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SAVVIS COMMUNICATIONS CORPORATION
(A Delaware corporation)
17,000,000 Shares of Common Stock
PURCHASE AGREEMENT
Dated: February __, 2000
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SAVVIS COMMUNICATIONS CORPORATION
(A Delaware corporation)
17,000,000 Shares of Common Stock
(Par Value $.01 Per Share)
PURCHASE AGREEMENT
February __, 2000
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
XXXXXX XXXXXXX & CO. INCORPORATED
BANC OF AMERICA SECURITIES LLC
BEAR, XXXXXXX & CO. INC
CIBC WORLD MARKETS CORP.
as Representatives of the several Underwriters
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
and
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
SAVVIS Communications Corporation, a Delaware corporation (the
"Company"), and Bridge Information Systems, Inc., a Missouri corporation (the
"Selling Shareholder" or "Bridge") confirm their respective agreements with
Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
("Xxxxxxx Xxxxx"), Xxxxxx Xxxxxxx & Co. Incorporated ("Xxxxxx Xxxxxxx") and each
of the other Underwriters named in Schedule A hereto (collectively, the
"Underwriters," which term shall also include any underwriter substituted as
hereinafter provided in Section 10 hereof), for whom Xxxxxxx Xxxxx, Xxxxxx
Xxxxxxx, Banc of America Securities LLC, Bear, Xxxxxxx & Co. Inc. and CIBC World
Markets Corp. are acting as representatives (in such capacity, the
"Representatives"), with respect to (i) the issue and sale by the Company and
the Selling
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Shareholder, acting severally and not jointly, and the purchase by the
Underwriters, acting severally and not jointly, of the respective numbers of
shares of Common Stock, par value $.01 per share, of the Company ("Common
Stock") set forth in said Schedule A and B hereto and (ii) the grant by the
Selling Shareholder to the Underwriters, acting severally and not jointly, of
the option described in Section 2(b) hereof to purchase all or any part of
2,550,000 additional shares of Common Stock to cover over-allotments, if any.
The aforesaid 17,000,000 shares of Common Stock (the "Initial Securities") to be
purchased by the Underwriters and all or any part of the 2,550,000 shares of
Common Stock subject to the option described in Section 2(b) hereof (the "Option
Securities") are hereinafter called, collectively, the "Securities."
The Company and Bridge understand that the Underwriters propose to make
a public offering of the Securities as soon as the Representatives deem
advisable after this Agreement has been executed and delivered.
The Company, Bridge and the Underwriters agree that up to 1,275,000
shares of the Initial Securities to be purchased by the Underwriters (the
"Reserved Securities") shall be reserved for sale by the Underwriters to certain
eligible employees of the Company and its affiliates, immediate family members
of such eligible employees and persons having business relationships with the
Company (the "Reserved Share Participants"), as part of the distribution of the
Securities by the Underwriters, subject to the terms of this Agreement, the
applicable rules, regulations and interpretations of the National Association of
Securities Dealers, Inc. (the "NASD") and all other applicable laws, rules and
regulations. The Company intends to use First Union Securities, Inc. to
administer the sale of the Reserved Shares. To the extent that such Reserved
Securities are not orally confirmed for purchase by the Reserved Share
Participants by the end of the first business day after the date of this
Agreement, such Reserved Securities may be offered to the public as part of the
public offering contemplated hereby.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-1 (No. 333-90881) covering the
registration of the Securities under the Securities Act of 1933, as amended (the
"1933 Act"), including the related preliminary prospectus or prospectus.
Promptly after execution and delivery of this Agreement, the Company will either
(i) prepare and file a prospectus in accordance with the provisions of Rule 430A
("Rule 430A") of the rules and regulations of the Commission under the 1933 Act
(the "1933 Act Regulations") and paragraph (b) of Rule 424 ("Rule 424(b)") of
the 1933 Act Regulations or (ii) if the Company has elected to rely upon Rule
434 ("Rule 434") of the 1933 Act Regulations, prepare and file a term sheet (a
"Term Sheet") in accordance with the provisions of Rule 434 and Rule 424(b). The
information included in such prospectus or in such Term Sheet, as the case may
be, that was omitted from such registration statement at the time it became
effective but that is deemed to be part of such registration statement at the
time it became effective (a) pursuant to paragraph (b) of Rule 430A is referred
to as "Rule 430A Information" or (b) pursuant to paragraph (d) of Rule 434 is
referred to as "Rule 434 Information." Each prospectus used before such
registration statement became effective, and any prospectus that omitted, as
applicable, the Rule 430A Information or the Rule 434 Information, that was used
after such effectiveness and prior
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to the execution and delivery of this Agreement, is herein called a "preliminary
prospectus." Such registration statement, including the exhibits thereto and
schedules thereto at the time it became effective and including the Rule 430A
Information and the Rule 434 Information, as applicable, is herein called the
"Registration Statement." Any registration statement filed pursuant to Rule
462(b) of the 1933 Act Regulations is herein referred to as the "Rule 462(b)
Registration Statement," and after such filing the term "Registration Statement"
shall include the Rule 462(b) Registration Statement. The final prospectus in
the form first furnished to the Underwriters for use in connection with the
offering of the Securities is herein called the "Prospectus." If Rule 434 is
relied on, the term "Prospectus" shall refer to the preliminary prospectus dated
January 31, 2000 together with the Term Sheet and all references in this
Agreement to the date of such Prospectus shall mean the date of the Term Sheet.
For purposes of this Agreement, all references to the Registration Statement,
any preliminary prospectus, the Prospectus or any Term Sheet or any amendment or
supplement to any of the foregoing shall be deemed to include the copy filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("XXXXX").
The Company intends to use a portion of the net proceeds of the
offering and sale of the Securities to finance the cash portion of the
consideration for its purchase (the "Network Transfer") of the Internet protocol
network assets (the "Network Assets") of Bridge. In connection with the Network
Transfer, the Company or certain of the Company's subsidiaries will enter into
with Bridge or certain of Bridge's subsidiaries the Master Establishment and
Transition Agreement, the Equipment Collocation Permit, the Network Services
Agreement, the Technical Services Agreement, the Administrative Services
Agreement, the Promissory Note and the Local Network Services Agreement, each
dated February __, 2000 (the "Network Transfer Agreements"). The execution and
delivery of the Network Transfer Agreements and the consummation of the Network
Transfer shall occur at or prior to Closing Time referred to in Section 2(c)
hereof.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company and Bridge. Each of
the Company and Bridge represents and warrants to each Underwriter as of the
date hereof, as of Closing Time referred to in Section 2(c) hereof, and as of
each Date of Delivery (if any) referred to in Section 2(b) hereof, and agrees
with each Underwriter, as follows:
(i) Compliance with Registration Requirements. Each of the
Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Company, are contemplated by the Commission, and
any request on the part of the Commission for additional information
has been complied with.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments thereto
became effective and at Closing Time
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(and, if any Option Securities are purchased, at the Date of Delivery),
the Registration Statement, the Rule 462(b) Registration Statement and
any amendments and supplements thereto complied and will comply in all
material respects with the requirements of the 1933 Act and the 1933
Act Regulations and did not and will not contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
the Prospectus, any preliminary prospectus and any supplement thereto
or prospectus wrapper prepared in connection therewith, at their
respective times of issuance and at Closing Time, complied and will
comply in all material respects with any applicable laws or regulations
of foreign jurisdictions in which the Prospectus and such preliminary
prospectus, as amended or supplemented, if applicable, are distributed
in connection with the offer and sale of Reserved Securities. Neither
of the Prospectus nor any amendment or supplement thereto (including
any prospectus wrapper), at the time the Prospectus or any amendment or
supplement thereto were issued and at Closing Time (and, if any Option
Securities are purchased, at the Date of Delivery), included or will
include an untrue statement of a material fact or omitted or will omit
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading. If Rule 434 is used, the Company will comply with the
requirements of Rule 434 and the Prospectus shall not be "materially
different," as such term is used in Rule 434, from the prospectus
included in the Registration Statement at the time it became effective.
The representations and warranties in this subsection shall not apply
to statements in or omissions from the Registration Statement or the
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by any Underwriter through Xxxxxxx
Xxxxx and Xxxxxx Xxxxxxx expressly for use in the Registration
Statement or the Prospectus.
Each preliminary prospectus and the prospectus filed as part
of the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the 1933 Act
Regulations and each preliminary prospectus and the Prospectus
delivered to the Underwriters for use in connection with this offering
was identical to the electronically transmitted copies thereof filed
with the Commission pursuant to XXXXX, except to the extent permitted
by Regulation S-T.
(ii) Independent Accountants. The accountants who certified
the financial statements and supporting schedules included in the
Registration Statement are independent public accountants as required
by the 1933 Act and the 1933 Act Regulations.
(iii) Financial Statements. The financial statements of the
Company and its consolidated subsidiaries included in the Registration
Statement and the Prospectus, together with the related schedules and
notes, present fairly the financial position of the Company and its
consolidated subsidiaries at the dates indicated and the statement of
operations, changes in stockholders' equity (deficit) and cash flows of
the Company and its consolidated subsidiaries for the periods
specified; said financial statements have been prepared in
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conformity with generally accepted accounting principles ("GAAP")
applied on a consistent basis throughout the periods involved. The
supporting schedules included in the Registration Statement present
fairly in accordance with GAAP the information required to be stated
therein. The selected financial data and the summary financial
information included in the Prospectus present fairly the information
shown therein and have been compiled on a basis consistent with that of
the audited financial statements included in the Registration
Statement. The pro forma financial statements and the related notes
thereto included in the Registration Statement and the Prospectus
present fairly the information shown therein, have been prepared in
accordance with the Commission's rules and guidelines with respect to
pro forma financial statements and have been properly compiled on the
bases described therein, and the assumptions used in the preparation
thereof are reasonable and the adjustments used therein are appropriate
to give effect to the transactions and circumstances referred to
therein.
(iv) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, except as otherwise disclosed therein,
(1) there has been no material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of
business (a "Material Adverse Effect"), (2) there have been no
transactions entered into by the Company or any of its subsidiaries,
other than those in the ordinary course of business, which are material
with respect to the Company and its subsidiaries considered as one
enterprise, and (3) there has been no dividend or distribution of any
kind declared, paid or made by the Company on any class of its capital
stock.
(v) Good Standing of the Company. The Company has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Delaware and has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and to enter into and perform
its obligations under this Agreement; and the Company is duly qualified
as a foreign corporation to transact business and is in good standing
in each other jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in
good standing would not result in a Material Adverse Effect.
(vi) Good Standing of Subsidiaries. Each "significant
subsidiary" of the Company (as such term is defined in Rule 1-02 of
Regulation S-X) (each, a "Subsidiary" and, collectively, the
"Subsidiaries") has been duly organized and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result in
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a Material Adverse Effect; except as otherwise disclosed in the
Registration Statement, all of the issued and outstanding capital stock
of each such Subsidiary has been duly authorized and validly issued, is
fully paid and non-assessable and is owned by the Company, directly or
through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity; none of the
outstanding shares of capital stock of any Subsidiary was issued in
violation of the preemptive or similar rights of any securityholder of
such Subsidiary. The only subsidiaries of the Company are the
subsidiaries listed on Exhibit 21.1 to the Registration Statement.
(vii) Capitalization. The authorized, issued and outstanding
capital stock of the Company is as set forth in the Prospectus in the
column entitled "Actual" under the caption "Capitalization" (except for
subsequent issuances, if any, pursuant to this Agreement, pursuant to
reservations, agreements or employee benefit plans referred to in the
Prospectus or pursuant to the exercise of convertible securities or
options referred to in the Prospectus). The shares of issued and
outstanding capital stock of the Company, including the Securities to
be purchased by the Underwriters from the Selling Shareholder, have
been duly authorized and validly issued and are fully paid and
non-assessable; none of the outstanding shares of capital stock of the
Company, including the Securities to be purchased by the Underwriters
from the Selling Shareholder, was issued in violation of the preemptive
or other similar rights of any securityholder of the Company.
(viii) Authorization of Agreement. This Agreement has been
duly authorized, executed and delivered by the Company.
(ix) Authorization and Description of Securities. The
Securities have been duly authorized for issuance and sale to the
Underwriters pursuant to this Agreement and, when issued and delivered
by the Company pursuant to this Agreement, against payment of the
consideration set forth herein, will be validly issued, fully paid and
non-assessable; the Common Stock conforms to all statements relating
thereto contained in the Prospectus and such description conforms to
the rights set forth in the instruments defining the same; no holder of
the Securities will be subject to personal liability by reason of being
such a holder; and the issuance of the Securities is not subject to the
preemptive or other similar rights of any securityholder of the
Company.
(x) Absence of Defaults and Conflicts. Neither the Company nor
any of its subsidiaries is in violation of its charter or by-laws or in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage,
deed of trust, loan or credit agreement, note, lease or other agreement
or instrument to which the Company or any of its subsidiaries is a
party or by which it or any of them may be bound, or to which any of
the property or assets of the Company or any subsidiary is subject
(collectively, "Agreements and Instruments") except for such defaults
that would not result in a Material Adverse Effect; and the execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated
6
herein and in the Registration Statement (including the issuance and
sale of the Securities and the use of the proceeds from the sale of the
Securities as described in the Prospectus under the caption "Use of
Proceeds") and compliance by the Company with its obligations hereunder
have been duly authorized by all necessary corporate action and do not
and will not, whether with or without the giving of notice or passage
of time or both, conflict with or constitute a breach of, or default or
Repayment Event (as defined below) under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any subsidiary pursuant to, the Agreements and
Instruments (except for such conflicts, breaches or defaults or liens,
charges or encumbrances that would not result in a Material Adverse
Effect), nor will such action result in any violation of the provisions
of the charter or by-laws of the Company or any subsidiary or any
applicable law, statute, rule, regulation, judgment, order, writ or
decree of any government, government instrumentality or court, domestic
or foreign, having jurisdiction over the Company or any subsidiary or
any of their assets, properties or operations. As used herein, a
"Repayment Event" means any event or condition which gives the holder
of any note, debenture or other evidence of indebtedness (or any person
acting on such holder's behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by the
Company or any of its subsidiaries.
(xi) Absence of Labor Dispute. No labor dispute with the
employees of the Company or any subsidiary exists or, to the knowledge
of the Company, is imminent, and the Company is not aware of any
existing or imminent labor disturbance by the employees of any of its
or any subsidiary's principal suppliers, manufacturers, customers or
contractors, which, in either case, may reasonably be expected to
result in a Material Adverse Effect.
(xii) Absence of Proceedings. There is no action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Company, threatened, against or affecting the
Company or any subsidiary, which is required to be disclosed in the
Registration Statement (other than as disclosed therein), or which
might reasonably be expected to result in a Material Adverse Effect, or
which might reasonably be expected to materially and adversely affect
the properties or assets thereof or the consummation of the
transactions contemplated in this Agreement or the consummation of the
Network Transfer or the performance by the Company of its obligations
hereunder; the aggregate of all pending legal or governmental
proceedings to which the Company or any subsidiary is a party or of
which any of their respective property or assets is the subject which
are not described in the Registration Statement, including ordinary
routine litigation incidental to the business, could not reasonably be
expected to result in a Material Adverse Effect.
(xiii) Accuracy of Exhibits. There are no contracts or
documents which are required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits thereto which
have not been so described and filed as required.
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(xiv) Possession of Intellectual Property. The Company and its
subsidiaries own or possess, or can acquire on reasonable terms,
adequate 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, trade names or other
intellectual property (collectively, "Intellectual Property") necessary
to carry on the business now operated by them, and neither the Company
nor any of its subsidiaries has received any notice or is otherwise
aware of any infringement of or conflict with asserted rights of others
with respect to any Intellectual Property or of any facts or
circumstances which would render any Intellectual Property invalid or
inadequate to protect the interest of the Company or any of its
subsidiaries therein, and which infringement or conflict (if the
subject of any unfavorable decision, ruling or finding) or invalidity
or inadequacy, singly or in the aggregate, would result in a Material
Adverse Effect.
(xv) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Company of
its obligations hereunder, in connection with the offering, issuance or
sale of the Securities hereunder or the consummation of the
transactions contemplated by this Agreement, except (i) such as have
been already obtained or as may be required under the 1933 Act or the
1933 Act Regulations, the Securities Exchange Act of 1934, as amended,
or the rules and regulations promulgated thereunder, foreign, with
respect to the Reserved Securities, or state securities or blue sky
laws or by the Nasdaq National Market and (ii) such as have been
obtained under the laws and regulations of jurisdictions outside the
United States in which the Reserved Securities are offered.
