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EXHIBIT 4.21
VERIO INC.
$400,000,000
10-5/8% SENIOR NOTES DUE 2009
PURCHASE AGREEMENT
New York, New York
November 16, 1999
XXXXXXX XXXXX XXXXXX INC.
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
XXXXXX XXXXXXX & CO. INCORPORATED
c/o Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Verio Inc., a Delaware corporation (the "Company"), proposes
to sell, severally and not jointly, to Xxxxxxx Xxxxx Xxxxxx Inc., Xxxxxxxxx,
Xxxxxx & Xxxxxxxx Securities Corporation and Xxxxxx Xxxxxxx & Co. Incorporated
(together, the "Initial Purchasers") $400,000,000 principal amount of its
10-5/8% Senior Notes Due 2009 (the "Securities") as set forth on Schedule I
hereto, to be issued under an indenture (the "Indenture") dated as of November
19, 1999 between the Company and U.S. Bank Trust National Association, as
trustee (the "Trustee").
The sale of the Securities to the Initial Purchasers will be
made without registration of the Securities under the Securities Act of 1933, as
amended (the "Securities Act"), in reliance upon exemptions from the
registration requirements of the Securities Act. The Initial Purchasers have
advised the Company that the Initial Purchasers will offer and sell the
Securities purchased by them hereunder in accordance with Section 4 of this
agreement (this "Agreement" or the "Purchase Agreement") as soon as they deem
advisable.
In connection with the sale of the Securities, the Company has
prepared a preliminary offering memorandum, dated November 12, 1999 (including
any information incorporated by reference therein, the "Preliminary
Memorandum"), and a final offering memorandum, dated November 16, 1999
(including any information incorporated by reference therein, the "Final
Memorandum"). Each of the Preliminary Memorandum and the Final Memorandum sets
forth certain information concerning the Company and the Securities. The Company
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hereby confirms that it has authorized the use of the Preliminary Memorandum and
the Final Memorandum, and any amendment or supplement thereto, in connection
with the offer and sale of the Securities by the Initial Purchasers. Unless
stated to the contrary, all references herein to the Final Memorandum are to the
Final Memorandum at the Execution Time (as defined below) and are not meant to
include any amendment or supplement subsequent to the Execution Time. All
references in this Agreement to financial statements and schedules and other
information that is "contained", "included" or "stated", or words of similar
import, in the Preliminary Memorandum or Final Memorandum shall be deemed to
mean and include all such financial statements and schedules and other
information which are incorporated by reference in the Preliminary Memorandum or
Final Memorandum, as the case may be.
The holders of the Securities will be entitled to the benefits
of the Registration Agreement to be dated as of November 19, 1999, between the
Company and the Initial Purchasers (the "Registration Agreement").
This Agreement, the Indenture, the Securities and the
Registration Agreement are referred to herein as the "Transaction Documents".
Capitalized terms used herein without definitions have the
respective meanings assigned to them in the Final Memorandum.
1. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, each Initial Purchaser as set forth
below in this Section 1.
(a) The Preliminary Memorandum, at the date thereof, did not
contain any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading. The Final
Memorandum, at the date hereof, does not, and at the Closing Date (as
defined below) will not (and any amendment or supplement thereto, at
the date thereof and at the Closing Date, will not), contain any untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the Company makes no representation or warranty as to the
information contained in or omitted from the Preliminary Memorandum or
the Final Memorandum, or any amendment or supplement thereto, in
reliance upon and in conformity with information furnished in writing
to the Company by or on behalf of the Initial Purchasers specifically
for inclusion therein.
(b) The documents incorporated or deemed to be incorporated by
reference in the Preliminary Memorandum and Final Memorandum, at the
time they were or hereafter are filed with the Securities and Exchange
Commission (the "Commission"), complied and will comply in all material
respects with the requirements of the
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Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
the rules and regulations thereunder and, when read together with the
other information in the Preliminary Memorandum or Final Memorandum, as
the case may be, at the time issued did not, and as of the Closing Date
will not, contain any untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading.
(c) The Company has been advised by The Portal Market that the
Securities have been designated Portal-eligible securities in
accordance with the rules and regulations of the National Association
of Securities Dealers, Inc. (the "NASD").
(d) None of the Company nor any of its Affiliates (as defined
in Rule 501(b) under the Securities Act) has, directly or through any
agent, sold, offered for sale, solicited offers to buy or otherwise
negotiated in respect of, any security (as defined in the Securities
Act) which could be integrated with the sale of the Securities in a
manner that would require the registration of the Securities under the
Securities Act.
(e) None of the Company nor any of its Affiliates (as defined
in Rule 501(b) under the Securities Act) or any person (other than the
Initial Purchasers, as to whom the Company makes no representation)
acting at the request of the Company has engaged, in connection with
the offering of the Securities, (A) in any form of general solicitation
or general advertising within the meaning of Rule 502(c) under the
Securities Act, (B) in any directed selling efforts within the meaning
of Rule 902 under the Securities Act in the United States in connection
with the Securities being offered and sold pursuant to Regulation S
under the Securities Act, (C) in any manner involving a public offering
within the meaning of Section 4(2) of the Securities Act or (D) in any
action which would require the registration of the offering and sale of
the Securities pursuant to this Agreement or which would violate
applicable state securities or "blue sky" laws.
(f) Assuming that the representations and warranties of the
Initial Purchasers contained in Section 4 are true, correct and
complete, and assuming compliance by the Initial Purchasers with their
covenants in Section 4, and assuming that the representations and
warranties deemed to be made by non-U.S. persons and "qualified
institutional buyers" ("QIBs") (as defined in Rule 144A under the
Securities Act) purchasing Securities are true and correct as of the
Closing Date, it is not necessary in connection with the offer, sale
and delivery of the Securities to the Initial Purchasers in the manner
contemplated by, or in connection with the initial resale of such
Securities by the Initial Purchasers in accordance with, this Agreement
to register the Securities under the Securities Act or to qualify any
indenture in respect of the Securities under the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act").
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(g) The subsidiaries of the Company listed on Schedule II
hereto (also referred to herein as the "Subsidiaries") are the only
subsidiaries of the Company that constitute "significant subsidiaries"
within the meaning of Rule 1-02(w) of Regulation S-X under the
Securities Act. Each of the Company and the Subsidiaries has been duly
organized or incorporated, as the case may be, and is validly existing
and in good standing under the laws of its jurisdiction of organization
or incorporation, with all requisite power and authority under such
laws (a) to own, lease and operate their respective properties and to
conduct their respective businesses as now conducted and as described
in the Final Memorandum and (b) to enter into, deliver, incur and
perform their respective obligations under the Transaction Documents,
except, in the case of the foregoing subclause (a) for authorizations,
approvals, orders, leases, certificates and permits, the failure of
which to possess could not reasonably be expected to have a Material
Adverse Effect (as defined below); and are all duly qualified to do
business as foreign partnerships or corporations in good standing in
all other jurisdictions where the ownership or leasing of their
respective properties or the conduct of their respective businesses
requires such qualification, except where the failure to be so
qualified could not reasonably be expected to have a material adverse
effect (i) on the business, condition (financial or otherwise), results
of operations, business affairs or business prospects of the Company
and the Subsidiaries taken as a whole or (ii) on the ability of the
Company to perform any of its obligations under the Transaction
Documents or to consummate any of the transactions contemplated hereby
or thereby (a "Material Adverse Effect"). The Company has no ISP
affiliates (other than the Subsidiaries) that would individually
constitute a "significant subsidiary" of the Company within the meaning
of Rule 1-02(w) of Regulation S-X under the Securities Act, if any such
ISP affiliate were a subsidiary of the Company.
(h) The Securities, the Exchange Notes and the Private
Exchange Notes have been duly authorized by the Company, and the
Company has all requisite corporate power and authority to execute,
issue and deliver the Securities, the Exchange Notes and the Private
Exchange Notes and to incur and perform its obligations provided for
therein.
