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EXHIBIT 1.2
VIATEL, INC.
Common Stock
($.01 par value)
International Underwriting Agreement
New York, New York
, 1996
Salomon Brothers International Limited
CS First Boston Limited
Lazard Capital Markets
As International Representatives of the several
International Underwriters,
c/o Salomon Brothers International Limited
Victoria Plaza
000 Xxxxxxxxxx Xxxxxx Xxxx
Xxxxxx XX0X XXX Xxxxxxx
Dear Sirs:
Viatel, Inc., a Delaware corporation (the "Company"), proposes
to sell to the underwriters named in Schedule I hereto (the "International
Underwriters"), for whom you (the "International Representatives") are acting
as representatives, 3,466,800 shares of Common Stock, $.01 par value ("Common
Stock"), of the Company (the "International Underwritten Securities"). The
Company also proposes to grant to the International Underwriters an option to
purchase up to 520,020 additional shares of Common Stock (the "International
Option Securities"; the International Option Securities, together with the
International Underwritten Securities, being hereinafter called the
"International Securities"). It is understood that the Company is concurrently
entering into a U.S. Underwriting Agreement dated the date hereof (the "U.S.
Underwriting Agreement") providing for the sale by the Company of an aggregate
of 5,200,200 shares of Common Stock (said shares to be sold by the Company
pursuant to the U.S. Underwriting Agreement being hereinafter called the "U.S.
Underwritten Securities"), in the United States and Canada through arrangements
with certain underwriters in the United States and Canada (the "U.S.
Underwriters"), for whom Salomon Brothers Inc, CS First Boston Corporation and
Lazard Freres & Co. LLC are acting as representatives (the "U.S.
Representatives"), and providing for the grant to the U.S. Underwriters of an
option to purchase from the Company
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up to 780,030 additional shares of Common Stock (the "U.S. Option Securities";
the U.S. Option Securities, together with the U.S. Underwritten Securities,
being hereinafter called the "U.S. Securities" and the International
Securities, together with the U.S. Securities, being hereinafter called the
"Securities"). It is further understood and agreed that the U.S. Underwriters
and the International Underwriters have entered into an Agreement Between U.S.
Underwriters and International Underwriters dated the date hereof (the
"Agreement Between U.S. Underwriters and International Underwriters"), pursuant
to which, among other things, the International Underwriters may purchase from
the U.S. Underwriters a portion of the U.S. Securities to be sold pursuant to
the U.S. Underwriting Agreement and the U.S. Underwriters may purchase from
the International Underwriters a portion of the International Securities to be
sold pursuant to the International Underwriting Agreement.
In this Agreement, unless otherwise specified, all reference
to "dollars" or "$" are to the currency of the United States.
1. Representations and Warranties.
(a) The Company represents and warrants to, and agrees with,
each International Underwriter as set forth below in this Section 1. Certain
terms used in this Section 1 are defined in paragraph (ix) hereof.
(i) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement (file number
333-09699) on Form S-1, including related preliminary prospectuses,
for the registration under the Securities Act of 1933, as amended (the
"Act"), of the offering and sale of the Securities. The Company may
have filed one or more amendments thereto, including the related
preliminary prospectuses, each of which has previously been furnished
to you. The Company will next file with the Commission either (A)
prior to effectiveness of such registration statement, a further
amendment to such registration statement (including the form of final
prospectuses) or (B) after effectiveness of such registration
statement, final prospectuses in accordance with Rules 430A and
424(b)(1) or (4). In the case of clause (B), the Company has included
in such registration statement, as amended at the Effective
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Date, all information (other than Rule 430A Information) required by
the Act and the rules and regulations thereunder to be included in the
Prospectuses with respect to the Securities and the offering thereof.
As filed, such amendment and form of final prospectuses, or such final
prospectuses, shall contain all Rule 430A Information, together with
all other such required information, with respect to the Securities
and the offering thereof and, except to the extent the International
Representatives shall agree in writing to a modification, shall be in
all substantive respects in the form furnished to you prior to the
Execution Time or, to the extent not completed at the Execution Time,
shall contain only such specific additional information and other
changes (beyond that contained in the latest International Preliminary
Prospectus) as the Company has advised you, prior to the Execution
Time, will be included or made therein. Upon your request, but not
without your agreement, the Company also will file with the Commission
a Rule 462(b) Registration Statement in accordance with Rule 462(b).
It is understood that two forms of prospectus are to be used
in connection with the offering and sale of the Securities: one form
of prospectus relating to the U.S. Securities, which are to be offered
and sold to United States and Canadian Persons (as defined herein)
which for purposes of distribution to Canadian Persons shall have a
Canadian "wrap-around" (the "Canadian Offering Memorandum"), and one
form of prospectus relating to the International Securities, which are
to be offered and sold to persons other than United States and
Canadian Persons. The two forms of prospectus are identical except
for the outside front cover page, the discussion under the headings
"Underwriting" and "Certain United States Tax Considerations for
Non-United States Holders" and the outside back cover page. Such form
of prospectus relating to the U.S. Securities as first filed with the
Commission pursuant to Rule 424(b) or, if no filing pursuant to Rule
424(b) is made, such form of prospectus included in the Registration
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Statement at the Effective Date, is hereinafter called the "U.S.
Prospectus"; such form of prospectus relating to the International
Securities as first filed with the Commission pursuant to Rule 424(b)
or, if no filing pursuant to Rule 424(b) is made, such form of
prospectus included in the Registration Statement at the Effective
Date, is hereinafter called the "International Prospectus"; and the
U.S. Prospectus and the International Prospectus are hereinafter
collectively called the "Prospectuses". Insofar as they relate to
offers or sales of Securities in Canada, all references herein to the
U.S. Preliminary Prospectus (as defined in paragraph (ix) below) and
the U.S. Prospectus shall include the Canadian Offering Memorandum.
(ii) On the Effective Date, the Registration Statement did or
will, and when the Prospectuses are first filed (if required) in
accordance with Rule 424(b) and on the Closing Date (as defined
herein) and on any date on which shares sold in respect of the
International Underwriters' over-allotment option are purchased, if
such date is not the Closing Date (a "Settlement Date"), the
Prospectuses (and any supplements thereto) will comply in all material
respects with the applicable requirements of the Act and the rules
and regulations thereunder; on the Effective Date, the Registration
Statement did not or will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading; and, on the Effective Date, the Prospectuses, if not filed
pursuant to Rule 424(b), did not or will not, and on the date of any
filing pursuant to Rule 424(b) and on the Closing Date and any
Settlement Date, the Prospectuses (together with any supplement
thereto) will not, include any untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the Company makes
no representations or warranties as to the information contained in or
omitted from the Registration Statement or the Prospectuses (or any
supplement thereto) in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of any
International Underwriter through the International Representatives
specifically for inclusion in the Registration Statement or the
International Prospectus (or any supplement thereto).
(iii) The Company and its subsidiaries listed in Schedule II
attached hereto (individually a "Subsidiary" and collectively, the
"Subsidiaries") have
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in effect all the telecommunications regulatory licenses,
permits, authorizations, consents and approvals ("Telecommunications
Licenses") required to be obtained from the Federal Communications
Commission ("FCC") for the Company and its Subsidiaries to conduct
their respective businesses as presently conducted and, to the extent
required, have filed applications, received comfort letters, or
obtained Telecommunications Licenses from the applicable regulatory
authorities outside the United States, except for Telecommunications
Licenses that the failure to obtain would not have a material adverse
effect on the Company and its Subsidiaries, taken as a whole. The
Company and its Subsidiaries are not required to obtain any
Telecommunications Licenses or to file any tariffs for
telecommunications services in the States of New York, Nebraska or
Delaware, those States where it is currently qualified to transact
business, because the Company and its Subsidiaries do not market
intrastate services and do not provide intrastate telecommunications
services in those states. To the best of the Company's knowledge, the
Telecommunications Licenses obtained by the Company or its
Subsidiaries have been duly and validly issued and are in full force
and effect and no proceedings to revoke or restrict such
Telecommunications Licenses are pending or threatened, except that the
Section 214 UK Facilities Authorization (as such term is defined in
the Prospectuses) is still subject to third party petitions for
reconsideration up to and until October 21, 1996, and the Section 214
Global Authorization (as such term is defined in the Prospectuses) and
the Section 214 UK Authorization are subject to FCC reconsideration on
its own motion up to and until October 22, 1996 and October 30, 1996,
respectively. In addition, the Company and its Subsidiaries have in
effect with the FCC all international switched, international private
line and/or United States domestic interexchange service tariffs
necessary to conduct their respective businesses in the manner
presently conducted, except to the extent that the failure to file
such tariffs would not have a material adverse effect on the Company
and its Subsidiaries, taken as a whole.