(xvi) Possession of Licenses and Permits. Except as disclosed
in the Registration Statement, the Company and its subsidiaries possess
or will possess at Closing Time such permits, licenses, approvals,
consents and other authorizations (collectively, "Governmental
Licenses") issued by the appropriate federal, state, local or foreign
regulatory agencies or bodies necessary to conduct the business now
operated by them and to conduct their business as described in the
Prospectus, except where the failure to possess such Governmental
Licenses would not, singly or in the aggregate, have a Material Adverse
Effect; the Company and its subsidiaries are in compliance with the
terms and conditions of all such Governmental Licenses, except where
the failure so to comply would not, singly or in the aggregate, have a
Material Adverse Effect; all of the Governmental Licenses are valid and
in full force and effect, except when the invalidity of such
Governmental Licenses or the failure of such Governmental Licenses to
be in full force and effect would not have a Material Adverse Effect;
and neither the Company nor any of its subsidiaries has received any
notice of proceedings relating to the revocation or modification of any
such Governmental Licenses which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would result in
a Material Adverse Effect.
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(xvii) Title to Property. (A) The Company and its subsidiaries
have good and marketable title to all real property owned by the
Company and its subsidiaries and good title to all other properties
owned by them (except where the failure to have such good title would
not singly or in the aggregate have a Material Adverse Effect); in each
case, free and clear of all mortgages, pledges, liens, security
interests, claims, restrictions or encumbrances of any kind except such
as (x) are described in the Prospectus or (y) do not, singly or in the
aggregate, materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property by
the Company or any of its subsidiaries; and (B) all of the leases and
subleases material to the business of the Company and its subsidiaries,
considered as one enterprise, and under which the Company or any of its
subsidiaries holds properties described in the Prospectus, are in full
force and effect, and neither the Company nor any subsidiary has any
notice of any material claim of any sort that has been asserted by
anyone adverse to the rights of the Company or any subsidiary under any
of the leases or subleases mentioned above, or affecting or questioning
the rights of the Company or such subsidiary to the continued
possession of the leased or subleased premises under any such lease or
sublease.
(xviii) Investment Company Act. The Company is not, and upon
the issuance and sale of the Securities as herein contemplated and the
application of the net proceeds therefrom as described in the
Prospectus will not be, an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in
the Investment Company Act of 1940, as amended (the "1940 Act").
(xix) Environmental Laws. Except as described in the
Registration Statement and except as would not, singly or in the
aggregate, result in a Material Adverse Effect, (A) neither the Company
nor any of its subsidiaries is in violation of any federal, state,
local or foreign statute, law, rule, regulation, ordinance, code,
policy or rule of common law or any judicial or administrative
interpretation thereof, including any judicial or administrative order,
consent, decree or judgment, relating to pollution or protection of
human health, the environment (including, without limitation, ambient
air, surface water, groundwater, land surface or subsurface strata) or
wildlife, including, without limitation, laws and regulations relating
to the release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances, petroleum
or petroleum products (collectively, "Hazardous Materials") or to the
manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials (collectively,
"Environmental Laws"), (B) the Company and its subsidiaries have all
permits, authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements,
(C) there are no pending or threatened administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens,
notices of noncompliance or violation, investigation or proceedings
relating to any Environmental Law against the Company or any of its
subsidiaries and (D) there are no events or circumstances that might
reasonably be expected to form the basis of an order for clean-up or
remediation, or an action, suit or proceeding by any private party or
governmental body or agency, against or affecting the
9
Company or any of its subsidiaries relating to Hazardous Materials or
any Environmental Laws.
(xx) Registration Rights. Except as disclosed in the
Registration Statement, there are no persons with registration rights
or other similar rights to have any securities registered pursuant to
the Registration Statement or otherwise registered by the Company under
the 1933 Act.
(xxi) Authorization of Network Transfer Agreements. Each of
the Network Transfer Agreements has been duly authorized by each of the
Company and its subsidiaries as a party thereto and, at Closing Time,
will be duly executed and delivered by such persons and will constitute
the legal, valid and binding obligations of each of such persons
enforceable against each of such persons in accordance with its terms,
except as the enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws
affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in
equity or at law). The Network Transfer Agreements conform in all
material respects with the description thereof in the Prospectus.
(xxii) Network Transfer. The execution, delivery and
performance by the Company or its subsidiaries of the Network Transfer
Agreements and the consummation of the Network Transfer and compliance
by each of the Company, and its subsidiaries with their obligations
under the Network Transfer Agreements have been duly authorized by all
necessary corporate action and do not or will not, whether with or
without the giving of notice or passage of time or both, conflict with
or constitute a breach of, or default or Repayment Event under, or
result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any of the Company's
subsidiaries or an acceleration of any indebtedness of the Company or
any of the Company's subsidiaries pursuant to any Agreement or
Instrument (except for such defaults that would not result in a
Material Adverse Effect), nor will such action result in any violation
of the provisions of the charter or by-laws of the Company or any of
the Company's subsidiaries or any applicable law, statute, rule or
regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any of the Company's subsidiaries or
their respective assets, properties or operations. Except as described
in the Prospectus, no filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or
governmental authority or agency, domestic or foreign, is necessary or
required to be obtained or made by the Company for (1) the execution,
delivery and performance by the Company or its respective subsidiaries
of the Network Transfer Agreements or (2) the consummation of the
Network Transfer or any of the transactions contemplated thereby. No
consents or waivers from any other person or entity are required for
the execution, delivery and performance of the Network Transfer
Agreements or the consummation of the Network
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Transfer or any of the transactions contemplated thereby, other than
such consents and waivers as have been obtained or will be obtained
prior to Closing Time or such consents or waivers the failure to obtain
which would not have a Material Adverse Effect.
(xxiii) Reserved Share Program. (A) The Registration Statement
and the Prospectus comply in all material respects with any applicable
laws or regulations of foreign jurisdictions in which the Prospectus
are distributed in connection with the sale of the Reserved Securities,
and (B) no orders, permits, licenses, authorizations, consents,
approvals, registration or qualification of or with any government,
governmental instrumentality or court, other than such as have been
obtained, is necessary under the securities laws and regulations of
foreign jurisdictions in which the Reserved Securities are offered
outside the United States.
(xxiii) Year 2000 Compliance. The Company has reviewed its
operations and those of its subsidiaries to evaluate the extent to
which the business or operations of the Company or any of its
subsidiaries will be affected by the Year 2000 Problem (as defined
below); (A) as a result of such review, the Company has identified and
resolved all Year 2000 problems, except where the failure to do so
would not have a Material Adverse Effect; and (B) the Company believes
that the suppliers, vendors, customers or other material third parties
used or served by the Company and its subsidiaries have addressed the
Year 2000 Problem, except to the extent that a failure to address the
Year 2000 Problem by any supplier, vendor, customer or material third
party would not have a Material Adverse Effect. "Year 2000 Problem"
means any significant risk that the Company's computer hardware or
software applications and those of its subsidiaries (or of any
suppliers, vendors, customers or other material third parties) will
not, in the case of dates or time periods occurring after December 31,
1999, function at least effectively as in the case of dates or time
periods occurring prior to January 1, 2000.
(b) Representations and Warranties by Bridge. (i) Representations and
Warranties of Parent Company. Bridge represents and warrants to each Underwriter
as of the date hereof, as of Closing Time referred to in Section 2(c) hereof,
and as of each Date of Delivery (if any) referred to in Section 2(b) hereof, and
agrees with each Underwriter, as follows:
(A) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, except as otherwise disclosed therein,
there has been no material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business
prospects of Bridge or its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business (a "Bridge
Material Adverse Effect").
(B) Financial Statements. The financial statements of Bridge
and its consolidated subsidiaries included in the Registration
Statement and the Prospectus, together with the related schedules and
notes, present fairly the financial position of Bridge and its
consolidated subsidiaries at the dates indicated and the statement of
operations, changes in stockholders' equity (deficit) and cash flows of
Bridge and its
11
consolidated subsidiaries for the periods specified; said financial
statements have been prepared in conformity with GAAP applied on a
consistent basis throughout the periods involved. The supporting
schedules included in the Registration Statement present fairly in
accordance with GAAP the information required to be stated therein. The
selected financial data of Bridge included in the Prospectus present
fairly the information shown therein and have been compiled on a basis
consistent with that of the audited and unaudited financial statements
of Bridge.
(C) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by Bridge.
(D) Authorization of Network Transfer Agreements. Each of the
Network Transfer Agreements has been duly authorized by the parties
thereto and, at Closing Time, will be duly executed and delivered by
the parties thereto and will constitute the legal, valid and binding
obligations of each of the parties thereto enforceable against each of
such parties in accordance with its terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors' rights
generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered
in a proceeding in equity or at law). The Network Transfer Agreements
conform in all material respects with the description thereof in the
Prospectus.
(E) Network Transfer. The execution, delivery and performance
by the Company or Bridge or their respective subsidiaries of the
Network Transfer Agreements and the consummation of the Network
Transfer and compliance by each of the Company, Bridge, and their
respective subsidiaries with their obligations under the Network
Transfer Agreements have been duly authorized by all necessary
corporate action and do not or will not, whether with or without the
giving of notice or passage of time or both, conflict with or
constitute a breach of, or default, Repayment Event or Bridge Repayment
Event (as described below) under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of Bridge, the Company or any of the Company's subsidiaries or
an acceleration of any indebtedness of Bridge, the Company or any of
the Company's subsidiaries pursuant to, (1) any Agreement or Instrument
or (2) any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to which Bridge
or any of its subsidiaries is a party or by which it or any of them may
be bound, or to which any of the property or assets of Bridge or any of
its subsidiaries is subject (collectively, "Bridge Agreements and
Instruments") (except in the case of clauses (1) and (2) for such
defaults that would not result in a Material Adverse Effect), nor will
such action result in any violation of the provisions of the charter or
by-laws of Bridge, the Company or any of the Company's subsidiaries or
any applicable law, statute, rule or regulation, judgment, order, writ
or decree of any government, government instrumentality
12
or court, domestic or foreign, having jurisdiction over Bridge, the
Company or any of the Company's subsidiaries or their respective
assets, properties or operations. Except as disclosed in the
Prospectus, no filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or
governmental authority or agency, domestic or foreign, is necessary or
required to be obtained or made by Bridge or the Company for (1) the
execution, delivery and performance by Bridge, the Company or their
respective subsidiaries of the Network Transfer Agreements or (2) the
consummation of the Network Transfer or any of the transactions
contemplated thereby. No consents or waivers from any other person or
entity are required for the execution, delivery and performance of the
Network Transfer Agreements or the consummation of the Network Transfer
or any of the transactions contemplated thereby, other than such
consents and waivers as have been obtained or will be obtained prior to
Closing Time or such consents or waivers the failure to obtain which
would not have a Material Adverse Effect. As used herein, a "Bridge
Repayment Event" means any event or condition which gives the holder of
any note, debenture or other evidence of indebtedness (or any person
acting on such holder's behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by
Bridge or any of its subsidiaries.
(ii) Representations and Warranties of Selling Stockholder. The Selling
Shareholder represents and warrants to each Underwriter as of the date hereof,
as of Closing Time, and, if the Selling Shareholder is selling Option Securities
on a Date of Delivery, as of each such Date of Delivery, and agrees with each
Underwriter, as follows:
(A) Accurate Disclosure. To the best knowledge of the Selling
Shareholder, the representations and warranties of the Company
contained in Section 1(a) hereof are true and correct; the Selling
Shareholder has reviewed and is familiar with the Registration
Statement and the Prospectus and neither the Prospectus nor any
amendments or supplements thereto, including any prospectus wrapper,
includes any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
the Selling Shareholder is not prompted to sell the Securities to be
sold by the Selling Shareholder hereunder by any information concerning
the Company or any subsidiary of the Company which is not set forth in
the Prospectus.
(B) Authorization of Agreements. The Selling Shareholder has
the full right, power and authority to enter into this Agreement and a
Custody Agreement (the "Custody Agreement") and to sell, transfer and
deliver the Securities to be sold by the Selling Shareholder hereunder.
The execution and delivery of this Agreement and the Custody Agreement
and the sale and delivery of the Securities to be sold by the Selling
Shareholder and the consummation of the transactions contemplated
herein and compliance by the Selling Shareholder with its obligations
hereunder have been duly authorized by the Selling Shareholder and do
not and will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach of, or
default under, or result in the
13
creation or imposition of any tax, lien, charge or encumbrance upon the
Securities to be sold by the Selling Shareholder or any property or
assets of the Selling Shareholder pursuant to any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note license, lease
or other agreement or instrument to which the Selling Shareholder is a
party or by which the Selling Shareholder may be bound, or to which any
of the property or assets of the Selling Shareholder, is subject, nor
will such action result in any violation of the provisions of the
charter or by-laws or other organizational instrument of the Selling
Shareholder, if applicable, or any applicable treaty, law, statute,
rule, regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over the Selling Shareholder or any of its properties.
(C) Direct Holder of Securities; Title to Securities. The
Initial Securities to be sold by the Selling Shareholder pursuant to
this Agreement are certificated securities in registered form and are
not held by or through any securities intermediary within the meaning
of the New York Uniform Commercial Code ("NYUCC"). The Selling
Shareholder has, and, at Closing Time and, if any Option Securities are
purchased, on the Date of Delivery, will have, full right, power and
authority to hold, sell, transfer and deliver the Securities to be sold
by the Selling Shareholder hereunder. Upon the delivery to DTC or its
agent of the Securities registered in the name of Cede & Co., as
nominee for DTC, and the crediting by DTC of the Securities to the
securities accounts of the several Underwriters with DTC, DTC will be a
"protected purchaser" of the Securities (as defined in Section 8-303 of
the NYUCC) and will acquire its interest in the Securities (including,
without limitation, all rights that the Selling Shareholder had or has
the power to transfer in such Securities) free of any adverse claim.
Upon the payment of the purchase price for the Securities and the
crediting by DTC of the Securities to the securities accounts of the
several Underwriters with DTC, each of the Underwriters will acquire a
valid security entitlement (within the meaning of Section 8-501 of the
NYUCC) in respect of the Securities to be purchased by it, and no
action (whether framed in conversion, replevin, constructive trust,
equitable lien, or other theory) based on an adverse claim to such
Securities may be asserted against the Underwriters.
(D) Due Execution of Custody Agreement. The Selling
Shareholder has duly executed and delivered, in the form heretofore
furnished to the Representatives, the Custody Agreement with the
Company, as custodian (the "Custodian"); the Custodian is authorized to
deliver the Securities to be sold by the Selling Shareholder hereunder
and to accept payment therefor.
(E) Absence of Manipulation. The Selling Shareholder has not
taken, and will not take, directly or indirectly, any action which is
designed to or which has constituted or which might reasonably be
expected to cause or result in stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale
of the Securities.
(F) Absence of Further Requirements. No filing with, or
consent, approval, authorization, order, registration, qualification or
decree of, any court or governmental
14
authority or agency, domestic or foreign, is necessary or required for
the performance by the Selling Shareholder of its obligations hereunder
or in the Custody Agreement, or in connection with the sale and
delivery of the Securities hereunder or the consummation of the
transactions contemplated by this Agreement, except (i) such as may
have previously been made or obtained or as may be required under the
1933 Act or the 1933 Act Regulations or state securities laws and (ii)
such as have been obtained under the laws and regulations of
jurisdictions outside the United States in which the Reserved
Securities are offered.
(G) Certificates Suitable for Transfer. Certificates for all
of the Securities to be sold by the Selling Shareholder pursuant to
this Agreement, in suitable form for transfer by delivery or
accompanied by duly executed instruments of transfer or assignment in
blank with signatures guaranteed, have been placed in custody with the
Custodian with irrevocable conditional instructions to deliver such
Securities to the Underwriters pursuant to this Agreement.
(H) No Association with NASD. Neither the Selling Stockholder
nor any of its affiliates directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common
control with, or has any other association with (within the meaning of
Article I, Section 1(m) of the By-laws of the National Association of
Securities Dealers, Inc.), any member firm of the National Association
of Securities Dealers, Inc., except for Welsh, Carson, Xxxxxxxx & Xxxxx
and Bridge Trading Company.
(c) Officer's Certificates. Any certificate signed by any officer of
the Company, any of its subsidiaries or Bridge delivered to the Representatives
or to counsel for the Underwriters shall be deemed a representation and warranty
by the Company or Bridge, as the case may be, to each Underwriter as to the
matters covered thereby; and any certificate signed by or on behalf of the
Selling Shareholder as such and delivered to the Representatives or to counsel
for the Underwriters pursuant to the terms of this Agreement shall be deemed a
representation and warranty by the Selling Shareholder to the Underwriters as to
the matter covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Initial Securities. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Company and the Selling Shareholder, severally and not jointly, agree
to sell to each Underwriter, severally and not jointly, and each Underwriter,
severally and not jointly, agrees to purchase from the Company and the Selling
Shareholder, at the price per share set forth in Schedule C, that proportion of
the number of Initial Securities set forth in Schedule B opposite the name of
the Company or the Selling Shareholder, as the case may be, which the number of
Initial Securities set forth in Schedule A opposite the name of such
Underwriter, plus any additional number of Initial Securities which such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof, bears to the total number of Initial Securities, subject, in
each case, to such adjustments among the Underwriters as
15
the Representatives in their sole discretion shall make to eliminate any sales
or purchases of fractional securities.