(i) The Securities, when executed, authenticated and issued in
accordance with the terms of the Indenture (assuming the due
authorization, execution and delivery of the Indenture by the Trustee)
and when delivered against payment of the purchase price therefor as
provided in this Agreement, will constitute valid and binding
obligations of the Company, entitled to the benefits of the Indenture
and enforceable against the Company in accordance with the terms
thereof; and the Exchange Notes and the Private Exchange Notes, if any,
when executed, authenticated, issued and delivered by the Company in
exchange for the Securities in
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accordance with the terms of the Registration Agreement, will
constitute valid and binding obligations of the Company, entitled to
the benefits of the Indenture and enforceable against the Company in
accordance with the terms thereof; subject, in the case of each of the
foregoing, to (a) applicable bankruptcy, insolvency, reorganization,
moratorium and similar laws affecting creditors' rights and remedies
generally, (b) general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law) and (c) the
discretion of the court before which any proceeding therefor may be
brought (clauses (a), (b) and (c) being referred to herein as the
"Enforceability Limitations") and except that the waiver of stay or
extension laws contained in Section 5.15 of the Indenture may be
unenforceable.
(j) This Agreement has been, and, as of the Closing Date, the
Indenture, and the Registration Agreement will have been, duly
authorized, executed and delivered by the Company, and upon such
execution by the Company (assuming the due authorization, execution and
delivery by parties thereto other than the Company), as of the Closing
Date, the Indenture and the Registration Agreement will constitute the
valid and binding obligations of the Company, enforceable against the
Company in accordance with the terms hereof or thereof, subject only to
the Enforceability Limitations and except that the waiver of stay or
extension laws contained in Section 5.15 of the Indenture may be
unenforceable.
(k) No consent, waiver, authorization, approval, license,
qualification or order of, or filing or registration with, any court or
governmental or regulatory agency or body, domestic or foreign, is
required for the issue and sale of the Securities or the Exchange Notes
or the Private Exchange Notes, if any, the performance by the Company
of its obligations under the Transaction Documents, or for the
consummation of any of the transactions contemplated hereby or thereby,
including, without limitation, the issuance and sale of the Securities
hereunder, except such as may be required (A) in connection with the
registration under the Securities Act of the Exchange Notes or the
Private Exchange Notes, if any, pursuant to the Registration Agreement
(including any filing with the NASD), (B) in order to qualify the
Indenture under the Trust Indenture Act or (C) by state securities or
"blue sky" laws in connection with the offer and sale of the Securities
or the registration thereof or of the Exchange Notes or the Private
Exchange Notes pursuant to the Registration Agreement.
(l) The issuance, sale and delivery of the Securities, the
Exchange Notes and the Private Exchange Notes, if any, the execution,
delivery and performance by the Company of this Agreement, the
Indenture and the Registration Agreement and the consummation by the
Company of the transactions contemplated hereby, thereby and in the
Final Memorandum and the compliance by the Company with the terms of
the foregoing do not, and, at the Closing Date, will not conflict with
or constitute or result in a breach or violation by the Company or any
of the Subsidiaries of (A) any of the terms or provisions of, or
constitute a default (or an event which, with notice or lapse of time
or both, would constitute a default) by any of the Company or the
Subsidiaries
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or give rise to any right to accelerate the maturity or require the
prepayment of any indebtedness under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company or the Subsidiaries under any contract,
indenture, mortgage, deed of trust, loan agreement, note, lease,
license, franchise agreement, authorization, permit, certificate or
other agreement or document to which any of the Company or the
Subsidiaries is a party or by which any of them may be bound, or to
which any of them or any of their respective assets or businesses is
subject (collectively, "Contracts") (and the Company has no knowledge
of any conflict, breach or violation of such terms or provisions or of
any such default, in any such case, which has occurred or will so
result), (B) the articles or by-laws (each, an "Organizational
Document") of each of the Company and the Subsidiaries or (C) any law,
statute, rule or regulation, or any judgment, decree or order, in any
such case, of any domestic or foreign court or governmental or
regulatory agency or other body having jurisdiction over the Company or
any of the Subsidiaries or any of their respective properties or
assets. Schedule III hereto lists each Contract with respect to which
any conflict, breach or violation of the terms or provisions thereof or
any default with respect thereto could have a Material Adverse Effect
(each such Contract being referred to herein as a "Material Contract").
(m) The Securities, the Exchange Notes, the Private Exchange
Notes, the Indenture and the Registration Agreement will each conform
in all material respects to the descriptions thereof in the Final
Memorandum.
(n) The audited financial statements included or incorporated
by reference in the Final Memorandum, including the notes thereto,
respectively present fairly the financial position of the Company and
its consolidated subsidiaries, NSNet, Inc., Access One, Inc., STARnet,
L.L.C., Computing Engineers Inc., LI Net, Inc., NTX, Inc. and Best
Internet Communications, Inc. at the dates indicated, and the statement
of operations, stockholders' deficit/equity and cash flows of each of
such persons and, where applicable, such persons' consolidated
subsidiaries for the periods indicated, have been prepared in
conformity with United States generally accepted accounting principles
("GAAP") applied on a consistent basis throughout the periods involved.
The selected financial data and the summary financial information
included in the Final Memorandum present fairly the information shown
therein and have been compiled on a basis consistent with that of the
financial statements of the Company and its consolidated subsidiaries
included in the Final Memorandum. KPMG LLP, which has examined such
financial statements as set forth in its report included or
incorporated by reference in the Final Memorandum, is an independent
public accounting firm with respect to each of such persons and, where
applicable such persons' subsidiaries within the meaning of Regulation
S-X under the Securities Act. Except as disclosed in the Final
Memorandum, the pro forma financial information relating to the Company
and its Subsidiaries and the related notes thereto included in the
Final Memorandum
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present fairly the information shown therein, have been prepared in all
material respects in accordance with the Commission's rules and
guidelines with respect to pro forma financial adjustments and have
been properly computed on the bases described therein, and the
assumptions used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect to the
transactions and circumstances referred to therein.
(o) Since the respective dates as of which information is
given in the Final Memorandum, except as otherwise specifically stated
therein, there has been no (A) material adverse change in the business,
condition (financial or otherwise), results of operations, business
affairs or business prospects of the Company and the Subsidiaries taken
as a whole, whether or not arising in the ordinary course of business
(a "Material Adverse Change"), (B) transaction entered into by any of
the Company or the Subsidiaries, other than in the ordinary course of
business, that is material to the Company and the Subsidiaries taken as
a whole or (C) dividend or distribution of any kind declared, paid or
made by the Company on its capital stock.
(p) The Company has the authorized, issued and outstanding
capitalization set forth in the Final Memorandum under the caption
"Description of Capital Stock"; all of the outstanding capital stock of
the Company has been duly authorized and validly issued, is fully paid
and nonassessable and was not issued in violation of any preemptive or
similar rights (whether provided contractually or pursuant to any
Organizational Document). Except as set forth in the Final Memorandum
under the caption "Business-- The Verio Organization", the Company does
not own, directly or indirectly, any material amount of shares, or any
other material amount of equity or long-term debt securities or have
any material equity interest in any firm, partnership, joint venture or
other entity. Except as set forth in the Final Memorandum, no holder of
any securities of the Company is entitled to have such securities
(other than the Securities, the Exchange Notes and the Private Exchange
Notes, if any) registered under any registration statement contemplated
by the Registration Agreement. All of the outstanding capital stock of
each of the Subsidiaries has been duly authorized and validly issued,
is fully paid and nonassessable and was not issued in violation of any
preemptive or similar rights (whether provided contractually or
pursuant to any Organizational Document).
(q) None of the Company nor the Subsidiaries is (A) in
violation of its respective Organizational Documents, (B) in default
(or, with notice or lapse of time or both, would be in default) in the
performance or observance of any obligation, agreement, covenant or
condition contained in any Contract or (C) in violation of any law,
statute, judgment, decree, order, rule or regulation of any domestic or
foreign court with jurisdiction over the Company or the Subsidiaries or
any of their respective assets or properties, or other governmental or
regulatory authority, agency or other body,
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other than, in the case of clause (B) or (C), such defaults or
violations which could not, individually or in the aggregate,
reasonably be expected to have or result in a Material Adverse Effect;
and any real property and buildings held under lease by the Company or
the Subsidiaries are held by the Company or such Subsidiary, as the
case may be, under valid, subsisting and enforceable leases with such
exceptions which could not, individually or in the aggregate,
reasonably be expected to have or result in a Material Adverse Effect.