(iv) The Company and its Subsidiaries are not in violation of
any rule or regulation or any judgment, injunction, order or decree of
the FCC or of the
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telecommunications regulatory authority of the States of New York,
Nebraska or Delaware or of any foreign jurisdiction in which the
Company or its Subsidiaries conduct business having jurisdiction over
the Company or the Subsidiaries, respectively, or over their
respective properties except for violations which would not have a
material adverse effect on the Company and its Subsidiaries, taken as
a whole.
(v) Except as described in the Prospectuses, within and
between the member states of the European Union (as defined in the
Prospectuses) where the Company operates, the Company is not offering
services that are prohibited as Voice Telephony (as defined in the
Prospectuses). The Company and its Subsidiaries are not in violation
of any of the terms and conditions of any of the Telecommunications
Licenses and are not in violation of any of the applicable statutes,
ordinances, rules, regulations or laws of any of the respective
countries in which the Company or its Subsidiaries conduct their
respective businesses, except to the extent that such violation would
not have a material adverse effect on the Company and its
Subsidiaries, taken as a whole, and except as described in the
Prospectuses.
(vi) The Company is not offering services within Switzerland
or Japan or between either of these countries and any other country,
that are prohibited by Switzerland or Japan.
(vii) The Company is using its leased line between the United
States and the United Kingdom only for calls that (1) originate in one
of those countries and terminate in the other, (2) originate or
terminate in countries which the FCC deems to be "equivalent" or (3)
originate in third countries and are routed between such countries and
the United Kingdom end of the leased line over the international
public switched telephone network as International Message
Telecommunications Services ("IMTS").
(viii) There is no outstanding adverse judgment, injunction,
decree or order that has been issued by the Public Utilities
Commission ("PUC") of the States of New York, Nebraska or Delaware
against the Company or any of its Subsidiaries or any action,
proceeding or investigation pending before or threatened by the PUC
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of the States of New York, Nebraska or Delaware against the Company or
any of its Subsidiaries which would have a material adverse effect on
the Company and its Subsidiaries, taken as a whole.
(ix) The terms which follow, when used in this Agreement,
shall have the meanings indicated. The term "the Effective Date"
shall mean each date that the Registration Statement, any
post-effective amendment or amendments thereto and any Rule 462(b)
Registration Statement became or become effective. "Execution Time"
shall mean the date and time that this Agreement is executed and
delivered by the parties hereto. The "U.S. Preliminary Prospectus"
and the "International Preliminary Prospectus", respectively, shall
mean any preliminary prospectus with respect to the offering of the
U.S. Securities and the International Securities, as the case may be,
referred to in paragraph (i) above and any preliminary prospectus with
respect to the offering of the U.S. Securities and the International
Securities, as the case may be, included in the Registration Statement
at the Effective Date that omits Rule 430A Information; and the U.S.
Preliminary Prospectus and the International Preliminary Prospectus
are hereinafter collectively called the "Preliminary Prospectuses".
"Registration Statement" shall mean the registration statement
referred to in paragraph (i) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at
the Execution Time, in the form in which it shall become effective)
and, in the event any post-effective amendment thereto or any Rule
462(b) Registration Statement becomes effective prior to the Closing
Date (as hereinafter defined), shall also mean such registration
statement as so amended or such Rule 462(b) Registration Statement, as
the case may be. Such term shall include any Rule 430A Information
deemed to be included therein at the Effective Date as provided by
Rule 430A. "Rule 424", "Rule 430A" and "Rule 462" refer to such rules
under the Act. "Rule 430A Information" means information with respect
to the Securities and the offering thereof permitted to be omitted
from the Registration Statement when it becomes effective pursuant to
Rule 430A. "Rule 462(b) Registration Statement" shall mean a
registration statement and any amendments thereto filed pursuant to
Rule 462(b) relating to the offering covered by the initial
registration statement (file number 333-09699).
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"United States or Canadian Person" shall mean any person who is a
national or resident of the United States or Canada, any corporation,
partnership, or other entity created or organized in or under the laws
of the United States or Canada or of any political subdivision
thereof, or any estate or trust the income of which is subject to
United States or Canadian Federal income taxation, regardless of its
source (other than any non-United States or non-Canadian branch of any
United States or Canadian Person), and shall include any United States
or Canadian branch of a person other than a United States or Canadian
Person. "U.S." or "United States" shall mean the United States of
America (including the states thereof and the District of Columbia),
its territories, its possessions and other areas subject to its
jurisdiction.
2. Purchase and Sale. (a) Subject to the terms and
conditions and in reliance upon the representations and warranties herein set
forth, the Company agrees to sell to each International Underwriter, and each
International Underwriter agrees, severally and not jointly, to purchase from
the Company, at a purchase price of $ per share, the amount of the
International Underwritten Securities set forth opposite such International
Underwriter's name in Schedule I hereto, plus any additional number of
Securities which such International Underwriter may be obligated to purchase
pursuant to Section 9 of this Agreement. It is understood that the Company is
not obligated to sell, and the International Underwriters are not obligated to
purchase, any International Underwritten Securities, unless all the U.S.
Underwritten Securities are contemporaneously purchased by the U.S.
Underwriters.
(b) Subject to the terms and conditions and in reliance upon
the representations and warranties herein set forth, the Company hereby grants
an option to the several International Underwriters to purchase, severally and
not jointly, up to 520,020 shares of the International Option Securities at the
same purchase price per share as the International Underwriters shall pay for
the International Underwritten Securities. Said option may be exercised only
to cover over-allotments in the sale of the International Underwritten
Securities by the International Underwriters. Said option may be exercised in
whole or in part at any time (but not more than once) on or before the 30th day
after the date of the International Prospectus upon written notice by the
International Representatives to the Company setting
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forth the number of shares of the International Option Securities as to which
the several International Underwriters are exercising the option and, subject
to Section 3 hereof, the Settlement Date. The Settlement Date may be the same
as the Closing Date but not earlier than the Closing Date nor later than ten
business days after the date of such notice. Delivery of certificates for the
shares of International Option Securities by the Company and payment therefor
to the Company shall be made as provided in Section 3 hereof. The number of
shares of the International Option Securities to be purchased by each
International Underwriter shall be the same percentage of the total number of
shares of the International Option Securities to be purchased by the several
International Underwriters as such International Underwriter is purchasing of
the International Underwritten Securities, subject to such adjustments as you
in your absolute discretion shall make to eliminate any fractional shares.
3. Delivery and Payment. Delivery of and payment for the
International Underwritten Securities and the International Option Securities
(if the option provided for in Section 2(b) hereof shall have been exercised on
or before the second business day prior to the Closing Date) shall be made at
10:00 a.m., New York City time, on , 1996, or such later date (not
later than , 1996) as the International Representatives and the U.S.
Representatives shall designate, which date and time may be postponed by
agreement among the International Representatives, the U.S. Representatives and
the Company or as provided in Section 9 hereof (such date and time of delivery
and payment for the International Securities being herein called the "Closing
Date"). Delivery of the International Securities shall be made to the
International Representatives for the respective accounts of the several
International Underwriters against payment by the several International
Underwriters through the International Representatives of the purchase price
thereof to or upon the order of the Company by wire transfer of New York
Clearing House same day funds. Delivery of the International Underwritten
Securities and the International Option Securities shall be made at such
location as the International Representatives shall reasonably designate at
least one business day in advance of the Closing Date and payment for such
International Securities shall be made at the office of Cravath, Swaine & Xxxxx
or at such location as may be agreed to by the International Representatives
and the Company. Certificates for the International Securities
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shall be registered in such names and in such denominations as the
International Representatives may request not less than two full business days
in advance of the Closing Date.
The Company agrees to have the International Securities
available for inspection, checking and packaging by the International
Representatives in New York, New York, not later than 1:00 p.m. on the business
day prior to the Closing Date.
If the option provided for in Section 2(b) hereof is exercised
after the second business day prior to the Closing Date, the Company will
deliver (at the expense of the Company) to the International Representatives,
at Seven World Trade Center, New York, New York or at such location as may be
agreed to by the International Representatives and the Company, on the date
specified by the International Representatives (which shall be within three
business days after exercise of said option), certificates for the
International Option Securities in such names and denominations as the
International Representatives shall have requested against payment of the
purchase price thereof to or upon the order of the Company by wire transfer of
New York Clearing House same day funds. If settlement for the International
Option Securities occurs after the Closing Date, the Company will deliver to
the International Representatives on the Settlement Date for the International
Option Securities, and the obligation of the International Underwriters to
purchase the International Option Securities shall be conditioned upon receipt
of, supplemental opinions, certificates and letters confirming as of such date
the opinions, certificates and letters delivered on the Closing Date pursuant
to Section 6 hereof.