(b) Option Securities. In addition, on the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, the Selling Shareholder, acting severally and not jointly, hereby
grants an option to the Underwriters, severally and not jointly, to purchase up
to an additional 2,550,000 shares of Common Stock, as set forth in Schedule B,
at the price per share set forth in Schedule C, less an amount per share equal
to any dividends or distributions declared by the Company and payable on the
Initial Securities but not payable on the Option Securities. The option hereby
granted will expire 30 days after the date hereof and may be exercised in whole
or in part from time to time only for the purpose of covering over-allotments
which may be made in connection with the offering and distribution of the
Initial Securities upon notice by the Representatives to the Selling Shareholder
setting forth the number of Option Securities as to which the several
Underwriters are then exercising the option and the time and date of payment and
delivery for such Option Securities. Any such time and date of delivery (a "Date
of Delivery") shall be determined by the Representatives, but shall not be later
than seven full business days after the exercise of said option, nor in any
event prior to Closing Time, as hereinafter defined. If the option is exercised
as to all or any portion of the Option Securities, each of the Underwriters,
acting severally and not jointly, will purchase that proportion of the total
number of Option Securities then being purchased which the number of Initial
Securities set forth in Schedule A opposite the name of such Underwriter bears
to the total number of Initial Securities, subject in each case to such
adjustments as the Representatives in their discretion shall make to eliminate
any sales or purchases of fractional shares.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of
Shearman & Sterling, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such
other place as shall be agreed upon by the Representatives, the Company and
Bridge, at 9:00 A.M. (Eastern time) on the third (fourth, if the pricing occurs
after 4:30 P.M. (Eastern time) on any given day) business day after the date
hereof (unless postponed in accordance with the provisions of Section 10), or
such other time not later than ten business days after such date as shall be
agreed upon by the Representatives, the Company and Bridge (such time and date
of payment and delivery being herein called "Closing Time").
In addition, in the event that any or all of the Option Securities are
purchased by the Underwriters, payment of the purchase price for, and delivery
of certificates for, such Option Securities shall be made at the above-mentioned
offices, or at such other place as shall be agreed upon by the Representatives
and the Selling Shareholder, on each Date of Delivery as specified in the notice
from the Representatives to the Selling Shareholder.
Payment shall be made to the Company and the Selling Shareholder by
wire transfer of immediately available funds to a bank account designated by the
Company and the Custodian pursuant to Bridge's Custody Agreement, as the case
may be, against delivery to the Representatives for the respective accounts of
the Underwriters of certificates for the Securities to be purchased by
16
them. It is understood that each Underwriter has authorized the Representatives,
for its account, to accept delivery of, receipt for, and make payment of the
purchase price for, the Initial Securities and the Option Securities, if any,
which it has agreed to purchase. Each of Xxxxxxx Xxxxx or Xxxxxx Xxxxxxx,
individually and not as a representative of the Underwriters, may (but shall not
be obligated to) make payment of the purchase price for the Initial Securities
or the Option Securities, if any, to be purchased by any Underwriter whose funds
have not been received by Closing Time or the relevant Date of Delivery, as the
case may be, but such payment shall not relieve such Underwriter from its
obligations hereunder.
(d) Denominations; Registration. Certificates for the Initial
Securities and the Option Securities, if any, shall be in such denominations and
registered in such names as the Representatives may request in writing at least
one full business day before Closing Time or the relevant Date of Delivery, as
the case may be. The certificates for the Initial Securities and the Option
Securities, if any, will be made available for examination and packaging by the
Representatives in The City of New York not later than 10:00 A.M. (Eastern time)
on the business day prior to Closing Time or the relevant Date of Delivery, as
the case may be.
(e) Appointment of Qualified Independent Underwriter. The Company and
Bridge hereby confirm their engagement of Bear, Xxxxxxx & Co. Inc. as, and Bear,
Xxxxxxx & Co. Inc. hereby confirms its agreement with the Company and Bridge to
render services as, a "qualified independent underwriter" within the meaning of
Rule 2720 of the Conduct Rules of the National Association of Securities
Dealers, Inc. with respect to the offering and sale of the Securities. Bear,
Xxxxxxx & Co. Inc., solely in its capacity as qualified independent underwriter
and not otherwise, is referred to herein as the "Independent Underwriter."
SECTION 3. Covenants of the Company. The Company covenants with each
Underwriter as follows:
(a) Compliance with Securities Regulations and Commission
Requests. The Company, subject to Section 3(b) hereof, will comply with
the requirements of Rule 430A or Rule 434, as applicable, and will
notify the Representatives immediately, and confirm the notice in
writing, (i) when any post-effective amendment to the Registration
Statement shall become effective, or any supplement to the Prospectus
or any amended Prospectus shall have been filed, (ii) of the receipt of
any comments from the Commission, (iii) of any request by the
Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional
information, and (iv) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or of
any order preventing or suspending the use of any preliminary
prospectus, or of the initiation or threatening of any proceedings for
any of such purposes. The Company will promptly effect the filings
necessary pursuant to Rule 424(b) and will take such steps as it deems
necessary to ascertain promptly whether the form of prospectus
transmitted for filing under Rule 424(b) was received for filing by the
Commission and, in the event that it was not, it will promptly file
such prospectus. The Company will make every reasonable effort
17
to prevent the issuance of any stop order and, if any stop order is
issued, to obtain the lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Company will give the
Representatives notice of its intention to file or prepare any
amendment to the Registration Statement (including any filing under
Rule 462(b)), any Term Sheet or any amendment, supplement or revision
to either the prospectus included in the Registration Statement at the
time it became effective or to the Prospectus, will furnish the
Representatives with copies of any such documents a reasonable amount
of time prior to such proposed filing or use, as the case may be, and
will not file or use any such document to which the Representatives or
counsel for the Underwriters shall object.
(c) Delivery of Registration Statements. The Company has
furnished or will deliver to the Representatives and counsel for the
Underwriters, without charge, signed copies of the Registration
Statement as originally filed and of each amendment thereto (including
exhibits filed therewith or incorporated by reference therein) and
signed copies of all consents and certificates of experts, and will
also deliver to the Representatives, without charge, a conformed copy
of the Registration Statement as originally filed and of each amendment
thereto (without exhibits) for each of the Underwriters. The copies of
the Registration Statement and each amendment thereto furnished to the
Underwriters will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to XXXXX, except to the
extent permitted by Regulation S-T.
(d) Delivery of Prospectus. The Company has delivered to each
Underwriter, without charge, as many copies of each preliminary
prospectus as such Underwriter reasonably requested, and the Company
hereby consents to the use of such copies for purposes permitted by the
1933 Act. The Company will furnish to each Underwriter, without charge,
during the period when the Prospectus is required to be delivered under
the 1933 Act or the Securities Exchange Act of 1934 (the "1934 Act"),
such number of copies of the Prospectus (as amended or supplemented) as
such Underwriter may reasonably request. The Prospectus and any
amendments or supplements thereto furnished to the Underwriters will be
identical to the electronically transmitted copies thereof filed with
the Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company
will comply with the 1933 Act and the 1933 Act Regulations so as to
permit the completion of the distribution of the Securities as
contemplated in this Agreement and in the Prospectus. If at any time
when a prospectus is required by the 1933 Act to be delivered in
connection with sales of the Securities, any event shall occur or
condition shall exist as a result of which it is necessary, in the
opinion of counsel for the Underwriters or for the Company, to amend
the Registration Statement or amend or supplement the Prospectus in
order that the Prospectus will not include any untrue statements of a
material fact or omit to state a material fact necessary in order to
make the statements therein not misleading in the light of the
circumstances existing
18
at the time it is delivered to a purchaser, or if it shall be
necessary, in the opinion of such counsel, at any such time to amend
the Registration Statement or amend or supplement the Prospectus in
order to comply with the requirements of the 1933 Act or the 1933 Act
Regulations, the Company will promptly prepare and file with the
Commission, subject to Section 3(b), such amendment or supplement as
may be necessary to correct such statement or omission or to make the
Registration Statement or the Prospectus comply with such requirements,
and the Company will furnish to the Underwriters such number of copies
of such amendment or supplement as the Underwriters may reasonably
request.
(f) Blue Sky Qualifications. The Company will use its best
efforts, in cooperation with the Underwriters, to qualify the
Securities for offering and sale under the applicable securities laws
of such states and other jurisdictions (domestic or foreign) as the
Representatives may designate and to maintain such qualifications in
effect for a period of not less than one year from the later of the
effective date of the Registration Statement and any Rule 462(b)
Registration Statement; provided, however, that the Company shall not
be obligated to file any general consent to service of process or to
qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not so qualified or to subject itself to
taxation in respect of doing business in any jurisdiction in which it
is not otherwise so subject. In each jurisdiction in which the
Securities have been so qualified, the Company will file such
statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for a period of
not less than one year from the effective date of the Registration
Statement and any Rule 462(b) Registration Statement.
(g) Rule 158. The Company will timely file such reports
pursuant to the 1934 Act as are necessary in order to make generally
available to its securityholders as soon as practicable an earnings
statement for the purposes of, and to provide the benefits contemplated
by, the last paragraph of Section 11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds
received by it from the sale of the Securities in the manner specified
in the Prospectus under "Use of Proceeds."
(i) Listing. The Company will use its best efforts to effect
and maintain the quotation of the Securities on the Nasdaq National
Market and will file with the Nasdaq National Market all documents and
notices required by the Nasdaq National Market of companies that have
securities that are traded in the over-the-counter market and
quotations for which are reported by the Nasdaq National Market.
(j) Restriction on Sale of Securities. During a period of 180
days from the date of the Prospectus, the Company will not, without the
prior written consent of Xxxxxxx Xxxxx and Xxxxxx Xxxxxxx, (i) directly
or indirectly, offer, pledge, sell, contract to sell, sell any option
or contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant to purchase or otherwise transfer or
dispose of any share of Common Stock or any securities convertible into
or exercisable or exchangeable for Common Stock or file any
19
registration statement under the 1933 Act with respect to any of the
foregoing, (ii) enter into any swap or any other agreement or any
transaction that transfers, in whole or in part, directly or
indirectly, the economic consequence of ownership of the Common Stock;
(iii) waive the lock-ups relating to any options granted under the
Incentive Stock Option Agreement in place as of January 14, 2000 or
(iv) waive the provisions of any "lock-up" agreement between the
Company and a stockholder existing on the date hereof, whether any such
swap or transaction described in clause (i) or (ii) above is to be
settled by delivery of Common Stock or such other securities, in cash
or otherwise. The foregoing sentence shall not apply to (A) the
Securities to be sold hereunder, (B) any shares of Common Stock issued
by the Company upon the exercise of an option or warrant or the
conversion of a security outstanding on the date hereof and referred to
in the Prospectus, (C) any shares of Common Stock issued or options to
purchase Common Stock granted pursuant to existing employee benefit
plans of the Company referred to in the Prospectus or (D) any shares of
Common Stock issued pursuant to any non-employee director stock plan.
(k) Reporting Requirements. The Company, during the period
when the Prospectus is required to be delivered under the 1933 Act or
the 1934 Act, will file all documents required to be filed with the
Commission pursuant to the 1934 Act within the time periods required by
the 1934 Act and the rules and regulations of the Commission
thereunder.
(l) Compliance with NASD Rules. The Company hereby agrees that
it will ensure that the Reserved Securities will be restricted as
required by the NASD rules from sale, transfer, assignment, pledge or
hypothecation for a period of three months following the date of this
Agreement. The Underwriters will notify the Company as to which persons
will need to be so restricted. At the request of the Underwriters, the
Company will direct the transfer agent to place a stop transfer
restriction upon such securities for such period of time. Should the
Company release, or seek to release, from such restrictions any of the
Reserved Securities, the Company agrees to reimburse the Underwriters
for any reasonable expenses (including, without limitation, legal
expenses) they incur in connection with such release.
(m) Compliance with Rule 463. The Company will comply with
Rule 463 of the 1933 Act Regulations.
SECTION 4. Payment of Expenses. (a) Expenses. The Company and Bridge
will pay or cause to be paid all expenses incident to the performance of their
obligations under this Agreement, including (i) the preparation, printing and
filing of the Registration Statement (including financial statements and
exhibits) as originally filed and of each amendment thereto, (ii) the
preparation, issuance and delivery of the certificates for the Securities to the
Underwriters, including any stock or other transfer taxes and any stamp or other
duties payable upon the sale, issuance or delivery of the Securities to the
Underwriters, (iii) the fees and disbursements of the Company's counsel,
accountants and other advisors, (iv) the filing fees incident to any necessary
filings and qualification of the Securities, under securities laws in accordance
with the provisions of Section 3(f)
20
hereof and the reasonable fees and disbursements of counsel for the Underwriters
in connection therewith and in connection with the preparation of the Blue Sky
Survey and any supplement thereto, (v) the printing and delivery to the
Underwriters of copies of each preliminary prospectus, any Term Sheets and of
the Prospectus and any amendments or supplements thereto, (vi) the preparation,
printing and delivery to the Underwriters of copies of the Blue Sky Survey and
any supplement thereto, (vii) the fees and expenses of any transfer agent or
registrar for the Securities, (viii) the filing fees incident to, and the
reasonable fees and disbursements of counsel to the Underwriters in connection
with, the review by the National Association of Securities Dealers, Inc. (the
"NASD") of the terms of the sale of the Securities, (ix) the fees and expenses
incurred in connection with the inclusion of the Securities in the Nasdaq
National Market, (x) all costs and expenses of the Underwriters, including the
fees and disbursements of counsel for the Underwriters, in connection with
matters related to the Reserved Securities which are designated by the Company
for sale to Reserved Share Participants, (xi) the fees and expenses of the
Independent Underwriter and (xii) half of the roadshow expenses, except for the
expenses relating to lodging and meals (which will be covered by the respective
parties).
(b) Expenses of the Selling Shareholder. The Selling Shareholder will
pay all expenses incident to the performance of its obligation under, and the
consummation of the transactions contemplated by, this Agreement, including (i)
any stamp duties, capital duties and stock transfer taxes, if any, payable upon
the sale of the Securities to the Underwriters, and their transfer between the
Underwriters pursuant to an agreement between such Underwriters, and (ii) the
fees and disbursements of its counsel and accountants.
(c) Termination of Agreement. If this Agreement is terminated by the
Representatives in accordance with the provisions of Section 5, Section 9(a)(i)
or Section 11 hereof, the Company and Bridge shall reimburse the Underwriters
for all of their out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriters.
(d) Allocation of Expenses. The provisions of this Section shall not
affect any agreement that the Company and Bridge may make for the sharing of
such costs and expenses.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of
the several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company and Bridge contained in Section 1
hereof or in certificates of any officer of the Company, Bridge or any
subsidiary of the Company delivered pursuant to the provisions hereof, to the
performance by the Company and Bridge of their respective covenants and other
obligations hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective and at Closing Time no stop order suspending the
effectiveness of the Registration Statement shall have been issued
under the 1933 Act or proceedings therefor initiated or threatened by
the Commission, and any request on the part of the Commission for
additional information shall have been
21
complied with to the reasonable satisfaction of counsel to the
Underwriters. A prospectus containing the Rule 430A Information shall
have been filed with the Commission in accordance with Rule 424(b) (or
a post-effective amendment providing such information shall have been
filed and declared effective in accordance with the requirements of
Rule 430A) or, if the Company has elected to rely upon Rule 434, a Term
Sheet shall have been filed with the Commission in accordance with Rule
424(b).
(b) Opinion of Counsel for Company. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of
Closing Time, of Xxxxx & Xxxxxxx, L.L.P., counsel for the Company, in
form and substance satisfactory to counsel for the Underwriters,
together with signed or reproduced copies of such letter for each of
the other Underwriters to the effect set forth in Exhibit A hereto and
to such further effect as counsel to the Underwriters may reasonably
request.
(c) Opinion of General Counsel of Company. At Closing Time,
the Representatives shall have received the favorable opinion, dated as
of Closing Time, of Xxxxxx Xxxxxxx, Vice President, Secretary and
General Counsel of the Company, in form and substance satisfactory to
counsel for the Underwriters, together with signed or reproduced copies
of such letter for each of the other Underwriters to the effect set
forth in Exhibit B hereto and to such further effect as counsel to the
Underwriters may reasonably request.
(d) Opinions of French and United Kingdom Regulatory Counsel
for Company. At Closing Time, the Representatives shall have received
the favorable opinions, dated as of Closing Time, of Bird & Bird,
French and United Kingdom regulatory counsel for the Company, in form
and substance satisfactory to counsel for the Underwriters, together
with signed or reproduced copies of such letter for each of the other
Underwriters to the effect set forth in Exhibit C and Exhibit D hereto
and to such further effect as counsel to the Underwriters may
reasonably request.