(r) Except as set forth in the Final Memorandum, each of the
Company and the Subsidiaries owns or possesses, or can acquire on
reasonable terms, adequate patents, patent rights, licenses,
trademarks, service marks, trade names, copyrights and know-how
(including trade secrets and other proprietary or confidential
information, systems or procedures) (collectively, "intellectual
property") necessary to conduct the business now or proposed to be
operated by it as described in the Final Memorandum, except where the
failure to own, possess or have the ability to acquire any such
intellectual property could not, individually or in the aggregate, be
reasonably expected to have a Material Adverse Effect; and none of the
Company nor the Subsidiaries has received any notice of infringement of
or conflict with (nor knows of any such infringement of or conflict
with) asserted rights of others with respect to any of such
intellectual property.
(s) Each of the Company and the Subsidiaries has obtained all
material consents, approvals, orders, certificates, licenses, permits,
franchises and other authorizations (collectively, the "Licenses") of
and from, and has made all declarations and filings with, all
governmental and regulatory authorities, all self-regulatory
organizations and all courts and other tribunals necessary to own,
lease, license and use its properties and assets and to conduct its
businesses in the manner described in the Final Memorandum. None of the
Company or the Subsidiaries has received any notice of proceedings
relating to the revocation or modification of, or denial of any
application for, any License which, if the subject of any unfavorable
decision, ruling or finding, could, singly or in the aggregate,
reasonably be expected to have or result in a Material Adverse Effect;
and no event has occurred which allows, or after notice or lapse of
time, or both, would allow, revocation or termination thereof or result
in any other material impairment of the rights of the holder of any
such License, except where such revocation or termination could not,
singly or in the aggregate, reasonably be expected to have or result in
a Material Adverse Effect; and the Licenses referred to above place no
restrictions on the Company or any of the Subsidiaries that are not
described in the Final Memorandum, except where such restrictions could
not, singly or in the aggregate, reasonably be expected to have or
result in a Material Adverse Effect.
(t) There is no legal action, suit, proceeding, inquiry or
investigation before or by any court or governmental body or agency,
domestic or foreign, now
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pending or, to the best knowledge of the Company, threatened against
the Company or any of the Subsidiaries or any of their respective
properties which would be required to be disclosed in a registration
statement filed under the Securities Act.
(u) Each of the Company and the Subsidiaries has filed all
necessary federal, state and foreign income and franchise tax returns,
and has paid all taxes shown as due thereon; and no tax deficiency has
been asserted against any of the Company or the Subsidiaries.
(v) Except as described in the Final Memorandum, including the
financial statements and notes thereto included therein, each of the
Company and the Subsidiaries has good and marketable title to all real
and personal property described in the Final Memorandum as being owned
by it and good and marketable title to a leasehold estate in the real
and personal property described in the Final Memorandum as being leased
by it, free and clear of all liens, charges, encumbrances or
restrictions, except to the extent the failure to have such title or
the existence of such liens, charges, encumbrances or restrictions
could not, individually or in the aggregate, reasonably be expected to
have or result in a Material Adverse Effect.
(w) None of the Company or any of the Subsidiaries is an
"investment company" or a company "controlled by" an "investment
company" as such terms are defined in the Investment Company Act of
1940, as amended, and the rules and regulations thereunder.
(x) None of the Company nor any of the Subsidiaries nor any of
their respective directors, officers or controlling persons has taken,
directly or indirectly, any action designed, or which might reasonably
be expected, to cause or result, under the Securities Act or otherwise,
in, or which has constituted, stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale
of the Securities, the Exchange Notes or the Private Exchange Notes.
(y) No strike, labor problem, dispute, slowdown, work stoppage
or disturbance with the employees of the Company or any of the
Subsidiaries exists or, to the best knowledge of the Company, is
threatened which could, individually or in the aggregate, reasonably be
expected to have or result in a Material Adverse Effect.
(z) The Company has insurance in such amounts and covering
such risks and liabilities as are in accordance with normal industry
practice.
(aa) The statistical and market-related data included in the
Final Memorandum are based on or derived from independent sources which
the Company believes to be reliable and accurate in all material
respects or represent the Company's good faith estimates that are made
on the basis of data derived from such sources.
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(bb) The Company is, and immediately after the Closing Date
will be, Solvent. As used herein, the term "Solvent" means, with
respect to the Company on a particular date, that on such date (A) the
fair market value of the assets of the Company exceeds its respective
liabilities (including without limitation, stated liabilities and
identified contingent liabilities), (B) the present fair salable value
of the assets of the Company will exceed its respective probable
liabilities on its debts (including without limitation, stated
liabilities and identified contingent liabilities), (C) the fair market
value of the Company's total assets exceeds its total liabilities,
including identified contingent liabilities, by an amount at least
equal to the total par value of its common stock both immediately prior
to and after the Offering, (D) the Company is and will be able to pay
its debts (including without limitation, stated liabilities and
identified contingent liabilities) as such debts mature and (E) the
Company will not have unreasonably small capital with which to conduct
its present and anticipated business.
(cc) Except as described in the Final Memorandum or as would
not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect (A) to the Company's knowledge, each of the
Company and the Subsidiaries is in compliance with and not subject to
any known liability under applicable Environmental Laws (as defined
below), (B) to the Company's knowledge, each of the Company and the
Subsidiaries (i) has made all filings and provided all notices required
under any applicable Environmental Law, and (ii) has, and is in
compliance with, all Permits required under any applicable
Environmental Laws, and (iii) each of them is in full force and effect,
(C) to the Company's knowledge, there is no civil, criminal or
administrative action, or, investigation, notice or demand letter or
request for information pending or threatened against the Company or
any of the Subsidiaries under any Environmental Law, and (D) to the
Company's knowledge, no lien, charge, encumbrance or restriction has
been recorded under any Environmental Law with respect to any assets,
facility or property owned, operated, leased or controlled by the
Company or any Subsidiary.
For purposes of this Agreement, "Environmental Laws" means the
common law and all applicable federal, state and local laws or
regulations relating to the protection of the environment, including,
without limitation, laws relating to emissions, discharges, releases or
threatened releases of "hazardous substances," as defined in the
Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended.
(dd) Except as described in the Final Memorandum, none of the
Company nor any of the Subsidiaries has incurred any liability for any
prohibited transaction or funding deficiency or any complete or partial
withdrawal liability with respect to any pension, profit sharing or
other plan which is subject to the Employee Retirement
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Income Security Act of 1974, as amended ("ERISA"), to which the Company
or the Subsidiaries makes or ever has made a contribution and in which
any employee of the Company or any such Subsidiary is or has ever been
a participant, which, individually in the aggregate, could reasonably
be expected to have or result in a Material Adverse Effect. With
respect to such plans, each of the Company and the Subsidiaries is in
compliance in all respects with all applicable provisions of ERISA,
except where the failure to so comply could not, individually or in the
aggregate, reasonably be expected to have or a result in a Material
Adverse Effect.
(ee) Each of the Company and the Subsidiaries maintains a
system of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with
management's general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain asset accountability; (iii) access to assets is permitted only
in accordance with management's general or specific authorization; and
(iv) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(ff) The Securities satisfy the eligibility requirements of
Rule 144A(d)(3) under the Securities Act.
(gg) Any certificate signed by any officer of the Company and
delivered to the Initial Purchasers or to Xxxxxx Xxxxxx & Xxxxxxx,
counsel for the Initial Purchasers ("Counsel for the Initial
Purchasers") pursuant to the terms of this Agreement shall be deemed a
representation and warranty by the Company to the Initial Purchasers as
to the matters covered thereby.
