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Exhibit 1.3
XO Communications, Inc.
[FORM OF DEBT SECURITIES]
UNDERWRITING AGREEMENT
(U.S. VERSION)
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[________________ ___,____]
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as Representatives of the several
underwriters named in Schedule A hereto
c/o [ ]
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Ladies and Gentlemen:
XO Communications, Inc., a corporation organized under the
laws of the State of Delaware (the "Company"), proposes to issue and sell from
time to time certain of its debt securities registered under the registration
statement referred to in Paragraph 1(a)(i) hereof, the terms of which shall be
determined at the time of sale. The Company proposes to sell to the
underwriters named in Schedule A hereto (the "Underwriters") for whom you are
acting as representative(s) (the "Representatives"), the Securities with the
terms and in the aggregate principal amount specified in Schedule B hereto
(the "[Firm] Securities"). [At the election of the Underwriters, the Company
proposes, subject to the terms and conditions set forth herein, to sell the
additional principal amount of Securities specified in Schedule B hereto (the
"Optional Securities") and together with the Firm Securities, the
"Securities").]
[It is understood and agreed to by all parties that the Company is
concurrently entering into an agreement (the "International Underwriting
Agreement") providing for the sale by the Company of certain of its debt
securities with the terms and in the aggregate principal amount specified in
Schedule C hereto (the "International Securities") through arrangements with
certain underwriters outside the United States and Canada (the "International
Underwriters"), for whom [___________________________], [___________________],
[__________________________] and [__________________________] are acting as
lead managers. Anything herein or therein to the contrary notwithstanding, the
respective closings under this Agreement and the International Underwriting
Agreement are hereby expressly made conditional on one another. The
Underwriters hereunder and the International Underwriters are simultaneously
entering into an Agreement Between U.S. Underwriters and International
Underwriters (the "Agreement between U.S. Underwriters and International
Underwriters") which provides, among other things, for the transfer of the
Securities between the two syndicates. Two forms of Prospectus are to be used
in connection with the offering and sale of the Securities contemplated by the
foregoing, one relating to the Securities hereunder and the other relating to
the International Securities. The latter form of Prospectus will be identical
to the former except for certain substitute pages as included in the
registration statement and amendments thereto as mentioned below. Except as
used in Sections 2(a), 2(b), 2(c) and 10 herein, and except as the context may
otherwise require, references hereinafter to the Securities shall include all
the Securities which may be sold pursuant to either this Agreement or the
International Underwriting Agreement, and references herein to any prospectus
whether in preliminary or final form, and whether as amended or supplemented,
shall include both the U.S. and the international versions thereof.]
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SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company
represents and warrants to each of the Underwriters as of the date hereof and
as of [each of] the Closing Time[s] referred to in Section 2(c) hereof, and
agrees with each of the Underwriters as follows:
(i) Effectiveness of Registration Statement. A
registration statement on Form S-3 [(File No. 333-_____)] in respect of the
Securities has been filed with the Securities and Exchange Commission (the
"Commission"); such registration statement and any post-effective amendment
thereto, each in the form heretofore delivered or to be delivered to the
Underwriters, excluding exhibits thereto, but including all documents
incorporated by reference in the prospectus contained therein, have been
declared effective by the Commission in such form; other than a registration
statement, if any, increasing the size of the offering (a "Rule 462(b)
Registration Statement") filed pursuant to Rule 462(b) under the Securities Act
of 1933 (the "Act") which became effective upon filing, no other document with
respect to such registration statement or document incorporated by reference
therein has heretofore been filed with the Commission (other than prospectuses
filed pursuant to Rule 424(b) of the rules and regulations of the Commission
under the Act, each in the form heretofore delivered or to be delivered to the
Representatives); and no stop order suspending the effectiveness of the
registration statement, any post-effective amendment thereto or Rule 462(b)
Registration Statement, if any, has been issued and no proceeding for that
purpose has been initiated or threatened by the Commission (any preliminary
prospectus included in the registration statement or filed with the Commission
pursuant to Rule 424(a) of the rules and regulations of the Commission under the
Act, is hereinafter called a "Preliminary Prospectus"; the various parts of the
registration statement and the Rule 462(b) Registration Statement, if any,
including all exhibits thereto and the documents incorporated by reference in
the prospectus contained in such registration statement and the Rule 462(b)
Registration Statement, if any, at the time such part of such registration
statement or such part of the Rule 462(b) Registration Statement, if any,
became effective but excluding Form T-1, each as amended at the time such part
of such registration statement or such part of the Rule 462(b) Registration
Statement, if any, became effective, are hereinafter collectively called the
"Registration Statement"; the prospectus relating to the Securities, in the form
in which it has most recently been filed, or transmitted for filing, with the
Commission on or prior to the date of this Agreement, being hereinafter called
the "Prospectus"; any reference herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to the applicable form under the Act, as of the date
of such Preliminary Prospectus or Prospectus, as the case may be; any reference
to any amendment or supplement to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any documents filed after the date of
such Preliminary Prospectus or Prospectus, as the case may be, under the
Securities Exchange Act of 1934 (the "Exchange Act"), and incorporated by
reference in such Preliminary Prospectus or Prospectus, as the case may be; any
reference to any amendment to the Registration Statement shall be deemed to
refer to and include any report of the Company filed pursuant to Sections 13(a)
or 15(d) of the Exchange Act after the effective date of the Registration
Statement that is incorporated by reference in the Registration Statement; and
any reference to the Prospectus as amended or supplemented shall be deemed to
refer to the Prospectus as amended or supplemented in relation to the applicable
Securities in the form in which it is filed with the Commission pursuant to Rule
424(b) under the Act in accordance with Section 3(a)(i) hereof, including any
documents incorporated by reference therein as of the date of such filing);
(ii) Compliance of the Registration Statement and
Prospectus with the Act. The Registration Statement and the Prospectus
conform, and any further amendments or supplements to the Registration
Statement or the Prospectus will conform, in all material respects to the
requirements of the Act and the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act") and the rules and regulations of the Commission
thereunder and do not and will not, as of the applicable effective date as to
the Registration Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein, not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company by an
Underwriter of Securities through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Securities;
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(iii) Documents Incorporated by Reference. The documents
incorporated by reference in the Prospectus, when they became effective or
were filed with the Commission, as the case may be, conformed in all material
respects to the requirements of the Act or the Exchange Act, as applicable,
and the rules and regulations of the Commission thereunder, and none of such
documents contained an untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading; and any further documents so filed and
incorporated by reference in the Prospectus or any further amendment or
supplement thereto, when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material respects to the
requirements of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not apply to
any statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter of
Securities through the Representatives expressly for use in the Prospectus as
amended or supplemented relating to such Securities;
(iv) Independent Accountants. The accountants who
certified the financial statements included in the Prospectus are independent
certified public accountants with respect to the Company and its subsidiaries
within the meaning of Regulation S-X under the Act.
(v) Financial Statements. The financial statements,
together with the related notes, included in the Prospectus present fairly the
financial position of the Company and its consolidated subsidiaries at the
dates indicated and the statement of operations, stockholders' equity and cash
flows of the Company and its consolidated subsidiaries for the periods
specified; said financial statements have been prepared in conformity with
generally accepted accounting principles ("GAAP") applied on a consistent
basis throughout the periods involved. The selected financial data included in
the Prospectus present fairly the information shown therein and have been
compiled on a basis consistent with that of the audited financial statements
included in the Prospectus.