(e) Opinion of French Corporate Counsel for Company. At
Closing Time, the Representatives shall have received the favorable
opinion, dated as of Closing Time, of Salans, Hertfeld & Heilbronn,
French corporate counsel for the Company, in form and substance
satisfactory to counsel for the Underwriters, together with signed or
reproduced copies of such letter for each of the other Underwriters to
the effect set forth in Exhibit E hereto and to such further effect as
counsel to the Underwriters may reasonably request.
(f) Opinion of Special United Kingdom Corporate Counsel for
Company. At Closing Time, the Representatives shall have received the
favorable opinion, dated as of Closing Time, of Xxxxx Xxxx, special
United Kingdom corporate counsel for the Company, in form and substance
satisfactory to counsel for the Underwriters, together with signed or
reproduced copies of such letter for each of the other Underwriters to
the effect set forth in Exhibit F hereto and to such further effect as
counsel to the Underwriters may reasonably request.
22
(g) Opinion of German Regulatory Counsel for Company. At
Closing Time, the Representatives shall have received the favorable
opinion, dated as of Closing Time, of Xxxxxxxxxx & Partner, German
regulatory counsel for the Company, in form and substance satisfactory
to counsel for the Underwriters, together with signed or reproduced
copies of such letter for each of the other Underwriters to the effect
set forth in Exhibit G hereto and to such further effect as counsel to
the Underwriters may reasonably request.
(h) Opinion of Italian Regulatory Counsel for Company. At
Closing Time, the Representatives shall have received the favorable
opinion, dated as of Closing Time, of Xxxxxxxxxx Villa Xxxxx Graziadci,
Italian regulatory counsel for the Company, in form and substance
satisfactory to counsel for the Underwriters, together with signed or
reproduced copies of such letter for each of the other Underwriters to
the effect set forth in Exhibit H hereto and to such further effect as
counsel to the Underwriters may reasonably request.
(i) Opinion of Japanese Regulatory Counsel for Company. At
Closing Time, the Representatives shall have received the favorable
opinion, dated as of Closing Time, of Xxxxxxxx Mori, Japanese
regulatory counsel for the Company, in form and substance satisfactory
to counsel for the Underwriters, together with signed or reproduced
copies of such letter for each of the other Underwriters to the effect
set forth in Exhibit I hereto and to such further effect as counsel to
the Underwriters may reasonably request.
(j) Opinion of General Counsel of Bridge. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of
Closing Time, of Xxxxxxx Xxxx, counsel for Bridge, in form and
substance satisfactory to counsel for the Underwriters, together with
original or reproduced copies of such letter for each of the other
Underwriters to the effect set forth in Exhibit J hereto and to such
further effect as counsel to the Underwriters may reasonably request.
(k) Opinion of Counsel for Bridge. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of
Closing Time, of Xxxxx Xxxx LLP, counsel for the Bridge, in form and
substance satisfactory to counsel for the Underwriters, together with
signed or reproduced copies of such letter for each of the other
Underwriters to the effect set forth in Exhibit K hereto and to such
further effect as counsel to the Underwriters may reasonably request.
(l) Opinion of Counsel for Underwriters. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of
Closing Time, of Shearman & Sterling, counsel for the Underwriters,
together with signed or reproduced copies of such letter for each of
the other Underwriters with respect to the matters set forth in clauses
(C), (D) (solely at to due authorization and valid issuance of the
Shares and as to preemptive or other similar rights arising by
operation of law or under the charter or by-laws of the Company), (G)
(solely as to the information in the Prospectus under "Description of
Capital Stock-Common Stock") and the last paragraph of Exhibit A
hereto. In giving such opinion
23
such counsel may rely, as to all matters governed by the laws of
jurisdictions other than the law of the State of New York, the federal
law of the United States and the General Corporation Law of the State
of Delaware, upon the opinions of counsel satisfactory to the
Representatives. Such counsel may also state that, insofar as such
opinion involves factual matters, they have relied, to the extent they
deem proper, upon certificates of officers of the Company and its
subsidiaries and certificates of public officials.
(m) Officers' Certificates. (A) At Closing Time, there shall
not have been, since the date hereof or since the respective dates as
of which information is given in the Prospectus, any material adverse
change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in
the ordinary course of business, and the Representatives shall have
received a certificate of the Chief Executive Officer, President or a
Vice President of the Company and of the chief financial or chief
accounting officer of the Company, dated as of Closing Time, to the
effect that (i) there has been no such material adverse change, (ii)
the representations and warranties in Section 1(a) hereof are true and
correct with the same force and effect as though expressly made at and
as of Closing Time, (iii) the Company has complied with all agreements
and satisfied all conditions on its part to be performed or satisfied
at or prior to Closing Time, and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and, to the
knowledge of our officers after due inquiry, no proceedings for that
purpose have been instituted or are pending or are contemplated by the
Commission. (B) At Closing Time, there shall not have been, since the
date hereof or since the respective dates as of which information is
given in the Prospectus, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or
business prospects of Bridge and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business,
and the Representatives shall have received a certificate of the
President or a Vice President of Bridge and of the chief financial or
chief accounting officer of Bridge, dated as of Closing Time to the
effect that (i) there has been no such material advance change and (ii)
the representations and warranties in Section 1(a) and 1(b)(i) hereof
are true and correct with the same force and effect as though expressly
made at and as of Closing Time.
(n) Certificate of Selling Shareholder. At Closing Time, the
Representatives shall have received a certificate of the Selling
Shareholder, dated as of Closing Time, to the effect that (i) the
representations and warranties of the Selling Shareholder contained in
Section 1(b)(ii) hereof are true and correct in all respects with the
same force and effect as though expressly made at and as of Closing
Time and (ii) the Selling Shareholder has complied in all material
respects with all agreements and all conditions on its part to be
performed under this Agreement at or prior to Closing Time.
(o) Accountants' Comfort Letter. At the time of the execution
of this Agreement, the Representatives shall have received from each of
Deloitte & Touche LLP and Ernst & Young LLP a letter dated such date,
in form and substance satisfactory to the
24
Representatives, together with signed or reproduced copies of such
letter for each of the other Underwriters containing statements and
information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and
certain financial information contained in the Registration Statement
and the Prospectus.
(p) Bring-down Comfort Letter. At Closing Time, the
Representatives shall have received from each of Deloitte & Touche LLP
and Ernst & Young LLP a letter, dated as of Closing Time, to the effect
that they reaffirm the statements made in the letter furnished pursuant
to subsection (o) of this Section, except that the specified date
referred to shall be a date not more than three business days prior to
Closing Time.
(q) Approval of Listing. At Closing Time, the Securities shall
have been approved for inclusion in the Nasdaq National Market, subject
only to official notice of issuance.
(r) No Objection. The NASD has confirmed that it has not
raised any objection with respect to the fairness and reasonableness of
the underwriting terms and arrangements.
(s) Lock-up Agreements. At the date of this Agreement, the
Representatives shall have received an agreement substantially in the
form of Exhibit L hereto signed by the persons listed on Schedule D
hereto.
(t) Network Transfer Agreements. At or prior to Closing Time,
each of Bridge, the Company and their respective subsidiaries shall
have executed and delivered the Network Transfer Agreements and the
Network Transfer shall have been consummated.
(u) GECC Sublease. Prior to Closing, Bridge shall have
received from General Electric Capital Corporation ("GECC") its consent
to a sublease by Bridge to the Company of the network assets that
Bridge leases from GECC and shall have received all necessary
approvals, consents, licenses and alike from GECC.
(v) Conditions to Purchase of Option Securities. In the event
that the Underwriters exercise their option provided in Section 2(b)
hereof to purchase all or any portion of the Option Securities, the
representations and warranties of the Company and Bridge contained
herein and the statements in any certificates furnished by Bridge, the
Company or any subsidiary of the Company hereunder shall be true and
correct as of each Date of Delivery and, at the relevant Date of
Delivery, the Representatives shall have received:
(i) Officers' Certificates. (A) A certificate, dated
such Date of Delivery, of the Chief Executive Officer,
President or a Vice President of the Company and of the chief
financial or chief accounting officer of the Company
confirming that the certificate delivered at Closing Time
pursuant to Section 5(m)(A) hereof remains true
25
and correct as of such Date of Delivery. (B) A certificate,
dated such Date of Delivery, of the President or a Vice
President of Bridge confirming that the certificate delivered
at Closing Time pursuant to Section 5(m)(B) hereof remains
true and correct as of such Date of Delivery.
(ii) Certificate of Selling Shareholder. A
certificate, dated such Date of Delivery, of the Selling
Shareholder confirming that the certificate delivered at
Closing Time pursuant to Section 5(n) hereof remains true and
correct as of such Date of Delivery.
(iii) Opinion of Counsel of the Company. The
favorable opinion of Xxxxx & Xxxxxxx L.L.P., counsel for the
Company, in form and substance satisfactory to counsel for the
Underwriters, dated such Date of Delivery, relating to the
Option Securities to be purchased on such Date of Delivery and
otherwise to the same effect as the opinion required by
Section 5(b) hereof.
(iv) Opinion of the General Counsel of the Company.
The favorable opinion of Xxxxxx Xxxxxxx, general counsel of
the Company, in form and substance satisfactory to counsel for
the Underwriters, dated such Date of Delivery, relating to the
Option Securities to be purchased on such Date of Delivery and
otherwise to the same effect as the opinion required by
Section 5(c) hereof.
(v) Opinions of French and United Kingdom Regulatory
Counsel for Company. The favorable opinions of Bird & Bird,
French and United Kingdom regulatory counsel for the Company,
in form and substance satisfactory to counsel for the
Underwriters, dated such Date of Delivery, relating to the
Option Securities to be purchased on such Date of Delivery and
otherwise to the same effect as the opinion required by
Section 5(d) hereof.
(vi) Opinion of French Regulatory Counsel for
Company. The favorable opinion of Salans, Hertfeld &
Heilbronn, French regulatory counsel for the Company, in form
and substance satisfactory to counsel for the Underwriters,
dated such Date of Delivery, relating to the Option Securities
to be purchased on such Date of Delivery and otherwise to the
same effect as the opinion required by Section 5(e) hereof.
(vii) Opinion of Special United Kingdom Corporate
Counsel for Company. The favorable opinion of Xxxxx Xxxx,
special United Kingdom corporate counsel for the Company, in
form and substance satisfactory to counsel for the
Underwriters, dated such Date of Delivery, relating to the
Option Securities to be purchased on such Date of Delivery and
otherwise to the same effect as the opinion required by
Section 5(f) hereof.
26
(viii) Opinion of German Regulatory Counsel for
Company. The favorable opinion of Xxxxxxxxxx & Partner, German
regulatory counsel for the Company, in form and substance
satisfactory to counsel for the Underwriters, dated such Date
of Delivery, relating to the Option Securities to be purchased
on such Date of Delivery and otherwise to the same effect as
the opinion required by Section 5(g) hereof.
(ix) Opinion of Italian Regulatory Counsel for
Company. The favorable opinion of Xxxxxxxxxx Villa Manca
Graziadci, Italian regulatory counsel for the Company, in form
and substance satisfactory to counsel for the Underwriters,
dated such Date of Delivery, relating to the Option Securities
to be purchased on such Date of Delivery and otherwise to the
same effect as the opinion required by Section 5(h) hereof.
(x) Opinion of Japanese Regulatory Counsel for
Company. The favorable opinion of Xxxxxxxx Mori, Japanese
regulatory counsel for the Company, in form and substance
satisfactory to counsel for the Underwriters, dated such Date
of Delivery, relating to the Option Securities to be purchased
on such Date of Delivery and otherwise to the same effect as
the opinion required by Section 5(i) hereof.
(xi) Opinion of General Counsel for Bridge. The
favorable opinion of Xxxxxxx Xxxx, counsel for Bridge, in form
and substance satisfactory to counsel for the Underwriters,
dated such Date of Delivery, relating to the Option Securities
to be purchased on such Date of Delivery and otherwise to the
same effect as the opinion required by Section 5(j) hereof.
(xii) Opinion of Counsel for Bridge. The favorable
opinion of Xxxxx Xxxx LLP, counsel for Bridge, in form and
substance satisfactory to counsel for the Underwriters, dated
such Date of Delivery and otherwise to the same effect as the
opinion required by Section 5(k) hereof.
(xiii) Opinion of Counsel for Underwriters. The
favorable opinion of Shearman & Sterling, counsel for the
Underwriters, dated such Date of Delivery, relating to the
Option Securities to be purchased on such Date of Delivery and
otherwise to the same effect as the opinion required by
Section 5(l) hereof.
(xiv) Bring-down Comfort Letter. A letter from each
of Deloitte & Touche LLP and Ernst & Young, LLP, in form and
substance satisfactory to the Representatives and dated such
Date of Delivery, substantially in the same form and substance
as the letter furnished to the Representatives pursuant to
Section 5(p) hereof, except that the "specified date" in the
letter furnished pursuant to this paragraph shall be a date
not more than five days prior to such Date of Delivery.
27
(w) Additional Documents. At Closing Time and at each Date of
Delivery, counsel for the Underwriters shall have been furnished with
such documents and opinions as they may require for the purpose of
enabling them to pass upon the issuance and sale of the Securities as
herein contemplated, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company
and Bridge in connection with the issuance and sale of the Securities
as herein contemplated shall be satisfactory in form and substance to
the Representatives and counsel for the Underwriters.
(x) Termination of Agreement. If any condition specified in
this Section shall not have been fulfilled when and as required to be
fulfilled, this Agreement, or, in the case of any condition to the
purchase of Option Securities, on a Date of Delivery which is after
Closing Time, the obligations of the several Underwriters to purchase
the relevant Option Securities, may be terminated by the
Representatives by notice to the Company at any time at or prior to
Closing Time or such Date of Delivery, as the case may be, and such
termination shall be without liability of any party to any other party
except as provided in Section 4 and except that Sections 1, 6, 7 and 8
shall survive any such termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. (1) The Company and Bridge,
jointly and severally, agree to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act to the extent and in the manner
set forth in clauses (i), (ii), (iii) and (iv) below.
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the Rule
430A Information and the Rule 434 Information, if applicable, or the
omission or alleged omission therefrom of a material fact required to
be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact included in any preliminary prospectus or
the Prospectus (or any amendment or supplement thereto), or the
omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of (A) the violation of
any applicable laws or regulations of foreign jurisdictions where
Reserved Securities have been offered in connection with the
reservation and sale of Reserved Securities to Reserved Securities
Participants and (B) any untrue statement or alleged untrue statement
of a material fact included in the supplement or prospectus wrapper
material distributed in Australia, Canada, Germany, Hong Kong,
28
Indonesia, Italy, Japan, Singapore, Spain, Switzerland, and the United
Kingdom in connection with the reservation and sale of the Reserved
Securities to Reserved Securities Participants or the omission or
alleged omission therefrom of a material fact necessary to make the
statements therein, when considered in conjunction with the Prospectus
or preliminary Prospectus, not misleading;
(iii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission or in
connection with any violation of the nature referred to in Section
6(a)(1)(ii)(A) hereof; provided that (subject to Section 6(d) below)
any such settlement is effected with the written consent of the Company
and Bridge; and
(iv) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by Xxxxxxx
Xxxxx and Xxxxxx Xxxxxxx), reasonably incurred in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission or in
connection with any violation of the nature referred to in Section
6(a)(1)(ii)(A) hereof, to the extent that any such expense is not paid
under (i), (ii) or (iii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through Xxxxxxx Xxxxx and Xxxxxx Xxxxxxx expressly for use in the
Registration Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information, if applicable, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto); and
provided further that the Company will not be liable to any Underwriter or any
person who controls such Underwriter within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act with respect to the Prospectus to the
extent that the Company shall sustain the burden of proving that any such loss,
liability, claim, damage or expense resulted from the fact that such
Underwriter, in contravention of a requirement of this Agreement or applicable
law, sold Securities to a person to whom such Underwriter failed to send or
give, at or prior to the Closing Date, a copy of the Final Prospectus, as then
amended or supplemented if: (i) the Company has previously furnished copies
thereof (sufficiently in advance of the Closing Date to allow for distribution
by the Closing Date) to the Underwriter and the loss, liability, claim, damage
or expense of such Underwriter resulted from an untrue statement or omission of
a material fact contained in or omitted from the Preliminary Prospectus which
was corrected in the Final Prospectus as, if applicable, amended or supplemented
prior to the Closing Date and such Final Prospectus was required by law to be
delivered at or prior to the written confirmation of sale to such person and
(ii) such failure to give or send such Final Prospectus by the Closing Date to
the party
29
or parties asserting such loss, liability, claim, damage or expense would have
constituted the sole defense to the claim asserted by such person.
(2) In addition to and without limitation of the Company's and Bridge's
obligation to indemnify Bear, Xxxxxxx & Co. Inc. as an Underwriter, the Company
and, Bridge also, jointly and severally, agree to indemnify and hold harmless
the Independent Underwriter and each person, if any, who controls the
Independent Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act, from and against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, incurred as a result of the
Independent Underwriter's participation as a "qualified independent underwriter"
within the meaning of Rule 2720 of the Conduct Rules of the National Association
of Securities Dealers, Inc. in connection with the offering of the Securities.