2. Purchase and Sale of the Securities. Subject to the terms
and conditions and in reliance upon the representations and warranties herein
set forth, the Company agrees to sell to each Initial Purchaser, and each
Initial Purchaser agrees, severally and not jointly, to purchase from the
Company, at a purchase price of 99.249% of the principal amount thereof, minus
2.000% of the principal amount thereof, the principal amount of Securities set
forth opposite such Initial Purchaser's name in Schedule I hereto.
3. Delivery and Payment. Delivery of and payment for the
Securities shall be made at 9:00 AM, New York City time, on November 19, 1999 or
such later date as the Initial Purchasers shall designate, which date and time
may be postponed by agreement among the Initial Purchasers and the Company or as
provided in Section 9 hereof (such date and time of delivery and payment for the
Securities being herein called the "Closing Date"). Delivery of the Securities
shall be made to the Initial Purchasers for the respective accounts of the
Initial Purchasers against payment by the Initial Purchasers of the purchase
price thereof to or upon the order of the Company by wire transfer of same day
funds or such other manner
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of payment as may be agreed by the Company and the Initial Purchasers. Delivery
of the Securities shall be made at such location as the Initial Purchasers shall
reasonably designate at least one business day in advance of the Closing Date
and payment for the Securities shall be made at the offices of Xxxxxx Xxxxxx &
Xxxxxxx, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such other location as may
be mutually agreed upon by the Company and the Initial Purchasers. Certificates
for the Securities shall be registered in such names and in such denominations
as the Initial Purchasers may request not less than two full business days in
advance of the Closing Date.
The Company agrees to have the Securities available for
inspection, checking and packaging by the Initial Purchasers in New York, New
York, not later than 10:00 AM on the business day prior to the Closing Date.
4. Offering of Securities. Each Initial Purchaser, severally
and not jointly, represents and warrants to and agrees with the Company that:
(a) It has not offered or sold, and will not offer or sell,
any Securities except (i) to those it reasonably believes to be QIBs
and that, in connection with each such sale, it has taken or will take
reasonable steps to ensure that the purchaser of such Securities is
aware that such sale is being made in reliance on Rule 144A, or (ii) in
accordance with the restrictions set forth in Exhibit A hereto.
(b) Neither it nor any person acting on its behalf has made or
will make offers or sales of the Securities in the United States by
means of any form of general solicitation or general advertising within
the meaning of Regulation D in the United States.
5. Agreements of the Company. The Company agrees with each
Initial Purchaser that:
(a) The Company will furnish to each Initial Purchaser and to
Counsel for the Initial Purchasers, without charge, during the period
referred to in paragraph (c) below, as many copies of the Preliminary
Memorandum and the Final Memorandum and any amendments and supplements
thereto as each Initial Purchaser and Counsel for the Initial
Purchasers may reasonably request.
(b) The Company will not at any time make any amendment or
supplement to the Preliminary Memorandum or the Final Memorandum
without the prior written consent of the Initial Purchasers.
(c) The Company will immediately notify each Initial Purchaser
and confirm such notice in writing of (x) any filing made by the
Company relating to the offering of the Securities with any securities
exchange or any other regulatory body in
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the United States or any other jurisdiction and (y) prior to the
completion of the placement of the Securities by the Initial Purchasers
as evidenced by a notice in writing from the Initial Purchasers to the
Company, any material changes in or affecting the earnings, business
affairs or business prospects of the Company and its Subsidiaries that
(i) make any statement in the Final Memorandum false or misleading in
any material respect or (ii) are not disclosed in the Final Memorandum.
In such event or if at any time prior to completion of the distribution
of the Securities by the Initial Purchasers to purchasers who are not
its affiliates (as determined by the Initial Purchasers) any other
event shall occur or condition shall exist as a result of which it is
necessary, in the opinion of the Initial Purchasers or Counsel for the
Initial Purchasers, to amend or supplement the Final Memorandum in
order that the Final Memorandum, as then amended or supplemented, will
not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances existing at the time it is delivered to a
purchaser, not misleading or if in the opinion of the Initial
Purchasers or Counsel for the Initial Purchasers, such amendment or
supplement is necessary to comply with applicable law, the Company
will, subject to paragraph (b) of this Section 5, promptly prepare, at
its own expense, such amendment or supplement as may be necessary to
correct such untrue statement or omission or to effect such compliance
(in form and substance agreed upon by the Initial Purchasers and
Counsel for the Initial Purchasers), so that as so amended or
supplemented, the statements in the Final Memorandum will not include
an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances existing at the time it is delivered to a purchaser, not
misleading or so that such Final Memorandum as so amended or
supplemented will comply with applicable law, as the case may be, and
furnish to the Initial Purchasers such number of copies of such
amendment or supplement as the Initial Purchasers may reasonably
request. The Company agrees to notify the Initial Purchasers in writing
to suspend use of the Final Memorandum as promptly as practicable after
the occurrence of an event specified in this paragraph (c), and the
Initial Purchasers hereby agree upon receipt of such notice from the
Company to suspend use of the Final Memorandum until the Company has
amended or supplemented the Final Memorandum to correct such
misstatement or omission or to effect such compliance.
(d) Neither the Company nor any of its Affiliates (as defined
in Rule 501(b) under the Securities Act) will solicit any offer to buy
or offer or sell the Securities, the Exchange Notes or the Private
Exchange Notes, if any, by means of any form of general solicitation or
general advertising (as such terms are used in Regulation D under the
Securities Act), or by means of any directed selling efforts (as
defined in Rule 902 under the Securities Act) in the United States in
connection with the Securities being offered and sold pursuant to
Regulation S or in any manner involving a public offering within the
meaning of Section 4(2) of the Securities Act prior to the
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effectiveness of a registration statement with respect to the
Securities, the Exchange Notes or the Private Exchange Notes, as
applicable.
(e) Neither the Company nor any of its Affiliates (as defined
in Rule 501(b) under the Securities Act) will offer, sell or solicit
offers to buy or otherwise negotiate in respect of any security (as
defined in the Securities Act) which could be integrated with the sale
of the Securities in a manner that would require the registration of
the Securities under the Securities Act.
(f) The Company (A) will, so long as the Securities are
outstanding, furnish to the Trustee on a timely basis, pursuant to the
Indenture, whether or not the Company has a class of securities
registered under the Exchange Act, (i) within 135 days of the end of
each fiscal year, audited year-end consolidated financial statements of
the Company (including a balance sheet, income statement and statement
of changes of cash flow) prepared in accordance with GAAP and
substantially in the form required under Regulation S-X under the
Securities Act and the information described in Item 303 of Regulation
S-K under the Securities Act with respect to such period and (ii)
within 60 days of the end of each fiscal quarter, unaudited quarterly
consolidated financial statements of the Company (including a balance
sheet, income statement and statement of changes of cash flow) prepared
in accordance with GAAP and substantially in the form required by
Regulation S-X under the Securities Act and the information described
in Item 303 of Regulation S-K under the Securities Act with respect to
such period, and (B) will furnish to the Initial Purchasers copies of
all such reports and information, together with such other documents,
reports and information as shall be furnished by the Company to the
holders of the Securities or to the Trustee. In the event the Company
is not subject to Section 13 or 15(d) of the Exchange Act, the Company
will furnish to holders of Securities and prospective purchasers of
Securities designated by such holders, upon request of such holders or
such prospective purchasers, the information required to be delivered
pursuant to Rule 144A(d)(4) under the Act to permit compliance with
Rule 144A in connection with resales of the Securities.
(g) The Company will use its reasonable best efforts in
cooperation with the Initial Purchasers to (i) permit the Securities to
be eligible for clearance and settlement through DTC and (ii) permit
the Securities to be designated as securities eligible for trading in
The Portal Market in accordance with the rules and regulations of the
NASD.
(h) Prior to the Closing Date, the Company will furnish to
each Initial Purchaser, if and as soon as they have been prepared, a
copy of any unaudited interim consolidated financial statements of the
Company for any period subsequent to the
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period covered by the most recent financial statements of the Company
appearing in the Final Memorandum which have been prepared in the
ordinary course of business.