It is understood and agreed that the Closing Date shall occur
simultaneously with the "Closing Date" under the U.S. Underwriting Agreement,
and that the Settlement Date, if any, shall occur simultaneously with the
"Settlement Date" under the U.S. Underwriting Agreement.
4. Offering by International Underwriters. It is understood
that the several International Underwriters propose to offer the International
Securities for sale to the public as set forth in the International Prospectus.
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5. Agreements.
(a) The Company agrees with the several International
Underwriters that:
(i) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and
any amendment thereof to become effective. Prior to the termination
of the offering of the Securities, the Company will not file any
amendment to the Registration Statement, supplement to the
Prospectuses or any Rule 462(b) Registration Statement without your
prior consent. Subject to the foregoing sentence, if the Registration
Statement has become or becomes effective pursuant to Rule 430A, or
filing of the Prospectuses is otherwise required under Rule 424(b),
the Company will cause the Prospectuses, properly completed, and any
supplement thereto to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed
and will provide evidence satisfactory to the International
Representatives of such timely filing. Upon your request, the Company
will cause the Rule 462(b) Registration Statement, completed in
compliance with the Act and the applicable rules and regulations
thereunder, to be filed with the Commission pursuant to Rule 462(b)
and will provide evidence satisfactory to the International
Representatives of such filing. The Company will promptly advise the
International Representatives (A) when the Registration Statement, if
not effective at the Execution Time, and any amendment thereto, shall
have become effective, (B) when the Prospectuses, any supplement
thereto or any Rule 462(b) Registration Statement, shall have been
filed (if required) with the Commission pursuant to Rule 424(b), (C)
when, prior to termination of the offering of the Securities, any
amendment to the Registration Statement shall have been filed or
become effective, (D) of any request by the Commission for any
amendment to the Registration Statement, or any Rule 462(b)
Registration Statement, or supplement to the Prospectuses or for any
additional information, (E) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement
or the institution or threatening of any proceeding for that purpose
and (F) of the receipt by the Company of any notification with respect
to the suspension of the qualification of the Securities for
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sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose. The Company will use its best efforts to
prevent the issuance of any such stop order and, if issued, to obtain
as soon as possible the withdrawal thereof.
(ii) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which either of the Prospectuses as then supplemented
would include any untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading,
or if it shall be necessary to amend the Registration Statement or
supplement either of the Prospectuses to comply with the Act or the
rules and regulations thereunder, the Company promptly will (i)
prepare and file with the Commission, subject to the second sentence
of paragraph (a) of this Section 5, an amendment or supplement which
will correct such statement or omission or effect such compliance and
(ii) supply any supplemented Prospectuses to you in such quantities as
you may reasonably request.
(iii) As soon as practicable, the Company will make generally
available to its security holders and to the International
Representatives an earnings statement or statements of the Company and
its Subsidiaries which will satisfy the provisions of Section 11(a) of
the Act and Rule 158 under the Act.
(iv) The Company will furnish to the International
Representatives and counsel for the International Underwriters,
without charge, signed copies of the Registration Statement (including
exhibits thereto) and to each other International Underwriter a copy
of the Registration Statement (without exhibits thereto) and, so long
as delivery of a prospectus by an International Underwriter or dealer
may be required by the Act or otherwise required, as many copies of
each of the International Preliminary Prospectus and the International
Prospectus and any supplement thereto as the International
Representatives may reasonably request. The Company will furnish or
cause to be furnished to the International Representatives copies of
all reports on Form SR required by Rule 463 under the Act. The
Company will pay the expenses of printing
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or other production of all documents relating to the offering.
(v) The Company will endeavor, in good faith, in cooperation
with the International Representatives to arrange for the
qualification of the Securities for sale under the laws of such
jurisdictions as the International Representatives may designate, will
maintain such qualifications in effect so long as required for the
distribution of the Securities; provided, however, that the Company
shall not be required to qualify as a foreign corporation or file a
general consent to service of process in any such jurisdiction; and
will pay the fee of the National Association of Securities Dealers,
Inc., in connection with its review of the offering.
(vi) The Company will not, for a period of 180 days following
the Execution Time, without the prior written consent of Salomon
Brothers Inc, offer, sell or contract to sell, or otherwise dispose
of, directly or indirectly, or announce the offering of, any other
shares of Common Stock or any securities convertible into, or
exchangeable for, shares of Common Stock; provided, however, that the
Company may issue and sell Common Stock pursuant to any employee stock
option plan of the Company in effect at the Execution Time.
(vii) The Company confirms as of the date hereof that it is
in compliance with all provisions of Section 517.075, Florida
Statutes, relating to issuers doing business with the Government of
Cuba or with any person or affiliate located in Cuba, and the Company
further agrees that if it commences engaging in business with the
government of Cuba or with any person or affiliate located in Cuba
after the date the Registration Statement becomes or has become
effective with the Commission or with the Florida Department of
Banking and Finance (the "Department"), whichever date is later, or if
the information reported in the Prospectuses, if any, concerning the
Company's business with Cuba or with any person or affiliate located
in Cuba changes in any material way, the Company will provide the
Department notice of such business or change, as appropriate, in a
form acceptable to the Department.
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(b) Each International Underwriter agrees with the
Company that (i) it is not purchasing any of the International Securities for
the account of any United States or Canadian Person, (ii) it has not offered or
sold, and will not offer or sell, directly or indirectly, any of the
International Securities or distribute any International Prospectus to any
person in the United States or Canada, or to any United States or Canadian
Person, and (iii) any dealer to whom it may sell any of the International
Securities will represent that it is not purchasing for the account of any
United States or Canadian Person and agree that it will not offer or resell,
directly or indirectly, any of the International Securities in the United
States or Canada, or to any United States or Canadian Person or to any other
dealer who does not so represent and agree; provided, however, that the
foregoing shall not restrict (A) purchases and sales between the U.S.
Underwriters on the one hand and the International Underwriters on the other
hand pursuant to the Agreement Between U.S. Underwriters and International
Underwriters, (B) stabilization transactions contemplated under the Agreement
Between U.S. Underwriters and International Underwriters, conducted through
Salomon Brothers Inc (or through the U.S. Representatives and the International
Representatives) as part of the distribution of the Securities, and (C) sales
to or through (or distributions of International Prospectuses or International
Preliminary Prospectuses to) persons not United States or Canadian Persons who
are investment advisors, or who otherwise exercise investment discretion, and
who are purchasing for the account of any United States or Canadian Person.
(c) The agreements of the International Underwriters set
forth in paragraph (b) of this Section 5 shall terminate upon the earlier of
the following events:
(i) a mutual agreement of the U.S. Representatives and
the International Representatives to terminate the selling
restrictions set forth in paragraph (b) of this Section 5 and in
Section 5(b) of the U.S. Underwriting Agreement; or
(ii) the expiration of a period of 30 days after the
Closing Date, unless (A) the International Representatives shall have
given notice to the Company and the U.S. Representatives that the
distribution of the International Securities by the International
Underwriters has not yet been completed, or (B) the
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U.S. Representatives shall have given notice to the Company and the
International Underwriters that the distribution of the U.S.
Securities by the U.S. Underwriters has not yet been completed. If
such notice by the U.S. Representatives or the International
Representatives is given, the agreements set forth in such paragraph
(b) shall survive until the earlier of (1) the event referred to in
clause (i) of this subsection (c) or (2) the expiration of an
additional period of 30 days from the date of any such notice.
(d) Each International Underwriter severally represents
and agrees with the Company that:
(i) it has not offered or sold and, prior to the expiry
of six months from the closing of the International Offering, will not
offer or sell in the United Kingdom, by means of any document, any
International Securities other than to persons whose ordinary
activities involve them in acquiring, holding, managing or disposing
of investments (whether as principal or agent) for the purposes of
their businesses or otherwise in circumstances which have not resulted
in and will not result in an offer to the public within the meaning of
the Public Offers of Securities Regulations 1995;
(ii) it has complied and will comply with all applicable
provisions of The Financial Services Xxx 0000 with respect to anything
done by it in relation to the International Securities, in, from or
otherwise involving the United Kingdom; and
(iii) it has only issued or passed on and will only issue
or pass on in the United Kingdom any document received by it in
connection with the issue of the International Securities to a person
who is of a kind described in Article 11(3) of the Financial Services
Xxx 0000 (Investment Advertisements) (Exemptions) Order 1996 or a
person to whom such document may otherwise lawfully be issued or
passed on.