(vi) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Prospectus, except as
otherwise stated therein, (1) there has been no material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise (a "Material Adverse Effect"), whether or not arising in the
ordinary course of business, (2) there have been no transactions entered into
by the Company or any of its subsidiaries, other than those in the ordinary
course of business, which are material with respect to the Company and its
subsidiaries considered as one enterprise and (3) there has been no dividend
or distribution of any kind declared, paid or made by the Company on any class
of its capital stock, except for those declared, paid or made on the preferred
stock of the Company outstanding as of the date hereof [and as otherwise
described on Schedule D hereto].
(vii) Good Standing of the Company. The Company has been
duly organized and is validly existing as a corporation under the laws of the
State of Delaware and has power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus and to
enter into and perform its obligations under this Agreement [and the
International Underwriting Agreement]; and the Company is duly qualified as a
foreign corporation to transact business and is in good standing in each other
jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result in a Material
Adverse Effect.
(viii) Good Standing of Designated Subsidiaries. Each
"significant subsidiary" of the Company (as such term is defined in Rule 1-02
of Regulation S-X) (each a "Designated Subsidiary" and, collectively, the
"Designated Subsidiaries") has been duly organized and is validly existing and
in good standing, where applicable, as a corporation, limited liability
company or limited partnership, as the case may be, under the laws of the
jurisdiction of its formation, has power and authority to own,
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lease and operate its properties and to conduct its business as described in
the Prospectus and is duly qualified as a foreign corporation, limited
liability company or limited partnership, as the case may be, to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify or
to be in good standing would not result in a Material Adverse Effect; except
as otherwise disclosed in the Prospectus, all of the issued and outstanding
capital stock or other equity interest of each Designated Subsidiary has been
duly authorized and validly issued, is fully paid and non-assessable and at
least 99% thereof is owned by the Company, directly or through subsidiaries,
free and clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equity; none of the outstanding shares of capital stock or other
equity interests of the Designated Subsidiaries were issued in violation of
any preemptive or similar rights arising by operation of law, or under the
constituting or operative document or agreement of any Designated Subsidiary
or under any agreement to which the Company or any Designated Subsidiary is a
party.
(ix) Capitalization. The authorized, issued and
outstanding capital stock of the Company is as set forth in the Prospectus as
of the dates indicated therein. The shares of issued and outstanding capital
stock of the Company have been duly authorized and validly issued and are
fully paid and non-assessable; and none of the outstanding shares of capital
stock of the Company was issued in violation of the preemptive or other
similar rights of any securityholder of the Company, as applicable.
(x) Authorization of Underwriting Agreement[s]. This
Agreement [and the International Underwriting Agreement] [has] [have] been
duly authorized, executed and delivered by the Company.
(xi) Authorization and Description of the Securities and
the Indenture. The Securities have been duly authorized for issuance and sale
to the Underwriters pursuant to this Agreement and, when issued and delivered
by the Company pursuant to this Agreement against payment of the consideration
set forth in Schedule B hereto, will have been duly executed, authenticated,
issued and delivered and will constitute valid and legally binding obligations
of the Company entitled to the benefits provided by the applicable indenture
identified on Schedule B hereto and relating to the Securities, to be dated as
of [________ __, _____] (the "Indenture") between the Company and
[____________], as trustee (the "Trustee"), under which they are to be issued,
which will be substantially in the form filed as an exhibit to the
Registration Statement; [if the Securities to be issued are convertible into
Class A common stock: when the Securities are delivered and paid for pursuant
to this Agreement, such Securities will be convertible into Class A common
stock of the Company in accordance with their terms; the shares of Class A
common stock initially issuable upon conversion of the Securities have been
duly authorized and reserved for issuance upon such conversion and, when
issued upon such conversion, will be validly issued, fully paid and
nonassessable; the outstanding shares of Class A common stock have been duly
authorized and validly issued, are fully paid and nonassessable and conform to
the description thereof contained in the Prospectus;] the Indenture has been
duly authorized and duly qualified under the Trust Indenture Act and, when
executed and delivered by the Company and the Trustee, will constitute a valid
and legally binding instrument, enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting creditors' rights
and to general equity principles; and the Securities and the Indenture will
conform in all material respects to the descriptions thereof in the Prospectus
as amended or supplemented with respect to such Securities.
(xii) Absence of Defaults and Conflicts. Neither the
Company nor any of its subsidiaries is in violation of its constituting or
operative document or agreement or in default in the performance or observance
of any material obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, deed of trust, loan or credit agreement, note,
lease or other agreement or instrument to which the Company or any of its
subsidiaries is a party, or by which or any of them may be bound, or to which
any of the property or assets of the Company or any of its subsidiaries is
subject (collectively, "Agreements and Instruments") except for such defaults
that would not result in a Material Adverse Effect; the issue and sale of the
Securities, the execution, delivery and performance of this Agreement, [the
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International Underwriting Agreement,] the Indenture, the Securities and any
other agreement or instrument entered into or issued or to be entered into or
issued by the Company in connection with the transactions contemplated hereby,
thereby or in the Prospectus and the consummation of the transactions
contemplated herein, therein and in the Prospectus (including the issuance and
sale of the Securities by the Company hereunder [and under the International
Underwriting Agreement]), the compliance by the Company with its obligations
hereunder and under the [International Underwriting Agreement and] Indenture
and the Securities have been duly authorized by all necessary action and do
not and will not, whether with or without the giving of notice or passage of
time or both, conflict with or constitute a breach of, or default or a
Repayment Event (as defined below) under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of
the Company or any of its subsidiaries pursuant to, the Agreements and
Instruments except for such conflicts, breaches or defaults or liens, charges
or encumbrances that, singly or in the aggregate, would not result in a
Material Adverse Effect, nor will such action result in any violation of the
provisions of the constituting or operative document or agreement of the
Company or any of its subsidiaries or any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the
Company or any of its subsidiaries or any of their assets or properties,
except for such violations that singly or in the aggregate would not result in
a Material Adverse Effect. As used herein, a "Repayment Event" means any event
or condition which gives the holder of any material note, debenture or other
evidence of indebtedness (or any person acting on such holder's behalf) the
right to require the Company or any of its subsidiaries to repurchase, redeem
or repay all or a portion of such indebtedness.
(xiii) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration, qualification
or decree of, any court or governmental authority or agency is necessary or
required for the performance by the Company of its obligations hereunder, in
connection with the offering, issuance or sale of the Securities hereunder or
the consummation of the actions contemplated by this Agreement or the
Indenture, except such as have been obtained under the Act or the Trust
Indenture Act and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Securities by the
Underwriters [and the International Underwriters].