(i) The Company will arrange for the registration and
qualification of the Securities for offering and sale under the
applicable securities or "blue sky" laws of such states and other
jurisdictions as the Initial Purchasers may designate in connection
with the resale of the Securities as contemplated by this Agreement and
the Final Memorandum and will continue such qualifications in effect
for as long as may be necessary to complete the distribution of the
Securities; provided that in no event shall the Company be obligated to
(i) qualify as a foreign corporation or as a dealer in securities in
any jurisdiction where it would not otherwise be required to so qualify
but for this Section 5(i), (ii) file any general consent to service of
process in any jurisdiction where it is not at the Closing Time then so
subject or (iii) subject itself to taxation in any such jurisdiction if
it is not so subject. The Company will file such statements and reports
as may be required by the laws of each jurisdiction in which the
Securities have been qualified as above provided. The Company shall
promptly advise the Initial Purchasers of the receipt by the Company of
any notification with respect to the suspension of the qualification or
exemption from qualification of the Securities for offering or sale in
any jurisdiction or the institution, threatening or contemplation of
any proceeding for such purpose.
(j) The Company will use the proceeds received from the
Offering in the manner specified in the Final Memorandum under the
heading "Use of Proceeds."
(k) The Company will not, and will not permit any of its
Affiliates (as defined in Rule 501(b) under the Securities Act) to,
resell any Securities that have been acquired by any of them.
6. Conditions to the Obligations of the Initial Purchasers.
The obligations of the Initial Purchasers to purchase the Securities shall be
subject to the accuracy of the representations and warranties on the part of the
Company contained herein at the date and time that this Agreement is executed
and delivered by the parties hereto (the "Execution Time"), and the Closing
Date, to the accuracy of the statements of the Company made in any certificates
pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions:
(a) (i) At the Closing Date, the Initial Purchasers shall have
received the opinion of Xxxxxxxx & Xxxxxxxx LLP, counsel to the
Company, dated as of the Closing Date, in the form set forth below and
otherwise reasonably satisfactory to the Initial Purchasers and Counsel
for the Initial Purchasers, to the effect that:
(1) The Company has been duly incorporated and is
validly existing under the laws of the State of Delaware, with
corporate power and authority to
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own, lease and operate its assets and properties and conduct
its business as described in the Final Memorandum and to enter
into and perform its obligations under this Agreement and each
of the other Transaction Documents;
(2) The authorized, issued and outstanding capital
stock of the Company is as incorporated by reference in the
Final Memorandum in the Company's registration statement on
Form S-4 (registration number 333-70727) dated January 15,
1999, as amended, under the caption "Description of Capital
Stock";
(3) Each of 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, has corporate power and authority to own, lease
and operate its properties and to conduct its business as
described in the Final Memorandum; all of the issued and
outstanding capital stock of each of the Subsidiaries has been
duly authorized and validly issued, is fully paid and
non-assessable and, to such counsel's knowledge and
information, except as set forth in the Final Memorandum under
the caption "Business -- The Verio Organization", is owned by
the Company directly, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity;
(4) The Company has the requisite corporate power and
authority to execute, deliver and perform its obligations
under this Agreement, the Securities, the Exchange Notes, the
Private Exchange Notes, the Indenture and the Registration
Agreement; and each of this Agreement, the Securities, the
Exchange Notes, the Private Exchange Notes, the Indenture and
the Registration Agreement has been duly authorized by the
Company;
(5) No consent, waiver, approval, authorization,
license, qualification or order of or filing or registration
with any court or governmental or regulatory agency or body is
required for the execution and delivery by the Company of this
Agreement, the Indenture or the Registration Agreement or for
the issue and sale of the Securities, the Exchange Notes or
the Private Exchange Notes, if any, or the performance by the
Company of its obligations under the Transaction Documents, or
for the consummation of any of the transactions contemplated
hereby or thereby, except such as may be required (A) in
connection with the registration under the Securities Act of
the Exchange Notes or the Private Exchange Notes, if any,
under the Registration Agreement, (B) in order to qualify the
Indenture under the Trust Indenture Act and (C) by state
securities or "blue sky" laws in connection with the purchase
and distribution of the Securities by the Initial Purchasers
(as to which such counsel need express no opinion);
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(6) The issuance, sale and delivery of the Securities,
the Exchange Notes and the Private Exchange Notes, if any, the
execution, delivery and performance by the Company of this
Agreement, the Indenture and the Registration Agreement (in
each case assuming due authorization and execution by each
party other than the Company), and the consummation by the
Company of the transactions contemplated hereby and thereby
and the compliance by the Company with the terms of the
foregoing do not, and, at the Closing Date, will not, conflict
with or constitute or result in a breach or violation by the
Company or any of the Subsidiaries of (A) any provision of the
Certificate of Incorporation or By-laws of the Company, (B)
any of the terms or provisions of, or constitute a default (or
an event which, with notice or lapse of time or both, would
constitute a default) by the Company, or give rise to any
right to accelerate the maturity or require the prepayment of
any indebtedness under, or result in the creation or
imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any Subsidiary under any
Material Contract identified in Schedule III hereto (provided
that such counsel need not express an opinion as to any
potential violation of any financial covenant contained in any
Material Contract) or (C) any law, statute, rule, or
regulation or any order, decree or judgment known to such
counsel to be applicable to the Company or any Subsidiary, of
any court or governmental or regulatory agency or body or
arbitrator known to such counsel to have jurisdiction over the
Company or any of the Subsidiaries or any of their respective
properties or assets;
(7) The Purchase Agreement has been duly authorized,
executed and delivered by the Company;
(8) The statements in the Offering Memorandum under
the headings "Offering Memorandum Summary - The Offering,"
"Description of Capital Stock," "Description of the 1997
Notes," "Description of the March 1998 Notes," "Description of
the November 1998 Notes," "Description of the Notes,"
"Exchange Offer; Registration Rights" and "Certain
Transactions," insofar as such statements purport to summarize
certain provisions of the Securities, the Exchange Notes, the
Indenture, the Registration Agreement, the Company's
authorized and outstanding capital stock, the Company's
13-1/2% Senior Notes due 2004, the Company's 10-3/8% Senior
Notes Due 2005, and the Company's 11-1/4% Senior Notes due
2008, provide a fair summary of such provisions of such
agreements and instruments;
(9) Each of the Indenture and the Registration
Agreement has been duly authorized, executed and delivered by
the Company and (assuming due authorization and execution by
each party thereto other than the Company)
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constitutes a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms,
except as such enforceability may be limited by (a) with
respect to the Indenture and the Registration Agreement, the
Enforceability Limitations, including the waiver contained in
Section 5.15 of the Indenture, and (b) with respect to the
Registration Agreement, as to rights of indemnification and
contribution, principles of public policy or federal or state
securities laws relating thereto;
(10) Each of the Securities, when executed and
authenticated in accordance with the provisions of the
Indenture and delivered and paid for in accordance with the
terms of this Agreement, and the Exchange Notes and the
Private Exchange Notes, if any, when executed, authenticated
and delivered in exchange for the Securities in accordance
with the terms of the Registration Agreement, will be entitled
to the benefits of the Indenture and will be valid and binding
obligations of the Company, enforceable in accordance with its
terms except as the enforceability thereof may be limited by
the Enforceability Limitations;
(11) To the knowledge of such counsel, other than as
described in the Final Memorandum, no legal, regulatory or
governmental proceedings are pending to which the Company is a
party or to which the property or assets of the Company are
subject which, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect or
which, individually or in the aggregate, could have a material
adverse effect on the power or ability of the Company to
perform its obligations under the Transaction Documents or to
consummate the transactions contemplated thereby or by the
Offering Memorandum and to the knowledge of such counsel, no
such material proceedings have been threatened against the
Company or with respect to any of its respective assets or
properties;
(12) Assuming (a) the accuracy of, and compliance
with, the representations, warranties and covenants of the
Company in subsections 1(d) and 1(e) of the Purchase
Agreement, (b) the accuracy of, and compliance with, the
representations, warranties and covenants of the Initial
Purchasers in Section 4 of the Purchase Agreement, (c) the
compliance by the Initial Purchasers with the offering and
transfer procedures and restrictions described in the Final
Memorandum and (d) receipt by the purchasers to whom the
Initial Purchasers initially resell the Securities of a copy
of the Final Memorandum prior to such sale, it is not
necessary in connection with the offer, sale and delivery of
the Securities or in connection with the initial resale of
such Securities in the manner contemplated by the Purchase
Agreement and the Offering Memorandum to register the
Securities under the Securities Act or to qualify the
Indenture
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under the Trust Indenture Act, it being understood that no
opinion is expressed as to any subsequent resale of any
Securities;
(13) When the Securities are issued and delivered
pursuant to this Agreement, such Securities will not be of the
same class (within the meaning of Rule 144A) as securities of
the Company which are listed on a national securities exchange
registered under Section 6 of the Exchange Act or quoted in a
U.S. automated inter-dealer quotation system; and
(14) Neither the consummation of the transactions
contemplated hereby nor the sale, issuance, execution or
delivery of the Securities will violate Regulation T, U or X
of the Board of Governors of the Federal Reserve System.