6. Conditions to the Obligations of the International
Underwriters. The obligations of the International Underwriters to purchase
the International Underwritten Securities and the International Option
Securities, as the case may be, shall be subject to the accuracy of the
representations and warranties on the part
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of the Company contained herein as of the Execution Time, the Closing Date and
any Settlement Date pursuant to Section 3 hereof, to the accuracy of the
statements of the Company made in any certificates pursuant to the provisions
hereof, to the performance by the Company of its obligations hereunder and to
the following additional conditions:
(a) If the Registration Statement has not become effective
prior to the Execution Time, unless the U.S. Representatives and the
International Representatives agree in writing to a later time, the
Registration Statement will become effective not later than (i) 5:30 p.m., New
York City time, on the date of determination of the public offering price, if
such determination occurred at or prior to 3:00 p.m., New York City, time on
such date or (ii) 12:00 noon on the business day following the day on which the
public offering price was determined, if such determination occurred after 3:00
p.m., New York City time, on such date; if filing of either of the
Prospectuses, or any supplement thereto, is required pursuant to Rule 424(b),
the Prospectuses, and any such supplement, will be filed in the manner and
within the time period required by Rule 424(b); and no stop order suspending
the effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the International
Representatives the opinion of Xxxxxxx X. Xxxxxxx, Esq., U.S. General Counsel,
for the Company, dated the Closing Date, to the effect that:
(i) each of the Company and the Subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, with full
corporate power and corporate authority to own its properties and to
conduct its business as described in the Prospectuses, and is duly
qualified to transact business as a foreign corporation and is in good
standing under the laws of each jurisdiction which requires such
qualification wherein it owns or leases material properties or
conducts material business, except to the extent that the failure to
be so qualified or to be in good standing would not have a material
adverse effect on the Company and its Subsidiaries, taken as a whole,
or such other opinion as is satisfactory to counsel for the
International Underwriters;
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(ii) all the outstanding shares of capital stock of each
Subsidiary have been duly authorized and are validly issued, fully paid
and nonassessable, and all outstanding shares of capital stock of the
Subsidiaries are owned by the Company, either directly or through
wholly owned subsidiaries, free and clear of any perfected security
interest and, to the knowledge of such counsel, after due inquiry
(without investigation of the laws of any jurisdiction other than New
York), any other security interests, claims, liens or encumbrances, or
such other opinion as is satisfactory to counsel for the International
Underwriters;
(iii) the Company's authorized equity capitalization is as set
forth in the Prospectuses under the caption "Description of Capital
Stock"; the capital stock of the Company conforms to the description
thereof contained in the Prospectuses; the outstanding shares of
Common Stock have been duly authorized and are validly issued, fully
paid and nonassessable; the Securities have been duly authorized, and,
when issued and delivered to and paid for by the International
Underwriters pursuant to this Agreement and by the U.S. Underwriters
pursuant to the U.S. Underwriting Agreement, will be validly issued,
fully paid and nonassessable; the certificates for the Securities are
in valid and sufficient form; and the holders of outstanding shares of
capital stock of the Company are not entitled to preemptive or other
rights to subscribe for the Securities;
(iv) to the best knowledge of such counsel, there are no
pending or threatened actions, suits or proceedings before any court
or governmental agency, authority or body or any arbitrator involving
the Company or any of its Subsidiaries of a character required to be
disclosed in the Registration Statement or the Prospectuses which are
not adequately described therein, and there is no franchise, contract
or other document of a character required to be described in the
Registration Statement or the Prospectuses, or to be filed as an
exhibit to the Registration Statement, which is not described or filed
as required; and the statements in the Prospectuses under the caption
"Business--Legal Proceedings" present the information called for with
respect to such legal matters, documents and proceedings and fairly
summarize the matters referred to therein;
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(v) this Agreement and the U.S. Underwriting Agreement have
been duly authorized, executed and delivered by the Company;
(vi) no consent, approval, authorization or order of any court
or governmental agency or body is required by the Company or any of
the Subsidiaries for the consummation of the transactions contemplated
herein or in the U.S. Underwriting Agreement; provided, that such
counsel need not express an opinion with respect to state securities
or Blue Sky laws or statutes, rules and regulations relating to the
FCC and matters regulated by the FCC or statutes, rules and
regulations relating to foreign telecommunications regulatory
authorities and matters regulated by such authorities;
(vii) neither the issue and sale of the Securities, nor the
consummation of any other of the transactions contemplated herein or
in the U.S. Underwriting Agreement nor the fulfillment of the terms
hereof or thereof will conflict with, result in a breach or violation
of, or constitute a default under any provision of applicable law or
the certificate of incorporation or by-laws of the Company or, to the
best of such counsel's knowledge, the terms of any indenture or other
agreement or instrument to which the Company or any of its
Subsidiaries is a party or bound that is material to the Company and
its Subsidiaries, taken as a whole, or, to the best of such counsel's
knowledge, any judgment, injunction, order or decree of any court,
regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over the Company or any of its
Subsidiaries; and
(viii) no holders of securities of the Company have rights to
the registration of such securities under the Registration Statement.
In rendering such opinion, such counsel may rely (A) as to matters involving
the application of laws of any jurisdiction other than the State of New York,
the United States or the General Corporation Law of the State of Delaware to
the extent such counsel deems proper and as specified in such opinion, upon the
opinion of other counsel of good standing whom such counsel believes to be
reliable and who are satisfactory to counsel for the International Underwriters
and (B) as to matters of fact, to the extent deemed proper, on certificates of
responsible officers of
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the Company and public officials. References to the Prospectuses in this
paragraph (b) include any supplements thereto at the Closing Date.
In addition, such counsel shall state that nothing has come to his attention
that leads him to believe that the Registration Statement at the time the
Registration Statement became effective (other than the financial statements
and supporting notes and schedules and other financial and statistical data
contained therein, as to which such counsel need not comment) contained any
untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading, or that the Prospectuses (other than the financial
statements and supporting notes and schedules and other financial and
statistical data contained therein, as to which such counsel need not comment)
contain any untrue statement of a material fact or omit 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.
(c) The Company shall have furnished to the International
Representatives the opinion of Xxxxxx Xxxx & Xxxxxx LLP, special counsel for
the Company, dated the Closing Date, to the effect that:
(i) each of the Company and YYC Communications, Inc. (the
"U.S. Subsidiary") has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of
Delaware with full corporate power and corporate authority to own its
properties and to conduct its business as described in the
Prospectuses, and is duly qualified to transact business as a foreign
corporation and is in good standing under the laws of each
jurisdiction which requires such qualification wherein it owns or
leases material properties or conducts material business, except to
the extent that the failure to be so qualified or to be in good
standing would not have a material adverse effect on the Company and
its Subsidiaries, taken as a whole;
(ii) the Company's authorized equity capitalization is as set
forth in the Prospectuses under the caption "Description of Capital
Stock"; the capital stock of the Company conforms to the description
thereof contained under the captions "Description of Capital
Stock--Common Stock" and "Description of Capital Stock--Preferred
Stock" in the Prospectuses and the capital stock of the Company
conforms in all material respects to the description thereof contained
under the caption "Description of Capital
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Stock--General" in the Prospectuses; the Securities have been duly
authorized, and, when issued and delivered to and paid for by the
International Underwriters pursuant to this Agreement and by the U.S.
Underwriters pursuant to the U.S. Underwriting Agreement, will be
validly issued, fully paid and nonassessable; and the certificates for
the Securities are in valid and sufficient form;
(iii) the Registration Statement has become effective under the
Act; any required filing of the Prospectuses, and any supplements
thereto, pursuant to Rule 424(b) has been made in the manner and within
the time period required by Rule 424(b); to the best knowledge of such
counsel, no stop order suspending the effectiveness of the Registration
Statement has been issued, no proceedings for that purpose have been
instituted or threatened and the Registration Statement and each of the
Prospectuses (other than the financial statements and supporting notes
and schedules and other financial and statistical data contained
therein as to which such counsel need not comment) comply as to form in
all material respects with the applicable requirements of the Act and
the rules thereunder; the statements in the International Prospectus
under the caption "Certain United States Tax Considerations for
Non-United States Holders," insofar as they purport to constitute
summaries of matters of United States federal tax law and regulations
or legal conclusions with respect thereto, constitute accurate
summaries of the matters described therein in all material respects;
(iv) this Agreement and the U.S. Underwriting Agreement have
been duly authorized, executed and delivered by the Company;
(v) to the best of such counsel's knowledge, no consent,
approval, authorization or order of any court or governmental agency
or body is required by the Company or any of the Subsidiaries for the
consummation of the transactions contemplated herein or in the U.S.