(xiv) Possession of Licenses and Permits. Each of the
Company and its Designated Subsidiaries has all material certificates,
consents, exemptions, orders, permits, licenses, authorizations, franchises or
other material approvals (each, an "Authorization") of and from, and has made
all material declarations and filings with, all Federal, state, local and
other governmental authorities, all self-regulatory organizations and all
courts and other tribunals, necessary or appropriate for the Company and its
Designated Subsidiaries to own, lease, license, use and construct its
properties and assets and to conduct its business in the manner described in
the Prospectus, except to the extent that the failure to obtain any such
Authorizations or make any such declaration or filing would not, singly or in
the aggregate, result in a Material Adverse Effect. Except as set forth in or
contemplated by the Prospectus, all such Authorizations are in full force and
effect with respect to the Company and its Designated Subsidiaries; to the
best knowledge of the Company, no event has occurred that permits, or after
notice or lapse of time could permit, the revocation, termination or
modification of any such Authorization; the Company and its Designated
Subsidiaries are in compliance in all material respects with the terms and
conditions of all such Authorizations and with the rules and regulations of
the regulatory authorities and governing bodies having jurisdiction with
respect thereto; and, except as set forth in the Prospectus, the Company has
no knowledge that any person is contesting or intends to contest the granting
of any material Authorization; and neither the execution and delivery of this
Agreement, [the International Underwriting Agreement,] the Indenture or the
Securities, nor the consummation of the transactions contemplated hereby and
thereby nor compliance with the terms, conditions and provisions hereof and
thereof by the Company or any of its Designated Subsidiaries will cause any
suspension, revocation, impairment, forfeiture, nonrenewal or termination of
any Authorization.
(xv) Absence of Labor Dispute. No labor dispute with the
employees of the Company or any of its subsidiaries exists or, to the
knowledge of the Company, is imminent, and the Company is not aware of any
existing labor disturbance by the
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employees of any of its or any of its subsidiaries' principal suppliers,
manufacturers, customers or contractors, which, in either case, would
reasonably be expected to result in a Material Adverse Effect.
(xvi) Absence of Proceedings. Except as disclosed in the
Prospectus, there is no action, suit, proceeding, inquiry or investigation
before or by any court or governmental agency or body, domestic or foreign,
now pending or, to the knowledge of the Company, threatened against or
affecting the Company or any of its subsidiaries which could reasonably be
expected to result in a Material Adverse Effect or which might reasonably be
expected to materially and adversely affect the consummation of this
Agreement[, the International Underwriting Agreement] or the Indenture or the
performance by the Company of its obligations hereunder or thereunder. The
aggregate of all pending legal or governmental proceedings to which the
Company or any subsidiary thereof is a party or of which any of their
respective property or assets is the subject which are not described in the
Prospectus, including ordinary routine litigation incidental to the business,
could not reasonably be expected to result in a Material Adverse Effect.
(xvii) Possession of Intellectual Property. The Company
and its subsidiaries own or possess, or can acquire on reasonable terms,
adequate patents, patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable proprietary
or confidential information, systems or procedures), trademarks, service
marks, trade names or other intellectual property (collectively, "Intellectual
Property") necessary to carry on the business now operated by them, and except
as otherwise described in the Prospectus neither the Company nor any of its
subsidiaries has received any notice or is otherwise aware of any infringement
of or conflict with asserted rights of others with respect to any Intellectual
Property or of any facts or circumstances which would render any Intellectual
Property invalid or inadequate to protect the interest of the Company or any
of its subsidiaries therein, and which infringement or conflict (if the
subject of any unfavorable decision, ruling or finding) or invalidity or
inadequacy, singly or in the aggregate, would result in a Material Adverse
Effect.
(xviii) Title to Property. The Company and its subsidiaries
have good and marketable title to all real property owned by them and good
title to all other properties owned by them, in each case, free and clear of
all mortgages, pledges, liens, security interests, claims, restrictions or
encumbrances of any kind except such as (a) are described in the Prospectus or
(b) do not, singly or in the aggregate, materially affect the value of such
property and do not interfere with the use made and proposed to be made of
such property by the Company or any of its subsidiaries; and all of the leases
and subleases material to the business of the Company and its subsidiaries,
considered as one enterprise, and under which the Company or any of its
subsidiaries holds properties described in the Prospectus, are in full force
and effect, and neither the Company nor any of its subsidiaries has any notice
of any material claim of any sort that has been asserted by anyone adverse to
the rights of the Company or any of its subsidiaries under any of the leases
or subleases mentioned above, or affecting or questioning the rights of the
Company or any subsidiary thereof to the continued possession of the leased or
subleased premises under any such lease or sublease.
(xix) Tax Returns. The Company and its subsidiaries have
filed all federal, state, foreign and, to the extent material, local tax
returns that are required to be filed or have duly requested extensions
thereof and have paid all taxes required to be paid by any of them and any
related assessments, fines or penalties, except for any such tax, assessment,
fine or penalty that is being contested in good faith and by appropriate
proceedings; and adequate charges, accruals and reserves have been provided
for in the financial statements referred to in Section 1(a)(v) above in
respect of all federal, state, local and foreign taxes for all periods as to
which the tax liability of the Company or any of its subsidiaries has not been
finally determined or remains open to examination by applicable taxing
authorities.
(xx) Environmental Laws. Except as described in the
Prospectus and except such matters as would not, singly or in the aggregate,
result in a Material Adverse Effect, (A) neither the Company nor any of its
subsidiaries is in violation of any federal, state, local or foreign statute,
law, rule, regulation, ordinance, code, policy or rule of common law or any
judicial or administrative interpretation thereof, including any judicial or
administrative order, consent, decree or judgment, relating
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to pollution or protection of human health, the environment (including,
without limitation, ambient air, surface water, groundwater, land surface or
subsurface strata) or wildlife, including, without limitation, laws and
regulations relating to the release or threatened release of chemicals,
pollutants, contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products (collectively, "Hazardous Materials") or to
the manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Materials (collectively, "Environmental
Laws"), (B) the Company and its subsidiaries have all permits, authorizations
and approvals required under any applicable Environmental Laws and are each in
compliance with their requirements, (C) there are no pending or, to the
Company's knowledge, threatened administrative, regulatory or judicial
actions, suits, demands, demand letters, claims, liens, notices of
noncompliance or violation, investigation or proceedings relating to any
Environmental Law against the Company or any of its subsidiaries and (D) there
are no events or circumstances that would reasonably be expected to form the
basis of an order for clean-up or remediation, or an action, suit or
proceeding by any private party or governmental body or agency, against or
affecting the Company or any of its subsidiaries relating to Hazardous
Materials or Environmental Laws.
(xxi) Investment Company Act. The Company is not, and
upon the issuance and sale of the Securities as herein contemplated and the
application of the net proceeds therefrom as described in the Prospectus will
not be, an "investment company" or an entity "controlled" by an "investment
company" as such terms are defined in the Investment Company Act of 1940, as
amended (the "1940 Act").
(xxii) Certain Disclosures in Prospectus. The statements
set forth in the Prospectus under the caption "Description of the Notes",
insofar as they purport to constitute a summary of the terms of the
Securities, and under the caption "Underwriting", insofar as they purport to
describe the provisions of the laws and documents referred to therein, are
accurate and complete in all material respects[; and the statements set forth
in the Prospectus under the caption "Material United States Federal Income Tax
Consequences", insofar as such statements purport to summarize certain United
States federal income and estate tax consequences of the ownership and
dispensation of the Securities by certain U.S. Holders (as such terms are
defined in the Prospectus) of the Securities, provide a fair summary of such
consequences under current law].