(b) Indemnification of Company, Directors and Officers and Bridge. Each
Underwriter severally agrees to indemnify and hold harmless the Company, its
directors, each of its officers who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act, Bridge and each person, if any, who
controls Bridge within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a)(1) of this Section, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto), including the Rule 430A Information and the Rule 434
Information, if applicable, or any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by such Underwriter through Xxxxxxx
Xxxxx and Xxxxxx Xxxxxxx expressly for use in the Registration Statement (or any
amendment thereto) or such preliminary prospectus or the Prospectus (or any
amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a)(1) above,
counsel to the indemnified parties shall be selected by Xxxxxxx Xxxxx and Xxxxxx
Xxxxxxx, and, in the case of parties indemnified pursuant to Section 6(b) above,
counsel to the indemnified parties shall be selected by the Company and Bridge.
An indemnifying party may participate at its own expense in the defense of any
such action; provided, however, that counsel to the indemnifying party shall not
(except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for fees
and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances,
provided that, if indemnity is sought pursuant to Section 6(a)(2), then,
30
in addition to the fees and expenses of such counsel for the indemnified
parties, the indemnifying party shall be liable for the reasonable fees and
expenses of not more than one counsel (in addition to any local counsel)
separate from its own counsel and that of the other indemnified parties from the
Independent Underwriter in its capacity as a "qualified independent underwriter"
and all persons, if any, who control the Independent Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances
if, in the reasonable judgment of the Independent Underwriter, there may exist a
conflict of interest between the Independent Underwriter and the other
indemnified parties. Any such separate counsel for the Independent Underwriter
and such control persons of the Independent Underwriter shall be designated in
writing by the Independent Underwriter. No indemnifying party shall, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 6 or Section 7 hereof (whether
or not the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(1)(iii) effected without its written consent if (i) such settlement
is entered into more than 45 days after receipt by such indemnifying party of
the aforesaid request, (ii) such indemnifying party shall have received notice
of the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
(e) Indemnification for Reserved Securities. In connection with the
offer and sale of the Reserved Securities, the Company agrees, promptly upon a
request in writing, to indemnify and hold harmless the Underwriters from and
against any and all losses, liabilities, claims, damages and expenses incurred
by them as a result of the failure of Reserved Securities Participants to pay
for and accept delivery of Reserved Securities which, by the end of the first
business day following the date of this Agreement, were subject to a properly
confirmed agreement to purchase.
(f) Other Agreements with Respect to Indemnification. The provisions of
this Section shall not affect any agreement among the Company and Bridge with
respect to indemnification.
SECTION 7. Contribution. If the indemnification provided for in Section
6 hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any
31
losses, liabilities, claims, damages or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount of such losses,
liabilities, claims, damages and expenses incurred by such indemnified party, as
incurred, (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and Bridge on the one hand and the Underwriters
on the other hand from the offering of the Securities pursuant to this Agreement
or (ii) if the allocation provided by clause (i) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Company and Bridge on the one hand and of the Underwriters on the other hand in
connection with the statements or omissions, or in connection with any violation
of the nature referred to in Section 6(a)(1)(ii)(A) hereof, which resulted in
such losses, liabilities, claims, damages or expenses, as well as any other
relevant equitable considerations.
The relative benefits received by the Company and Bridge on the one
hand and the Underwriters on the other hand in connection with the offering of
the Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by
the Company and Bridge and the total underwriting discount received by the
Underwriters, in each case as set forth on the cover of the Prospectus, or, if
Rule 434 is used, the corresponding location on the Term Sheet, bear to the
aggregate initial public offering price of the Securities as set forth on such
cover.
The relative fault of the Company and Bridge on the one hand and the
Underwriters on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company or Bridge or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission or any violation of the nature referred to in
Section 6(a)(1)(ii)(A) hereof.
The Company, Bridge and the Underwriters agree that Bear, Xxxxxxx & Co.
Inc. will not receive any additional benefits hereunder for serving as the
Independent Underwriter in connection with the offering and sale of the
Securities.
The Company, Bridge and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Section. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
32
Notwithstanding the provisions of this Section, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company or
Bridge within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act shall have the same rights to contribution as the Company or Bridge, as
the case may be. The Underwriters' respective obligations to contribute pursuant
to this Section are several in proportion to the number of Initial Securities
set forth opposite their respective names in Schedule A hereto and not joint.
The provisions of this Section shall not affect any agreement among the
Company and Bridge with respect to contribution.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company, any of its subsidiaries
or Bridge submitted pursuant hereto shall remain operative and in full force and
effect, regardless of any investigation made by or on behalf of any Underwriter
or controlling person, or by or on behalf of the Company or Bridge, and shall
survive delivery of the Securities to the Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. Xxxxxxx Xxxxx and Xxxxxx Xxxxxxx may
terminate this Agreement, by notice to the Company and Bridge, at any time at or
prior to Closing Time (i) if there has been, since the time of execution of this
Agreement or since the respective dates as of which information is given in the
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, or (ii) if there has been, since the
time of execution of this Agreement or since the respective dates as of which
information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of Bridge and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, or (iii) if there has
occurred any material adverse change in the financial markets in the United
States, any outbreak of hostilities or escalation thereof or other calamity or
crisis or any change or
33
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which is
such as to make it, in the judgment of the Representatives, impracticable to
market the Securities or to enforce contracts for the sale of the Securities, or
(iv) if trading in any securities of the Company has been suspended or
materially limited by the Commission or the Nasdaq National Market, or if
trading generally on the American Stock Exchange or the New York Stock Exchange
or in the Nasdaq National Market has been suspended or materially limited, or
minimum or maximum prices for trading have been fixed, or maximum ranges for
prices have been required, by any of said exchanges or by such system or by
order of the Commission, the National Association of Securities Dealers, Inc. or
any other governmental authority, or (v) if a banking moratorium has been
declared by either Federal or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 6, 7 and 8 shall survive such termination and remain in full force and
effect.
SECTION 10. Default by One or More of the Underwriters. If one or more
of the Underwriters shall fail at Closing Time or a Date of Delivery to purchase
the Securities which it or they are obligated to purchase under this Agreement
(the "Defaulted Securities"), the Representatives shall have the right, within
24 hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the Representatives shall not have
completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10%
of the number of Securities to be purchased on such date, the
non-defaulting Underwriters shall be obligated, each severally and not
jointly, to purchase the full amount thereof in the proportions that
their respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the
number of Securities to be purchased on such date, this Agreement or,
with respect to any Date of Delivery which occurs after Closing Time,
the obligation of the Underwriters to purchase and of the Company to
sell the Option Securities to be purchased and sold on such Date of
Delivery shall terminate without liability on the part of any
non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement or, in the case of a Date of Delivery which is after Closing
Time, which does not result in a termination
34
of the obligation of the Underwriters to purchase and the Company to sell the
relevant Option Securities, as the case may be, either (i) the Representatives
or (ii) the Company and Bridge shall have the right to postpone Closing Time or
the relevant Date of Delivery, as the case may be, for a period not exceeding
seven days in order to effect any required changes in the Registration Statement
or Prospectus or in any other documents or arrangements. As used herein, the
term "Underwriter" includes any person substituted for a Underwriter under this
Section.
SECTION 11. Default by the Selling Shareholder or the Company. (a) If
the Selling Shareholder shall fail at Closing Time or at a Date of Delivery to
sell and deliver the number of Securities which the Selling Shareholder is
obligated to sell hereunder, then the Underwriters may, at the option of the
Representatives, by notice from the Representatives to the Company, either (i)
terminate this Agreement without any liability on the part of any non-defaulting
party except that the provisions of Sections 1, 4, 6, 7 and 8 shall remain in
full force and effect or (ii) elect to purchase the Securities which the Company
has agreed to sell hereunder. No action taken pursuant to this Section shall
relieve the Selling Shareholder so defaulting from liability in respect of such
default.
In the event of a default by the Selling Shareholder as referred to in
this Section, each of the Representatives and the Company shall have the right
to postpone Closing Time or the relevant Date of Delivery for a period not
exceeding seven days in order to effect any required change in the Registration
Statement or Prospectus or in any other documents or arrangements.
(b) If the Company shall fail at Closing Time to sell the number of
Securities that it is obligated to sell hereunder, then this Agreement shall
terminate without any liability on the part of any non-defaulting party;
provided, however, that the provisions of Sections 1, 4, 6, 7 and 8 shall remain
in full force and effect. No action taken pursuant to this Section shall relieve
the Company from liability in respect of such default.
SECTION 12. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representatives at Xxxxx Xxxxx, Xxxxx
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention of Xxxxxx Xxxxxx and at
0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention of Xxxx Xxxxxxxx; notices to
the Company shall be directed to it at SAVVIS Communications Corporation, 00000
Xxxxxxx Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxx 00000, attention of Xxxxx X. Xxxxxxx,
Esq., Vice President, General Counsel and Secretary; and notices to Bridge shall
be directed to it at Bridge Information Systems, Inc., 000 Xxxxxx Xxxxxxx, Xx.
Xxxxx, Xxxxxxxx 00000-0000, attention of Xxxxxxx Xxxx, Esq., Executive Vice
President and General Counsel.
SECTION 13. Parties. This Agreement shall inure to the benefit of and
be binding upon the Underwriters, the Company and Bridge and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters, the Company and Bridge and their respective successors and the
controlling persons and officers and directors referred to in Sections 6 and 7
and their heirs
35
and legal representatives, any legal or equitable right, remedy or claim under
or in respect of this Agreement or any provision herein contained. This
Agreement and all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the Underwriters, the Company and Bridge and their
respective successors, and said controlling persons and officers and directors
and their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Securities from any Underwriter
shall be deemed to be a successor by reason merely of such purchase.
SECTION 14. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED
TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 15. Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
36
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company and the Bridge, a counterpart
hereof, whereupon this instrument, along with all counterparts, will become a
binding agreement among the Underwriters, the Company and Bridge in accordance
with its terms.
Very truly yours,
SAVVIS COMMUNICATIONS CORPORATION
By
-----------------------------------------
Title:
BRIDGE INFORMATION SYSTEMS, INC.
By
-----------------------------------------
Title:
37
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
XXXXXX XXXXXXX & CO. INCORPORATED
BANC OF AMERICA SECURITIES LLC
BEAR, XXXXXXX & CO. INC.
CIBC WORLDMARKETS CORP.
By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By
------------------------------------
Authorized Signatory
By: XXXXXX XXXXXXX & CO. INCORPORATED
By
-------------------------------------
Authorized Signatory
For themselves and as Representatives of the other Underwriters named in
Schedule A hereto.
38
SCHEDULE A
Number of
Initial
Name of Underwriter Securities
------------------- ----------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Xxxxxx Xxxxxxx & Co. Incorporated..............................
Banc of America Securities LLC ................................
Bear, Xxxxxxx & Co. Inc........................................
CIBC World Markets Corp........................................ ----------
Total.......................................................... 17,000,000
==========
Sch A - 1
SCHEDULE B
Number of Initial Maximum Number of Option
Securities to be Sold Securities to be sold
--------------------- ---------------------
SAVVIS 14,875,000 0
COMMUNICATIONS
CORPORATION
BRIDGE INFORMATION 2,125,000 2,550,000
SYSTEMS, INC.
-------------------- -------------------
Total.................. 17,000,000 2,550,000
==================== ===================
Sch B - 1
SCHEDULE C
SAVVIS COMMUNICATIONS CORPORATION
17,000,000 Shares of Common Stock
(Par Value $.01 Per Share)
1. The initial public offering price per share for the
Securities, determined as provided in said Section 2, shall be $ .
2. The purchase price per share for the Securities to be paid
by the several Underwriters shall be $ , being an amount equal to the
initial public offering price set forth above less $ per share;
provided that the purchase price per share for any Option Securities
purchased upon the exercise of the over-allotment option described in
Section 2(b) shall be reduced by an amount per share equal to any
dividends or distributions declared by the Company and payable on the
Initial Securities but not payable on the Option Securities.
Sch C - 1
Exhibit A
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(A) The Company was incorporated, and is validly existing and in good
standing as of [the date of the certificate of good standing from the Secretary
of State of the State of Delaware] under the laws of the State of Delaware. The
Company has the corporate power and corporate authority under its Certificate of
Incorporation, Bylaws and the Delaware General Corporation Law ("DGCL") to own,
lease and operate its current properties and to conduct its business as
described in the Prospectus and to enter into and perform its obligations under
the Purchase Agreement.
(B) The Company is authorized to transact business as a foreign
corporation in the State of Missouri as of [the date of the certificate of good
standing from the Secretary of State of the State of Missouri].
(C) The Purchase Agreement has been duly authorized and executed and
delivered on behalf of the Company.
(D) The Shares have been duly authorized and, when issued and delivered
in accordance with the provisions of the Purchase Agreement, the Shares will be
validly issued, fully paid and non-assessable. The form of certificate
evidencing the Shares complies with the requirements of Section 158 of the DGCL
and with any applicable requirements of the Certificate of Incorporation and
Bylaws of the Company. No holder of outstanding shares of Common Stock of the
Company has any statutory preemptive rights under the DGCL or, to our knowledge,
any contractual right to subscribe for any Shares.
(E) The Registration Statement has become effective under the
Securities Act, any required filings of the Prospectus pursuant to Rule 424(b)
promulgated pursuant to the Securities Act have been made in the manner and
within the time period required by Rule 424(b) and, to our knowledge, no stop
order suspending the effectiveness of the Registration Statement or suspending
or preventing the use of the Prospectus has been issued and no proceedings for
that purpose have been instituted or are threatened by the Commission.
(F) The Registration Statement and the Prospectus (except for the
financial statements and supporting schedules included therein, as to which we
express no opinion) comply as to form in all material respects with the
requirements of the Securities Act and the applicable rules and regulations
thereunder.
A-1
(G) The information in the Prospectus under the captions "Risk Factors
- Adoption or modification of government regulations relating to the Internet
could harm our business," "Business - Regulatory Matters" (insofar as it relates
to U.S. activities of the Company), "Description of Capital Stock" and "Shares
Eligible for Future Sale" to the extent that such information constitutes
matters of law or legal conclusions, has been reviewed by us, and is correct in
all material respects. We express no opinion with respect to whether the Company
has the authorizations and licenses required for its activities in foreign
jurisdictions or with respect to the description of those foreign activities in
the "Business - Regulatory Matters" section of the Prospectus. The authorized
Common Stock conforms in all material respects to the description thereof set
forth in the Prospectus under the caption "Description of Capital Stock - Common
Stock."
(H) The execution, delivery and performance as of the date hereof by
the Company of the Purchase Agreement do not (i) violate the DGCL or the
Certificate of Incorporation or bylaws of the Company, or (ii) breach of
constitute a default under any agreement or contract filed as an exhibit to the
Registration Statement.
(I) The Company is not an "investment company" or an entity "controlled
by an "investment company,"" as such terms are defined in the 1940 Act.
(L) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency, of the United States or the State of New York, (other than
under the 1933 Act and the 1933 Act Regulations, the 1934 Act and the 1934 Act
Regulations which have been obtained, or as may be required under the securities
or blue sky laws of the various states, as to which we need express no opinion)
is necessary or required in connection with the due authorization, execution and
delivery of the Purchase Agreement or for the offering, issuance, sale or
delivery of the Securities.
During the course of the preparation of the Registration Statement, we
participated in conferences with officers and other representatives of the
Company, with representatives of the independent public accountants of the
Company and with you and your representatives. While we have not undertaken to
determine independently, and we do not assume any responsibility for, the
accuracy, completeness or fairness of the statements in the Registration
Statement or Prospectus, we may state on the basis of these conferences and our
activities as counsel to the Company in connection with the Registration
Statement that no facts have come to our attention which cause us to believe
that (i) the Registration Statement, at the time it became effective, contained
an untrue statement of material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements there in not
misleading, or that the Prospectus, as of their date or the date hereof,
contains an untrue statement of a material fact or omits to state a material
fact necessary in order to make the statements therein, in light of the
circumstances under which they were made not misleading, (ii) there are any
legal or governmental proceedings pending or threatened against the Company that
are required to be disclosed in the Registration Statement or the Prospectus,
other than those disclosed therein, or (iii) there are any contracts or
A-2
documents of a character required to be described in the Registration Statement
or the Prospectus or to be filed as exhibits to the Registration Statement that
are not described or referred to therein or so filed; provided that in making
the foregoing statements (which shall not constitute an opinion) we are not
expressing any views as to the financial statements and supporting schedules and
other financial information and data included in or omitted from the
Registration Statement of the Prospectus.
A-3
Exhibit B
FORM OF OPINION OF GENERAL COUNSEL OF THE COMPANY
TO BE DELIVERED PURSUANT TO
SECTION 5(c)
(A) The Company was duly incorporated, and is validly existing and in
good standing under the laws of the State of Delaware. The Company has corporate
power and authority to enter into and perform its obligations under the Purchase
Agreement.
(B) The Company is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify or
to be in good standing would not result in a Material Adverse Effect.