Underwriting Agreement; provided, that such counsel need not express
an opinion with respect to state securities or Blue Sky laws or
statutes, rules and
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regulations relating to the FCC and matters regulated by the FCC; and
(vi) neither the issue and sale of the Securities, nor the
consummation of any other of the transactions contemplated herein or
in the U.S. Underwriting Agreement nor the fulfillment of the terms
hereof or thereof will conflict with, result in a breach or violation
of, or constitute a default under any provision of applicable law or
the certificate of incorporation or by-laws of the Company or, to the
best of such counsel's knowledge, the terms of any indenture or other
agreement or instrument to which the Company or any of its
Subsidiaries is a party or bound that is material to the Company and
its Subsidiaries, taken as a whole, or, to the best of such counsel's
knowledge, any judgment, injunction, order or decree of any court,
regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over the Company or any of its
Subsidiaries.
In rendering such opinion, such counsel may rely (A) as to matters involving
the application of laws of any jurisdiction other than the State of New York,
the United States or the General Corporation Law of the State of Delaware, to
the extent such counsel deems proper and as specified in such opinion, upon the
opinion of other counsel of good standing whom such counsel believes to be
reliable and who are satisfactory to counsel for the International Underwriters
and (B) as to matters of fact, to the extent such counsel deems proper, on
certificates of responsible officers of the Company and public officials.
References to the Prospectuses in this paragraph (c) include any supplements
thereto at the Closing Date.
In addition, such counsel shall state that nothing has come to
their attention that leads them to believe that the Registration Statement at
the time the Registration Statement became effective (other than the financial
statements and supporting notes and schedules and other financial and
statistical data contained therein, as to which such counsel
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need not comment) contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or necessary in order
to make the statements therein not misleading, or that the Prospectuses (other
than the financial statements and supporting notes and schedules and other
financial and statistical data contained therein, as to which such counsel need
not comment) contain any untrue statement of a material fact or omit 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. In rendering
such opinion, such counsel may state that their opinion and belief is based
upon their participation in the preparation of the Registration Statement and
Prospectuses and review and discussion of the contents thereof, but is without
independent check or verification.
(d) The Company shall have furnished to the International
Representatives the opinion of Xxxxxxxx & Xxxxxxxx LLP, special communications
counsel for the Company, dated the Closing Date, to the effect that:
(i) the Section 214 Private Line Authorization, the Section 214
Switched Authorization, the Section 214 Global Authorization and the
Section 214 UK Facilities Authorization (as such terms are defined in
the Prospectuses) are the only Telecommunications Licenses required
from the FCC for the Company and its Subsidiaries to conduct their
business as presently conducted, except for FCC Telecommunications
Licenses that the failure to obtain would not have a material adverse
effect on the Company and its Subsidiaries, taken as a whole. The FCC
Telecommunications Licenses currently held by the Company and its
Subsidiaries have been duly and validly issued and are in full force
and effect, and to the best knowledge of such counsel no proceedings
to revoke or restrict such FCC Telecommunications Licenses are pending
or threatened, except that the Section 214 Global Authorization and
the Section 214 UK Facilities Authorization are still subject to
FCC reconsideration on its own motion up to and until October 22, 1996
and October 30, 1996, respectively. To the best of such counsel's
knowledge after due inquiry and based upon a certificate of an officer
of the Company, a copy of which is attached to such opinion as an
exhibit (stating that the Company is using its leased line between the
United States and the United Kingdom only for calls that (1) originate
in one of those countries and terminate in the other, (2) originate or
terminate in countries which the FCC deems to be "equivalent" or (3)
originate in third
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countries and are routed between such countries and the United
Kingdom end of the leased line over the international public switched
telephone network as IMTS), the Company and its Subsidiaries are not
in violation of any of the terms and conditions of any of their FCC
Telecommunications Licenses, are not in violation of the
Communications Act and are not in violation of any FCC rules or
regulations, except to the extent that such violation would not have a
material adverse effect on the Company and its Subsidiaries, taken as
a whole and except as described in the Prospectuses under the captions
"Risk Factors -- Substantial Government Regulation" and "Business --
Government Regulation -- Overview." Insofar as this opinion pertains
to the application or interpretation of any non-U.S. law, such counsel
has performed no due diligence in this regard other than discussing
with management of the Company the Company's operations and compliance
with applicable FCC requirements and reviewing any portions of the
opinions of local counsel of Argentina, Belgium, Brazil, Colombia,
France, Germany, Italy, Japan, Korea, the Netherlands, Spain,
Switzerland, and the United Kingdom specifically regarding the
provision of international call-back service in certain jurisdictions
in which the Company operates, without any further inquiry or any
independent review of any laws of any such jurisdictions. The Company
and its Subsidiaries have in effect with the FCC all international
switched, international private line and/or United States domestic
interexchange service tariffs necessary to conduct their respective
businesses in the manner presently conducted, except to the extent
that the failure to file such tariffs would not have a material
adverse effect on the Company and its Subsidiaries, taken as a whole;
(ii) to the extent they constitute a summary of the legal
matters, documents or proceedings referred to therein, the statements
in the Prospectuses under the captions "Risk Factors--Substantial
Government Regulation," "Risk Factors--Competition," "Business--Market
Opportunity," "Business--Services," "Business--The Viatel Network,"
"Business--Competition" and "Business--Government Regulation," fairly
present the information called for with respect to such legal matters,
documents and proceedings and fairly summarize the matters referred to
therein;
(iii) the Company and its Subsidiaries are not required to
obtain any state Telecommunications Licenses or to file any tariffs
required for the provision of telecommunications services in the
States of New York, Nebraska or Delaware to conduct their respective
businesses as presently conducted;
(iv) there is no outstanding adverse judgment, injunction,
decree or order that has been issued by the FCC against the Company or
any of its Subsidiaries or, to the best of such counsel's knowledge
after due inquiry, any action, proceeding or investigation pending
before the FCC or pending or threatened by the FCC against the Company
or any of its Subsidiaries which, if the subject of an unfavorable
decision,
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ruling or finding, would have a material adverse effect on the
Company and its Subsidiaries, taken as a whole, except that the Section
214 Global Authorization and the Section 214 UK Facilities
Authorization are still subject to FCC reconsideration on its own
motion up to and until October 22, 1996 and October 30, 1996,
respectively;
(v) based on discussions with management, an inquiry
concerning and review of relevant publicly available documents and a
certificate of an officer of the Company, a copy of which is attached
to such opinion as an exhibit, there is no outstanding adverse
judgment, injunction, decree or order that has been issued by the PUC
of the States of New York, Nebraska or Delaware against the Company or
any of its Subsidiaries or, to the best of such counsel's knowledge
after due inquiry, any action, proceeding or investigation pending
before or threatened by the PUC of the States of New York, Nebraska or
Delaware against the Company or any of its Subsidiaries which, if the
subject of an unfavorable decision, ruling or finding, would have a
material adverse effect on the Company and its Subsidiaries, taken as
a whole;
(vi) no license, permit, consent, approval, order or
authorization of, or filing with, the FCC or with the PUC of the
States of New York, Nebraska or Delaware on the part of the Company or
its Subsidiaries is required in connection with the issuance of the
Securities; and
(vii) neither the issue and sale of Securities nor the
performance by the Company of its obligations under this Agreement or
the U.S. Underwriting Agreement will result in a violation of the
Communications Act, or any applicable rules or the regulations
promulgated under the Communications Act binding on the Company or its
Subsidiaries or, to the best of such counsel's knowledge after due
inquiry, any order, writ, judgment, injunction, decree or award of the
FCC binding on the Company or its Subsidiaries.
In rendering such opinion, such counsel may rely (A) with respect to the
opinion expressed in paragraphs (iii) and
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(vi) above on a certificate of officers of the Company, a copy of which shall
be attached to such opinion as an exhibit, to the effect that the Company's
business as conducted does not and will not until the proper regulatory
approvals are obtained, allow intrastate calls originating and terminating in
the States of New York, Nebraska or Delaware, (B) to the extent such counsel
deems proper and as specified in such opinion, upon the opinion of other
counsel of good standing whom such counsel believes to be reliable and who are
satisfactory to counsel for the International Underwriters and (C) as to
matters of fact, to the extent such counsel deems proper, on certificates of
responsible officers of the Company and public officials, copies of which shall
be attached to such counsel's opinion as exhibits. References to the
Prospectuses in this paragraph (d) include any supplements thereto at the
Closing Date.