(xxiii) No Manipulation or Stabilization. Neither the
Company nor, to its knowledge, any of its officers, directors or affiliates
has taken and will take, directly or indirectly, any action which is designed
to or which has constituted or which might reasonably be expected to cause or
result in stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
(b) Officer's Certificates. Any certificate signed by any
officer of the Company or any of its subsidiaries delivered to the
Underwriters or to counsel for the Underwriters shall be deemed a
representation and warranty by the Company to each Underwriter as to the
matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Securities. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, [(a)] the Company agrees to issue and sell to each Underwriter,
severally and not jointly, and each Underwriter, severally and not jointly,
agrees to purchase from the Company, at the purchase price and subject to the
other terms set forth in this Agreement and Schedule B hereto, the principal
amount of the [Firm] Securities set forth opposite its name in Schedule A
hereto [and (b) in the event and to the extent that the Underwriters shall
exercise the election to purchase Optional Securities as provided below, the
Company agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company
at the purchase price and subject to the other terms set forth in this
Agreement and Schedule B hereto, the principal amount of the Optional
Securities as to which such election shall have been exercised determined by
multiplying such aggregate principal amount of Optional Securities by a
fraction, the numerator of which is the maximum aggregate principal amount of
Optional Securities which such Underwriter is entitled to purchase as set
forth opposite the name of such Underwriter in Schedule A hereto and the
denominator
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of which is the maximum aggregate principal amount of Optional Securities that
all of the Underwriters are entitled to purchase hereunder].
[The Company hereby grants to the Underwriters the right to purchase
at their election up to [$_________] additional aggregate principal amount [at
stated maturity] of Optional Securities at the purchase price and subject to
the other terms set forth in this Agreement and Schedule B hereto, for the
sole purpose of covering overallotments in the sale of the Firm Securities.
Any such election to purchase Optional Securities may be exercised only by
written notice from the Representatives to the Company, given within a period
of 30 calendar days after the date of this Agreement, setting forth the
aggregate number of Optional Securities to be purchased and the date on which
such Optional Securities are to be delivered, as determined by the
Representatives but in no event earlier than the First Closing Time (as
defined in Section 2(c) hereof) or, unless the Representative and the Company
otherwise agree in writing, earlier than two or later than ten business days
after the date of such notice.]
(b) Terms and Conditions of Sale. Upon the authorization by the
Representatives of the release of the Securities, the several Underwriters
propose to offer the Securities for sale upon the terms and conditions set
forth in the Prospectus.
(c) Closing and Payment. The Securities to be purchased by each
Underwriter hereunder, in definitive form, and in such authorized
denominations and registered in such names as the Representatives may request
upon at least 48 hours' prior notice to the Company shall be delivered by or
on behalf of the Company to the Underwriters, through the facilities of the
Depository Trust Company ("DTC") (unless the Representatives shall otherwise
instruct) for the account of such Underwriter, against payment by or on behalf
of such Underwriter of the purchase price therefor to the Company in funds
specified on Schedule B hereto, all in the manner and at the place and time
and date [with respect to each of the Firm Securities and the Optional
Securities] specified on Schedule B hereto (or at such other place and time
and date as the Representatives and the Company may agree upon in writing
([with respect to the Firm Securities, such place and time and date being
referred to herein as ]the "[First] Closing Time" [and with respect to the
Optional Securities, the "Second Closing Time"]). The Company will cause the
certificates representing the Securities to be made available for checking and
packaging at least twenty-four hours prior to [each of] the [relevant] Closing
Time[s] with respect thereto at the offices of DTC or its designated custodian
(the "Designated Office"). It is understood and agreed that each Closing Time
under this Agreement shall occur simultaneously with each Closing Time under
the International Underwriting Agreement.]
SECTION 3. Covenants.
(a) Covenants of the Company. The Company covenants with each
Underwriter as follows:
(i) Preparation of Prospectus; Notices. To prepare the
Prospectus in a form approved by the Underwriters and to file such Prospectus,
properly completed, and any supplement thereto, pursuant to Rule 424(b) under
the Act not later than the Commission's close of business on the second
business day following the execution and delivery of this Agreement, or, if
applicable, such earlier time as may be required by Rule 424(b) under the Act,
and to provide evidence satisfactory to the Underwriters of such timely
filing; to make or file no further amendment or any supplement to the
Registration Statement or Prospectus as amended or supplemented after the date
of this Agreement relating to the Securities and prior to [each of] the
[relevant] Closing Time[s] for such Securities which shall be disapproved by
the Representatives promptly after reasonable notice thereof; to advise the
Representatives promptly of any such amendment or supplement after such
Closing Time and furnish the Representatives with copies thereof; if the
Company elects to rely upon Rule 462(b), to file a Rule 462(b) Registration
Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m.,
Washington D.C. time, on the date of this Agreement, and the Company shall at
the time of filing either pay to the Commission the filing fee for the Rule
462(b) Registration Statement or give irrevocable instructions for the payment
of such fees as applicable under the Act; to file promptly all reports and any
definitive proxy or information statements required to be filed by the Company
with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act for so long as the
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delivery of a prospectus is required in connection with the offering or sale
of the Securities, and during such same period to advise the Underwriters,
promptly after it receives notice thereof, of the time when the Rule 462(b)
Registration Statement has been filed or becomes effective or the Prospectus
or any amended Prospectus has been filed and to furnish the Underwriters with
copies thereof; to advise the Underwriters, promptly after it receives notice
thereof, of the issuance by the Commission of any stop order or of any order
preventing or suspending the use of the Prospectus, of the suspension of the
qualification of the Securities [or the shares of Class A common stock into
which the Securities are convertible] for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amending or supplementing
of the Registration Statement or Prospectus or for additional information;
and, in the event of the issuance of any stop order or of any order preventing
or suspending the use of any Prospectus or suspending any such qualification,
promptly to use its best efforts to obtain the withdrawal of such order.
(ii) Qualifications of the Securities under State
Securities Laws. Promptly from time to time to take such action as the
Underwriters may reasonably request to qualify the Securities [or the shares
of Class A common stock issuable upon the conversion of such Securities] for
offering and sale under the securities laws of such jurisdictions as they may
request and to comply with such laws so as to permit the continuance of sales
and dealings therein in such jurisdictions for as long as may be necessary to
complete the distribution of the Securities, provided that in connection
therewith the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction.
(iii) Copies of and Amendments to Prospectus and
Supplements. Except as otherwise agreed, prior to 12:00 noon on the New York
Business Day next succeeding the date of this Agreement, to furnish the
Underwriters with copies of the Prospectus in New York City in such quantities
as the Underwriters may reasonably request, and, if the delivery of a
Prospectus is required at any time prior to the expiration of nine months
after the time of issue of the Prospectus in connection with the offering or
sale of the Securities [or the shares of Class A common stock into which the
Securities are convertible] and if at such time any event shall have occurred
as a result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is delivered,
not misleading, or, if for any other reason it shall be necessary during such
period to amend or supplement the Prospectus in order to comply with the Act,
to notify the Underwriters and upon their request to prepare and furnish
without charge to each Underwriter and to any dealer in securities as many
copies as the Underwriters may from time to time reasonably request of an
amended Prospectus or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance, and in case any Underwriter
is required to deliver a Prospectus in connection with sales of any of the
Securities at any time nine months or more after the time of issue of the
Prospectus, upon the Underwriters' request but at the expense of such
Underwriter, to prepare and deliver to such Underwriter as many copies as the
Underwriters may request of an amended or supplemented Prospectus complying
with Section 10(a)(3) of the Act. The Company will advise the Underwriters
promptly of any proposal to amend or supplement the Prospectus and will not
effect such amendment or supplement without the consent of the Underwriters.