(C) The authorized, issued and outstanding capital stock of the Company
is as set forth in the Prospectus in the column entitled "Actual" under the
caption "Capitalization" (except for subsequent issuances, if any, pursuant to
the Purchase Agreement or pursuant to reservations, agreements or employee
benefit plans referred to in the Prospectus or pursuant to the exercise of
convertible securities or options referred to in the Prospectus); the shares of
issued and outstanding capital stock of the Company, including the Securities
purchased by the Underwriters from the Selling Shareholder, have been duly
authorized and validly issued and are fully paid and non-assessable; and none of
the outstanding shares of capital stock of the Company was issued in violation
of the preemptive or other similar rights of any securityholder of the Company.
(D) Each of Savvis Communications Corporation, a Missouri Corporation
("Communications") and Savvis Communications International, Inc., a Delaware
corporation ("International") has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus and is
duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of business,
except where the failure so to qualify or to be in good standing would not
result in a Material Adverse Effect; except as otherwise disclosed in the
Registration Statement, all of the issued and outstanding capital stock of each
of Communications and International has been duly authorized and validly issued,
is fully paid and non-assessable and, to the best of my knowledge, is owned by
the Company, directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity; none of the
outstanding shares of capital stock of any Subsidiary was issued in violation
B-1
of the preemptive or similar rights of any securityholder of such Subsidiary.
Communications and International are the only U.S. subsidiaries of the Company.
(E) To the best of my knowledge, there is not pending or threatened any
action, suit, proceeding, inquiry or investigation, to which the Company or any
subsidiary is a party, or to which the property of the Company or any subsidiary
is subject, before or brought by any court or governmental agency or body,
domestic or foreign, which might reasonably be expected to result in a Material
Adverse Effect, or which might reasonably be expected to materially and
adversely affect the properties or assets thereof or the consummation of the
transactions contemplated in the Purchase Agreement or the consummation of the
Network Transfer or the performance by the Company of its obligations
thereunder.
(F) The information in the Prospectuses under "Business--Facilities"
and "Business--Legal Proceedings"" and in the Registration Statement under Items
14 and 15, to the extent that it constitutes matters of law, summaries of legal
matters, the Company's Certificate of Incorporation and Bylaws or legal
proceedings, or legal conclusions, has been reviewed by me and is correct in all
material respects.
(G) (1) Neither the Company nor any subsidiary is in violation of its
charter or by-laws; and (2) no default by the Company or any subsidiary exists
in the due performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan agreement, note,
lease or other agreement or instrument that is described or referred to in the
Registration Statement or the Prospectus or filed or incorporated by reference
as an exhibit to the Registration Statement (which, individually or in the
aggregate, would have a Material Adverse Effect).
(H) The execution, delivery and performance of the Purchase Agreement
and the consummation of the transactions contemplated in the Purchase Agreement
and in the Registration Statement (including the issuance and sale of the
Securities and the use of the proceeds from the sale of the Securities, as
described in the Prospectus under the caption "Use Of Proceeds") and compliance
by the Company with its obligations under the Purchase Agreement do not and will
not, whether with or without the giving of notice or lapse of time or both,
conflict with or constitute a breach of, or default or Repayment Event (as
defined in Section 1(a)(x) of the Purchase Agreement) under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any subsidiary pursuant to, any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or any other
agreement or instrument, known to me, to which the Company or any subsidiary is
a party or by which it or any of them may be bound, or to which any of the
property or assets of the Company or any subsidiary is subject (except for such
conflicts, breaches or defaults or liens, charges or encumbrances that would not
have a Material Adverse Effect), nor will such action result in any violation of
the provisions of the Certificate of Incorporation or Bylaws of the Company or
any subsidiary, or, to the best of my knowledge, any applicable law, statute,
rule, regulation, judgment, order, writ or decree of any government, government
instrumentality or court,
B-2
domestic or foreign, having jurisdiction over the Company or any subsidiary or
any of their respective properties, assets or operations.
(I) Except as described in the Registration Statement, to the best of
my knowledge, there are no persons with registration rights or other similar
rights to have any securities registered pursuant to the Registration Statement
or otherwise registered by the Company under the 1933 Act.
(J) Each of the Network Transfer Agreements has been duly authorized,
executed and delivered by, and is a valid and binding agreement of, the Company
or its subsidiaries, as the case may be, enforceable in accordance with its
terms except as the enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of creditors'
rights generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law).
(K) The execution, delivery and performance of the Network Transfer
Agreements and the consummation of the Network Transfer and compliance by the
Company with its obligations under the Network Transfer Agreements do not and
will not, whether with or without the giving of notice or lapse of time or both,
conflict with or constitute a breach of, or default or Repayment Event (as
defined in Section 1(a)(x) of the Purchase Agreement) under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any subsidiary or an acceleration of any indebtedness
of the Company or any subsidiary pursuant to, any contract, indenture, mortgage,
deed of trust, loan or credit agreement, note, lease or any other agreement or
instrument, known to me, to which the Company or any subsidiary is a party or by
which it or any of them may be bound, or to which any of the property or assets
of the Company or any subsidiary is subject (except for such conflicts, breaches
or defaults or liens, charges or encumbrances that would not have a Material
Adverse Effect), nor will such action result in any violation of the provisions
of the charter or by-laws of the Company or any subsidiary, or, to the best of
my knowledge, any applicable law, statute, rule, regulation, judgment, order,
writ or decree of any government, government instrumentality or court, domestic
or foreign, having jurisdiction over the Company or any subsidiary or any of
their respective properties, assets or operations.
(L) Except as disclosed in the Prospectus, the Company and its
subsidiaries (1)(a) have all permits, licenses, approvals, consents and other
authorizations (collectively the AGovernmental Licenses@) issued by the
appropriate federal, state or local regulatory agencies or bodies (the
AGovernmental Authorities@) necessary to conduct the business now operated by
them and to conduct their business as described in the Prospectus, except where
the failure to possess such Governmental Licenses would not, singly or in the
aggregate, have a Material Adverse Effect; and (b) to the best of such counsel's
knowledge, neither the Company nor any of its subsidiaries has received any
notice of proceedings relating to the revocation, modification or non-renewal of
any such Governmental Licenses, the effect of which, singly or in the aggregate,
B-3
would have a Material Adverse Effect; and (2) have paid all fees required by the
Governmental Authorities, except where the failure to pay such fees would not,
singly or in the aggregate, have a Material Adverse Effect.
In rendering such opinion, such counsel may rely as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public officials. Such
opinion shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating to
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991).
B-4
Exhibit C
FORM OF OPINION OF COMPANY'S
FRENCH REGULATORY COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(d)
(A)(1) the Operating Company (a) is not required by telecommunications
law or telecommunications regulation to pay any fees in order to carry out the
telecommunications activities, and provide the telecommunications services in
France described in the Prospectus since those activities and services do not
require a telecommunications license in France and (b) is not required by the
telecommunications law or telecommunications regulation of France to have any
further certificates, orders, permits, licenses, authorizations, consents or
approvals of and from, or to make any reports, filings and registrations with,
the French Governmental Authorities necessary to own, lease, license and use its
properties and assets and to conduct its business in the manner described in the
Prospectus and to conduct its business in accordance with the Prospectus; and
(2) to the best of our knowledge, the Operating Company has not received any
notice pursuant to French telecommunications law or telecommunications
regulation preventing it from offering the relevant telecommunications services,
the effect of which, singly or in the aggregate, would have a material adverse
effect on the Company and its subsidiaries, taken as a whole;
(B) to our knowledge the Operating Company is not in violation of, or
in default under, any national, regional or local telecommunications law,
telecommunications regulation or telecommunications rule applicable to the
Operating Company in France (the "Laws") the effect of which, singly or in the
aggregate, would have a material adverse effect on the Company and its
subsidiaries, taken as a whole;
(C) to the best of our knowledge (1) no judgment, decree or order of
any Governmental Authority in France has been issued against the Operating
Company under the Laws and (2) no litigation, proceeding, inquiry or
investigation has been commenced or threatened, and no notice of violation has
been issued, against the Operating Company before or by any Governmental
Authority under the Laws. To the best of our knowledge, there are no
administrative proceedings pending before any French Governmental Authority
under the Laws which (i) are generally applicable to telecommunications services
or the resale thereof and (ii) if decided adversely to the Company, would have a
material adverse effect on the Company and its subsidiaries, taken as a whole;
(D) statements in the Prospectus in the sections on
"Business--Regulatory Matters" referring to France, namely in the Section
entitled "Regulatory Matters", on page 54, the first two paragraphs in this
Section, and in the Section entitled "Regulatory Analysis by Service Type" on
page 55, the paragraph entitled "Data Networking Services", and the paragraph
entitled "Internet
C-1
Access Services" and the Section entitled "France" on page 57, in each case
insofar as such statements constitute summaries of the relevant
telecommunications law, telecommunications regulation or telecommunications rule
applicable in France to the Operating Company fairly summarize all matters
referred to therein and there are no material omissions with respect to such
descriptions that would make the statements therein misleading;
(E) (1) the execution and delivery by the Operating Company of, and
performance of the Operating Company's obligations under the Transfer Agreement,
the Equipment Collocation Permit Agreement and the Local Network Services
Agreement , and the execution and delivery by the Company of, and the
performance of the Company's obligations under the Equipment Collocation Permit
Agreement and the Local Network Services Agreement do not violate any French
Telecommunications law or telecommunications regulation of to the best of our
knowledge any judgment, order or decree of any French governmental body, agency,
court or tribunal having jurisdiction over the Operating Company under the Laws
in France, and (2) no authorization or order of, or filing with, Governmental
Authorities is necessary under French telecommunications law or French
telecommunications regulation for the execution and delivery by either the
Operating Company or the Company of, or the performance of their respective
obligations under, the Transfer Agreement, the Local Network Services Agreement
and the Equipment Collocation Permit Agreement.
C-2
Exhibit D
FORM OF OPINION OF
COMPANY'S UNITED KINGDOM REGULATORY COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(d)
(A) (1) the Operating Company (a) is not required by telecommunications
law or telecommunications regulation to pay any fees in order to operate the
telecommunications system, and provide the telecommunications services described
in the Prospectus in the United Kingdom since it may operate under the
Telecommunications Services Class Licence which does not require the payment of
any fees and (b) is not required by the telecommunications law or
telecommunications regulation of the United Kingdom to have any further
certificates, orders, permits, licenses, authorizations, consents or approvals
of and from, or to make any reports, filings and registrations with, the
Governmental Authorities necessary to own, lease, license and use its properties
and assets and to conduct its business in the manner described in the
Prospectus; and (2) to the best of our knowledge, the Operating Company has not
received any notice of modification or revocation of the Telecommunications
Services Class License in respect of the Operating Company, the effect of which,
singly or in the aggregate, would have a material adverse effect on the Company
and its subsidiaries, taken as a whole;
(B) to our knowledge, the Operating Company is not in violation of, or
in default under, any national, regional or local telecommunications law,
telecommunications regulation or telecommunications rule applicable to the
Operating Company in the United Kingdom (the "Laws") the effect of which, singly
or in the aggregate, would have a material adverse effect on the Company and its
subsidiaries, taken as a whole;
(C) to the best of our knowledge, (1) no judgment, decree or order of
any Governmental Authority in the United Kingdom has been issued against the
Operating Company under the Laws and (2) no litigation, proceeding, inquiry or
investigation has been commenced or threatened, and no notice of violation or
order to show cause has been issued, against the Operating Company before or by
any Governmental Authority. To the best of our knowledge, there are no
administrative proceedings pending before any Governmental Authority which (i)
are generally applicable to telecommunications services or the resale thereof
and (ii) if decided adversely to the Company, would have a material adverse
effect on the Company and its subsidiaries, taken as a whole;
(D) statements in the Prospectus under the captions
"BusinessCRegulatory Matters" referring to the United Kingdom namely in the
Section entitled "Regulatory Matters" on page 54, the first two paragraphs in
this Section, and in the Section entitled "Regulatory Analysis by Service Type"
on page 55, the paragraphs entitled "Data Networking Services" and "Internet
Access Services" and the Section entitled "United Kingdom" on page 57 and in
each case as such
D-1
statements constitute summaries of the relevant telecommunications law,
telecommunications regulation or telecommunications rule applicable in the
United Kingdom to the Operating Company fairly summarize all matters referred to
therein and there are no material omissions with respect to such descriptions
that would make the statements therein misleading; and
(E) (1) neither the execution and delivery by the Operating Company of,
and performance of the Operating Company's obligations under, the Transfer
Agreement, the Equipment Collocation Permit agreement and the Local Network
Services Agreement nor the execution and delivery by the Company of, and the
performance of the Company's obligations under the Equipment Collocation Permit
Agreement and the Local Network Services Agreement violate any UK
Telecommunications law or telecommunications regulation or to the best of our
knowledge any judgment, order or decree of any United Kingdom governmental body,
agency, court or tribunal having jurisdiction over the Operating Company under
the Laws in the United Kingdom, and (2) no authorization or order of, or filing
with, Governmental Authorities is necessary under UK telecommunications law or
UK telecommunications regulation for the execution and delivery by either the
Operating Company or the Company of, or the performance of their respective
obligations under, the Transfer Agreement, the Local Network Services Agreement
and the Equipment Collocation Permit agreement.
D-2
Exhibit E
FORM OF OPINION OF
COMPANY'S FRENCH CORPORATE COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(e)
(A) SAVVIS France SAS, a wholly owned subsidiary of SAVVIS Holdings
Corporation, incorporated in France as a societe par actions simplifiee with a
capital of FF 700,000, divided into 7,000 shares of FF 100 par value, with head
office at Paris (75002), 5 boulevard Montmartre (the "Subsidiary"), has been
duly incorporated, is validly existing as a corporation under the laws of
France, has the corporate power and authority to own its property and to conduct
its business as described in the Prospectus contained in the registration
statement on Form S-1 filed by the Company with the Securities and Exchange
Commission on , 2000 (the "Prospectus") and is duly qualified to transact
business in France, except to the extent that the failure to be so qualified
would not result in a material adverse effect on the Company and its
subsidiaries, taken as a whole; all of the issued shares of capital stock of the
Operating Company have been duly and validly authorized and issued and are fully
paid and non-assessable.
(B) The foregoing is subject to the Operating Company holding
certificates, orders, permits, licenses, authorizations, consents and approvals
of and from, and having made all reports, filings and registrations with,
national, regional and local governmental authorities, self-regulatory
organizations and courts and tribunals (collectively, the "Governmental
Authorities") to own, lease, license and use its properties and assets and to
conduct its business in the manner described in the Prospectus and is conducting
business in accordance therewith.
(C) There are no restrictions (legal or otherwise) on the ability of
the Operating Company to declare and pay any dividends or make any payment or
transfer of property or assets to its stockholders other than such restrictions
as would not have a material adverse effect on the Company and its subsidiaries,
taken as a whole.
(D) Each of the Local Transfer Agreement, Local Network Service
Agreement and Equipment Collocation Permit Agreement (the "Asset Transfer
Documents") has been duly authorized, executed and delivered by the Operating
Company, and constitutes a valid and binding obligation of the Operating
Company, enforceable in accordance with its terms, except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally, (ii) rights of acceleration and the
availability of equitable remedies may be limited by equitable principles of
general applicability; and (iii) provisions excluding liability for lost profits
under the Section denominated "Limited of Liability" in the Asset Transfer
Documents may not be enforceable.
E-1
(E) The execution and delivery by the Operating Company of, and
performance of the Operating Company's obligations under, the Asset Transfer
Documents and the execution and delivery by the Company of, and the performance
of the Company's obligations under, the Purchase Agreement and Asset Transfer
Agreements do not violate any Laws or the organizational documents of the
Operating Company or, to the best of our knowledge, any judgment, order or
decree of any governmental body, agency, court or tribunal having jurisdiction
over the Operating Company in France.
(F) There are no restrictions (legal, contractual or otherwise) on the
ability of the Operating Company to declare and pay any dividends or make any
payment or transfer of property or assets to its stockholders other than such
restrictions as would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(G) Each of the Equipment Collocation Permit, Transfer Agreement and
Local Network Services Agreement (the "Asset Transfer Documents") has been duly
authorized, executed and delivered by the Operating Company, and constitutes a
valid and binding obligation of the Operating Company, enforceable in accordance
with its terms except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights generally and
(ii) rights of acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability.
(H) (1) The execution and delivery by the Operating Company of, and
performance of the Operating Company's obligations under, the Asset Transfer
Documents do not violate any Laws, the organizational documents of the Operating
Company, any agreement or other instrument that is binding upon the Operating
Company or, to the best of such counsel's knowledge, any judgment, order or
decree of any governmental body, agency, court or tribunal having jurisdiction
over the Operating Company in France, and (2) no authorization or order of, or
filing with, Governmental Authorities is necessary for the execution and
delivery by either the Operating Company or the Company of, or the performance
of their respective obligations under, the Asset Transfer Documents.