Such counsel also shall state that the Section 214 Switched
Authorization, the Section 214 Private Line Authorization and the Section 214
Global Authorization require the Company and its Subsidiaries to provide any
international call-back service using uncompleted call signaling in a manner
that is consistent with the laws of the countries in which they operate. Such
counsel shall state that although such counsel does not provide legal services
to the Company or its Subsidiaries regarding the application or interpretation
of any non-U.S. law and although such counsel has performed no due diligence in
this regard other than discussing with management of the Company the Company's
operations and compliance with applicable FCC requirements and reviewing any
portions of the opinions of local counsel of Argentina, Belgium, Brazil,
Colombia, France, Germany, Italy, Japan, Korea, the Netherlands, Spain,
Switzerland, and the United Kingdom specifically regarding the provision of
international call-back service in certain jurisdictions in which the Company
operates, such counsel is not aware of any non-compliance in the provision of
international call-back service by the Company with the laws of any foreign
jurisdiction in which the Company operates that would constitute a violation of
the Section 214 Switched Authorization, the Section 214 Private Line
Authorization or the Section 214 Global Authorization and have a material
adverse effect on the Company and its Subsidiaries taken as a whole. For the
purpose of making such statement, such counsel may rely, to the extent such
counsel deems proper and as specified in such opinion, upon such counsel's
review of any portions of
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the opinions of local counsel of Argentina, Belgium, Brazil, Colombia, France,
Germany, Italy, Japan, Korea, the Netherlands, Spain, Switzerland, and the
United Kingdom specifically regarding the provision of international call-back
service provided by the Company, without any further inquiry or any independent
review of any laws of any such jurisdictions.
(e) The Company shall have furnished to the International
Representatives the opinions of local counsel of good standing whom the Company
believes to be reliable, and who are satisfactory to counsel for the
International Underwriters, in each of Argentina, Belgium, Brazil, Colombia,
France, Germany, Italy, Japan, Korea, the Netherlands, Spain, Switzerland, and
the United Kingdom dated the Closing Date, or such date prior to the Closing
Date as is satisfactory to counsel for the International Underwriters, in the
following form or in such other form as is acceptable to counsel for the
International Underwriters:
(i) if applicable to such country, each of the Subsidiaries
operating in such country (the "Local Subsidiaries") has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, with full
corporate power and corporate authority to own its properties and to
conduct its business as described in the Prospectuses, and is duly
qualified to transact business as a foreign corporation and is in good
standing under the laws of each jurisdiction which requires such
qualification wherein it owns or leases material properties or
conducts material business, except to the extent that the failure to
be so qualified or to be in good standing would not have a material
adverse effect on the Company and its Subsidiaries, taken as a whole;
(ii) all the outstanding shares of capital stock of the Local
Subsidiaries have been duly authorized and are validly issued, fully
paid and nonassessable, and all outstanding shares of capital stock of
the Local Subsidiaries are owned by the Company, either directly or
through wholly owned subsidiaries, free and clear of any perfected
security interest and, to the best knowledge of such counsel, any
other security interests, claims, liens or encumbrances.
(iii) if applicable to such country, neither the issue and
sale of the Securities, nor the consummation
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of any other of the transactions contemplated herein or in the U.S.
Underwriting Agreement nor the fulfillment of the terms hereof or
thereof will conflict with, result in a breach or violation of, or
constitute a default under any provision of applicable law or the
charter or by-laws of the Local Subsidiaries or, to the best of such
counsel's knowledge, the terms of any indenture or other agreement or
instrument to which any of the Local Subsidiaries is a party or bound
or, to the best of such counsel's knowledge, any judgment, injunction,
order or decree of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over the Local
Subsidiaries;
(iv) the Company and the Local Subsidiaries have all
Telecommunications Licenses necessary for the Company and the Local
Subsidiaries to conduct their respective businesses as presently
conducted in such country except for Telecommunications Licenses that
the failure to obtain would not have a material adverse effect on the
Company or the Local Subsidiaries; to the knowledge of such counsel
such Telecommunications Licenses are in full force and effect and no
proceedings to revoke or restrict such Telecommunications Licenses are
pending or threatened; and to the knowledge of such counsel the
Company and its Subsidiaries are in material compliance with all of
the applicable telecommunications laws and rules and regulations of
such country; and
(v) to the knowledge of such counsel after due inquiry of
Company officers, the Company and the Local Subsidiaries are not in
violation of any telecommunications law, rule or regulation of such
country or of any judgment, injunction, order or decree of the
telecommunications regulatory authority having jurisdiction over the
Company or such Local Subsidiaries, respectively, or over its
properties except for violations which would not have a material
adverse effect on the Company and its Subsidiaries, taken as a whole.
In addition, counsel from European Union member states and from Switzerland
shall state in their opinions that the Company is not offering services that
are prohibited as Voice Telephony (as defined in the Prospectuses). Counsel
from Switzerland shall state that the Company is not
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offering services in Switzerland or between Switzerland and any other country
that are prohibited by Switzerland. Counsel from Japan shall state that, to the
best of such counsel's knowledge based solely upon discussions with the
Company's management and a certificate from an officer of the Company, the
Company's client in Japan is in material compliance with all applicable
telecommunications laws and related rules and regulations in Japan.
Additionally, counsel from the United Kingdom shall also state that to the
extent they constitute a summary of the legal matters, documents or proceedings
referred to therein, the statements in the Prospectuses under the heading
"Business--Government Regulation--Regulatory Framework--Europe," fairly present
the information called for with respect to such legal matters, documents and
proceedings and fairly summarize the matters referred to therein.
(f) The International Representatives shall have received
from Cravath, Swaine & Xxxxx, counsel for the International Underwriters, such
opinion or opinions, dated the Closing Date, with respect to the issuance and
sale of the Securities, the Registration Statement, the Prospectuses (together
with any supplement thereto) and other related matters as the International
Representatives may reasonably require, and the Company shall have furnished to
such counsel such documents as they request for the purpose of enabling them to
pass upon such matters.
(g) The Company shall have furnished to the International
Representatives a certificate of the Company, signed by (1) the Chairman of the
Board and Chief Executive Officer or the President and Chief Operating Officer
and (2) the Vice President, Finance, Treasurer and Chief Financial Officer of
the Company, dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement, the
Prospectuses, any supplements to the Prospectuses and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the Closing Date with the same effect as if made on the Closing Date
and the Company has complied with all the agreements and satisfied all
the conditions on its part to be performed or satisfied at or prior to
the Closing Date;
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(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial statements
included in the Prospectuses (exclusive of any supplement thereto),
there has been no material adverse change in the condition (financial
or otherwise), earnings, business or properties of the Company and its
Subsidiaries, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the
Prospectuses (exclusive of any supplement thereto).