Neither the consent of the Underwriters, nor the Underwriter's delivery of any
such amendment or supplement, shall constitute a waiver of any of the
conditions set forth in Section 5 hereof.
(iv) Investment Company. Not to be or become, at any
time prior to the expiration of three years after the [relevant] Closing Time,
an open-end investment company, unit investment trust, closed-end investment
company or face-amount certificate company that is or is required to be
registered under Section 8 of the 1940 Act.
[(v) Information to the Underwriters. During a period of
five years from the effective date of the Registration Statement, to furnish
to the Underwriters copies of all reports or other communications (financial
or other) furnished to stockholders and to deliver to the Underwriters such
additional information concerning the business and financial condition of the
Company as the Underwriters may from time to time reasonably request (such
financial statements to be on a consolidated basis to
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the extent the accounts of the Company and its subsidiaries are consolidated
in reports furnished to its stockholders generally or to the Commission).]
(vi) Use of Proceeds. To use the net proceeds received
by it from the sale of the Securities pursuant to this Agreement [and the
International Underwriting Agreement] in the manner specified in the
Prospectus under the caption "Use of Proceeds".
(viii) Earning Statement. To make generally available to
its stockholders as soon as practicable, but in any event not later than the
45th day following the end of the fiscal quarter first occurring after the
first anniversary of the date of the Underwriting Agreement, as that date is
specified on Schedule B hereto, (as defined in Rule 158(c) under the Act), an
earning statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Act and the rules and regulations
thereunder (including, at the option of the Company, Rule 158).
[(ix) Lock-Up. During the period beginning from the date
of the Underwriting Agreement, as that date is specified on Schedule B hereto,
and continuing for the duration of the lock-up period specified on Schedule B
hereto (the "Lock-Up Period"), not to offer, sell, contract to sell or
otherwise dispose of, directly or indirectly, or announce an offering of,
except as provided hereunder [or under the International Underwriting
Agreement], any [______] securities of the Company in an offering to the
public or in a private offering where holders of the [_____] securities are
granted rights to have such debt securities registered under the Act, [or to
exchange such securities for other debt securities that are so registered]
[or, in the event the Securities are convertible into shares of Class A common
stock, shares of Class A common stock or any securities convertible into or
exchangeable for Shares other than (i) grants of options and issuances and
sales of Class A common stock issued pursuant to any employee or director
stock option plan, stock ownership plan, 401(k) savings and retirement plan,
or stock purchase plan in effect on the date of this Agreement, (ii) issuances
of Class A common stock upon the conversion of securities or the exercise of
warrants outstanding on the date of this Agreement, (iii) issuance of Class B
common stock upon exercise of options outstanding on the date of this
Agreement, (iv) issuance of common stock pursuant to agreements in effect on
the date of this Agreement (which issuances will not involve the issuance of a
material amount of shares of common stock) or (v) issuance of common stock in
connection with acquisitions.]
[(b) Covenants of the Underwriters.
Each Underwriter agrees that:
(i) it is not purchasing any of the Securities for the
account of any person other than a United States or Canadian Person;
(ii) it has not offered or sold, and will not offer or
sell, directly or indirectly, any of the Securities and has not distributed
and will not distribute any Prospectus to any person outside the United States
or Canada, or to any person other than a United States or Canadian Person; and
(iii) any dealer to whom it may sell any of the
Securities will represent that it is not purchasing for the account of any
person other than a United States or Canadian Person and agree that it will
not offer or resell, directly or indirectly, any of the Securities outside 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 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 [_______________] (or through the
Representatives [and International Representatives]) as a part of the
distribution of the Securities, and (C) sales to or through (or distributions
of Prospectuses or Preliminary Prospectuses to) persons who are United States
or Canadian Persons who are investment advisors, or who otherwise exercise
investment discretion,
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and who are purchasing for the account of any persons who are not United
States or Canadian Persons.
The agreements of the Underwriters set forth in this paragraph (b) of
Section 3 shall terminate upon the earlier of the following events:
(i) a mutual agreement of the Representatives and the
U.S. Representatives to terminate the selling restrictions set forth in this
paragraph (b) of this Section 3 [and in Section 3(b) of the International
Underwriting Agreement]; or
(ii) the expiration of a period of 30 days after [each
of] the [relevant] Closing Time[s], unless (A) the Representatives shall have
given notice to the Company and the International Representatives that the
distribution of the Securities by the Underwriters has not yet been
completed[, or (B) the International Representatives shall have given notice
to the Company and the Underwriters that the distribution of the Securities by
the International Underwriters has not yet been completed]. If such notice by
[the International Representatives or] the Representatives is given, the
agreements set forth in such paragraph (b) shall survive until the earlier of
(1) the event referred to in the immediately preceding clause (i) of this
paragraph (b) or (2) the expiration of an additional period of 30 days from
the date of any such notice.
"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.]
SECTION 4. Payment of Expenses.
(a) Expenses. The Company covenants and agrees with the several
Underwriters that the Company will pay or cause to be paid the following: (i)
the fees, disbursements and expenses of the Company's counsel and accountants
in connection with the registration of the Securities under the Act and all
other expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or
reproducing any Agreement among Underwriters, this Agreement, [the
International Underwriting Agreement, the Agreement Between U.S. Underwriters
and International Underwriters,] the Indenture, closing documents (including
any compilations thereof) and any other documents in connection with the
offering, purchase, sale and delivery of the Securities; (iii) all expenses in
connection with the qualification of the Securities for offering and sale
under state securities laws as provided in Section 3(b) hereof, including the
fees and disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky survey, (iv) any fees
charged by securities rating services for rating the Securities, (v) the
filing fees incident to, and the fees and disbursements of counsel for the
Underwriters in connection with, securing any required review by the National
Association of Securities Dealers, Inc. of the terms of the sale of the
Securities; (vi) the cost of preparing the Securities; (vii) the cost and
charges of any transfer agent or registrar and of DTC; (viii) the fees and
expenses of the Trustee and any agent of the Trustee and the fees and
disbursements of counsel for the Trustee in connection with the Indenture and
the Securities, and (ix) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section. It is understood, however, that, except as
provided in this Section, and Sections 6 and 7 hereof, the Underwriters will
pay all of their own costs and expenses, including the fees of their counsel,
transfer taxes on resale of any of the Securities by them, and any advertising
expenses connected with any offers they may make.
(b) Termination of Agreement. If this Agreement is terminated by
the Underwriters in accordance with the provisions of Section 5 or Section
9(a)(i) hereof,
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the Company shall reimburse the Underwriters for all of their out-of-pocket
expenses, including the reasonable fees and disbursements of counsel for the
Underwriters.