In addition, such counsel shall state that such counsel has
participated in conferences with representatives of the Initial
Purchasers, officers and other representatives of the Company and
representatives of the independent certified accountants of the
Company, at which conferences the contents of the Preliminary
Memorandum and Final Memorandum and the business and affairs of the
Company and the Subsidiaries were discussed, and although such counsel
has not independently verified and does not pass upon or assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in the Final Memorandum (except and only to the
extent set forth in subclause (8) above), on the basis of the foregoing
(relying as to materiality to the extent such counsel deemed
appropriate upon the representations and opinions of officers and other
representatives of the Company), no facts have come to the attention of
such counsel which lead such counsel to believe that the Final
Memorandum at the date thereof or as of the Closing Date, contained or
contains an untrue statement of a material fact or omitted or omits to
state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading
(it being understood that such counsel need not express any comment
with respect to the financial statements, including the notes thereto
and supporting schedules, or any other financial or statistical data
set forth or referred to in the Final Memorandum).
In rendering such opinions, such counsel (A) need not express
any opinion with regard to the application of laws of any jurisdiction
other than the Federal law of the United States, the General
Corporation Law of the State of Delaware and the laws of the State of
New York and (B) may rely, as to matters of fact, to the extent they
deem proper on representations or certificates of responsible officers
of the Company and certificates of public officials.
References to the Final Memorandum in this subsection (a)(i)
include any supplements thereto at or prior to the Closing Date.
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(ii) At the Closing Date, the Initial Purchasers shall have
received the opinion of Xxxxx Xxxxx Xxxxxxxx, Esq., General Counsel to
the Company, dated as of the Closing Date, in the form set forth below
and otherwise reasonably satisfactory to the Initial Purchasers and
Counsel for the Initial Purchasers, to the effect that:
(1) To the knowledge of such counsel, other than as
described in the Final Memorandum, no legal, regulatory or
governmental proceedings are pending to which any of the
Subsidiaries is a party or to which the property or assets of
the Subsidiaries are subject which, individually or in the
aggregate, could reasonably be expected to have a Material
Adverse Effect or which, individually or in the aggregate,
could have a material adverse effect on the power or ability
of the Company to perform its obligations under the
Transaction Documents or to consummate the transactions
contemplated thereby or by the Final Memorandum and to the
knowledge of such counsel, no such material proceedings have
been threatened against the Subsidiaries or with respect to
any of their respective assets or properties;
(2) To the best knowledge of such counsel, the
Company is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business,
except where the failure so to qualify or to be in good
standing would not result in a Material Adverse Effect;
(3) To the best knowledge of such counsel, each of
the Subsidiaries is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction
in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in
good standing individually or in the aggregate would not
result in a Material Adverse Effect; and
(2) None of the Company or the Subsidiaries is in
violation of its respective Organizational Documents; to the
knowledge of such counsel, no default by the Company or any of
the Subsidiaries exists in the due performance or observance
of any material obligation, agreement, covenant or condition
contained in any Material Contract which could reasonably be
expected to have a Material Adverse Effect; and to the
knowledge of such counsel, none of the Company nor the
Subsidiaries is in breach or violation of any law, statute,
rule or regulation, or any judgment, decree or order of any
governmental or regulatory agency or other body having
jurisdiction over the Company or any of the Subsidiaries or
any of their respective properties or assets such that any
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such breach or violation could reasonably be expected to have
a Material Adverse Effect.
In addition, such counsel shall state that such counsel has
participated in conferences with representatives of the Initial
Purchasers, officers and other representatives of the Company and
representatives of the independent certified accountants of the
Company, at which conferences the contents of the Preliminary
Memorandum and Final Memorandum and the business and affairs of the
Company and the Subsidiaries were discussed, and although such counsel
has not independently verified and does not pass upon or assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in the Final Memorandum, on the basis of the
foregoing (relying as to materiality to the extent such counsel deemed
appropriate upon the representations and opinions of officers and other
representatives of the Company), no facts have come to the attention of
such counsel which lead such counsel to believe that the Final
Memorandum at the date thereof or as of the Closing Date, contained or
contains an untrue statement of a material fact or omitted or omits to
state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading
(it being understood that such counsel need not express any comment
with respect to the financial statements, including the notes thereto
and supporting schedules, or any other financial or statistical data
set forth or referred to in the Final Memorandum).
In rendering such opinions, such counsel (A) need not express
any opinion with regard to the application of laws of any jurisdiction
other than the Federal law of the United States, the General
Corporation Law of the State of Delaware and the laws of the State of
Colorado and (B) may rely, as to matters of fact, to the extent she
deems proper on representations or certificates of responsible officers
of the Company and certificates of public officials.
References to the Final Memorandum in this subsection (a)(ii)
include any supplements thereto at or prior to the Closing Date.
(b) The Initial Purchasers shall have received the opinion,
dated as of the Closing Date, of Xxxxxx Xxxxxx & Xxxxxxx, Counsel for
the Initial Purchasers, with respect to certain matters set forth in
subclauses (8) (with respect to "Description of the Notes" and
"Exchange Offer; Registration Rights,") (9) (assuming the due
authorization, execution and delivery of each of the Indenture and
Registration Agreement by each party thereto), (10) and (12) of
subsection (a)(i) of this Section 6.
In rendering such opinions, such counsel (A) need not express
any opinion with regard to the application of laws of any jurisdiction
other than the Federal laws of the United States, the General
Corporation Law of the State of Delaware and the laws of the State of
New York and (B) may rely, as to matters of fact, to the extent they
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deem proper on representations or certificates of responsible officers
of the Company and certificates of public officials.
In addition, such counsel shall state that such counsel has
participated in conferences with representative of the Initial
Purchasers, officers and other representatives of the Company and
representatives of the independent accountants for the Company at which
conferences the contents of the Preliminary Memorandum and Final
Memorandum and related matters were discussed, and although such
counsel has not verified and does not pass upon and does not assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in the Final Memorandum, on the basis of the
foregoing (relying as to materiality to the extent such counsel deemed
appropriate upon the representations and opinions of officers and other
representatives of the Company), no facts have come to the attention of
such counsel which lead such counsel to believe that the Final
Memorandum, at the date thereof or as of the Closing Date, contained or
contains an untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading (it being
understood that such counsel need express no comment with respect to
the financial statements, including the notes thereto, or any other
financial or statistical data set forth or referred to in the Final
Memorandum).
(c) The following conditions contained in clauses (i) and (ii)
of this subsection (c) shall have been satisfied at and as of the
Closing Date, and the Company shall have furnished to the Initial
Purchasers a certificate of the Company, signed by the Chairman of the
Board or the President and the principal financial or accounting
officer of the Company, dated the Closing Date, to the effect that the
signers of such certificate have carefully examined the Final
Memorandum, any amendment or supplement to the Final Memorandum and
this Agreement and that:
(i) the representations and warranties of the Company
in this Agreement are true and correct in all material
respects on and as of the Closing Date with the same effect as
if made on the Closing Date, and the Company has complied with
all the agreements and satisfied all the conditions on its
part to be performed or satisfied hereunder in all material
respects at or prior to the Closing Date; and
(ii) since the date of the most recent financial
statements included in the Final Memorandum (exclusive of any
amendment or supplement thereto), there has been no Material
Adverse Change, whether or not in the ordinary course of
business. As used in this subparagraph, the term "Final
Memorandum" means the Final Memorandum in the form first used
to confirm sales of the Securities.