(h) At the Execution Time and at the Closing Date, KPMG Peat
Marwick LLP shall have furnished to the International Representatives a letter
or letters, dated respectively as of the Execution Time and as of the Closing
Date, in form and substance satisfactory to the International Representatives,
confirming that they are independent accountants within the meaning of the Act
and the applicable published rules and regulations thereunder and that they
have performed a review of the unaudited financial information for the six
months ended June 30, 1996 in accordance with Statement of Auditing Standards
No. 71 and stating in effect that:
(i) in their opinion the audited financial statements and
financial statement schedule included in the Registration Statement
and the Prospectuses and reported on by them comply in form in all
material respects with the applicable accounting requirements of the
Act and the related published rules and regulations;
(ii) on the basis of a reading of the latest unaudited
financial statements made available by the Company and its
Subsidiaries; carrying out certain specified procedures (but not an
examination in accordance with generally accepted auditing standards)
which would not necessarily reveal matters of significance with
respect to the comments set forth in such letter; a reading of the
minutes of the meetings of the stockholders, directors and
compensation and audit committees of the Company and the Subsidiaries;
and inquiries of certain officials of the Company who have
responsibility for financial and accounting
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matters of the Company and the Subsidiaries as to transactions and
events subsequent to December 31, 1995, nothing came to their
attention which caused them to believe that:
(1) any unaudited financial statements included in
the Registration Statement and the Prospectuses do not comply
in form in all material respects with applicable accounting
requirements of the Act and with the published rules and
regulations of the Commission with respect to registration
statements on Form S-1; and said unaudited financial
statements are not in conformity with generally accepted
accounting principles applied on a basis substantially
consistent with that of the audited financial statements
included in the Registration Statement and the Prospectuses;
or
(2) with respect to the period subsequent to June 30,
1996, there were any changes, at a specified date not more
than five business days prior to the date of the letter, in
the long-term liabilities of the Company and its Subsidiaries
or capital stock of the Company and its Subsidiaries or
decreases in the total stockholders' equity of the Company as
compared with the amounts shown on the June 30, 1996
consolidated balance sheet included in the Registration
Statement and the Prospectuses; or for the period from July 1,
1996 to such specified date there were any decreases, as
compared with the corresponding period in the preceding year,
in telecommunications revenue or increases in net losses or in
total or per share amounts of net losses of the Company and
its Subsidiaries or in total operating expenses, except in all
instances for changes or decreases set forth in such letter,
in which case the letter shall be accompanied by an
explanation by the Company as to the significance thereof
unless said explanation is not deemed necessary by the
International Representatives; or
(3) the information included in the Registration
Statement and the Prospectuses in response to Regulation S-K,
Item 301 (Selected Financial Data), Item 302 (Supplementary
Financial Information) and Item 402 (Executive Compensation)
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31
is not in conformity with the applicable disclosure
requirements of Regulation S-K; and
(iii) they have performed certain other specified procedures
as a result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Company and its Subsidiaries) set
forth in the Registration Statement and the Prospectuses, including
the information set forth under the captions "Prospectus Summary",
"Risk Factors", "Use of Proceeds", "Capitalization", "Selected
Consolidated Financial and Other Data", "Management's Discussion and
Analysis of Financial Condition and Results of Operations",
"Business", "Management", and "Certain Transactions" in the
Prospectuses, agrees with the accounting records of the Company and
its Subsidiaries, excluding any questions of legal interpretation.
References to the Prospectuses in this paragraph (h) include
any supplement thereto at the date of the letter.
The International Representatives shall have also received
from KPMG Peat Marwick LLP a letter stating that the Company's system of
internal accounting controls taken as a whole is sufficient to meet the broad
objectives of internal accounting control insofar as those objectives pertain
to the prevention or detection of errors or irregularities in amounts that
would be material in relation to the financial statements of the Company and
its Subsidiaries.
(i) Subsequent to the Execution Time or, if earlier, the
dates as of which information is given in the Registration Statement (exclusive
of any amendment thereof) and the Prospectuses (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease specified in the
letter or letters referred to in paragraph (h) of this Section 6 or (ii) any
change, or any development involving a prospective change, in or affecting the
business or properties of the Company and its Subsidiaries the effect of which,
in any case referred to in clause (i) or (ii) above, is, in the judgment of the
International Representatives, so material and adverse as to make it
impractical or inadvisable to proceed with the
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offering or delivery of the Securities as contemplated by the Registration
Statement (exclusive of any amendment thereof) and the Prospectuses (exclusive
of any supplement thereto).
(j) At the Execution Time, the Company shall have furnished
to the International Representatives a letter substantially in the form of
Exhibit A hereto from each officer and director of the Company and each holder
of one percent (1%) or more of outstanding shares of Common Stock of the
Company addressed to the International Representatives, in which each such
person agrees not to offer, sell or contract to sell, or otherwise dispose of,
directly or indirectly, or announce an offering of, any shares of Common Stock
beneficially owned by such person or any securities convertible into, or
exchangeable for, shares of Common Stock for a period of 180 days following the
Execution Time without the prior written consent of Salomon Brothers Inc, other
than shares of Common Stock disposed of as bona fide gifts.
(k) Prior to the Closing Date, the Company shall have
furnished to the International Representatives such further information,
certificates and documents as the International Representatives may reasonably
request.
(l) The closing of the purchase of the U.S. Underwritten
Securities to be issued and sold by the Company pursuant to the U.S.
Underwriting Agreement shall occur concurrently with the closing described
herein.
(m) The Securities shall be duly authorized for listing,
subject to official notice of issuance, on the Nasdaq National Market
("Nasdaq").
(n) At the Execution Time and at the Closing Date, Xxxxxx
Xxxxxx & Company LLP shall have furnished to the International Representatives
a letter or letters, dated respectively as of the Execution Time and as of the
Closing Date, in form and substance satisfactory to the International
Representatives, confirming that they are independent accountants within the
meaning of the Act and the applicable published rules and regulations
thereunder and that they have performed specified procedures as a result of
which they determined that certain information of an accounting, financial or
statistical nature (which is limited to accounting, financial or statistical
information derived from the general accounting records of the Company
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and its Subsidiaries) set forth in the Registration Statement and the
Prospectuses under the caption "Selected Consolidated Financial and Other Data"
agrees with the accounting records of the Company and its Subsidiaries,
excluding any questions of legal interpretation.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the International Representatives and
counsel for the International Underwriters, this Agreement and all obligations
of the International Underwriters hereunder may be canceled at, or at any time
prior to, the Closing Date by the International Representatives. Notice of
such cancellation shall be given to the Company in writing, by facsimile or by
telephone confirmed in writing.
The documents required to be delivered by this Section 6 shall
be delivered at the office of Cravath, Swaine & Xxxxx at Worldwide Plaza, 000
Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, xx the Closing Date or such other place as
the International Representatives and the Company shall mutually agree.
7. Reimbursement of International Underwriters' Expenses. If
the sale of the Securities provided for herein is not consummated because any
condition to the obligations of the International Underwriters set forth in
Section 6 hereof is not satisfied, because of any termination pursuant to
Section 10 hereof or because of any refusal, inability or failure on the part
of the Company to perform any agreement herein or comply with any provision
hereof other than by reason of a default by any of the International
Underwriters, the Company will reimburse the International Underwriters
severally upon demand for all out-of-pocket expenses (including reasonable fees
and disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Securities.
8. Indemnification and Contribution. (a) The Company agrees
to indemnify and hold harmless each International Underwriter, the directors,
officers, employees and agents of each International Underwriter and each
person who controls any International Underwriter within the meaning of either
the Act or the Securities
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Exchange Act of 1934 (the "Exchange Act") against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may
become subject under the Act, the Exchange Act or other Federal or state
statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the registration statement for the registration of
the Securities as originally filed or in any amendment thereof, or in any U.S.
or International Preliminary Prospectus or in either of the Prospectuses, or in
any amendment thereof or supplement thereto, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
and agrees to reimburse each such indemnified party, as incurred, for any legal
or other expenses reasonably incurred by them in connection with investigating
or defending any such loss, claim, damage, liability or action; provided,
however, that (i) the Company will not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon
any such untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any International
Underwriter through the International Representatives specifically for
inclusion therein and (ii) with respect to any untrue statement or omission of
a material fact made in any International Preliminary Prospectus, the indemnity
agreement contained in this Section 8(a) shall not inure to the benefit of any
International Underwriter (or any of the directors, officers, employees and
agents of such International Underwriter or any controlling person of such
International Underwriter) from whom the person asserting any such loss, claim,
damage or liability purchased the Securities concerned, to the extent that any
such loss, claim, damage or liability of such International Underwriter occurs
under the circumstances where it shall have been determined by a court of
competent jurisdiction by final and nonappealable judgment that (w) the Company
had previously furnished copies of the International Prospectus to the
International Underwriters, (x) delivery of the International Prospectus was
required by the Act to be made to such person, (y) the untrue statement or
omission of a material fact contained in the International Preliminary
Prospectus was corrected in the International Prospectus and (z) there was not
sent or
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given to such person, at or prior to the written confirmation of the sale of
such Securities to such person, a copy of the International Prospectus. This
indemnity agreement will be in addition to any liability which the Company may
otherwise have.