SECTION 5. Conditions of Underwriters' Obligations.
The obligations of the several Underwriters hereunder, as to the
Securities to be delivered at [each of] the [relevant] Closing Time[s], are
subject to the accuracy, at and as of such Closing Time, of the
representations and warranties of the Company contained in Section 1 hereof or
in certificates of any officer of the Company or any of its subsidiaries
delivered pursuant to the provisions hereof, to the performance by each of the
Company of its covenants and other obligations hereunder, and to the following
further conditions:
(a) Filing of Prospectus. The Prospectus as amended or
supplemented in relation to the applicable Securities shall have been filed
with the Commission pursuant to Rule 424(b) within the applicable time period
prescribed for such filing by the rules and regulations under the Act and in
accordance with Section 3(a)(i) hereof; if the Company has elected to rely
upon Rule 462(b), the Rule 462(b) Registration Statement shall have become
effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement;
no stop order suspending the effectiveness of the Registration Statement or
any part thereof shall have been issued and no proceeding for that purpose
shall have been initiated or threatened by the Commission; and all requests
for additional information on the part of the Commission shall have been
complied with to the Representatives' reasonable satisfaction;
(b) Opinion of Counsel for Company. At [each of] the [relevant]
Closing Time[s], the Underwriters shall have received the favorable opinion,
dated as of the [relevant] Closing Time, of Xxxxx Day Xxxxxx & Xxxxx, counsel
for the Company, in form and substance satisfactory to counsel for the
Underwriters, to the effect set forth in [Exhibit A] hereto, and to such
further effect as counsel to the Underwriters may reasonably request.
(c) Opinion of Counsel for Underwriters. At [each of] the
[relevant] Closing Time[s], the Underwriters shall have received the favorable
opinion, dated as of the [relevant] Closing Time, of [____________], counsel
for the Underwriters, with respect to the incorporation of the Company, the
Indenture, the validity of the Securities being delivered at the Closing Time,
the Registration Statement, the Prospectus and such other related matters as
the Underwriters may reasonably request. In giving such opinion such counsel
may rely, as to all matters governed by the laws of jurisdictions other than
the law of the State of New York and the federal law of the United States,
upon the opinions of counsel satisfactory to the Underwriters. Such counsel
may also state that, insofar as such opinion involves factual matters, they
have relied, to the extent they deem proper, upon certificates of officers of
the Company and its subsidiaries and certificates of public officials.
(d) Officers' Certificate. At [each of] the [relevant] Closing
Time[s], there shall not have been, since the date hereof or since the date of
the most recent financial statements included in the Prospectus (exclusive of
any supplement thereto), any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise,
whether or not arising from transactions in the ordinary course of business
except as set forth in the Prospectus (exclusive of any supplement thereto),
and the Underwriters shall have received certificates of the Chairman of the
Board, the President or a Vice President of the Company and of the chief
financial or chief accounting officer of the Company, satisfactory to the
Underwriters, to the effect that, at and as of such Closing Time, (i) they
have carefully examined the Registration Statement, the Preliminary
Prospectus, the Prospectus and any supplements thereto and this Agreement,
(ii) there has been no such material adverse change, (iii) the representations
and warranties of the Company in Section 1 hereof are true and correct in all
material respects on and as of the Closing Time with the same force and effect
as though expressly made at and as of such Closing Time, (iv) the Company has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to such Closing Time, and (v) 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.
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(e) Accountant's Comfort Letter. On the date of this Agreement
at a time prior to the execution of this Agreement, the Underwriters shall
have received from Xxxxxx Xxxxxxxx LLP a letter or letters dated the effective
date of the Registration Statement or the date of the most recent report filed
with the Commission containing financial statements and incorporated by
reference in the Registration Statement, if the date of such report is later
than such effective date, in form and substance satisfactory to the
Underwriters, containing statements and information of the type ordinarily
included in accountants' "comfort letters" to the Underwriters with respect to
the financial statements and certain financial information contained in the
Prospectus.
(f) Bring-down Comfort Letter. At [each of] the [relevant]
Closing Time[s], the Underwriters shall have received from Xxxxxx Xxxxxxxx LLP
a letter, dated as of the [relevant] Closing Time, to the effect that they
reaffirm the statements made in the letter furnished pursuant to subsection
(e) of this Section 5, except that the specified date referred to shall be a
date not more than three business days prior to such Closing Time.
(g) No Material Adverse Change in Business. Since the date of
the latest audited financial statements included or incorporated by reference
in the Prospectus as amended prior to the date of this Agreement (1) there has
been no Material Adverse Effect, whether or not arising in the ordinary course
of business, (2) there have been no transactions entered into by the Company
or any of its subsidiaries, other than those in the ordinary course of
business, which are material with respect to the Company and its subsidiaries
considered as one enterprise (3) there has been no dividend or distribution of
any kind, declared, paid or made by the Company on any class of its capital
stock, except for those declared, paid or made on the preferred stock of the
Company outstanding as of the date hereof [and as otherwise described on
Schedule D hereto] and (4) there has been no change or decrease specified in
the letters referred to in Section 5(e) and 5(f) above, the effect of which,
in any case referred to in clauses (1) through (4) above, is, in the sole
judgment of the Underwriters, so material and adverse as to make it
impractical or inadvisable to proceed with the offering or delivery of the
Securities as contemplated by the Prospectus relating to the Securities.
(h) Maintenance of Rating. On or after the date of this
Agreement, there shall not have occurred a downgrading in the rating assigned
to the Company's debt securities or preferred stock by any nationally
recognized securities rating agency, and no such securities rating agency
shall have publicly announced that it has under surveillance or review, with
possible negative implications, its rating of any of the Company's debt
securities or preferred stock.
(i) Delivery of Prospectuses. The Company shall have complied
with the provisions of Section 3(a)(iii) hereof with respect to the furnishing
of Prospectuses on the New York Business Day next succeeding the date of this
Agreement.
(j) Adequate Disclosure of Litigation. There is no litigation or
governmental or other action, suit, claim, proceeding or investigation before
any court or any public, regulatory or governmental agency or body, pending
or, to the best of the Company's knowledge, threatened against the Company or
any of its subsidiaries or any of their respective officers (in their capacity
as officers of the Company or such subsidiaries) or any of the properties,
assets, business or rights of the Company or such subsidiaries which is of a
character required to be disclosed in the Registration Statement and
Prospectus which is not disclosed therein.
(k) Additional Documents. At [each of] the [relevant] Closing
Time[s]: (i) the Company shall have furnished to the Underwriters such further
information, certificates and documents as the Underwriters may reasonably
request; (ii) counsel for the Underwriters shall have been furnished with such
documents and opinions as they may require for the purpose of enabling them to
pass upon the issuance and sale of the Securities as herein contemplated, or
in order to evidence the accuracy of any of the representations or warranties,
or the fulfillment of any of the conditions, herein contained; and (iii) all
proceedings taken by the Company in connection with the issuance and sale of
the Securities as herein contemplated shall be satisfactory in form and
substance to the Underwriters and counsel for the Underwriters.
