, Inc.
"Regulation D" shall mean Regulation D under the Act.
"Regulation S" shall mean Regulation S under the Act.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended, and the rules and regulations of the Commission promulgated thereunder.
27
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this Agreement and your acceptance shall represent a binding agreement between
the Company and the several Initial Purchasers.
Very truly yours,
EQUINIX, INC.
By: /s/ Xxxxxx X. Xxxx
----------------------------------
Name: Xxxxxx X. Xxxx
Title: Chief Financial Officer
The foregoing Agreement is hereby
confirmed and accepted as of the date
first above written.
XXXXXXX XXXXX XXXXXX INC.
XXXXXX XXXXXXX & CO. INCORPORATED
XXXXXXX, SACHS & CO.
By: XXXXXXX XXXXX XXXXXX INC.
By: /s/ W. Xxxx Xxxxxx
-----------------------------
Name: W. Xxxx Xxxxxx
Title: Vice President
28
SCHEDULE I
Aggregate
Number of
Initial Purchasers Units
----------------------------------------------------------------------- -------------
Xxxxxxx Xxxxx Barney Inc. ........................................... 100,000
Xxxxxx Xxxxxxx & Co. Incorporated.................................... 50,000
Xxxxxxx, Sachs & Co. ................................................ 50,000
-------------
Total...................................................... 200,000
=============
SCHEDULE II
-----------
Subsidiaries of Equinix, Inc.
----------------------------
Equinix-DC, Inc.
SCHEDULE III
------------
Material Contracts
------------------
The Company's wholly-owned subsidiary, Equinix-DC, Inc., has entered
into a Loan and Security Agreement with Comdisco, Inc., dated March 10, 1999, in
the amount of $7,000,000.
The Company has entered into a Master Lease Agreement with Comdisco,
Inc., dated May 27, 1999, in the amount of $1,000,000.
The Company has entered into a Master Lease Agreement with Comdisco,
Inc., dated August 16, 1999, in the amount of $5,000,000.
The Company has entered into a Loan Agreement with Venture Lending &
Leasing II, Inc., as Agent, and other Lenders, dated August 16, 1999, in the
amount of $10,000,000.
The Company has entered into an agreement with MCI WorldCom, dated
November 16, 1999, to install high-bandwidth connectivity at the Company's first
seven U.S. IBX facilities.
The Company has entered into a lease agreement with Carlyle-Core
Chicago LLC, dated as of September 1, 1999.
The Company has entered into a lease agreement with Market Xxxxxx
Urban Renewal, LLC, dated as of May 3, 1999.
The Company has entered into a lease agreement with Xxxxx Beaumeade,
dated as of November 18, 1998.
The Company has entered into a lease agreement with Rose Ventures II,
Inc., dated as of June 10, 1999.
The Company has entered into a lease agreement with 000 Xxxxxxx Xxxxxx
Associates, Inc., dated as of August 6, 1999.
The Company has entered into a lease agreement with Trizechahn
Centers, Inc. (dba Trizechahn Beaumeade Corporate Management), dated as of
October 28, 1999.
The Company entered into an equipment lease facility with Cisco
Systems Credit Corporation in March 1999.
The Company entered into an equipment lease facility with Fore
Financial Services in June 1999.
The Company has entered into a strategic agreement with Northpoint
Communications, Inc., effective as of August 31, 1999.
The Company has entered into a term sheet for a master agreement with
Xxxxxxx Corporation on October 29, 1999.
2
EXHIBIT A
---------
Selling Restrictions for Offers and
Sales Outside the United States
(1) (a) The Securities have not been and will not be registered
under the Securities Act and may not be offered or sold within the United States
or to, or for the account or benefit of, U.S. persons except in accordance with
Regulation S under the Securities Act or pursuant to an exemption from the
registration requirements of the Securities Act. Each Initial Purchaser
represents and agrees that, except as otherwise permitted by Section 4(a)(i) or
(ii) of the Agreement to which this is an exhibit, it has offered and sold the
Securities, and will offer and sell the Securities, (i) as part of their
distribution at any time and (ii) otherwise until one year after the later of
the commencement of the offering and the Closing Date, only in accordance with
Rule 903 of Regulation S under the Securities Act. Accordingly, each Initial
Purchaser represents and agrees that neither it, nor any of its affiliates nor
any person acting on its or their behalf has engaged or will engage in any
directed selling efforts with respect to the Securities, and that it and they
have complied and will comply with the offering restrictions requirement of
Regulation S. Each Initial Purchaser agrees that, at or prior to the
confirmation of sale of Securities (other than a sale of Securities pursuant to
Section 4(a)(i) or (ii) of the Agreement to which this is an exhibit), it shall
have sent to each distributor, dealer or person receiving a selling concession,
fee or other remuneration that purchases Securities from it during the
restricted period a confirmation or notice to substantially the following
effect:
"The Securities covered hereby have not been registered
under the U.S. Securities Act of 1933 (the "Securities Act")
and may not be offered or sold within the United States or
to, or for the account or benefit of, U.S. persons (i) as
part of their distribution at any time or (ii) otherwise
until one year after the later of the commencement of the
offering and [ ], 1999, except in either case in accordance
with Regulation S or Rule 144A under the Securities Act.
Terms used above have the meanings given to them by
Regulation S."
(b) Each Initial Purchaser also represents and agrees that it has not
entered and will not enter into any contractual arrangement with any distributor
with respect to the distribution of the Securities, except with its affiliates
or with the prior written consent of the Company.
(c) Terms used in this section have the meanings given to them by
Regulation S.
(2) Each Initial Purchaser represents and agrees that (i) it has not
offered or sold and will not offer or sell, in the United Kingdom, by means of
any document, any Securities other than to persons whose ordinary business it is
to buy or sell shares or debentures, whether as principal or as agent (except in
circumstances which do not constitute an offer to the public within the meaning
of the Companies Xxx 0000 of Great Britain), (ii) it has complied and will
comply with all applicable provisions of the Financial Services Xxx 0000 of the
United Kingdom
with respect to anything done by it in relation to the Securities in, from or
otherwise involving the United Kingdom, and (iii) it has only issued or passed
on and will only issue or pass on in the United Kingdom any document received by
it in connection with the issue of the Securities to a person who is of a kind
described in Article 9(3) of the Financial Services Xxx 0000 (Investment
Advertisements) (Exemptions) Order 1988 or is a person to whom the document may
otherwise lawfully be issued or passed on.
2