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(d) At the Execution Time and at the Closing Date, KPMG LLP
shall have furnished to the Initial Purchasers a letter or letters,
dated respectively as of the Execution Time and as of the Closing Date,
in form and substance satisfactory to the Initial Purchasers,
confirming that they are independent accountants within the meaning of
the Securities Act and the Exchange Act and the applicable published
rules and regulations thereunder and Rule 101 of the Code of
Professional Conduct of the American Institute of Certified Public
Accountants (the "AICPA") and containing statements and information of
the type ordinarily included in accountants' "comfort letters" to
Initial Purchasers with respect to financial statements and certain
financial information contained in the Final Memorandum, in form and
substance satisfactory to Counsel for the Initial Purchasers.
All references in this Section 6(d) to the Final Memorandum
shall be deemed to include any amendment or supplement thereto at the
date of the letter.
(e) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Final Memorandum, there shall
not have been (i) any change or decrease specified in the letter or
letters referred to in paragraph (d) 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 Initial Purchasers, so
material and adverse as to make it impractical or inadvisable to market
the Securities as contemplated by the Final Memorandum.
(f) On or prior to the Closing Date, the Company shall have
furnished to the Initial Purchasers such further information,
certificates and documents as the Initial Purchasers may reasonably
request.
(g) The Company and the Trustee shall have entered into the
Indenture.
(h) The Company and the Initial Purchasers shall have entered
into the Registration Agreement.
If any of the conditions specified in this Section 6 shall not
have been fulfilled 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 Initial Purchasers and Counsel for the Initial Purchasers, this Agreement
and all obligations of the Initial Purchasers hereunder may be canceled at, or
at any time prior to, the Closing Date by the Initial Purchasers. Notice of such
cancellation shall be given to the Company in writing or by telephone or
telegraph confirmed in writing.
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The documents required to be delivered by this Section 6 will
be delivered at the office of Counsel for the Initial Purchasers, at 00 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx, xx the Closing Date.
7. Reimbursement of Expenses. (a) Whether or not any sale of
the Securities is consummated, the Company agrees to pay and bear all costs and
expenses incident to the performance of all of its obligations under this
Agreement, including (i) the preparation and printing of the Preliminary
Memorandum, the Final Memorandum and any amendments or supplements thereto and
the cost of furnishing copies thereof to the Initial Purchasers, (ii) the
preparation, issuance, printing and distribution of the Securities, the Exchange
Notes, the Private Exchange Notes, if any, and any survey of state securities or
"blue sky" laws or legal investment memoranda, (iii) the delivery to the Initial
Purchasers of the Securities, the Exchange Notes or the Private Exchange Notes,
(iv) the fees and disbursements of the Company's counsel and accountants, (v)
the qualification of the Securities under the applicable state securities or
"blue sky" laws in accordance with the provisions of Section 5(i) hereof and any
filing for review of the offering with the NASD, if required, including filing
fees and reasonable fees and disbursements of counsel to the Initial Purchasers
in connection therewith and in connection with the preparation of any survey of
state securities or "blue sky" laws or legal investment memoranda, (vi) any fees
charged by rating agencies for rating the Securities, the Exchange Notes and the
Private Exchange Notes, if any, (vii) the fees and expenses of the Trustee,
including the fees and disbursements of counsel for the Trustee, (viii) all
expenses (including travel expenses) of the Company and the Initial Purchasers
in connection with any meetings with prospective investors in the Securities and
(ix) all expenses and listing fees in connection with the application for
designation of the Securities as Portal-eligible securities and to permit the
Securities, the Exchange Notes and the Private Exchange Notes, as applicable, to
be eligible to clearance through The Depository Trust Company.
(b) If the sale of the Securities provided for herein is not
consummated because any condition to the obligations of the Initial Purchasers
set forth in Section 6 hereof is not satisfied, because of any 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 Initial
Purchasers in payment for the Securities on the Closing Date, the Company will
reimburse the Initial Purchasers severally upon demand for all reasonable
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by them in connection with the proposed purchase
and sale of the Securities.
8. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Initial Purchaser, the directors, officers,
employees and agents of each Initial Purchaser and each person who controls any
Initial Purchaser within the meaning of either the Securities Act or the
Exchange Act against any and all losses, claims, damages or liabilities, joint
or several, to which they or any of them may become subject under the
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Securities Act, the Exchange Act or other Federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact contained in
the Preliminary Memorandum or the Final Memorandum 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, in the light of the circumstances
under which they were made, not misleading, and agree to reimburse each such
indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the Company will not
be liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made in the Preliminary
Memorandum or the Final Memorandum, or in any amendment thereof or supplement
thereto, in reliance upon and in conformity with written information furnished
to the Company by or on behalf of any Initial Purchasers specifically for
inclusion therein. This indemnity agreement will be in addition to any liability
which the Company may otherwise have.
The foregoing indemnity with respect to any untrue statement
contained in or any omission from the Preliminary Memorandum shall not inure to
the benefit of any Initial Purchaser (or any affiliate or person who controls
such Initial Purchaser within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act) from whom the person asserting such loss,
liability, claim, damage or expense purchased any of the Securities that are the
subject thereof if such person was not sent or given a copy of the Final
Memorandum (or any amendment or supplement thereto), if the Company shall have
previously furnished copies thereof to the Initial Purchasers in accordance with
this Agreement, at or prior to the written confirmation of the sale of such
Securities to such person and the untrue statement contained in or the omission
from the Preliminary Memorandum was corrected in the Final Memorandum (or any
amendment or supplement thereto).
(b) Each Initial Purchaser severally and not jointly agrees to
indemnify and hold harmless the Company, its directors, officers and each person
who controls the Company within the meaning of either the Securities Act or the
Exchange Act to the same extent as the foregoing indemnity from the Company to
each Initial Purchaser, but only with reference to written information relating
to such Initial Purchaser furnished to the Company by or on behalf of such
Initial Purchaser specifically for inclusion in the Preliminary Memorandum or
the Final Memorandum (or in any amendment or supplement thereto). This indemnity
agreement will be in addition to any liability which any Initial Purchaser may
otherwise have. The Company acknowledges that the statements set forth in the
table, and the third and ninth paragraphs after the table under the heading
"Plan of Distribution" in the Preliminary Memorandum and the Final Memorandum
constitute the only information furnished in writing by or on
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behalf of the Initial Purchasers for inclusion in the Preliminary Memorandum or
the Final Memorandum (or in any amendment or supplement thereto).
(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 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 on the one hand and the Initial
Purchasers on the other hand 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,
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"Losses") to which the Company or one or more of the Initial Purchasers, as
applicable, may be subject in such proportion as is appropriate to reflect the
relative benefits received by the Company or the Initial Purchasers from the
offering of the Securities; provided, however, that in no case shall any Initial
Purchaser be responsible for any amount in excess of the purchase discount or
commission applicable to the Securities purchased by such Initial Purchaser
hereunder. If the allocation provided by the immediately preceding sentence is
unavailable for any reason, the Company and the Initial Purchasers shall
contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company or the Initial
Purchasers, as applicable, 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 received by each of them, respectively, (before
deducting expenses), and benefits received by the Initial Purchasers shall be
deemed to be equal to the total purchase discounts and commissions received by
the Initial Purchasers from the Company in connection with the purchase of the
Securities hereunder. Relative fault shall be determined by reference to whether
any alleged untrue statement or omission relates to information provided by the
Company or the Initial Purchasers. The Company and the Initial Purchasers agree
that it would not be just and equitable if contribution were determined by pro
rata allocation or any other method of allocation which does not take account of
the equitable considerations referred to above. Notwithstanding the provisions
of this paragraph (d), no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8 each person who controls an
Initial Purchaser within the meaning of either the Securities Act or the
Exchange Act and each director, officer, employee and agent of an Initial
Purchaser shall have the same rights to contribution as such Initial Purchaser,
and each person who controls the Company within the meaning of either the
Securities Act or the Exchange Act and each officer and director of the Company
shall have the same rights to contribution as the Company subject in each case
to the applicable terms and conditions of this paragraph (d).