E-2
Exhibit F
FORM OF OPINION OF
COMPANY'S UNITED KINGDOM CORPORATE COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(f)
(A) the Operating Company has been duly incorporated, is validly
existing as a corporation under the laws of England, has the corporate power and
authority to own its property and to conduct its business as described in the
Prospectus; all of the issued shares of capital stock of the Operating Company
have been duly and validly authorized and issued and are fully paid. To our
knowledge, and relying solely on a director's and officer's certificate, there
are no liens by the Operating Company against the shares of the Operating
Company. Section 3.1 of the Operating Company's Articles of Association and
Regulation 8 in Table A of the Companies Act, 1985 would impose a lien on such
shares in the event a member was indebted to the Operating Company; however,
relying solely on a director's and officer's certificate, no such lien exists.
According to the Certificate, as of the date of the Certificate the Operating
Company has been in continuous and unbroken existence since its date of
incorporation, no action is currently being taken by the Registrar of Companies
for striking the Operating Company off its register, the Operating Company is
not in liquidation or subject to an administrative order and no receiver or
manager of the Company's property has been appointed;
(B) the Operating Company has paid all fees required by all applicable
English national, regional and local governmental authorities, self-regulatory
organizations and courts and tribunals (collectively, the "Governmental
Authorities") in connection with the corporate organization and corporate
existence of the Operating Company. For the avoidance of doubt, we express no
opinion in respect of any fees related to any tax (including, but not limited
to, property or real estate taxes and property rates), value-added tax, stamp
duty or any telecommunications or related regulatory matters;
(C) to our knowledge and based solely on an oral inquiry on February ,
2000 with the English High Court Division of the Central Index of Winding Up
Petitions in the Companies Court, no winding up petition has been filed with the
Companies Court of the English High Court as of such date. To our knowledge, and
based solely on a director's and officer's certificate, (1) no judgment, decree
or order of any Governmental Authority has been issued against the Operating
Company and (2) no litigation, proceeding, inquiry or investigation has been
commenced or threatened, and no notice of violation or order to show cause has
been issued, against the Operating Company before or by any Governmental
Authority;
(D) there are no legal restrictions on the ability of a private limited
company incorporated under the laws of England and Wales such as the Operating
Company to declare and pay any dividends to its members than other those set
forth in Section 263 of the Companies
F-1
Act, 1995 which permits distributions out of profits available for the purpose
of distributions, namely accumulated, realized profits, so far as not previously
utilized by distribution or capitalization, less accumulated realized losses, so
far as not previously written off in a reduction or reorganization of capital
duly made. English companies laws generally may also impose limits of general
applicability to all companies with respect to certain restrictions on the
ability of the Operating Company to make non-dividend payments or transfer of
property or assets. To our knowledge, and based solely on a director's and
officer's certificate, there are no restrictions, contractual or in any
corporate document of the Operating Company (other than those discussed above),
on the ability of the Operating Company to declare and pay any dividends or make
any payment or transfer of property or assets to its members;
(E) except as set forth below, each of the Transfer Agreements has been
duly authorized, executed and delivered by the Operating Company, and
constitutes a valid and binding obligation of the Operating Company, enforceable
in accordance with its terms, except to the extent that enforceability may be
limited by applicable bankruptcy, insolvency or similar laws relating to or
affecting the rights and remedies of creditors generally and by general
principles of equity including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing and the possible unavailability of
specific performance, injunctive relief or other equitable remedies regardless
of whether enforceability is considered in a proceeding in equity or at law. To
our knowledge, no stamp duty has been payable on the transfer of the IP Network,
as defined in the Asset Transfer Agreement (the "IP Network"). While under a
strict interpretation of English law, stamp duty may be payable, we believe,
based on the allocation of the consideration set forth in the Asset Transfer
Agreement and assuming the reasonableness and genuineness of such allocation, it
would not be payable on the transfer of the IP Network pursuant to the Asset
Transfer Agreement. In the event stamp duty were deemed to be payable, the
failure to pay stamp duty would not invalidate the transfer of the IP Network
itself as between Bridge Information Systems (UK) Limited, the transferor, or
the Operating Company, the transferee. The maximum amount payable in the event
stamp duty were deemed to be payable would be the amount of stamp duty payable,
plus interest, plus a penalty of the greater of ,300 or the amount of stamp duty
payable. Stamp duty rates with respect to the transfer of assets range generally
from 0.5% to 3.5% of the amount or value of consideration paid for such assets.
Certain restrictions on reverse engineering contained in the Transfer Agreements
may not be enforceable; and
(F) the execution and delivery by the Operating Company of, and
performance of the Operating Company's obligations in accordance with the terms
of, the Transfer Agreements do not violate any national, regional or local laws,
regulations or rules of England applicable to the Operating Company and
customarily viewed as applicable to transactions of this kind ("Laws") or the
organizational documents of the Operating Company or to our knowledge, and based
solely on a director's and officer's certificate, any agreement or other
instrument that is binding upon the Operating Company or any judgment, order or
decree of any governmental Authority.
F-2
Exhibit G
FORM OF OPINION OF
COMPANY'S GERMAN REGULATORY COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(g)
(A) SAVVIS Germany GmbH (the "Operating Company") has been duly
incorporated, is validly existing as a corporation under the laws of the Federal
Republic of Germany, is as such entered in the commercial register, has the
corporate power and authority to own its property and to conduct its business as
described in the Prospectus; all of the issued shares of capital of the
Operating Company have been duly and validly authorized and issued and are fully
paid and non-assessable;
(B) (1) the Operating Company (a) has to the best of such counsel's
knowledge paid all fees required by all applicable German national, regional and
local governmental authorities, self-regulatory organizations and courts and
tribunals (collectively, the "Governmental Authorities"), and (b) has all
certificates, orders, permits, licenses, authorizations, consents and approvals
of and from, and has made all reports, filings and registrations with, the
Governmental Authorities necessary to own, lease, license and use its properties
and assets and to conduct its business in the manner described in the
Prospectus; and (2) to the best of such counsel's knowledge, the Operating
Company has not received any notice of proceedings relating to revocation,
modification or non-renewal of any such certificates, orders, permits, licenses,
authorizations, consents or approvals, or the qualification or rejection of any
such report, filing or registration, the effect of which, singly or in the
aggregate, would have a material adverse effect on the Company and its
subsidiaries, taken as a whole;
(C) to the best of such counsel's knowledge, the Operating Company is
not in violation of, or in default under, any national, regional or local law,
regulation or rule applicable to the Operating Company (the "Laws") the effect
of which, singly or in the aggregate, would have a material adverse effect on
the Company and its subsidiaries, taken as a whole;
(D) to the best of such counsel's knowledge, (1) no judgment, decree or
order of any Governmental Authority has been issued against the Operating
Company and (2) no litigation, proceeding, inquiry or investigation has been
commenced or threatened, and no notice of violation or order to show cause has
been issued, against the Operating Company before or by any Governmental
Authority. To the best of such counsel's knowledge, there are no rulemakings or
other administrative proceedings pending before any Governmental Authority which
(i) are generally applicable to telecommunications services or the resale
thereof and (ii) if decided adversely to the Company or any of its subsidiaries,
would have a material adverse effect on the Company and its subsidiaries, taken
as a whole;
G-1
(E) the statements in the Prospectus under the captions
"Business-Regulatory Matters" and, in each case insofar as such statements
constitute summaries of the Federal Republic of Germany legal matters,
including, without limitation, any telecommunications law, regulation or rule
applicable to the Operating Company, documents or proceedings referred to
therein, fairly summarize all matters referred to therein and there are no
material omissions with respect to such descriptions that would make the
statements therein misleading;
(F) to the best of such counsel's knowledge there are no restrictions
(legal, contractual or otherwise) on the ability of the Operating Company to
declare and pay any dividends or make any payment or transfer of property or
assets to its stockholders other than such restrictions as would not have a
material adverse effect on the Company and its subsidiaries, taken as a whole;
(G) each of the Equipment Collocation Permit, Transfer Agreement, and
Local Network Services Agreement (the "Asset Transfer Documents") will, when
duly authorized, executed and delivered by the Operating Company, constitute a
valid and binding obligation of the Operating Company, enforceable in accordance
with its terms as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and (ii) rights
of acceleration and the availability of equitable remedies may be limited by
equitable principles of general applicability; and
(H) (1) the execution and delivery by the Operating Company of, and
performance of the Operating Company's obligations under, the Asset Transfer
Documents and the execution and delivery by the Company of, and the performance
of the Company's obligations under, the Purchase Agreement and the Asset
Transfer Agreements do not violate any Laws or the organizational documents of
the Operating Company; and, to the best of such counsel's knowledge, any
agreement or other instrument that is binding upon the Operating Company or any
judgment, order or decree of any governmental body, agency, court or tribunal
having jurisdiction over the Operating Company in the Federal Republic of
Germany, and (2) no authorization or order of, or filing with, Governmental
Authorities is necessary for the execution and delivery by either the Operating
Company or the Company of, or the performance of their respective obligations
under, the Asset Transfer Documents or the Purchase Agreement.
G-2
Exhibit H
FORM OF OPINION OF
COMPANY'S ITALIAN REGULATORY COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(h)
(A) SAVVIS Italia s.r.l. (the "Operating Company") has been duly
incorporated, is validly existing as a corporation in good standing under the
laws of Italy, has the corporate power and authority to own its property and to
conduct its business as described in the Prospectus (as defined in the Purchase
Agreement). The authorizations required under Italian law for the Operating
Company to be duly qualified to transact its business in Italy vis-a-vis the
general public have been filed with the Ministry of Telecommunications on 26
November 1999 and the Ministry has 90 days to accept or to reject the requests;
failing rejection within such term, the authorizations will be deemed as given.
All of the issued shares of capital stock of the Operating Company have been
duly and validly authorized and issued and are fully paid and non-assessable;
(B) the Operating Company (a) has paid all fees required by all
applicable Italian national, regional and local governmental authorities,
self-regulatory organizations and courts and tribunals (collectively, the
"Governmental Authorities"), and (b) except for the authorizations mentioned in
paragraph (A) above, has all certificates, orders, permits, licenses,
authorizations, consents and approvals of and from, and has made all reports,
filings and registrations with, the Governmental Authorities necessary to own,
lease, license and use its properties and assets and to conduct its business in
Italy in the manner described in the Prospectus and is conducting business in
accordance therewith; and (2) to the best of such counsel's knowledge, the
Operating Company has not received any notice of proceedings relating to
revocation, modification or non-renewal of any such certificates, orders,
permits, licenses, authorizations, consents or approvals, or the qualification
or rejection of any such report, filing or registration, the effect of which,
singly or in the aggregate, would have a material adverse effect on the
Operating Company;
(C) to the best of our knowledge, the Operating Company is not in
violation of, or in default under, any Italian national, regional or local law,
regulation or rule applicable to the Operating Company (the "Laws") the effect
of which, singly or in the aggregate, would have a material adverse effect on
the Operating Company;
(D) to the best of our knowledge, (1) no judgment, decree or order of
any Governmental Authority has been issued against the Operating Company and (2)
no litigation, proceeding, inquiry or investigation has been commenced or
threatened, and no notice of violation or order to show cause has been issued,
against the Operating Company before or by any Governmental Authority. To the
best of our knowledge, there are no rulemakings or other administrative
proceedings pending before any Governmental Authority which (i) are generally
H-1
applicable to telecommunications services or the resale thereof and (ii) if
decided adversely to the Company would have a material effect on the Operating
Company.
(E) the statements in the Prospectus under the caption
"Business-Regulatory Matters" and, in each case insofar as such statements
constitute summaries of the Italian legal matters, including, without
limitation, any Italian telecommunications law, regulation or rule applicable to
the Operating Company, documents or proceedings referred to therein, fairly
summarize all matters referred to therein and there are no material omissions
with respect to such descriptions that would make the statements therein
misleading;
(F) there are no restrictions (legal, contractual or otherwise) on the
ability of the Operating Company to declare and pay any dividends or make any
payment or transfer of property or assets to its stockholders other than those
described in the Prospectus and such restrictions would not have a material
adverse effect on the Operating Company;
(G) each of the Equipment Collocation Permit, Transfer Agreement and
Local Network Services Agreement (the "Asset Transfer Documents") has been duly
authorized, executed and delivered by the Operating Company, and constitutes a
valid and binding obligation of the Operating Company, enforceable in accordance
with its terms, except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights generally and
(ii) rights of acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability; and
(H) the execution and delivery by the Operating Company of, and
performance of the Operating Company's obligations under the Asset Transfer
Documents and the execution and delivery by the Company (as defined in the
Purchase Agreement) of, and the performance of the Company's obligations under,
the Purchase Agreement and the Asset Transfer Documents do not violate any Laws
or the organizational documents of the Operating Company or, to the best of our
knowledge, any agreement or other instrument that is binding upon the Operating
Company, judgment, order or decree of any governmental body, agency, court or
tribunal having jurisdiction over the Operating Company in Italy, and (2) no
authorization or order of, or filing with, Governmental Authorities is necessary
for the execution and delivery by either the Operating Company or the Company
of, or the performance of their respective obligations under, the Asset Transfer
Documents or the Purchase Agreement.
H-2
Exhibit I
FORM OF OPINION OF
COMPANY'S JAPANESE REGULATORY COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(i)
(A) The Operating Company has been duly incorporated, is validly
existing as a corporation under the laws of Japan, has the corporate power and
authority to own its property and to conduct its business as described in the
"Business-Regulatory Matters" section of the Prospectus; all of the issued
shares of capital stock of the Operating Company have been duly and validly
authorized and issued and are fully paid and non-assessable;
(B) (1) to the best of our knowledge, the Operating Company (a) has
paid all fees required by all applicable Japanese national, regional and local
governmental authorities, self-regulatory organizations, and courts and
tribunals (collectively, "Governmental Authorities") and (b) has all
certificates, orders, permits, licenses, authorizations, consents, and approvals
of and form, and has made all reports, filings, and registrations with, the
Governmental Authorities necessary to own, lease, license and use its properties
and assets as described in the "Business-Regulatory Matters" section of the
Prospectus and is conducting business in accordance therewith; and (2) to the
best of our knowledge, the Operating Company has not received any notice of
proceedings relating to revocation, modification or non-renewal of any such
certificates, orders, permits, licenses, authorizations, consents, or approvals,
or the qualification or rejection of any such report, filing or registration,
the effect of which, singularly or in the aggregate, would have a material
adverse effect on the Company and the Subsidiaries, taken as a whole;
(C) to the best of our knowledge, the Operating Company is not in
violation of, or in default under, any Japanese national, regional, or local
law, regulation, or rule applicable to the Operating Company ("Laws"), the
effect of which, singularly or in the aggregate, would have a material adverse
effect on the Company and the Subsidiaries, taken as a whole;
(D) to the best of our knowledge, (1) no judgment, decree or order of
any Governmental Authority has been issued against the Operating Company and (2)
no litigation, proceeding, inquiry, or investigation has been commenced or
threatened, and no notice of violation or order to show cause has been issued,
against the Operating Company before or by any Governmental Authority. To the
best of our knowledge, there are no rulemakings or other administrative
proceedings pending before any Governmental Authority which (i) are generally
applicable to telecommunications services or the resale thereof and (ii) if
decided adversely to the Company or any of the Subsidiaries, would have a
material adverse effect on the Company and the Subsidiaries, taken as a whole;
I-1
(E) the statements in the Prospectus under the caption
"Business-Regulatory Matters", insofar as such statements constitute summaries
of Japanese legal matters, including without limitation any telecommunications
law, regulation or rule applicable to the Operating Company, or any documents,
or proceedings referred to therein, fairly summarize all matters referred to
therein and there are no material omissions with respect to such descriptions
that would make the statements therein misleading;
(F) to the best of our knowledge, there are no restrictions (legal,
contractual or otherwise) on the ability of the Operating Company to declare and
pay any dividends or make any payment or transfer of property or assets to its
stockholders other than such restrictions as would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole;
(G) each of the Agreements (the "Transfer Documents") have been duly
authorized, executed and delivered by the Operating Company and constitute valid
and binding obligations of the Operating Company, enforceable in accordance with
their terms, except that (i) the enforceability thereof may be limited by
bankruptcy, insolvency, or similar laws affecting creditors' rights or generally
(including restrictions on the amount of damages to the actual amount of
damage), and (ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability; and
(H) (1) the execution and delivery by the Operating Company of, and
performance of the Operating Company's obligations under, the Transfer Documents
and the execution and delivery by the Company of, and the performance of the
Company's obligations under, the Purchase Agreement and Transfer Documents do
not violate any Laws, the organizational documents of the Operating Company, any
agreement or other instrument that is binding upon the Operating Company or, to
the best of our knowledge, any judgment, order or decree of any governmental
body, agency, court or tribunal having jurisdiction over the Operating Company
in Japan, and (2) no authorization or order of, or filing with, Governmental
Authorities is necessary for the execution and delivery by either the Operating
Company or the Company of, or the performance of their respective obligations
under, the Purchase Agreement and Transfer Documents.