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(l) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled,
this Agreement may be terminated by the Underwriters by notice to the Company
at any time at or prior to the [relevant] Closing Time, and such termination
shall be without liability of any party to any other party except as provided
in Section 4 and except that Sections 1, 6 and 7 shall survive any such
termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Company agrees to
indemnify and hold harmless each Underwriter, the directors, officers,
employees and agents of each Underwriter and each person, if any, who controls
any Underwriter within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act against any and all losses, liabilities (joint or several),
claims, damages and expenses whatsoever, 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 any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended
or supplemented and any other prospectus relating to the Securities, or any
amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission therefrom of a material fact required to be
stated therein or necessary in order to make the statements therein not
misleading, and agrees to reimburse each such indemnified party, as incurred,
for any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is
based upon any such untrue statement or alleged untrue statement or omission
or alleged omission made therein in reliance upon and in conformity with
written information furnished to the Company by or on behalf of any
Underwriter through the Underwriters specifically for inclusion therein. This
indemnity agreement will be in addition to any liability which the Company may
otherwise have.
(b) Indemnification of Company, Directors and Officers. Each
Underwriter severally agrees to indemnify and hold harmless the Company, each
of its directors, each of its officers who sign the Registration Statement
(including any person who, with his or her consent, is named in the
Registration Statement as about to become a director of the Company) and each
person, if any, who controls the Company within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act against any and all losses,
liabilities (joint or several), claims, damages and expenses described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to written information furnished to the Company by such
Underwriter through the Representatives specifically for inclusion in the
documents referred to in the foregoing indemnity.
(c) Actions against Parties; Notification. Each indemnified
party shall give written notice as promptly as reasonably practicable to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party (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
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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. It is understood that the indemnifying
party shall, in connection with any proceeding or related proceedings in the
same jurisdiction, be liable only for the fees and expenses of one separate
firm (in addition to local counsel) for all such indemnified parties. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever
in respect of which indemnification or contribution could be sought under this
Section 6 or Section 7 hereof (whether or not the indemnified parties are
actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from
all liability arising out of such litigation, investigation, proceeding or
claim; provided, that such unconditional release may be subject to a parallel
release of a claimant or plaintiff by such indemnified party from all
liability in respect of claims or counterclaims asserted by such indemnified
party and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any indemnified party.
SECTION 7. Contribution.
If the indemnification provided for in Section 6 hereof is for any
reason unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses (including legal or
other expenses reasonably incurred in connection with investigating or
defending same) incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other hand from the
offering of the Securities pursuant to this Agreement (provided that in no
case shall any Underwriter (except as may be provided in any agreement among
underwriters relating to the offering of the Securities) be responsible for
any amount in excess of the underwriting discount or commission applicable to
the Securities purchased by such Underwriter hereunder) or (ii) if the
allocation provided by clause (i) is unavailable for any reason, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and of the Underwriters on the other hand in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by
the Company bear to the total underwriting discounts and commissions received
by the Underwriters.
The relative fault of the Company on the one hand and the
Underwriters on the other hand shall be determined by reference to, among
other things, whether any such untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct
or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to above in this Section 7.
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Notwithstanding the provisions of this Section 7, no Underwriter
shall be required to contribute any amount in excess of the amount by which
the total price at which the Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, 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 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act shall have the same rights to contribution as such Underwriter,
and each person, if any, who controls the Company within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act shall have the same
rights to contribution as the Company. The Underwriters' respective
obligations to contribute pursuant to this Section 7 are several in proportion
to the number of Securities set forth opposite their respective names in
Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this
Agreement, or in certificates of officers of the Company submitted pursuant
hereto, shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or controlling person,
or by or on behalf of the Company, and shall survive delivery of the
Securities to the Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. This Agreement shall be subject to
termination in the absolute discretion of the Underwriters, by notice given to
the Company prior to delivery of and payment for the Securities, if at any
time prior to such time (i) trading in the Company's Class A 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
such Exchange or NASDAQ, (ii) a banking moratorium shall have been declared
either by Federal or New York State authorities or (iii) there shall have
occurred, subsequent to the signing hereof, 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 sole judgment of the Underwriters, impractical or
inadvisable to proceed with the offering or delivery of the Securities as
contemplated by the Prospectus.
(b) Liabilities. If this Agreement is terminated pursuant to
this Section, such termination shall be without liability of any party to any
other party except as provided in Section 4 hereof, and provided further that
Sections 1, 6 and 7 shall survive such termination and remain in full force
and effect.
SECTION 10. Default by One or More of the Underwriters.
If any one or more of the Underwriters shall fail to purchase and pay
for any of the Securities agreed to be purchased by such Underwriter or
Underwriters hereunder and such failure to purchase shall constitute a default
in the performance of its or their obligations under this Agreement, the
remaining Underwriters shall be obligated severally to take up and pay for (in
the respective proportions which the amount of Securities set forth opposite
their names in Schedule A hereto bears to the aggregate amount of Securities
set forth opposite the names of all the remaining Underwriters) the Securities
which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
Securities which the defaulting Underwriter or Underwriters agreed but failed
to purchase shall exceed 10% of the aggregate amount of Securities set forth
in Schedule A hereto, the remaining Underwriters shall have the right to
purchase all, but shall not be under any obligation to purchase any, of the
Securities, and if such nondefaulting Underwriters do not purchase all of the
Securities, this Agreement will terminate without liability to any
nondefaulting Underwriter or the Company. In the event of a
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default by any Underwriter as set forth in this Section 10, the [relevant]
Closing Time shall be postponed for such period, not exceeding five Business
Days, as the Underwriters shall determine in order that the required changes
in the Registration Statement and the Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall
relieve any defaulting Underwriter of its liability, if any, to the Company
and any nondefaulting Underwriter for damages occasioned by its default
hereunder.
SECTION 11. Reliance; Notices.
In all dealings hereunder, the Representatives shall act on behalf of
each of the Underwriters, and the parties hereto shall be entitled to act and
rely upon any statement, request, notice or agreement on behalf of any
Underwriter made or given by such Representatives jointly or by [____________]
on their behalf.
All statements, requests, notices and agreements hereunder shall be
in writing, and if to the Underwriters shall be delivered or sent by mail,
telex or facsimile to the Representative at its address set forth in Schedule
B hereto; and if to the Company shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the
Prospectus, Attention: General Counsel; provided, however, that any notice to
an Underwriter pursuant to Section 6(c) hereof shall be delivered or sent by
mail, telex or facsimile transmission to such Underwriter at its address set
forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by the
Underwriters upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
SECTION 12. Parties.
This Agreement shall inure to the benefit of and be binding upon the
Underwriters, the Company and their respective successors. Nothing expressed
or mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the Underwriters, the Company and
their respective successors and the controlling persons and officers and
directors referred to in Sections 6 and 7 and their heirs and legal
Underwriters, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement
and all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriters, the Company and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal Underwriters, and for the benefit of no other person, firm or
corporation. No purchaser of Securities from any Underwriter shall be deemed
to be a successor by reason merely of such purchase.
SECTION 13. Time of the Essence.
Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
SECTION 14. GOVERNING LAW AND TIME.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK. SPECIFIED TIMES OF DAY REFER TO NEW YORK
CITY TIME.