9. Default by an Initial Purchaser. If any one or more Initial
Purchasers shall fail to purchase and pay for any of the Securities agreed to be
purchased by such Initial Purchaser hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Initial Purchasers shall be obligated severally to take
up and pay for (in the respective proportions which the principal amount of
Securities set forth opposite their names in Schedule I hereto bears to the
aggregate principal amount of securities set forth opposite the names of all the
remaining Initial Purchasers) the Securities which the defaulting Initial
Purchaser or Initial Purchasers agreed but failed to purchase; provided,
however, that in the event that the aggregate principal amount of Securities
which the defaulting Initial Purchaser or Initial Purchasers agreed but failed
to purchase shall exceed 10% of the aggregate principal amount of Securities set
forth in Schedule I hereto, the remaining Initial Purchasers shall have the
right to purchase all, but shall not be
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under any obligation to purchase any, of the Securities, and if such
non-defaulting Initial Purchasers do not purchase all the Securities, this
Agreement will terminate without liability to any non-defaulting Initial
Purchaser or Company. In the event of a default by any Initial Purchaser as set
forth in this Section 9 the Closing Date shall be postponed for such period, not
exceeding seven days, as the Initial Purchasers shall determine in order that
the required changes in the Final Memorandum or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Initial Purchaser of its liability, if any, to the Company or any
non-defaulting Initial Purchaser for damages occasioned by its default
hereunder.
10. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Initial Purchasers, by notice
given to the Company prior to delivery of and payment for the Securities, if
prior to such time (i) trading in any of the Company's securities shall have
been suspended by the Commission or trading in securities generally on the New
York Stock Exchange or the NASDAQ National Market shall have been suspended or
limited or minimum prices shall have been established on either of such
exchanges, (ii) a banking moratorium shall have been declared either by Federal
or New York State authorities or (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 Initial Purchasers,
impracticable or inadvisable to proceed with the offering or delivery of the
Securities as contemplated by the Final Memorandum.
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers, and of the Initial Purchasers set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation made by or on behalf of the Initial Purchasers or the Company
or any of the officers, directors or controlling persons referred to in Section
8 hereof, and will survive delivery of and payment for the Securities. The
provisions of Sections 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Initial Purchasers, will be
mailed, delivered or telegraphed and confirmed to them, care of Xxxxxxx Xxxxx
Xxxxxx Inc., at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; if sent to the
Company, will be mailed, delivered or telegraphed and confirmed to it at Verio
Inc., 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxx 00000,
Attention: Xxxxx Xxxxx Xxxxxxxx, Esq.; with a copy to Xxxxxxxx & Xxxxxxxx LLP,
000 Xxxxxx Xxxxxx, Xxx Xxxxxxxxx, XX 00000, Attention: Xxxxx Xxxxxx, 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
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controlling persons referred to in Section 8 hereof, and, except as expressly
set forth in Section 5(f) hereof, no other person will have any right or
obligation hereunder.
14. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York.
15. Business Day. For purposes of this Agreement, "business
day" means each Monday, Tuesday, Wednesday, Thursday and Friday that is not a
day on which banking institutions in the City of New York, New York are
authorized or obligated by law, executive order or regulation to close.
16. Counterparts. This Agreement may be executed in one or
more counterparts, each of which will be deemed to be an original, but all such
counterparts will together constitute one and the same instrument.
[Signature Page Follows]
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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 Agreement and your acceptance shall represent a binding agreement
between the Company and the Initial Purchasers.
Very truly yours,
VERIO INC.
By:
------------------------------
Name:
Title:
The foregoing Agreement is hereby con-
firmed and accepted as of the date first
above written.
Xxxxxxx Xxxxx Xxxxxx Inc.
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
Xxxxxx Xxxxxxx & Co. Incorporated
By: Xxxxxxx Xxxxx Barney Inc.
By:
------------------------------------
Name:
Title:
S-1
31
SCHEDULE I
Principal Amount
of Notes
Initial Purchasers To Be Purchased
------------------ ---------------
Xxxxxxx Xxxxx Xxxxxx Inc...................................... $ 220,000,000
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation........... 120,000,000
60,000,000
Xxxxxx Xxxxxxx & Co. Incorporated............................. -------------
$ 400,000,000
Total =============
32
SCHEDULE II
Subsidiaries
Percentage
Organized Ownership
Name of Entity Under Laws of of Company
-------------- ------------- ----------
Best Internet Communications, Inc. (d/b/a California 100%
Hiway Technologies)
digitalNATION, Inc. Virginia 100%
33
EXHIBIT A
Selling Restrictions for Offers and
Sales Outside the United States
(1) (a) The Securities have not been and will not be
registered under the Securities Act and may not be offered or sold within the
United States or to, or for the account or benefit of, U.S. persons except in
accordance with Regulation S under the Securities Act or pursuant to an
exemption from the registration requirements of the Securities Act. Each Initial
Purchaser represents and agrees that, except as otherwise permitted by Section
4(a)(i) or (ii) of the Agreement to which this is an exhibit, it has offered and
sold the Securities, and will offer and sell the Securities, (i) as part of
their distribution at any time and (ii) otherwise until 40 days after the later
of the commencement of the offering and the Closing Date, only in accordance
with Rule 903 of Regulation S under the Securities Act. Accordingly, each
Initial Purchaser represents and agrees that neither it, nor any of its
affiliates nor any person acting on its or their behalf has engaged or will
engage in any directed selling efforts with respect to the Securities, and that
it and they have complied and will comply with the offering restrictions
requirement of Regulation S. Each Initial Purchaser agrees that, at or prior to
the confirmation of sale of Securities (other than a sale of Securities pursuant
to Section 4(a)(i) or (ii) of the Agreement to which this is an exhibit), it
shall have sent to each distributor, dealer or person receiving a selling
concession, fee or other remuneration that purchases Securities from it during
the restricted period a confirmation or notice to substantially the following
effect:
"The Securities covered hereby have not been registered under
the U.S. Securities Act of 1933 (the "Securities Act") and may not be
offered or sold within the United States or to, or for the account or
benefit of, U.S. persons (i) as part of their distribution at any time
or (ii) otherwise until 40 days after the later of the commencement of
the offering and [specify closing date of the offering], except in
either case in accordance with Regulation S or Rule 144A under the
Securities Act. Terms used above have the meanings given to them by
Regulation S."
(b) Each Initial Purchaser also represents and agrees
that it has not entered and will not enter into any contractual arrangement with
any distributor with respect to the distribution of the Securities, except with
its affiliates or with the prior written consent of the Company.
(c) Terms used in this section have the meanings given
to them by Regulation S.
34
(2) Each Initial Purchaser represents and agrees that (i) it
has not offered or sold and will not offer or sell, in the United Kingdom, by
means of any document, any Securities other than to persons whose ordinary
business it is to buy or sell shares or debentures, whether as principal or as
agent (except in circumstances which do not constitute an offer to the public
within the meaning of the Companies Xxx 0000 of Great Britain), (ii) it has
complied and will comply with all applicable provisions of the Financial
Services Xxx 0000 of the United Kingdom with respect to anything done by it in
relation to the Securities in, from or otherwise involving the United Kingdom,
and (iii) it has only issued or passed on and will only issue or pass on in the
United Kingdom any document received by it in connection with the issue of the
Securities to a person who is of a kind described in Article 9(3) of the
Financial Services Xxx 0000 (Investment Advertisements) (Exemptions) Order 1988
or is a person to whom the document may otherwise lawfully be issued or passed
on.
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