I-2
Exhibit J
FORM OF OPINION OF GENERAL COUNSEL OF BRIDGE
TO BE DELIVERED PURSUANT TO
SECTION 5(j)
(i) No filing with, or consent, approval, authorization, license,
order, registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign, (other than the issuance of the order
of the Commission declaring the Registration Statement effective and such
authorizations, approvals or consents as may be necessary under state securities
laws, as to which we need express no opinion) is necessary or required to be
obtained by Bridge for the performance by Bridge of its obligations under the
Purchase Agreement or in the Custody Agreement, or in connection with the offer,
sale or delivery of the Securities.
(ii) The Custody Agreement has been duly executed and delivered by
Bridge and constitutes the legal, valid and binding agreement of Bridge.
(iii) The Purchase Agreement has been duly authorized, executed and
delivered by or on behalf of Bridge.
(iv) The execution, delivery and performance of the Purchase Agreement,
the Custody Agreement, the sale and delivery of the Securities, the Network
Transfer Agreements and the consummation of the transactions contemplated
thereby and the consummation of the transactions contemplated in the Purchase
Agreement and in the Registration Statement and compliance by the Bridge with
its obligations under the Purchase Agreement and the Network Transfer Agreements
has been duly authorized by all necessary action on the part of Bridge and do
not and will not, whether with or without the giving of notice or passage of
time or both, conflict with or constitute a breach of, or default or Bridge
Repayment Event (as defined in Section 1(b)(i)(E) of the Purchase Agreement)
under or result in the creation or imposition of any tax, lien, charge or
encumbrance upon the Securities or any property or assets of Bridge or any
subsidiary pursuant to, any contract, indenture, mortgage, deed of trust, loan
or credit agreement, note, license, lease or other instrument or agreement to
which Bridge or any subsidiary is a party or by which it may be bound, or to
which any of the property or assets of Bridge or any subsidiary may be subject,
nor will such action result in any violation of the provisions of the charter or
by-laws of Bridge or any subsidiary, if applicable, or any law, administrative
regulation, judgment or order of any governmental agency or body or any
administrative or court decree having jurisdiction over Bridge or any subsidiary
or any of their respective properties, assets or operations.
(v) The information in the Prospectus under "Risk Factors - If we are
not released from regulation under the Bank Holding Company Act, we would not be
able to expand our business as we expect,@ to the extent that it constitutes
matters of law, summaries of legal
J-1
matters, the Company's charter and by-laws or legal proceedings, or legal
conclusions, has been reviewed by me and is correct in all material respects.
(vi) Bridge has full right, power and authority to hold, sell, transfer
and deliver the Securities to be sold by Bridge pursuant to the Purchase
Agreement. Upon the delivery to DTC or its agent of the Securities registered in
the name of Cede & Co., as nominee for DTC, and the crediting by DTC of the
Securities to the securities accounts of the several Underwriters with DTC, DTC
will be a "protected purchaser" of the Securities (as defined in Section 8-303
of the NYUCC) and will acquire its interest in the Securities (including,
without limitation, all rights that Bridge had or has the power to transfer in
such Securities) free of any adverse claim (assuming that DTC is without notice
of any adverse claim to the Securities). Upon the payment of the purchase price
for the Securities and the crediting by DTC of the Securities to the securities
accounts of the several Underwriters with DTC, each of the Underwriters will
acquire a valid security entitlement (within the meaning of Section 8-501 of the
NYUCC) in respect of the Securities to be purchased by it, and no action
(whether framed in conversion, replevin, constructive trust, equitable lien, or
other theory) based on an adverse claim to such Securities may be asserted
against the Underwriters (assuming that the Underwriters are without notice of
the adverse claim).
J-2
Exhibit K
FORM OF OPINION OF COUNSEL FOR BRIDGE
TO BE DELIVERED PURSUANT TO SECTION 5(K)
(i) The Selling Stockholder is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Missouri.
(ii) Each of the Purchase Agreement, the Custody Agreement and each of
the Network Transfer Agreements to which the Selling Stockholder is a party have
been duly authorized, executed and delivered by the Selling Stockholder or its
U.S. subsidiaries, as the case may be. Each of the Network Transfer Agreements
to which the Selling Stockholder is a party are valid and binding agreements of
the Selling Stockholder or its U.S. subsidiaries, as the case may be,
enforceable in accordance with their respective terms (except to the extent they
may be limited by applicable bankruptcy, insolvency, reorganization,
receivership, moratorium, fraudulent conveyance and other similar laws relating
to or affecting the rights and remedies of creditors generally and by general
principles of equity including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing and the possible unavailability of
specific performance, injunctive relief or other equitable remedies, regardless
of whether enforceability is considered in a proceeding in equity or at law.
(iii) No filing with, or consent, approval, authorization, license,
order, registration, qualification or decree of, any court or governmental
authority or agency (other than such authorizations, approvals or consents as
may be necessary under securities and Ablue sky@ laws, as to which we express no
opinion), is necessary or required to be obtained by the Selling Stockholder for
the performance by the Selling Stockholder of its obligations under the Purchase
Agreement or in the Custody Agreement, or in connection with the offer, sale or
delivery of the Stockholder Shares.
(iv) The execution, delivery and performance of the Purchase Agreement
and the Custody Agreement and the sale and delivery of Stockholder Shares being
sold by the Selling Stockholder, the Network Transfer Agreements and the
consummation of the transactions contemplated thereby and the consummation of
the transactions contemplated in the Purchase Agreement, do not and will not,
whether with or without the giving of notice or passage of time or both,
conflict with or result in a breach or violation of, or constitute a default or
Bridge Repayment Event (as defined in Section 1(b)(i)(E) of the Purchase
Agreement) under (A) any statute, order, rule, regulation, judgment or order of
any governmental agency or body or any administrative or court decree having
jurisdiction over the Selling Stockholder or any U.S. subsidiary or any of their
respective properties, assets or operations (except that we express no opinion
with respect to the compliance with securities and "blue sky" laws), or (B) the
Selling Stockholder=s articles of incorporation or by-laws, each in effect as of
the date hereof, or result in
K-1
the creation or imposition of any tax, lien, charge or encumbrance upon the
Stockholder Shares or any property or assets of the Selling Stockholder or any
U.S. subsidiary pursuant to, any contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, license, lease or other instrument or agreement
to which the Selling Stockholder or any U.S. subsidiary is a party or by which
it may be bound, or to which any of the property or assets of the Selling
Stockholder or any U.S. subsidiary may be subject.
(v) The descriptions of the contracts and other documents in the
Registration Statement under the caption "Relationship with Bridge - Bridge
Relationship" are accurate in all material respects, and the descriptions
thereof or references thereto are correct in all material respects.
K-2
Exhibit L
FORM OF LOCK-UP FROM DIRECTORS, OFFICERS OR
OTHER STOCKHOLDERS PURSUANT TO
SECTION 5(q)
, 2000
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated,
XXXXXX XXXXXXX & CO. INCORPORATED
BEAR, XXXXXXX & CO. INC.
BANC OF AMERICA SECURITIES LLC
CIBC WORLD MARKETS CORP.
as Representatives of the several
Underwriters to be named in the
within-mentioned Purchase Agreement
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
and
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Re: Proposed Public Offering by SAVVIS Communications Corporation
Dear Ladies and Gentlemen:
The undersigned, a stockholder and/or an officer and/or director of
SAVVIS Communications Corporation (the "Company"), understands that Xxxxxxx
Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ("Merrill
(NY)"), Xxxxxx Xxxxxxx & Co. Incorporated ("Xxxxxx Xxxxxxx"), Banc of America
Securities LLC, Bear, Xxxxxxx Co. Inc. and CIBC World Markets Corp. propose to
enter into a Purchase Agreement (the "Purchase Agreement") with the Company and
the Selling Shareholder providing for the public offering of shares (the
"Securities") of the Company's common stock, par value $.01 per share (the
"Common Stock"). In recognition of the benefit that such an offering will confer
upon the undersigned as a stockholder and/or an officer and/or director of the
Company, and for other
L-1
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the undersigned agrees with each Underwriter to be named in the
Purchase Agreement that, during a period of 180 days from the date of the
Purchase Agreement, the undersigned will not, without the prior written consent
of Xxxxxxx (NY) and Xxxxxx Xxxxxxx, directly or indirectly, (i) offer, pledge,
sell, contract to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option, right or warrant for the sale of,
or otherwise dispose of or transfer any shares of the Company's Common Stock or
any securities convertible into or exchangeable or exercisable for Common Stock,
whether now owned or hereafter acquired by the undersigned or with respect to
which the undersigned has or hereafter acquires the power of disposition, or
file any registration statement under the Securities Act of 1933, as amended,
with respect to any of the foregoing or (ii) enter into any swap or any other
agreement or any transaction that transfers, in whole or in part, directly or
indirectly, the economic consequence of ownership of the Common Stock, whether
any such swap or transaction is to be settled by delivery of Common Stock or
other securities, in cash or otherwise.
[Notwithstanding the foregoing, Bridge Information Systems, Inc.
("Bridge") and its subsidiaries, with prior written notification Xxxxxxx (NY)
and Xxxxxx Xxxxxxx, may sell Common Stock held by Bridge to one or more
investors (each an "Investor"), and may make public announcements with respect
to transactions permitted by this paragraph, so long as such Investor agrees
prior to the consummation of any such transaction pursuant to an instrument in
form and substance reasonably satisfactory to Xxxxxxx (NY) and Xxxxxx Xxxxxxx
(which instrument will be deemed satisfactory if it is substantially similar to
the provisions of this letter agreement) to be bound by the provisions of this
letter agreement insofar as they relate to the shares of Common Stock or other
securities acquired.]*
Very truly yours,
Signature:
-----------------------
Print Name:
-----------------------
------------------------------------
* Included in Bridge letter only.
L-2
TABLE OF CONTENTS
PURCHASE AGREEMENT................................................................................................1
SECTION 1. Representations and Warranties......................................................3
(a) Representations and Warranties by the Company and Bridge............................3
(i) Compliance with Registration Requirements.................................3
(ii) Independent Accountants...................................................4
(iii) Financial Statements......................................................4
(iv) No Material Adverse Change in Business....................................5
(v) Good Standing of the Company..............................................5
(vi) Good Standing of Subsidiaries.............................................5
(vii) Capitalization............................................................6
(viii) Authorization of Agreement................................................6
(ix) Authorization and Description of Securities...............................6
(x) Absence of Defaults and Conflicts.........................................6
(xi) Absence of Labor Dispute..................................................7
(xii) Absence of Proceedings....................................................7
(xiii) Accuracy of Exhibits......................................................7
(xiv) Possession of Intellectual Property.......................................8
(xv) Absence of Further Requirements...........................................8
(xvi) Possession of Licenses and Permits........................................8
(xvii) Title to Property.........................................................9
(xviii) Investment Company Act....................................................9
(xix) Environmental Laws........................................................9
(xx) Registration Rights......................................................10
(xxi) Authorization of Network Transfer Agreements.............................10
(xxii) Network Transfer.........................................................10
(xxiii) Reserved Share Program...................................................11
(xxiii) Year 2000 Compliance.....................................................11
(b) Representations and Warranties by Bridge...........................................11
(i) Representations and Warranties of Parent Company..............................11
(ii) Representations and Warranties of Selling Stockholder....................13
(c) Officer's Certificates.............................................................15
SECTION 2. Sale and Delivery to Underwriters; Closing.........................................16
(a) Initial Securities.................................................................16
(b) Option Securities..................................................................16
(c) Payment............................................................................16
(d) Denominations; Registration........................................................17
(e) Appointment of Qualified Independent Underwriter...................................17
SECTION 3. Covenants of the Company...........................................................17
(a) Compliance with Securities Regulations and Commission Requests.....................17
i
(b) Filing of Amendments...............................................................18
(c) Delivery of Registration Statements................................................18
(d) Delivery of Prospectus.............................................................18
(e) Continued Compliance with Securities Laws..........................................19
(f) Blue Sky Qualifications............................................................19
(g) Rule 158...........................................................................19
(h) Use of Proceeds....................................................................19
(i) Listing............................................................................20
(j) Restriction on Sale of Securities..................................................20
(k) Reporting Requirements.............................................................20
(l) Compliance with NASD Rules.........................................................20
(m) Compliance with Rule 463...........................................................21
SECTION 4. Payment of Expenses................................................................21
(a) Expenses...........................................................................21
(b) Expenses of the Selling Shareholder................................................21
(c) Termination of Agreement...........................................................21
(d) Allocation of Expenses.............................................................21
SECTION 5. Conditions of Underwriters' Obligations............................................22
(a) Effectiveness of Registration Statement............................................22
(b) Opinion of Counsel for Company.....................................................22
(c) Opinion of General Counsel of Company..............................................22
(d) Opinions of French and United Kingdom Regulatory Counsel for Company...............22
(e) Opinion of French Corporate Counsel for Company....................................22
(f) Opinion of Special United Kingdom Corporate Counsel for Company....................23
(g) Opinion of German Regulatory Counsel for Company...................................23
(h) Opinion of Italian Regulatory Counsel for Company..................................23
(i) Opinion of Japanese Regulatory Counsel for Company.................................23
(j) Opinion of General Counsel of Bridge...............................................23
(k) Opinion of Counsel for Bridge......................................................23
(l) Opinion of Counsel for Underwriters................................................24
(m) Officers' Certificates.............................................................24
(n) Certificate of Selling Shareholder.................................................25
(o) Accountants' Comfort Letter........................................................25
(p) Bring-down Comfort Letter..........................................................25
(q) Approval of Listing................................................................25
(r) No Objection.......................................................................25
(s) Lock-up Agreements.................................................................25
(t) Network Transfer Agreements........................................................25
(u) GECC Sublease......................................................................25
(v) Conditions to Purchase of Option Securities........................................26
(i) Officers' Certificates...................................................26
(ii) Certificate of Selling Shareholder.......................................26
ii
(iii) Opinion of Counsel of the Company........................................26
(iv) Opinion of the General Counsel of the Company............................26
(v) Opinions of French and United Kingdom Regulatory Counsel for Company.....26
(vi) Opinion of French Regulatory Counsel for Company.........................27
(vii) Opinion of Special United Kingdom Corporate Counsel for Company..........27
(viii) Opinion of German Regulatory Counsel for Company.........................27
(ix) Opinion of Italian Regulatory Counsel for Company........................27
(x) Opinion of Japanese Regulatory Counsel for Company.......................27
(xi) Opinion of General Counsel for Bridge....................................27
(xii) Opinion of Counsel for Bridge............................................27
(xiii) Opinion of Counsel for Underwriters......................................28
(xiv) Bring-down Comfort Letter................................................28
(w) Additional Documents...............................................................28
(x) Termination of Agreement...........................................................28
SECTION 6. Indemnification....................................................................28
(a) Indemnification of Underwriters....................................................28
(b) Indemnification of Company, Directors and Officers and Bridge......................30
(c) Actions against Parties; Notification..............................................30
(d) Settlement without Consent if Failure to Reimburse.................................31
(e) Indemnification for Reserved Securities............................................32
(f) Other Agreements with Respect to Indemnification...................................32
SECTION 7. Contribution.......................................................................32
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.....................33
SECTION 9. Termination of Agreement...........................................................33
(a) Termination; General...............................................................34
(b) Liabilities........................................................................34
SECTION 10. Default by One or More of the Underwriters.................................................34
SECTION 11. Default by the Selling Shareholder or the Company..........................................35
SECTION 12. Notices....................................................................................35
SECTION 13. Parties....................................................................................36
SECTION 14. GOVERNING LAW AND TIME.....................................................................36
SECTION 15. Effect of Headings.........................................................................36
SCHEDULE A.........................................................................................Sch A-1
SCHEDULE B.........................................................................................Sch B-1
SCHEDULE C.........................................................................................Sch C-1
SCHEDULE D.........................................................................................Sch D-1
Exhibit A Form of Opinion of Company's Counsel...................................................A-1
Exhibit B Form of Opinion of General Counsel of the Company......................................B-1
iii
Exhibit C Form of Opinion of Company's French Regulatory Counsel.................................C-1
Exhibit D Form of Opinion of Company's United Kingdom Regulatory Counsel.......................D-1
Exhibit E Form of Opinion of Company's French Corporate Counsel................................E-1
Exhibit F Form of Opinion of Company's United Kingdom Corporate Counsel........................F-1
Exhibit G Form of Opinion of Company's German Regulatory Counsel...............................G-1
Exhibit H Form of Opinion of Company's Italian Regulatory Counsel..............................H-1
Exhibit I Form of Opinion of Company's Japanese Regulatory Counsel.............................I-1
Exhibit J Form of Opinion of Counsel to Bridge.................................................J-1
Exhibit K Form of Opinion of Counsel for the Selling Shareholder...............................K-1
Exhibit L Form of Lock-up from Directors, Officers or Other Stockholders.......................L-1
iv