SECTION 15. Effect of Headings.
The Section headings herein are for convenience only and shall not
affect the construction hereof.
SECTION 16. Counterparts.
This Agreement may be executed by any one of more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, and
upon the acceptance
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hereof by [____________], on behalf of each of the Underwriters, this letter
and such acceptance hereof shall constitute a binding agreement between each
of the Underwriters and the Company. It is understood that your acceptance of
this letter on behalf of each of the Underwriters is pursuant to the authority
set forth in a form of Agreement among [U.S.] Underwriters, the form of which
shall be submitted to the Company for examination upon request, but without
warranty on your part as to the authority of the signers thereof.
Very truly yours,
XO Communications, Inc.
By:--------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
[ ]
[ ]
[ ]
[ ]
By: [ ]
By:[-----------------------------------------]
Name:
Title:
For themselves and on behalf of the other Underwriters named in Schedule A
hereto.
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SCHEDULE A
Aggregate Principal Amount Aggregate Principal Amount [At
[At Stated Maturity] of [Firm] Securities Stated Maturity] of [Optional]
Underwriter to be Purchased Securities to be Purchased
----------- --------------- --------------------------
Total............................. $ $
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SCHEDULE B
SECURITIES
UNDERWRITING AGREEMENT dated __________, 200_.
REGISTRATION STATEMENT NO. 333-______
REPRESENTATIVE[S] AND ADDRESS(ES):
SECURITIES:
TITLE:
AGGREGATE PRINCIPAL AMOUNT:
[FIRM:]
[OPTIONAL:]
PRICE TO THE PUBLIC:
[__]% of the principal amount of the Securities, plus accrued
interest[, if any,] from [_______] to [_____]
PURCHASE PRICE BY UNDERWRITERS:
[__]% of the principal amount of the Securities, plus accrued
interest[, if any,] from [______] to [______]
SPECIFIED FUNDS
[Federal (same day)]
[New York Clearing House (next day)] funds
TIME OF DELIVERY:
[__] a.m. on [__________], 200_, at [________] to be made available
for checking and packaging at the office of [__________________] at
least 24 hours prior to the [relevant] Closing Time.
PRE-CLOSING: [_____]p.m. on [__________], 200[__], at [____________].
MATURITY:
INTEREST RATE:
INTEREST PAYMENT DATES:
REDEMPTION PROVISIONS:
[No provisions for redemption]
[The Securities may be redeemed, otherwise than through the sinking
fund, in whole or in part at the option of the Company, in the amount
of [$__] of an integral multiple thereof,
[on or after [_________,___] at the following redemption prices
(expressed in percentage of principal amount). If [redeemed on or
before [_________,___], [__]%, and if] redeemed during the 12-month
period beginning [__________,__],
Year Redemption Price
---- ----------------
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and thereafter at 100% of their principal amount, together in each
case with accrued interest to the redemption date.]
[on any interest payment date falling on or after [_________,___] at
the election of the Company, at a redemption price equal to the
principal amount thereof, plus accrued interest to date of the
redemption.]]
[Other possible redemption provisions, such as mandatory redemption
upon occurrence of certain events or redemption for changes in tax
law]
SINKING FUND PROVISIONS:
[No sinking fund provisions]
[The Securities are entitled to the benefit of a sinking fund to
retire [$__] principal amount of Securities on in each of the years
through [________] at 100% of their principal amount plus accrued
interest[, together with [cumulative] [noncumulative] redemptions at
the option of the Company to retire an additional [$__] principal
amount of Securities in the years [__] through [__] at 100% of their
principal amount plus accrued interest.]
[LOCK-UP PERIOD: ____________________]
[CONVERTIBLE TERMS:]
[The Securities are convertible into shares of [Class A common stock]
at a rate of [___] shares of Class A common stock per $1,000
principal amount of the Securities or a conversion price of
approximately [$_____] per share. The conversion rate is subject to
adjustment in certain events.]
[OTHER TERMS:]
The aggregate principal amount of the Securities to be purchased by
each of the Underwriters are set forth opposite their names in Schedule A
hereto.
The Securities will be made available for checking and packaging at
the office of ______________________ at least 24 hours prior to the Closing
Date.
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SCHEDULE C
INTERNATIONAL SECURITIES
UNDERWRITING AGREEMENT dated __________, 200_.
REGISTRATION STATEMENT NO. 333-______
REPRESENTATIVE[S] AND ADDRESS(ES):
SECURITIES:
TITLE:
AGGREGATE PRINCIPAL AMOUNT:
[FIRM:]
[OPTIONAL:]
PRICE TO THE PUBLIC:
[__]% of the principal amount of the Securities, plus accrued
interest[, if any,] from [_______] to [_____]
PURCHASE PRICE BY UNDERWRITERS:
[__]% of the principal amount of the Securities, plus accrued
interest[, if any,] from [______] to [______]
SPECIFIED FUNDS
[Federal (same day)]
[New York Clearing House (next day)] funds
TIME OF DELIVERY:
[__] a.m. on [__________], 200_, at [________] to be made available for
checking and packaging at the office of [__________________] at least
24 hours prior to the [relevant] Closing Time.
PRE-CLOSING: [_____]p.m. on [__________], 200[__], at [____________].
MATURITY:
INTEREST RATE:
INTEREST PAYMENT DATES:
REDEMPTION PROVISIONS:
[No provisions for redemption]
[The Securities may be redeemed, otherwise than through the sinking
fund, in whole or in part at the option of the Company, in the amount
of [$__] of an integral multiple thereof,
[on or after [_________,___] at the following redemption prices
(expressed in percentage of principal amount). If [redeemed on or
before [_________,___], [__]%, and if] redeemed during the 12-month
period beginning [__________,__],
Year Redemption Price
---- ----------------
and thereafter at 100% of their principal amount, together in each
case with accrued interest to the redemption date.]
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[on any interest payment date falling on or after [_________,___] at
the election of the Company, at a redemption price equal to the
principal amount thereof, plus accrued interest to date of the
redemption.]]
[Other possible redemption provisions, such as mandatory redemption
upon occurrence of certain events or redemption for changes in tax
law]
SINKING FUND PROVISIONS:
[No sinking fund provisions]
[The Securities are entitled to the benefit of a sinking fund to
retire [$__] principal amount of Securities on in each of the years
through [________] at 100% of their principal amount plus accrued
interest[, together with [cumulative] [noncumulative] redemptions at
the option of the Company to retire an additional [$__] principal
amount of Securities in the years [__] through [__] at 100% of their
principal amount plus accrued interest.]
[LOCK-UP PERIOD: ____________________]
[CONVERTIBLE TERMS:]
[The Securities are convertible into shares of [Class A common stock]
at a rate of [___] shares of [Class A common stock] per $1,000
principal amount of the Securities or a conversion price of
approximately [$_____] per share. The conversion rate is subject to
adjustment in certain events.]
[OTHER TERMS:]
The respective numbers of shares of the Securities to be purchased by
each of the Underwriters are set forth opposite their names in Schedule A
hereto.
The Securities will be made available for checking and packaging at
the office of ______________________ at least 24 hours prior to the Closing
Date.
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[SCHEDULE D]
[OUTSTANDING PREFERRED STOCK]
24