(b) Each International Underwriter severally agrees to
indemnify and hold harmless the Company, each of its directors, each of its
officers who signs the Registration Statement, and each person who controls the
Company within the meaning of either the Act or the Exchange Act, to the same
extent as the foregoing indemnity from the Company to each International
Underwriter, but only with reference to written information relating to such
International Underwriter furnished to the Company by or on behalf of such
International Underwriter through the International Representatives
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability which
any International Underwriter may otherwise have. The Company acknowledges
that the statements set forth in the last paragraph of the cover page and under
the heading "Underwriting" in any U.S. or International Preliminary Prospectus
and the Prospectuses constitute the only information furnished in writing by or
on behalf of the several International Underwriters for inclusion in any U.S.
or International Preliminary Prospectus or the Prospectuses, and you, as the
International Representatives, confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure
results in the forfeiture by the indemnifying party of substantial rights and
defenses and (ii) will not, in any event, relieve the indemnifying party from
any obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. The indemnifying party
shall be entitled to appoint counsel of the indemnifying party's choice at the
indemnifying party's expense to represent the indemnified party in any action
for which indemnification is sought (in which case the
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indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
satisfactory to the indemnified party. Notwithstanding the indemnifying
party's election to appoint counsel to represent the indemnified party in an
action, the indemnified party shall have the right to employ separate counsel
(including local counsel), and the indemnifying party shall bear the reasonable
fees, costs and expenses of such separate counsel if (i) the use of counsel
chosen by the indemnifying party to represent the indemnified party would
present such counsel with a conflict of interest, (ii) the actual or potential
defendants in, or targets of, any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have
reasonably concluded that there may be legal defenses available to it and/or
other indemnified parties which are different from or additional to those
available to the indemnifying party, (iii) the indemnifying party shall not
have employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution of
such action or (iv) the indemnifying party shall authorize the indemnified
party to employ separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the International
Underwriters agree to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending same) (collectively "Losses") to
which the Company and one or more of the International Underwriters may be
subject in such proportion as is appropriate to reflect the relative benefits
received by the Company and by the International Underwriters from the offering
of the International
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Securities; provided, however, that in no case shall any International
Underwriter (except as may be provided in any agreement among underwriters
relating to the offering of the International Securities) be responsible for
any amount in excess of the underwriting discount or commission applicable to
the Securities purchased by such International Underwriter hereunder. If the
allocation provided by the immediately preceding sentence is unavailable for
any reason, the Company and the International Underwriters shall contribute in
such proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of the Company and of the International
Underwriters in connection with the statements or omissions which resulted in
such Losses as well as any other relevant equitable considerations. Benefits
received by the Company shall be deemed to be equal to the total net proceeds
from the offering (before deducting expenses), and benefits received by the
International Underwriters shall be deemed to be equal to the total
underwriting discounts and commissions, in each case as set forth on the cover
page of the International Prospectus. Relative fault shall be determined by
reference to whether any alleged untrue statement or omission relates to
information provided by the Company or the International Underwriters. The
Company and the International Underwriters agree that it would not be just and
equitable if contribution were determined by pro rata allocation or any other
method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes
of this Section 8, each person who controls an International Underwriter within
the meaning of either the Act or the Exchange Act and each director, officer,
employee and agent of an International Underwriter shall have the same rights
to contribution as such International Underwriter, and each person who controls
the Company within the meaning of either the Act or the Exchange Act, each
officer of the Company who shall have signed the Registration Statement and
each director of the Company shall have the same rights to contribution as the
Company, subject in each case to the applicable terms and conditions of this
paragraph (d).
9. Default by an International Underwriter. If any one or
more International Underwriters shall fail to purchase and pay for any of the
International Securities
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agreed to be purchased by such International Underwriter or International
Underwriters hereunder and such failure to purchase shall constitute a default
in the performance of its or their obligations under this Agreement, the
remaining International Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of International
Securities set forth opposite their names in Schedule I hereto bears to the
aggregate amount of International Securities set forth opposite the names of
all the remaining International Underwriters) the International Securities
which the defaulting International Underwriter or International Underwriters
agreed but failed to purchase; provided, however, that in the event that the
aggregate amount of International Securities which the defaulting International
Underwriter or International Underwriters agreed but failed to purchase shall
exceed 10% of the aggregate amount of International Securities set forth in
Schedule I hereto, the remaining International Underwriters shall have the
right to purchase all, but shall not be under any obligation to purchase any,
of the International Securities, and if such nondefaulting International
Underwriters do not purchase all the International Securities, this Agreement
will terminate without liability to any nondefaulting International Underwriter
or the Company. In the event of a default by any International Underwriter as
set forth in this Section 9, the Closing Date shall be postponed for such
period, not exceeding seven days, as the International Representatives shall
determine in order that the required changes in the Registration Statement and
the Prospectuses or in any other documents or arrangements may be effected.
Nothing contained in this Agreement shall relieve any defaulting International
Underwriter of its liability, if any, to the Company and any nondefaulting
International Underwriter for damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to
termination in the absolute discretion of the International Representatives, by
notice given to the Company prior to delivery of and payment for the
International Securities, if prior to such time (i) trading in the Company's
Common Stock shall have been suspended by the Commission or the Nasdaq or
trading in securities generally on the New York Stock Exchange or the Nasdaq
shall have been suspended or limited or minimum prices shall have been
established on the New York Stock Exchange or the Nasdaq, (ii) a banking
moratorium shall have been declared either by Federal or New York State
authorities or
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(iii) there shall have occurred any outbreak or escalation of hostilities,
declaration by the United States of a national emergency or war or other
calamity or crisis the effect of which on financial markets is such as to make
it, in the judgment of the International Representatives, impracticable or
inadvisable to proceed with the offering or delivery of the Securities as
contemplated by the International Prospectus (exclusive of any supplement
thereto).
11. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers and of the International Underwriters
set forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of any
International Underwriter or the Company or any of the officers, directors or
controlling persons referred to in Section 8 hereof, and will survive delivery
of and payment for the International Securities. The provisions of Sections 7
and 8 hereof shall survive the termination or cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the International
Representatives, will be mailed, delivered or telecopied and confirmed to them
care of Salomon Brothers International Limited, at Victoria Plaza, 111
Buckingham Palace Road, London SW1W OSB England, attention: Legal Department;
or, if sent to the Company, will be mailed, delivered or telecopied and
confirmed to it at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention of
Xxxxxxx X. Xxxxxxx, Esq.
13. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 8 hereof,
and no other person will have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York.
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If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several International Underwriters.
Very truly yours,
Viatel, Inc.
By: .........................
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Salomon Brothers International Limited
CS First Boston Limited
Lazard Capital Markets
By: Salomon Brothers International Limited
By:
............................
Name:
Title:
For themselves and the other
several International Underwriters named
in Schedule I to the foregoing
Agreement.
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SCHEDULE I
to the International Underwriting Agreement
Number of Shares of International
Underwritten Securities
International Underwriters To Be Purchased
-------------------------- -----------------------
Salomon Brothers International Limited . . .
CS First Boston Limited . . . . . . . . . . .
Lazard Capital Markets . . . . . . . . . . .
---------
Total . . . . . . . . . . .
=========
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SCHEDULE II
to the International Underwriting Agreement
SUBSIDIARIES
1. Viatel U.K. Limited (U.K.)
2. Viaphone S.R.L. (Italy)
3. Viatel S.R.L. (Italy)
4. VPN, S.A. (France)
5. Viatel S.A. (France)
6. YYC Communications, Inc. (Delaware)
7. Viafon Dat Iberica, S.A. (Spain)
8. Viatel Global Communication Espana S.A. (Spain)
9. Viatel SA/NV (Belgium)
10. Viatel BV (branch) of Viatel Belgium (Belgium)
11. Viatel Gmbh (Germany)
12. In Liquidation Datex S.R.L.
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EXHIBIT A
[Letterhead of executive officer, director or 1% stockholder of Viatel, Inc.]
Viatel, Inc.
Public Offering of Common Stock
, 1996
Salomon Brothers Inc
CS First Boston Corporation
Lazard Freres & Co. LLC
Salomon Brothers International Limited
CS First Boston Limited
Lazard Capital Markets
As U.S. and International Representatives
of the several U.S. and International
Underwriters,
c/o Salomon Brothers Inc
Seven Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Dear Sirs:
This letter is being delivered to you in connection with the
proposed U.S. and International Underwriting Agreements (the "Underwriting
Agreements"), between Viatel, Inc., a Delaware corporation (the "Company"), and
you as representatives of a group of U.S. and International Underwriters named
in the Underwriting Agreements, relating to an underwritten public offering of
common stock, $.01 par value (the "Common Stock"), of the Company.
In order to induce you and the other U.S. and International
Underwriters to enter into the Underwriting Agreements, the undersigned agrees
not to offer, sell or contract to sell, or otherwise dispose of, directly or
indirectly, or announce an offering of, any shares of Common Stock beneficially
owned by the undersigned or any securities convertible into, or exchangeable
for, shares of Common Stock for a period of 180 days following the day on which
the Underwriting Agreements are executed without the prior written consent of
Salomon Brothers Inc, other than shares of Common Stock disposed of as bona
fide gifts.
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2
If for any reason the Underwriting Agreements shall be
terminated prior to the Closing Date (as defined in the Underwriting
Agreements), the agreement set forth above shall likewise be terminated.
Yours very truly,
[Signature of executive officer,
director or 1% stockholder]
[Name and address of
executive officer, director or 1%
stockholder]
